Date Issued: October 26, 2018

File: ST-2018-00380 and ST-2018-003177

Type: Strata

Civil Resolution Tribunal

Indexed as: Stemp v. The Owners, Strata Plan BCS 183, 2018 BCCRT 653

Between:

Timothy Stemp

Applicant

And:

The Owners, Strata Plan BCS 183

Respondent

And:

Timothy Stemp

Respondent BY COUNTERCLAIM

 

 

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.        The applicant and respondent by counterclaim, Timothy Stemp (owner), owns a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS 183 (strata). The strata is the applicant in the counterclaim.

2.        The owner alleges the strata is responsible for $2,217 in damage the strata’s garage entry gate caused to his truck.  He also alleges that he should not be responsible for the $2,390 cost of the gate repairs that the strata has charged against his strata lot.  The owner also claims for reimbursement of fees and $10.50 for expenses relating to his dispute.

3.        In its counterclaim, the strata says the owner is responsible for the entry gate damage and that it is not responsible for the alleged damage to the owner’s truck. The strata also claims for reimbursement of fees and $2,981.94 for expenses relating to its dispute.

4.        The owner is self-represented. The strata is represented by a strata council member.

5.        For the reasons that follow, I allow the strata’s claims in part a discussed below.

JURISDICTION AND PROCEDURE

6.        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.

7.        The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to a “he said, he said” scenario as to how the owner used his fob. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence.

8.        In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the recent decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized the tribunal’s process and that oral hearings are not necessarily required where credibility is in issue.

9.        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.

10.     Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.   

ISSUES

11.     The issues in this dispute are:

a.        Who is responsible for damage to the strata’s garage entry gate and what is the cost of the repair?

b.        Is the strata responsible for damage to the owner’s truck when the garage entry gate closed on it?

c.         Is the owner entitled to reimbursement of $225.00 for tribunal fees, $10.50 for dispute-related expenses, or interest?

d.        Is the strata entitled to reimbursement of $125 for tribunal fees, $2,981.94 for dispute-related expenses, or interest?

POSITION OF THE PARTIES

12.     The owner says that although he properly used his key fob to open the garage entry gate, it closed on his truck while his truck was part way through the gate opening.  He says this should not have occurred if the gate and its safety features were operating properly.  He says the strata was negligent in maintaining the gate and fob operation.

13.     The owner says he is not responsible for the gate repair cost.  He seeks payment for the cost to repair his truck from the alleged damage caused by the gate closing on it.  He also seeks reimbursement of $225.00 for tribunal fees and $10.50 for dispute-related expenses.

14.     The strata asks that the owner’s claims be dismissed. The strata says the owner’s fob was not used correctly as it did not register with the electronic fob station as there was no record of the owner using his fob contained in the electronic records. It says the safety features of the gate were working properly at the time of the incident.

15.     The strata says that the gate hit the owner’s car because of the owner’s negligence.

16.     The strata seeks an order that it is not responsible for the cost to repair the owner’s truck and seeks payment for the cost of repairing the gate because the owner breached the strata‘s bylaws.  It also seeks reimbursement of $150.00 for tribunal fees.

17.     The owner asks that the strata’s counterclaim be dismissed.

BACKGROUND, EVIDENCE AND ANALYSIS

18.     I note at the outset that the owner appears to have transposed the amount the strata charged against his account for the gate repairs with the estimated cost to repair his truck. These errors also appear to have been transferred to the strata’s counterclaim. To clarify, based on the evidence provided, the correct amount charged to the owner’s account is $2,217.00 and the correct amount estimated to repair the owner’s truck is $2,390.40. 

19.     Further, and somewhat troubling, is that the strata’s claim for payment of the amount charged to owner’s account relates to the cost of the gate repairs.  Separately, the strata also seeks reimbursement of expenses in a different amount that also relate to the cost of the gate repair that total $2,981.91.  I find the different amounts are for the same claim, namely the cost of the gate repairs, which I have addressed below.

20.     Finally, the strata’s claim for tribunal fees is also duplicated in its claim for $150.00 for dispute related-expenses. Accordingly, I find the strata has no claim for dispute-related expenses.

21.     I have read all of the submissions and evidence provided, but refer only to information I find relevant to provide context for my decision.

22.     In this tribunal proceeding, the owner must prove his claims, and the strata must prove its claims, on a balance of probabilities. 

23.     The strata is a 246-unit residential high-rise strata corporation located in Vancouver, B.C. 

24.     I find the relevant strata bylaws are those filed at the Land Title Office on March 15, 2013, which repeal all previously filed bylaws.  I infer the Schedule of Standard Bylaws does not apply.  There are bylaw amendments filed after March 15, 2013 but those amendments are not relevant to this dispute. In particular the following bylaws are relevant to these disputes:

1.4.3, which states an owner shall not cause damage to common property or common assets,

1.4.4, which states an owner is responsible for any damage cause to common property by the owner without limitation,

1.4.5, which states an owner must pay or reimburse the strata for any repair cost for damage under bylaw 1.4.4, that is not recovered by insurance, and

4.2.1(c), which states all expenses incurred by the strata in relation to remedying a contravention of the bylaws are fully recoverable by the strata and that the owner must indemnify the strata in relation to such expenses and promptly pay them on demand.

25.     The marked up building drawings provided in evidence show the first parking gate provides entry to visitor parking stalls and the second parking gate, located a short distance from the first gate, provides entry into the residential parking area.  The drawings also show fob stations located in the centre of the driveway on the exterior sides of each gate. 

26.     It is undisputed that the entry gates and fob stations are the strata’s responsibility.  Given the definition of common property and common asset under section 1 of the Strata Property Act (SPA), and that neither the fob stations or garage entry gates are identified on the strata plan, I find the fob stations, associated electronic equipment and garage entry gates are the strata’s common assets.

27.     On May 24, 2017, the owner and a passenger entered the underground parking garage in the owner’s truck. There was a vehicle in front of the owner’s truck and another vehicle behind it. It was when the owner’s truck passed through the second entry gate into the residential parking area that the gate came down onto the roof of the owner’s truck.

Who is responsible for damage to the strata’s garage entry gate and what is the cost of the repair?

28.     The owner says he swiped his fob at the first fob station and gained entry into the visitor parking area without difficulty.  He distinctly recalls that when he swiped his fob he heard a beeping sound, which he says indicates the fob activated the gate, causing it to open.

29.     The owner then proceeded to the second fob station and followed the same procedure to enter through the gate.  He says he swiped his fob, heard a beeping sound, and then proceeded to drive his truck through the gate.  He says when his truck was part way through the gate entrance, the gate came down on the roof of his truck causing damage.

30.     There are 4 issues that have been identified in the submissions: the gate’s safety features, the operation of the second fob reader, the “proper procedure” to operate the gate, and claims of negligence by both parties.  I will address each in turn.

The Gate’s Safety Features

31.     The owner says the safety mechanisms of the gate should not have permitted the gate to begin closing.  He says the gates’ safety mechanisms, by law, must include an infrared sensor to stop the gate from closing if a vehicle obstructs the gate opening when the gate is in the open position. He also says the law requires a sensor be installed along the bottom of the gate that stops the gate from fully closing and makes its open if the sensor comes in contact with an object, such as the roof a vehicle or a child.  He did not identify any legislation that confirms this safety equipment is required.

32.     He argues the gate’s safety mechanisms must have failed in order to permit the gate to close on the roof of his truck when it was midway through the gate opening.

33.     The strata says the gate was operating properly and that the gate was on a preventative maintenance service program with a local company specializing in such work.  Invoices were provided showing the 2 entrance gates were serviced in October 2016, February and April 2017, prior to the incident.  The invoices show the date the preventative maintenance was performed and state identical descriptions of the work as follows:

The technician performed a preventative maintenance on (2) gates and (2) overhead motors.  All were inspected and adjusted for proper operation: as well as, balanced, lubricated, checked and tested to ensure they were working well.

*There are no further recommendations at this time.

34.     It is clear the strata had preventative maintenance performed on the gate on a regular basis leading up the incident.  Although, the description of the work performed on the gate at each preventive maintenance visit does not clearly state the safety features were tested, the owner’s passenger provided a signed witness statement that states when the gate hit the roof of the owner’s truck, it “reversed travel” which allowed the owner to drive his truck through the gate opening. That the gate “reversed travel” is an indication that the safety sensor along the bottom of the gate was working.

35.     It is unclear if the infrared sensor was operating properly.  The strata says the infrared sensor may have been located at a level below the level of the owner’s truck given the truck is higher than a passenger vehicle.  The owner disputes this and says the front wheel of his truck would have triggered the infrared sensor if it was working properly.

36.     Based on the overall evidence before me, I find it is more likely than not that the safety features of the gate where operating at the time of the incident.  In reaching this conclusion, I place significant weight on the fact that gate was maintained about a month before the incident and that the strata’s maintenance program was reasonable in maintaining the gate’s operation.  I also place significant weight on the owner’s witness statement that the gate “reversed travel” as this action is an indication the safety sensor was operating properly.

The Second Fob Reader

37.     The parties agree the owner’s fob was operating properly at the time of the incident as evidenced by the first fob station correctly reading it. 

38.     The strata provided a printout of what it called a “fob record” that it says shows the owner did not correctly use his fob to gain access through the second gate.  The printed record shows a number of columns that include headings such as Event Time, Event Name, Doors, and Cardholder (which I infer also includes fobs).  The printout is marked up to identify 6 entries that allegedly relate to the incident between 9:41:25 PM and 9:43:04 PM on May 24, 2017.  It shows 3 different cardholders were granted access to the “Parkade entrance gate” but only 2 cardholders were granted access to the “Gate to secure parking”.  The 3 cardholders are identified on the printout as 3503 (167:21464), G. 3803 (65:3523), and 1806 (39:40268), with the strata saying the owner’s card, G. 3803 (65:3523) as the card that was granted access only to the first gate identified as the “Parkade entrance gate” on the printout.

39.     The owner does not dispute the printout only shows his fob granted access to the first gate, but says the report is in error implying the card reader must have failed to record his fob as he distinctly recalls hearing the card reader make a beeping sound. He says other evidence such as the closed circuit video evidence he reviewed with the strata’s caretaker shortly after May 24, 2017 shows he used his fob.  The video was not provided in evidence as the strata says its property manager deleted it in error. It is unfortunate that the video was not provided to the owner when he first requested it shortly after the incident, however, I find I do not need the video evidence to determine if the second fob reader was operating correctly.

40.     I do not doubt that the owner placed his fob at or near the fob reader and thought he heard a beeping sound. Whether the fob reader actually made a beeping sound could not be determined by reviewing the video if the video existed.  However, I find that is more likely than not that the second fob reader was operating properly at the time of the incident for reason that the “fob record” printout clearly shows the second fob reader read the fob or card used by the driver of the vehicle in front of the owner and the driver of vehicle behind the owner.

41.     It is unlikely that the fob reader failed to read only the owner’s fob.  I find it is more likely that the owner did not place his fob in a position that the fob reader could read it.

The “Proper Procedure” to Operate the Gate

42.     The owner also says there was an unwritten procedure required to be followed by all people using the fob readers when entering the parking areas in their vehicles, of which he was not aware at the time of the incident. He says the strata’s installation of a sign on the exterior of the second gate that asks users to ensure the gate closes half way before they “fob in” supports his claim because the sign was only installed after the damage was sustained to his truck.  I disagree.

43.     The strata, in its submissions, covered the operation of the gate and its timed opening and response time to fob access requested stating this was the first time the gate was hit by a vehicle entering the parking garage. I do not intend on detailing the gate operation here.  Essentially, the strata says the gate must be travelling down before fob activation can restart the timing process to keep the gate in the open position. It says the time is short so as to allow only 1 vehicle to enter the garage and not allow additional vehicle to enter the garage through a single fob activation. I accept the strata’s submission and find the installation of the new sign is its attempt to ensure a similar situation does not occur in future.

44.     The owner admits he entered the parking areas many times before the incident occurred without any difficulty.  I find this clearly shows the owner knows the procedure required to enter the parking gates.

Negligence Claims

45.     Each party claims the other party’s negligence caused the damage to the strata’s parking gate.  However, based on my findings above, I find the owner was responsible for damaging the gate, because he failed to use the fob correctly. Even if the gate or its safety features were not working properly, the material point is that the strata’s gate maintenance program was reasonable and thus it was not negligent in maintaining common asset.

46.      As a result, I find I do not have to consider if either party was negligent.

The Strata’s Bylaws

47.     The bylaws on which the strata claims the owner must pay the cost of remedying his bylaw contravention are those set out above under bylaws 1.4.3, 1.4.4 and 1.4.5.  The strata does not identify bylaw 4.2.1(c) as I have noted, which I find more compelling than bylaws relied upon by the strata.  Particularly because bylaw 1.4.4 does not require an owner to pay for damage to common assets, which is what I have found the gate to be.

48.     Regardless, I have found the owner damaged the parking gate, which is contrary to bylaw 1.4.3. Bylaw 4.2.1(c) requires the owner to indemnify the strata for the related expenses and permits the strata to recover the expenses. Section 133(2) of the SPA also permits the strata to recover reasonable costs of remedying a bylaw contravention.

49.     For these reasons, I find the owner is responsible for the damage sustained to the strata’s parking gate.

50.     I turn now to the cost of the repair.

Cost of the Gate Repair

51.     The strata charged the owner’s account $2,217 for the gate repair and the strata’s June 15, 2017 correspondence confirms this amount was charged on June 15, 2017, after a council hearing was held with the owner. However, 3 invoices for the gate repair were provided by the strata in evidence as follows:

a.      Creative Door invoice dated May 25, 2017 totaling $416.02 for emergency repairs completed May 24, 2017 as a result of the incident that included removing and reinstalling cables that were wrapped around “the shaft” and gathering information to provide a quote for replacement of the “bottom retainer, rubber & gum hose.”,

b.      Creative Door invoice dated May 31, 2017 totaling $439.40 to replace a damaged bottom edge to the “interior residential parkade gate”.  The invoice also includes labour for clamping a broken spring on the “main gate” and does not breakdown the labour for each gate.  Total labour charges for both tasks are $316.96 including taxes, and

c.      Creative Door invoice dated June 8, 2017 for $2,126.52 to replace 3 springs, worn bearings and cable on the “main gate”.

52.     In his submissions, the owner questions if the June 8, 2017 invoice applies to incident. The strata admits the invoice might relate to the first parking gate. I agree with both parties and find the June 8, 2017 invoice does not relate to the incident or these disputes. Therefore, I find the strata is responsible to pay that $2,126.52 invoice. 

53.     As for the May 31, 2017 invoice, I find that the total labour cost should be divided between the work performed on the “interior residential gate’ which I find to the be the second gate hit by the owner, and work performed on the “main gate” which I find to be the first parking gate which is not part of this dispute.  I find a reasonable division to be 50% for each task, making the amount of the invoice that relates to this dispute to be $280.92.

54.     Therefore, I find the cost of the gate repairs relating to these disputes to be the total amount of the May 24, 2017 invoice of $416.02 plus the amended amount of the May 31, 2017 invoice of $280.92 as I describe above, for a total cost of $696.94. 

55.     I note that the evidence shows an incorrect amount was charged to the owner’s account that appears to be based on the June 8, 2017 invoice. Nothing turns on this as I have found that invoice does not relate to this dispute.

56.     I also note that there is no evidence that shows the additional 2 invoices were charged to the owner’s account or even brought to his attention prior to the strata filing its counterclaim on May 9, 2018.

57.     I am aware of the requirements the strata must follow under section 135 of the SPA before it charges an owner for the cost for remedying a bylaw contravention under section 133. These required procedures have not been followed here because the additional repair invoices were only identified in the strata’s counterclaim.

58.     However, the tribunal’s mandate is to provide dispute resolution services that recognize the parties’ continuing relationship, which for these disputes will continue until the owner sells his strata lot and is a date unknown.  It does not make practical sense for me to order the strata to follow the procedures set out in section 135 of the SPA before permitting it to collect the cost of the gate repairs when I have already determined the outcome.

59.     For these reasons, I exercise my discretion under section 61 of the Act and order the owner to pay the strata $696.94 for gate repairs.

Is the strata responsible for damage to the owner’s truck when the garage entry gate closed on it?

60.     Having found the owner responsible for damaging the gate, I find the strata is not responsible for damage to the owner’s truck. This resolves this aspect of the owner’s claim.

Is either party entitled to reimbursement of tribunal fees, dispute-related expenses, or interest?

61.     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 expenses related to the dispute resolution process. I find the strata to be the most successful party and find the owner must reimburse the strata $150.00 for tribunal fees.  It did not claim dispute-related expenses. I dismiss the owner’s claims for tribunal fees and dispute-related expenses, as he was not successful.

62.     The Court Order Interest Act (COIA) applies to the tribunal. I find the owner owes the strata pre-judgement interest for the gate repair costs of $696.94 from the date of the repair invoices to the date of this decision.  I calculate prejudgement interest to be $7.02.

63.     The strata corporation must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the owner, unless the tribunal orders otherwise.

DECISION AND ORDER

64.     I order that, within 60 days of the date of this decision, the owner pay the strata at total of $853.96 broken down as follows:

a.      $696.94 for the cost to repair the parking gate,

b.      $150.00 for tribunal fees, and

c.      $7.02 for prejudgement interest under the COIA.

65.     The strata immediately reverse all charges against the owner’s strata lot relating to the parking gate damage that exceed $696.94.

66.     The strata is entitled to post-judgement interest under the COIA, as applicable.

67.     The remaining owner and strata claims are dismissed.

68.     Under section 57 of the Act, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia, a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia.

69.     Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia. However, the principal amount or the value of the personal property must be within the Provincial Court of British Columbia’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the Act, the Applicant can enforce this final decision by filing in the Provincial Court of British Columbia a validated copy of the order which is attached to this decision.  The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.