Date Issued: October 30, 2018

File: ST-2017-006685

Type: Strata

Civil Resolution Tribunal

Indexed as: Tran v. The Owners, Strata Plan 1667, 2018 BCCRT 669

Between:

Kim Tran

Applicant

And:

The Owners, Strata Plan 1667

Respondent

And:

Kim Tran

Respondent BY COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.         The applicant, Kim Tran (owner) owns a strata lot in the respondent strata corporation, The Owners, Strata Plan 1667[1] (strata).

2.         The owner says the strata wrongfully accused her of violating rental bylaws. She says that while bylaws prevent her from renting out her entire strata lot, she is entitled to have a roommate. She also says that a roommate is beneficial for her due to her health problems. The owner seeks $5,000 in compensation for unfairness, stress, and discrimination.

3.         The strata says that under its bylaws, the owner is not entitled to rent to a roommate. In its counterclaim, the strata seeks an order that the owner comply with its bylaws, as well as an order that the owner pay $1,400 in bylaw violation fines.

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

5.         For the reasons set out below, I find that the strata’s bylaws do not permit the owner to rent out any portion of her strata lot to roommates, and she has not met the requirements to apply for an exemption to the rental restriction bylaw due to hardship. I find that the strata has not met the statutory requirements to impose fines on the owner for breaching the rental restriction bylaw. I also find that the owner has not established that she is entitled to damages.

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. 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. 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 that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

8.         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.

9.         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

10.      The issues in this dispute are:

a.      Is the owner permitted, under the strata’s bylaws, to rent a portion of her strata lot to a roommate?

b.      If not, is the owner entitled to an exemption from the rental restriction bylaw due to hardship?

c.      Is the owner required to pay $1,400 in bylaw violation fines?

d.      Is the owner entitled to $5,000 in compensation for unfairness, stress, and discrimination?

EVIDENCE, FINDINGS & ANALYSIS

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

Bylaws – Rental to Roommates

12.      The parties agree that the owner has, at various times, rented her spare bedroom to 1 or 2 roommates.

13.      The strata says that all rentals, including rental to roommates sharing with the strata lot owner, are prohibited under its bylaws. The strata cites bylaw 42, “Rental Restrictions”, which states as follows:

(1)    Let it be known that all strata lots of Strata Plan 1667 be Owner occupied,

(2)    the only exception will be in the case of hardship. At this time the above-mentioned will be put to the Strata Council for consideration. The application will not be unreasonably withheld.

14.      The owner says she is entitled to rent her spare bedroom to roommates regardless of the strata’s bylaws. She says that section 141 of the Strata Property Act (SPA) only allows the strata to restrict the rental of the entire strata lot, and that a strata cannot restrict rentals to roommates who share the strata lot with the owner.

15.      I find that the strata’s bylaws prohibit all rentals, including rentals to roommates. In Wong v. Section 1 of The Owners, Strata Plan N.W. 2320 et al, 2017 BCCRT 25, a tribunal vice chair found that because section 1 of the SPA clearly defines “tenant” as a person who “rents all or part of a strata lot”, that strata’s rental restriction bylaw prohibited roommates sharing a strata lot with an owner, and did not just apply to rentals of an entire strata lot (paragraph 55). Similarly, in K.M. v. The Owners, Strata Plan ABC XXXX, 2018 BCCRT 29. In K.M., another tribunal vice chair found in paragraphs 39 to 46 that the strata’s rental restriction bylaws applied equally to roommates as to those renting an entire strata lot.

16.      Although Wong and K.M. are not binding precedents, I find their reasoning persuasive, and I rely on them. In applying that reasoning to the facts in this dispute, I conclude that the strata’s rental restriction bylaw, bylaw 42(1), prohibits the owner from renting any portion of her strata lot to roommates. As in Wong and K.M., I make this finding particularly because “tenant” is defined in section 1 of the SPA as a person who rents all or part of a strata lot.

17.      The owner is therefore not permitted, under the strata’s bylaw 42(1), to rent any portion of her strata lot to roommates.

Hardship Exemption

18.      Both the SPA and the strata’s bylaws allow for an exemption from rental restriction bylaws in the case of hardship. Section 144 of the SPA permits an owner to apply to a strata corporation for an exemption from a bylaw that prohibits rentals on the grounds the bylaw causes hardship to the owner.

19.      Section 144 sets out very stringent guidelines that must be followed. An owner’s application for a hardship exemption must be in writing, must state the reason the owner thinks an exemption should be made, and must state whether the owner wishes a hearing before the strata council.

20.      Based on the evidence before me, I find the owner did not meet the guidelines in section 144 to request a hardship exemption. The owner gave the strata council a copy of an October 25, 2017 note from her oncologist stating that due to her health status, she would benefit from having a roommate. While this might be considered a written application, it did not state the reason the owner thought the exemption should be made, and most significantly, did not state whether the owner wished to have a hearing. These requirements are mandatory, as the owner did not meet all of them, I find she was not entitled to a hardship exemption.

21.      However, this finding does not prevent the owner from applying for a hardship exemption in the future. As stated in the section 144(6) of the SPA, and in bylaw 42(2), the strata must not unreasonably refuse to grant an exemption if the owner applies for it using the proper procedure.

22.      In its October 25 and 26, 2017 letters to the owner, the strata suggested that in order to qualify for a hardship exemption, the owner would be required to show that her proposed roommate was a provincially licensed caregiver. Without making a finding on this issue, I note that the strata is not entitled to impose a “licensed caregiver” condition without hearing and considering the owner’s evidence about whether living without a roommate will cause her to suffer a hardship.

23.      In Als v. The Owners, Strata Corporation NW 1067, 2002 BCSC 143, the BC Supreme Court set out useful guidelines for assessing an application for a hardship exemption under the SPA. The Court said that whether an owner is suffering hardship within the meaning of s. 144 will depend on the particular facts of each application. The burden of proving hardship lies with the applicant, and what may be “hardship” to one owner may not be hardship to another. The court said that after receiving a hardship exemption application, the strata council must consider the particular facts presented by the applicant before reaching a decision. In making this decision, the strata is also bound by the provisions of the BC Human Rights Code.

Bylaw Violation Fines

24.      The strata has imposed fines of $1,400 on the owner for breaching the rental restriction bylaw, and seeks an order that she pay these fines.

25.      Section 135 of the SPA says that a strata corporation may impose a fine for a bylaw contravention if the strata has received a complaint and given the owner and tenant written particulars of the complaint, as well as a reasonable opportunity to answer the complaint, including a hearing before the strata council if requested.

26.      I find that the strata has not met all of these requirements, and was therefore not entitled to impose bylaw violation fines on the owner. In particular, I find the strata council did not give the owner sufficient particulars of the complaint. The strata’s November 15, 2017 letter warning of the potential fine, and its subsequent emails imposing the fines, do not set out the specific bylaw the owner was said to have breached. In a October 31, 2017 letter to the strata council, the owner’s daughter, writing on behalf of the owner, requested a copy of the bylaws the owner was accused of violating. The evidence before me indicates that the strata failed to supply this information.

27.      Finally, I find that the strata has not shown that it received a complaint about the owner’s bylaw breach, as required in section 135 of the SPA. Rather, the November 8, 2017 strata council minutes indicate that the council decided to impose the bylaw violation fine on the owner in response to the owner’s accusation that some council members had discriminated against her. This is not consistent with the requirements of section 135. As the strata council has not established that it met the mandatory provisions of section 135, I find it was not entitled to impose bylaw violation fines on the owner.

28.      The strata has requested an order that the owner comply with the bylaws. I find the strata is entitled to that order. The owner is also entitled to apply for a hardship exemption.

 Damages

29.     The owner seeks $5,000 in compensation for unfairness, stress, and discrimination. She says the strata council harassed her to prevent her from having a roommate, threatened to tow her roommate’s car because the insurance sticker had expired, and falsely accused her of using too much water.

30.      While I accept that the owner has ongoing conflict with the strata council, I find that this is not sufficient to justify an order of damages. I find that these are matters within the strata’s authority to manage, and as explained above, she did not have a right to rent her strata lot to roommates. I therefore find that these actions do not constitute discrimination, harassment, or unwarranted invasion of privacy.

31.      The owner also says that the strata council secretary questioned her about why all her roommates have been Filipino, which is discrimination on the basis of race. The secretary denies this allegation, and as the owner has not provided any supporting information, such as the date of this incident or any witness statement, I find she has not the met the burden of proving it occurred. Also, while I accept that such a statement is upsetting, I find it is not a sufficient injury to personal dignity to attract damages.

32.      For these reasons, I find the owner is not entitled to damages.

Summary

33.     The owner’s claims are dismissed. She is not entitled to rent her strata lot to roommates under the bylaws, and she has not applied for a hardship exemption to the bylaws.

34.     The strata is not entitled to an order that the owner pay bylaw violation fines, so I dismiss that claim. I order that the owner must comply with the rental restriction bylaw, and cannot rent any portion of her strata lot to roommates unless she applies for and receives a hardship exemption from the strata council under section 144 of the SPA.

35.     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. As neither party was entirely successful in this dispute, I find that neither party is entitled to reimbursement.

DECISION AND ORDERS

36.     I order that the owner must comply with rental restriction bylaw 42(1) and cannot rent any portion of her strata lot to roommates unless she applies for and receives a hardship exemption from the strata council under section 144 of the SPA.

37.      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.

38.      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.