File: ST-2017-005804
Type: Strata
Civil Resolution Tribunal
Indexed as: Boyne v. The Owners, Strata Plan EPS 1910, 2018 BCCRT 607
Between:
Summer Boyne
Applicant
And:
The Owners, Strata Plan EPS 1910
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Mary Childs |
INTRODUCTION
1. The applicant, Summer Boyne (owner) is co-owner of a unit in the respondent strata corporation, The Owners, Strata Plan EPS 1910 (strata). She is self-represented. The strata is represented by a member of the strata council. The owner is unhappy with the way the strata council has been operating, and wants many of its decisions to be overturned. She also wants the current council members to be removed and banned from running for re-election.
JURISDICTION AND PROCEDURE
2. These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
3. The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.
4. The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.
5. Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make order a party to do or stop doing something, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.
ISSUES
6. The issues in this dispute are:
a. Did the strata contravene the Strata Property Act (SPA), its bylaws, or any applicable rules?
b. If it did, what are the consequences?
BACKGROUND AND EVIDENCE
7. The applicant’s Dispute Notice states one broad claim: that the strata is not adhering to applicable legislation. She then lists thirteen specific claims, which I summarise as follows:
a. strata council members would not agree to immediately inform themselves about all applicable legislation;
b. strata council members would not agree to immediately comply with all applicable laws, strata bylaws and rules;
c. strata did not provide a newsletter for residents;
d. strata did not seek approval of owners for alterations to common property;
e. strata violated privacy laws by holding a council meeting at a restaurant;
f. strata used its funds inappropriately to buy food for council meetings;
g. strata made purchases over $2,000 without the approval of owners as required by the SPA;
h. strata wrongfully cut off central air ventilation to part of the parkade;
i. strata wrongfully installed a video surveillance system;
j. strata failed to install a bulletin board for residents to use;
k. strata council members have not acted honestly and in good faith with a view to the best interests of the strata, and have not met their duty of care to act as a reasonably prudent person would in similar circumstances;
l. strata has failed to provide records to the owner when requested;
m. strata will not allow owners to converse and meet.
8. The owner has the burden of proving her claims on a balance of probabilities. The evidence provided by the owner includes many photographs and documents. I have reviewed all the evidence submitted by the parties but will only refer to the evidence which is necessary for my decision.
POSITION OF THE PARTIES
9. The owner argues that the strata council members are not doing their job properly, and asks that they be ordered to resign, then replaced with new council members. She asks that the tribunal make an order prohibiting the current council members from ever running again for election to council. The owner also wants to the tribunal to overturn a number of decisions made by the strata with respect to matters ranging from parkade ventilation and landscaping to providing food at council meetings.
10. The owner also asks that I order the strata to reimburse her for her tribunal fees.
11. The strata says its council members are doing their best as volunteers with the resources available to them. It says that it has not violated any laws or bylaws.
12. The strata asks that I dismiss the owner’s claims.
ANALYSIS
13. For the reasons set out below, I dismiss all the owner’s claims. I will briefly discuss them, generally in the order listed above. Some claims are discussed together because they involve the same legal issues.
Council not agreeing to inform themselves of, and abide by, all applicable laws
14. The strata and its council members are obliged to act in compliance with applicable laws, whether they expressly agree to or not. There is no reason for the tribunal to order them to do something which is already the law. I dismiss this claim.
Newsletter, bulletin board and social events
15. The owner says that the strata is not doing enough to communicate with residents, and to make it easier for them to communicate with each other.
16. She asks for orders that the strata create a newsletter for residents and provide a bulletin board for residents. She also claims that the strata is not allowing owners to meet and converse. The basis for this claim is that the strata did not organise a social event at her request. The strata says its volunteers do not have the time to create a newsletter. It also says it provided a bulletin board. The board is behind glass but a resident can have items posted by contacting the caretaker. This is confirmed by the owner’s evidence: she submitted a photograph of the bulletin board. The strata says it held a social gathering at the owner’s request but only ten people attended, six of them council members and two of them the owner and her partner.
17. There is no evidence to support the owner’s claim that the strata is preventing owners from meeting. The owner is free to organise her own social events if she wishes. The strata is not obliged to host such events. I dismiss this claim.
18. There is no legal requirement for the strata to provide either a newsletter or a bulletin board. I dismiss those claims.
Alterations to common property
19. The owner says the strata made a number of alterations to common property without either discussing them with owners or obtaining owner approval. She lists a number of these alterations, including landscaping changes, using a workshop as a storage space, and renting visitor parking stalls.
20. The SPA requires a strata corporation to seek owner approval before making a significant change to the use or appearance of common property. Planting shrubs and other plants on common property has been found not to constitute a significant change: Reid v. Strata Plan LMS 2503, 2003 BCCA 126. The strata says the landscaping work was not a significant change but was repair work done after damage caused by snow and salt. The landscaping was done, as much as possible, to restore the area to its original appearance. I find that the landscaping was not a significant change.
21. Renting out visitor parking stalls is permitted under the SPA if the stalls are common property and no contrary instructions have been imposed by the owners under s.27 of the SPA. The stalls in this case were common property, and the strata says the decision to rent some of those stalls was approved by the owners at an AGM. I accept the submission of the strata and dismiss this claim.
22. The strata says it has not made any significant changes to the use or appearance of amenities or other common property, including the workshop. Many of the owner’s complaints seem to be that common areas were not maintained or cleaned as well as she would like. She also says owner approval should have been obtained for upgrading doors to mailboxes. I find that these changes were not significant and owner approval was not required. I dismiss this claim.
Parkade ventilation
23. The owner says the strata shut off central air ventilation to parts of the parkade. She asks for an order that the strata restore that ventilation.
24. The strata is legally obliged to maintain and repair common property, including the parkade. Evidence provided by the strata shows that it responded to the owner’s complaints about airflow by engaging technicians to check the system. This contradicts the owner’s allegation that strata deliberately cut off parkade ventilation. I dismiss this claim.
Council meeting at restaurant
25. The strata held one council meeting at a local restaurant. It did so because the amenity room in the building was double booked and no resident was willing to hold the meeting in their unit. The owner says this was a breach of the Personal Information Protection Act (PIPA) because private strata business may have been discussed at a public restaurant. She asks that the tribunal order the strata to comply with all relevant privacy laws when holding strata meetings.
26. The strata says no identifying personal information of owners or residents was discussed in that meeting, and no privacy laws were violated.
27. The owner has not proven that any privacy breaches or improprieties occurred at this meeting. Although holding a council meeting in a restaurant could be considered undesirable, there is no evidence that on this occasion any breaches of the law occurred. The SPA does not prohibit such a meeting. The owner has not proven that PIPA was breached. Furthermore, PIPA provides that decisions about PIPA breaches are to be made by the Privacy Commissioner. Other bodies such as courts or tribunals do not have jurisdiction to rule on claims that PIPA has been breached: Wong v. AA Property Management Ltd., 2013 BCSC 1551. I dismiss this claim.
Video Cameras
28. The owner says the strata installed an improper video surveillance system. She has a detailed list of complaints about the location of the cameras, the location of monitors, and other matters. She says the security system was not adequately discussed with owners, and does not comply with PIPA.
29. The strata says the security system was installed by the developer and therefore did not require owner approval. Ports were left in the system for additional cameras, which were installed through the approved security budget.
30. There is no specific requirement in the SPA that owners approve the installation and operation of security systems. Significant alterations to common property require approval. Approval is also required for the expense. I accept the strata’s submission that the security system was part of the original construction of the building. Adding more cameras to existing ports was not, I find, a significant change. I accept the strata’s submission that the cost of additional cameras was part of an approved budget. I decline to make an order interfering with the decision to install those cameras.
31. The strata provided a copy of its privacy policy. I do not accept the owner’s claim that there is no such policy.
32. As for the system’s compliance with PIPA, I have noted above that this tribunal does not have jurisdiction to rule on claims that PIPA has been breached. I dismiss this claim.
Providing records
33. The owner says the strata has not complied with its obligation under the SPA to give her access to records. Emails submitted by the strata show that it offered to give her access to records on various occasions, or to provide them by email, but the owner would not agree to any of the proposed access times. I find that the strata made reasonable efforts to accommodate the owner’s request. I find the owner has not viewed the records because she has not cooperated with the strata manager. I dismiss this claim.
Use of strata funds
34. The owner says the strata used funds improperly when it bought food for council meetings and that it spent funds over $2,000 without the approval of owners. The strata says all amounts spent were in the budget approved by the owners.
35. The owner has not provided convincing evidence that the strata made any expenditures which were not included in the budget. I accept the strata’s submission and dismiss these claims.
Breaches of duty by council members
36. The owner has made broad claims that the members of the strata council have breached their duties to the strata. Those duties are to (a) act honestly and in good faith with a view to the best interests of the strata corporation, and (b) exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances. In support of her claim the owner lists many decisions of the strata with which she disagrees.
37. The strata says its council members are volunteers doing their best to manage a building which has been plagued with problems and in which the owners are reluctant to approve strata fees high enough to cover more than basic maintenance costs.
38. The SPA does not require council members to be perfect. They cannot please all owners and must do their best with the resources and information available to them. The evidence before me does not show that the council members breached their duties. I dismiss these claims.
DECISION AND ORDERS
39. The owner’s dispute is dismissed.
40. Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. The strata was successful in this dispute but did not pay tribunal fees and has not submitted any evidence of expenses. I therefore make no order with respect to tribunal fees and expenses.
41. Under section 189.4 of the SPA, an owner who brings a tribunal claim against a strata corporation is not required to contribute to any monetary order issued against the strata corporation or to any expenses the strata corporation incurs in defending the claim. I order the strata to ensure that no expenses incurred by the strata in defending this claim are allocated to the owner.
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Mary Childs, Tribunal Member |