Date Issued: November 7, 2018

Amended: November 14, 2018

File: ST-2017-002709

Type: Strata

Civil Resolution Tribunal

Indexed as: West et al v. The Owners, Strata Plan BCS 2637, 2018 BCCRT 695

Between:

Mariette West and Neville West

Applicants

And:

The Owners, Strata Plan BCS 2637

Respondent

And:

Mariette West

Respondent BY COUNTERCLAIM

 

 

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

INTRODUCTION

1.      The applicants, Mariette West and Neville West, are leasehold tenants of a strata lot (SL43) in the respondent leasehold strata corporation, The Owners, Strata Plan BCS 2637 (strata). The strata is the applicant in the counterclaim.  Mariette West is a respondent in the counterclaim.

2.      I note that under the Strata Property Act (SPA) a leasehold strata corporation operates no differently than a standard, non-leasehold strata corporation and that leasehold tenants are defined as owners.

3.      The applicants allege the strata failed to repair and maintain parts of its common property or common assets, which they say has caused their extreme discomfort and loss of enjoyment of SL43.  The main reasons for the alleged discomfort involve a lack of heat from drafty windows. The applicants say that cold air is forced into the building’s common area hallways, which then enters SL43. 

4.      The applicants claim the strata has treated them significantly unfairly in failing to address their issues in a timely manner, if at all. 

5.      The applicants also allege the strata has failed to provide requested documents, that it should reverse or reduce a 2016 $200 move-in fee charged to them, and that it be directed to consider amending its move-in bylaw. They also say the strata should provide minutes that include decisions and voting results within the required 2-week time frame and ensure the minutes are made available to owners in a digital format at a fee that does not exceed $0.25 per page.

6.      The applicants seek compensatory damages of $4,579.66 and special damages to be used to educate the strata and its council members.  They also claim for reimbursement of fees relating to this dispute and legal fees totalling $1,249.30.

7.      In its counterclaim, the strata says the applicants’ claims are baseless. It seeks reimbursement of fees and expenses relating to this dispute that total $7,575.68.

8.      The applicants and respondent by counterclaim are represented by Mariette West. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

9.      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.

10.   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.

11.   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.

12.   Under section 10 of the Act, the tribunal must refuse to resolve a claim that it considers is not within the tribunal’s jurisdiction.

13.   Section 11 of the Act provides that the tribunal has discretion to refuse to resolve a claim within its jurisdiction. In particular, the tribunal may refuse to resolve a claim if issues in the claim or dispute are too complex for the tribunal’s process or otherwise impractical for the tribunal to case manage or resolve. The tribunal can also refuse to resolve a strata property dispute under section 11 of the Act if the tribunal is satisfied that the BC Supreme Court would grant an order that the tribunal not resolve the claim or dispute. The tribunal may exercise its authority under section 11 of the Act at any time before the tribunal makes a final decision resolving the dispute.

14.   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

15.   The parties reached an agreement on certain issues prior to this adjudication, and those issues are not before me in this decision.

16.   The issues in this dispute are:

a.    Is the strata in compliance with its duties under the SPA and its repair and maintenance obligations under its bylaw 8? 

b.    If so, has the strata acted negligently or treated the applicants in a significantly unfair manner while discharging its duties?

c.    Are the following remedies appropriate?

                               i        Should I order the strata to obtain an engineering report to identify alleged common property problems resulting in significant heat loss and cold air entry into SL43, to include exterior window performance testing?

                              ii        Should I order the strata to repair SL43’s exterior windows and insulation? If so, to what extent should the applicants contribute to the cost of the repairs?

                            iii        Should I order the strata to regularly clean all interior hallway air ducts and vents, and heat the interior building corridors to a minimum of 19.4 degrees Celsius?

                            iv        Should I order the strata to include decisions and voting results in its minutes and make the minutes available to all owners within the statutory time frame?

                              v        Should I order the strata to provide records and documents, including common property warranty claim information in a digital format and at a fee that does not exceed $0.25 per page details?

d.    Did the strata improperly charge a $200 move-in fee to the applicants and should I order the strata to consider amending its move-in bylaw?

e.    Are the applicants entitled to $4,579.55 in damages for the strata’s lack of attention to required repairs that resulted in the applicants’ alleged significant physical discomfort and loss of enjoyment of SL43?

f.     Are the applicants entitled to punitive damages for the alleged long term impact of the strata’s inactions?  If so, should I order the amount of any punitive damage award to be used by the strata for education of its council members and owners?

g.    Are the applicants entitled to reimbursement of $250.00 for tribunal fees, $95.97 for expenses and $999.30 for legal fees?

h.    Is the strata entitled to reimbursement of $125.00 for tribunal fees, $7,575.68 for dispute-related expenses?

BACKGROUND AND EVIDENCE

17.   At the outset, I note the parties were asked to reduce the volume of their submissions by deleting arguments and evidence they considered might not be relevant to the dispute. The applicants say they received advice from persons outside the tribunal as well as from tribunal staff that they could submit as much or as little information as they felt was necessary. 

18.   The applicants also say they have prioritized their claims on their understanding that the tribunal may refuse to resolve some of them.  I recognize that the tribunal has, after the Dispute Notices were issued in this dispute, initiated procedures to attempt to limit party submissions to relevant information, as excessive volume is inconsistent with the tribunal’s mandate to provide speedy and efficient dispute resolution services. Given the tribunal’s measures were taken after the parties completed the original tribunal decision plan, I have exercised my discretion to hear all of the parties’ disputes based on the evidence provided and the tribunal decision plan.

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

20.   In this tribunal proceeding, the applicants must prove their claims, and the strata must prove its counterclaim, on a balance of probabilities. 

21.   The strata is a 61-unit residential leasehold strata corporation located in Vancouver, B.C.  The building includes high-rise and townhouse components.  The applicants’ SL43 is located on the 10^th floor of the high-rise building.

22.   The strata plan shows the balcony next to SL43 is limited common property (LCP) designated to SL43.

23.   The strata registered a complete set of new bylaws at the Land Title Office (LTO) on March 15, 2013, which repealed all previously filed bylaws.  A complete new set of bylaws that repealed all previous bylaws was also filed at the LTO on June 2, 2015 which contained many of the same bylaws as the 2013 bylaws and new bylaws.  Other amendments were filed June 28, 2017 which do not apply to this dispute.  I find the Schedule of Standard Bylaws does not apply. 

24.   The bylaws relevant to this dispute are:

Bylaw 2: an owner must repair and maintain the owner’s strata lot, and LCP that has been designated to their strata lot, except for repair and maintenance that is the responsibility of the strata.

Bylaw 8:  the strata must repair and maintain common assets and common property that has not been designated as LCP. The strata is restricted to repair and maintain LCP only if the repair and maintenance occurs less often than once per year except for:

•         The exterior of the building,

•         Balconies and other things attached to the exterior of the building,

•         Doors and windows on the exterior of the building or that front on the common property.

Bylaw 19: says the strata must inform the owners of strata council meeting minutes with 2 weeks of the date of the meeting.

Bylaw 34:   limits the number or strata lots that can be rented to 12 for duration of 6 months or more.

Bylaw 37: establishes a non-refundable move-in fee of $200 for any incoming owner or tenant.

25.   The strata’s common property and common assets were covered under a warranty program through Travellers Guarantee Company of Canada (Travellers) as mandated by the Homeowner Protection Act (HPA) for new construction. Under the warranty, commonly referred to as a 2-5-10 warranty, different building components are covered for different periods, including the building envelope for 5 years and the building’s structure for 10 years.  The building envelope warranty expired on November 27, 2012 and the structural warranty expired on November 27, 2017.

26.   The strata retained Levelton Engineering Ltd. (Levelton) in 2008 and 2009 to complete end-of-warranty reviews of the building envelope for the 15-month warranty and 2-year warranty periods respectively.  The 15-month report is dated February 10, 2009 and the 2-year report is dated November 23, 2009.  Both reports state the above-ground building envelope was preforming adequately at the time of inspection. However, they both identify some construction deficiencies that Levelton recommended should be addressed as soon as possible to avoid premature deterioration of building materials, water ingress and related damages. 

27.   The strata says it has documented all known deficiencies and has been in negotiation with Travellers and the owner developer that constructed the building for several years.  This is confirmed in the strata’s minutes and acknowledged by the applicants, although the applicants say they do not have any specifics relating to these ongoing negotiations.

28.   The strata provided common property deficiency lists to Travellers.  The deficiency lists show items that relate to SL43 such as:   interior window frames separating and requiring sealant, the patio door not opening properly, and cracks in exterior concrete window sills of SL43.

29.   Travellers also provided warranties on individual strata lots, including the applicants’ strata lot.  The applicants filed claims with Travellers under their strata lot’s warranty certificate that included separate claims of “insufficient heat” throughout the entire suite and that “many windows are drafty.”   Travellers inspected SL43 on January 29, 2009. 

30.   In a letter to the applicants dated February 10, 2009, Travellers addressed the applicants’ lack of heat claim. It provided the warranty standard for in-suite heating and advised that it asked the “Mechanical Contractor on Record” to certify the heating standard was met and that the systems installed were those that were designed and specified.  The letter stated that Travellers would ensure the applicants’ lack of heat claim would be investigated and that it would “continue to act until all warrantable items had been rectified.” No follow up reports or correspondence with Travellers on the issue of lack of heat were provided in evidence.

31.   In the same February 10, 2009 letter, Travellers advised the applicants their claim for drafty windows was a common property claim that was “possibly covered under a separate warranty’ and that it would take no further action under the applicants’ strata lot warranty with respect to their window claim. I infer the separate warranty referenced in the letter was the strata’s warranty on its common property and common assets.

32.   In 2012 and again in 2013, the strata retained exp Services Inc. (exp) to investigate the applicants’ allegation of drafty windows, visible moisture on the interior of some windows and the operation of the patio swing door.  The strata relies on exp’s professional engineering reports dated January 7, 2013 and January 28, 2013.

33.   In its January 7, 2013 report, exp concluded that the moisture on the window interiors was likely condensation.  It reported that the gap under the applicant’s main entry door is intended as a fresh air intake and that it was blocked, thereby preventing air movement in SL43 and causing condensation on the window interiors.  It concluded that the draft felt by the applicants is most likely the result of large temperature variations in different rooms throughout the interior of SL43, noting the differences to be as much as 5 or 10 degrees Celsius and that heat will flow from warm to cold.

34.   The January 7, 2013 exp report also noted there was no difficulty experienced in opening the balcony door.

35.   In its January 28, 2013 report, exp states it was asked to further investigate the interior walls and window systems in SL43.  The report states exp’s review included:

a.    A cursory review of architectural and mechanical drawings,

b.    Visual observation and written notes,

c.    Smoke pencil draft detection methods, cut test opening of interior drywall,

d.    Temperature, relative humidity and dew point readings, and

e.    Thermal imaging.

36.   The report concludes that exp did not identify any significant evidence of cold air infiltration or location of draft.  It also states that the applicants’ discomfort is subjective and more likely related to the size and area of the windows, ratio of frame to glass, and overall thermal resistance than fault with design, construction or installed products.  Based on the wall design, the report states that the accumulation of colder air around the window interior during cold weather may be sufficient to cause the sensation of drafts.

37.   The indoor corridor venting system of the building consists of a rooftop air unit that supplies heated and filtered air to the building hallways.  The air ducts were cleaned in 2009 and November 2017 as evidenced in strata council meeting minutes.  The June 22, 2009 strata council minutes show that the strata’s contractor cleaned and sealed the rooftop air unit and installed higher quality air filters in the unit.  Strata employees change the filters every 2 months.

38.   Bathroom exhaust fans and kitchen range hood fans exhaust through ducts located in the concrete floor and ceiling slabs to the building’s exterior.  Some of these ducts vent to the balcony soffit of SL43.

39.   In May 2014, the strata’s lawyer prepared a draft Notice of Civil Claim against Travellers and the owner developer, which was given to the owner developer.  The draft claim included a number of window defects including:

a.    Compromised seal between the deflection head and window frames,

b.    Failed seal joints at window sill,

c.    Compromised seal joints at window head to jambs,

d.    Exterior glazing tape deficiencies at spandrel panels,

e.    Improperly installed glazing stop and gap between glazing stop and glazing tape,

f.     Excessive condensation on window glass, and

g.    Inadequately sealed window units.

40.   The claim also alleged a general defect that there is no insulation behind baseboard heaters in some strata lots.

41.   The strata confirms the Notice of Civil Claim was never filed with the Supreme Court but that its forms the basis for ongoing negotiations between the strata and the owner developer.  It is unknown if the strata has taken steps to preserve its ability to pursue either its warranty claim or its claim against the owner developer but that issue is not before me.

42.   In the fall of 2016, the strata permitted the applicants to rent out SL43 to an individual for a 4-month term.  The individual moved only 3 suitcases into SL43 and the applicants paid the strata’s $200 move-in fee after requesting the strata council consider reducing the fee or eliminating it.

ANALYSIS

 

43.   I will first address some preliminary matters that are relevant to this dispute.

44.   The applicants alleged the strata has not complied with section 31 of the SPA. However, section 31 obligations are not the strata’s obligations, but rather are obligations of individual strata council members. No individual strata council members are named parties in this dispute and, as such, they have not had the opportunity to provide submissions. Therefore, I decline to make any finding about the applicants’ allegation that certain strata council members failed to comply with section 31 of the SPA.

45.   Further, section 33 of the SPA provides remedies for breaches of section 31 of the SPA. (Dockside Brewing Co. Ltd. v. Strata Plan LMS 3837, 2007 BCCA 183 at paragraph 59). Although section 31 of the SPA is within the tribunal’s jurisdiction, section 33 of the SPA is expressly outside its jurisdiction as set out under section 3.6(2)(a) of the Act.

46.   Therefore, even if I was to address any specific council members’ failure to comply with section 31, I would not be able to grant any remedy as those requests must be brought before the Supreme Court. I decline to dismiss this aspect of the owner’s claims as to do so would not allow the owner to make application to the Supreme Court, as discussed below.  Instead, I refuse to resolve the applicants’ claims under section 31 of the SPA for impracticality as set out in section 11(1)(c) of the Act because SPA section 31 remedies fall under section 33 of the SPA, which is not within the tribunal’s jurisdiction.

47.   To the extent the applicants believe that certain strata council members have acted contrary to section 31  of the SPA, I leave it open to them to make application to the Supreme Court to seek appropriate remedies under section 33 of the SPA.

48.   In their submissions, the applicants also say the strata has not complied with the HPA.  While the HPA applies to the strata, the tribunal has no jurisdiction to enforce it. Enforcement of the HPA falls under the British Columbia Housing Management Commission established under the Ministry of Lands, Parks and Housing Act.

49.   In their submissions, the applicants also make reference to the strata’s contract with its property management company, and seek various rulings on what the strata or its property manager should do in certain circumstances.  For example, the applicants ask the tribunal to provide direction to the strata on its dealings with the property manager relating to document requests and document review procedures.  I find that these types of matters are between the strata and its property manager.  The applicants cannot seek claims against the strata’s property manager, as they are not parties to the management contract.  Again, I have not addressed these claims or the related remedies for lack of jurisdiction.

50.   The proper way for the applicants to raise their concerns with the strata’s relationship with it property manager is at a general meeting. For example, by way of options available to them under sections 43 and 46 of the SPA.

Is the strata in compliance with its duties under the SPA and its bylaws? 

51.   The applicants’ position assumes the strata has failed to repair and maintain its common property in a reasonable manner.   For the reasons that follow, I find this is not the case.

52.   In addition to section 31 of the SPA, which I have already addressed, the applicants claim the strata has specifically failed to comply with sections 3, 4, 26 and 72 of the SPA as well as bylaw 8 of the strata.

53.   Before deciding if the strata is in compliance with the SPA and bylaws, I must first decide who is responsible for the various items alleged to require repair.

54.   In broad terms, sections 3, 4 and 26 of the SPA make the strata council responsible for the managing and maintaining the common property and common assets of the strata and include a responsibility for the strata council to enforce its bylaws. 

55.   I have already noted the balcony of SL43 is LCP. Based on the definition of common property under section 1 of the SPA, I find the building exterior, including the exterior windows and doors of SL43, exhaust ducts and vents, and interior hallway ducts and vents are common property.

56.   Section 72 of the SPA requires the strata to repair and maintain common property and may by bylaw, make an owner responsible for repair and maintenance of LCP, or common property if identified in the regulations and may take responsibility for portions of a strata lot. There are no regulations enacted that permit a strata corporation to make an owner responsible for repairing and maintaining common property.

57.   The strata’s relevant bylaws relating to repair and maintenance of strata lots and common property are bylaws 2 and 8, as stated above.

58.   Section 68 of the SPA says, unless the strata plan states otherwise, the boundary of a strata lot is midway between the surface of the structural portion of a wall that borders on common property.

59.   Based on the SPA and strata’s bylaws, I find the strata is responsible for repairing and maintaining the exterior windows of SL43, the hallway ducting and ventilation system, and the exhaust ducts and exterior vents.  I find the applicants are responsible for the vapour barrier and wood window sills because they are located within SL43 on the interior, or strata lot side, of the midpoint of the exterior wall.

60.   The type and location of the alleged missing wall insulation is unclear, as is the location of any mould.  Therefore, I am unable to determine who is responsible for repair or remediation of these issues. However, for reasons described below, I find the strata is not responsible to attend to mould remediation or insulation issues alleged by the applicants.

61.   I turn now to the strata’s compliance with the SPA and bylaws.

62.   As noted by the applicants, the strata is required to act reasonably in its repair and maintenance obligations, such that "perfection is not required... only reasonable action and fair regard for the interests of all concerned". (See Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74 at para 61.)

63.   As noted in Weir v. Strata Plan NW 17, 2010 BCSC 784, the strata may have several reasonable options to undertake necessary repairs, and the standard is reasonableness. The fact that one of the options may prove to be a more cautious approach, or turn out in hindsight to be the less wise or preferable course of action, will not provide a basis for overturning the strata’s decision about the repair option selected, as long as that option was a reasonable one. The strata is also entitled to reasonably rely on its contractors, even if those contractors are later found to have erred.

Windows, doors, flashing and drafts

64.   Here, the strata has chosen not to address specific building envelope repairs recommended by Levelton in its reports. Instead, the strata chose to pursue Travellers and the owner developer to rectify, or pay the strata to rectify, necessary repairs.  The applicants say the strata has a duty to complete the repairs recommended by Levelton.  I disagree. I find the strata has reasonably weighed the significance of the deficient issues against the immediate need for repair and concluded no immediate repairs are necessary. Thus, I find the strata reasonably exercised the option that immediate repairs were not warranted.

65.   As described above, the strata retained Levelton to investigate the building envelope and exterior window systems in 2008 and 2009 prior to the applicable warranties of 15 and 24 months expiring. The Levelton reports were obtained for the purpose of identifying warrantable items.  The Levelton reports both concluded that the above-ground building envelope was performing adequately at the times it was investigated, but identified some construction deficiencies that Levelton said should be addressed as soon as possible. The evidence indicates that the owner developer returned to the building and completed some construction deficiency repairs although it is unclear exactly what work was done.  

66.    I do not agree with the applicants that the window deficiencies identified by Levelton are of such significance that immediate repair is necessary. If that was the case, the reports would not have found the envelope was performing adequately. For example, there is no evidence to suggest that active leaks were occurring through exterior windows or the building’s envelope into SL43 either in 2008 and 2009 or more recently as may be implied by the applicants’ submissions.  While Levelton expressed that water ingress could occur, there is insufficient evidence before me that that has happened.  Specifically, there is no evidence that any deficiency noted by Levelton directly affects SL43 in any negative fashion. I find that it is reasonable for the strata to conclude its negotiations with the owner developer before attending to any remaining repairs identified in the Levelton reports. This would reasonably allow the strata to better determine its financial position with respect to attending to any identified repairs.

67.   In 2013, the strata retained exp to investigate the applicants’ claims that the windows were drafty.  As noted above, the conclusion reached by exp was that it could not identify any significant evidence of cold air infiltration or draft in SL43. It also concluded that “no abnormal condition” could be determined as a result of exanimating 2 exterior dry wall test openings. 

68.   The applicants disagree with the exp findings but provide no contrary evidence other than witness statements agreeing that a draft exists, and the applicants’ own assertions that during the inspections, the individuals from exp who completed the investigations stated there were drafts but did not include those findings in the reports. In particular, the applicants have not provided any third party professional documentary evidence that suggests the exp reports are not correct.

69.   I prefer the expertise of exp, which involved the use of smoke tests and thermal imaging equipment, over the lay opinions of the witnesses and the applicants. Based on the exp reports, I find it is more than likely that no draft exists in SL43. I put significant weight on the exp reports and little weight on the owner’s assertions and witness statements. 

70.   Further, exp concludes that water on the interior of SL43 windows is a result of condensation, because the applicants blocked the air intake under their front door.

71.   The applicants have failed to provide evidence that the engineer involved in the 2 exp reports is an owner in the strata, and so I reject the applicants’ assertion that conflict of interest existed with the exp engineer. 

72.   Finally, there is some evidence that the applicants have altered the air venting within SL43 by changing or eliminating a vent behind the kitchen refrigerator and re-directing it to a bedroom on the other side of the wall.  Details of the applicants’ modifications are not clear but I find it is possible that these modifications will have some effect on the overall ventilation of SL43.  There is no evidence to suggest the applicants relied on any professional advice when altering SL43’s air vents. Given the applicants made the modifications, the strata cannot be held responsible for correcting them, if that is what is required. 

73.   Both exp reports indicate there was no issue with the applicants’ balcony door except possibly due to an air pressure difference between the exterior and SL43.  As a result, I find the issue has been resolved.

74.   As for the exterior flashing issue, I understand this to be noise of water dripping on the flashing that is disturbing to the applicants.  The evidence shows the strata has made attempts to correct the issue by retaining a contractor to investigate and repair the flashing from the exterior of the building by using a bosun’s chair for access. I find the issue has either been resolved or is of little importance to the applicants based on their limited submissions.

75.   Overall, I find the applicants have failed to prove their claim that the exterior windows create a draft in SL43 or that the windows are otherwise contributing to the applicants’ alleged problems. I dismiss the applicants’ claim that the strata has not complied with the SPA and the bylaws with respect to maintenance and repair of the common property windows doors and flashing.

Mould remediation, insulation, vapour barrier

76.   I have already found that repairs to SL43’s vapour barrier is the applicants’ responsibility because the vapour barrier is located within SL43.  It follows that if a vapour barrier has been omitted during construction, which has not been proved, that too is the applicants’ responsibility. 

77.   As for the lack of insulation, I find this to be a speculative assertion made by the applicants based on their claim that there is a general lack of heat within SL43. There is insufficient evidence to support a finding that insulation does not exist in all of the exterior walls.  Although the applicants assert that no insulation exists behind the baseboard heaters, the photographs provided showing electrical wiring penetrating the drywall did not show that insulation was not present.  Further, the January 28, 2013 exp report where 2 drywall openings were made did not report a lack of insulation and stated they were “no major anomalies or significant cold spots that indicate missing insulation.”

78.   The applicants’ information on the hydro costs of SL43 compared to other strata lots in the building is insufficient as no supporting evidence was provided such as copies of the hydro invoices themselves.  Even if I was to accept the applicants’ information, I agree with the strata that the heating costs with respect to comparable suites in the building is not dissimilar to SL43.  The applicants’ hydro evidence about another strata lot in a different building located in the interior of British Columbia is not sufficiently comparable and therefore is irrelevant.

79.   That the strata’s negotiations with the owner developer include the possibility of a lack of insulation in exterior walls behind baseboards does not mean that is the case.  I accept the strata’s comments that the deficiency lists prepared by the strata and given to Travellers and the owner developer were partially based on information received from owners.  In the case of SL43, exp has found that missing insulation is unlikely.

80.   Finally, there is no evidence before me that mould exists in SL43.  If condensation is forming on the interior of SL43 windows as identified by exp, any resulting mould forming on the interior of the windows is not the strata’s responsibility.

81.   For these reasons, I dismiss the applicants’ claim that the strata has failed to comply with the SPA and the strata’s bylaws with respect to mould remediation, insulation and vapour barrier.

Hallway ventilation system

82.   The history of the hallway ventilation system is that the ducts have been cleaned twice, most recently in November 2017. The filters are changed monthly and have been upgraded to higher quality filters.  Further, the rooftop air unit was completely cleaned and sealed in 2009. 

83.   I am not persuaded the applicants have proved the strata’s repair and maintenance of the hallway ventilation system has been unreasonable.

84.   I also do not accept that the applicant Mariette West has a medical condition that is affected by the hallway ventilation system, at least not to the extent that the strata must accommodate any possible condition.  I find the September 28, 2017 letter issued by Ms. West’s doctor does not establish a medical condition but rather points out “unfiltered air” in the hallway may be a contributing factor to the lung irritation she was experiencing at the time.  The strata cleaned the ducts shortly after the letter was issued and no further evidence of medical conditions were provided in evidence.

85.   Further, based on my review of the documentary evidence provided by the applicant about the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) I find the applicants have not proved that the standards established by this organization apply to the strata’s hallway ventilation system. There is nothing in the SPA or the strata’s bylaws that reference these standards. Therefore, it is unclear if there is any governing standards on the temperature at which the hallways must be maintained. 

86.   For these reasons, I dismiss the applicants’ claim the strata has failed to comply with the SPA and bylaws relating to repair and maintenance of the hallway ventilation system.

Exterior exhaust vents

87.   The applicants say the bathroom exhaust vent the runs through to the balcony soffit of SL43 requires maintenance because there is discolouration and efflorescence around the soffit vent as a result of water escaping form the duct.  The applicants say water has dripped onto their balcony furniture, caused damage to the balcony soffit around the vent, and that they are concerned that water will back up into the duct and leak into the interior of SL43.

88.   As earlier noted, the soffit vent is the end of the duct servicing either the kitchen range hood vent or the bathroom vent. The strata says that water dipping occasionally from the vent is normal, given humid bathroom air is being vented to the exterior cooler air resulting in condensation. 

89.   The applicants cite McKellar et al v. The Owners, Strata Plan LMS 3317, 2017 BCCRT 123 as being applicable to their claim that the strata must maintain the exhaust vents.  In McKellar, I ordered the strata corporation to replace a booster fan it had installed on the applicants’ dryer vent and repair damage to the applicants’ living room ceiling as a result of the common property dryer vent leaking through the concrete ceiling.  However, unlike in McKellar, the strata here has never taken steps to repair or maintain the exhaust vent, nor does it believe any maintenance or a booster fan is necessary. 

90.   I agree with the strata that occasional water exiting the bathroom or kitchen exhaust vent can be expected and differs from a dryer vent.  It is likely that much less condensation forms in a bathroom or kitchen exhaust duct than does in a dryer duct.  Additionally, a dryer duct requires cleaning because of lint buildup that does not exist in bathroom or kitchen exhaust ducts.

91.   Moreover, the applicants have not suffered any damage, as was the case with one other strata lot identified in the strata council minutes.  There is no ceiling damage in the living room.  I find that condensation from the balcony exhaust vent can be expected to occur.

92.   The applicants admit that they have identified limited amounts of water or icicles on only 3 occasions. Based on the very limited amount of water discovered dripping from the vent, and that it occurs very infrequently, I find cleaning of the exhaust is not warranted.  I find that it is reasonable for the strata not to investigate the matter further.  If the applicants find the amount or frequency of the dripping water increases dramatically, they should raise the issue with the strata.

93.   While I appreciate the applicants’ concern that their balcony furniture may become damaged if it is constantly dripped on, there is nothing stopping them from relocating their furniture to a different position on the balcony such that the occasional drop of condensed water will not land on the furniture.

94.   I find that any discolouration of the soffit around the vent as shown in the photographs provided is not urgent and can be addressed during routine maintenance and painting of the balcony soffit when that next occurs.

95.   I do not agree with the applicants’ suggestion that wind driven rain onto the balcony of SL43 affects the condition of the exhaust duct or vent.

96.   For these reasons, I dismiss the applicants’ claim the strata has failed to comply with the SPA and bylaws relating to repair and maintenance of the exterior exhaust vents or ducts.

97.   I turn now to the governance issues raised by the applicants.

98.   The applicants say their governance issues are “several to many” but only provide details on the content of strata minutes, an alleged lack of transparency by the strata council not addressing their questions in a timely fashion, and the improper assessment of move-in fees. In their submissions, the applicants also say the strata has not provided contact information for its council members.

Strata council member contact information

99.   Section 35 (1) of the SPA and regulation 4.1 requires the strata to maintain a list of strata council members including their telephone numbers or some alternate method of contacting individual members.  While the strata is required to keep this record, it is not required to provide it to owners unless requested by an owner under section 36 of the SPA.

100.      There is no evidence before me to indicate the applicants requested the strata council’s contact information so I decline to order the strata to provide it. If however, the applicants make a formal request for the strata council record under section 36 of the Act, the strata must provide it.

Strata meeting minutes

101.      The Supreme Court in Kayne v. The Owners Strata Plan LMS 2374, 2007 BCSC 1610, has found the SPA does not set out any degree of detail that must be contained in strata minutes beyond recording the outcome of the vote. Minutes must contain records of decisions taken by council, but may or may not report in detail the discussions leading to those decisions. Put another way, the strata council has discretion to determine what level of detail it includes in its minutes, provided it meets the minimum SPA requirements and acts legally. 

102.      I find that minutes provided in evidence meet the test set out in Kayne.

103.      The applicants say the strata has not always informed owners of its minutes within 2 weeks of its meetings, in breach of its bylaws.  The strata agrees that on at least one occasion, it was not able to inform owners within the 2 week period due to illness and vacation but that it strives to meet this time period.  As the court noted in Yang v. Re/Max Commercial Realty Associates (482258 BC Ltd.), 2016 BCSC 2147, “an isolated instance of easily rectifiable procedural irregularity” is not a beach of the bylaws.

104.      However, the applicants note at least 2 other occasions where minutes have been provided at least 20 days late.  The applicants submit that between December 2015 and December 2017, meeting minutes were provided late a total of 7 times, which the strata does not dispute. While I accept the strata’s submissions that it strives to meet the 2-week time period set out in its bylaw 19, it has nevertheless failed to me that deadline on at least 7 occasions, 3 or which were at least 20 days past the deadline.  Therefore, I order the strata to comply with its bylaws in this regard. Given there is no evidence that tardy minutes created unfairness to the applicants, I make no further order.

Transparency and failure to provide documents

105.      It appears these claims are based on the applicants’ allegations that the strata has taken too long to respond to their requests or failed to respond at all. In particular, the applicants say the strata has not provided documents they have requested under section 35 of the SPA.

106.      Section 35 of the SPA and regulation 4.1 list the records and documents the strata is required to prepare and retain. Under section 36 of the SPA, an owner is entitled to request access to view the records and documents referenced in section 35 and may pay a fee to obtain copies of those documents that must not exceed $0.25 per page under regulation 4.2(1).  Unless the request is for bylaws or rules, the strata must provide access or copies within 2 weeks of the request. 

107.      The courts have found that a record or document that is not set out in section 35 of the SPA is generally not available to an owner or tenant.  See for example Kanye.

108.      The applicants say they have requested documents that the strata has not provided, including documents about the common property deficiencies and defects claimed under the strata’s warranty with Travellers. Conversely, the strata says it has provided all requested documents it has in its possession.

109.      The applicants provided a copy of September 12, 2017 invoice from the strata property manager showing they paid.  Their last email request for documents dated February 5, 2018 shows several requested have not been provided.  It is not possible for me to determine exactly which documents remain outstanding when comparing that request to the September 2017 invoice/receipt for documents.  This is partly because both documents do not specifically name the documents requested or provided, as the case may be.

110.      These documents include email communication between the strata council members and its property manager as well as all warranty communication at least for the periods required under regulation 4.1.  In some cases the requested information has been provided an in others the strata says it does not have the information requested by the applicants.

111.      Given it is unclear what documents have been provided and what documents may be outstanding decline to make the order requested by the applicants. However, in future, should the strata receive a written request from the applicants for specific records or documents required to be prepared or retained, it must provide them in compliance with sections 35 and 36 of the SPA. In making written requests, the applicants should be as specific as possible as to the records and documents they are requesting. I also note that section 36(4) of the SPA permits the strata to refuse to supply copies of requested documents until the fee for providing such copies has been paid. 

112.      The applicant’s claim that electronic copies of requested documents should be made available for viewing by owners and tenants and that electronic copies should be provided to owners by way of a USB stick, rather than photocopies.  I find the SPA is silent on how the strata must provide documents under sections 35 and 36 of the SPA and the form in which the documents must be provided.  For example, it does not distinguish between electronic copies and photocopies. The strata’s bylaws are also silent on this issue.

113.      As a result, I find the strata has discretion as to the form of the records and documents it wishes to give owners and tenants provided it gives the information in accordance with the SPA and regulation requirements.

114.      For these reasons, I dismiss the applicants’ claim the strata has failed to comply with the SPA and bylaws relating to the governance issues alleged by the applicants.

Has the strata acted negligently or treated the applicants in a significantly unfair manner while discharging its duties?

Negligence

115.      To be successful in an action for negligence, the applicants must first prove that the strata owned a duty of care to them, that the strata breached the standard of care, that the applicants sustained damage, and that the damage was caused by the strata’s breach. (See Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.)

116.      The strata has a duty to repair and maintain its common property and assets under section 72 of the SPA and bylaw 8. The questions here are whether the strata breached its standard of care, which is one of reasonableness, in its approach to repairs and, if so, did the applicants sustain damage as a result of the strata’s breach?

117.      As earlier noted, I have found the strata acted reasonably in respect of its duty of care.  This alone would lead me to conclude it has not acted negligently.  Further, the applicants have not proved they suffered any damage as a result of the strata’s actions, if any damage at all.

118.      I therefore dismiss the applicants’ claim that the strata has acted negligently in discharging its duties.

Significant unfairness

119.      As for the applicants’ clam of significant unfairness, the language of section 48.1(2) of the Act mirrors that of section 164 of the SPA. Both require a finding that the requested order is necessary to remedy a significantly unfair act of the strata, in relation to the applicants.  For the reasons set out below, I find that the applicants were not treated in a significantly unfair manner when the strata concluded it would not further investigate or complete repairs to the hallway ventilation system, exterior of the building, including the windows and balcony vents, the applicants’ allegations of a lack of heat in SL43.

120.      The courts and the tribunal have considered the meaning of “significantly unfair” in a number of contexts, equating it to oppressive or unfairly prejudicial conduct.  In Reid v. Strata Plan LMS 2503, 2003 BCCA 128, the Court of Appeal interpreted a significantly unfair action as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith and/or unjust or inequitable.

121.      With the exception of the strata’s charge of a $200 move-in fee discussed below, I do not see that any of the strata’s actions can be characterized as being significantly unfair. In particular, the strata has taken steps to further investigate the applicants’ allegations and has determined, with the assistance of professionals, that the allegations are unfounded. In addition, the strata says that no other owners have similar issues to those of the applicants.  The applicants have also not provided any evidence that they have been treated any differently that other owners in the strata.  On the contrary, the strata has taken reasonable steps to address the applicants’ common property concerns as I have found. I dismiss the applicants’ allegation of significantly unfair treatment.

Other requested remedies of the applicants for common property repairs

122.      As earlier noted, the applicants filed a warranty claim with Travellers for SL43 that included a claim of insufficient heat.  Travellers advised the applicants in its February 9, 2010 letter that it would “continue to act until all warrantable items had been rectified.” It is unclear if the applicants claim with Travellers has been finalized and, if not, I encourage the applicants to pursue their claim.

123.      Given I do not find an engineering report on the window performance necessary, I decline to order the windows be repaired. I also decline to order the applicants’ requested remedies relating to the interior hallway ducts and temperature and exhaust ducts and vents.

Did the strata unfairly charge a $200 move-in fee to the applicants and should I order the strata to consider amending its move-in bylaw?

124.      The applicants say the strata unfairly charged their strata lot a $200 move-in fee in the fall of 2016 when it approved a 4-month rental of SL43.  I agree.

125.      The strata says bylaw 37 requires it to charge a move-in fee of $200 for any move into the building.  The applicants say their tenant had only 3 suitcases and did not require the elevator to be locked off or any other arrangements to be made for their tenant to move into SL43, which is not disputed by the strata.

126.      It is undisputed that the strata knew of the “rental” and permitted it to occur after the $200 move-in fee was paid.  Despite the strata’s submission that the move-in fee was paid by the applicants’ tenant, I accept the applicants’ submission that Mariette West paid the move-in fee based on a photograph of a cheque issued to the strata August 30, 2016. The memo line on the cheque refers to a move-in ‘in protest”.

127.      There is no evidence that the bylaw was not properly passed so I accept that the strata has complied with Strata Property Regulation (regulation) 6.9 (b).  The questions here are whether the fee is reasonable as required under regulation 6.9(a) and whether it was fairly applied to the applicants’ in the circumstances .

128.      The applicants say the fee is not reasonable and rely on The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164 (Watson) to request the fee be waived or, alternatively, reduced to $25.  The strata disagrees.

129.      In Watson, the Supreme Court considered an appeal of an earlier tribunal decision Cody Watson v. The Owners, Strata Plan BCS 1721, 2017 BCCRT 10 (Cody Watson), where this tribunal found two $100 move-in fees charged to Mr. Watson for moves of his former roommate and his girlfriend were not reasonable and significantly unfair.  In the Cody Watson tribunal proceeding, as is the case here, the tenants used the elevator to move their personal effects but did not move any furniture into the strata lot. 

130.      The bylaw in Cody Watson is similar to the bylaw in the dispute before me in that it requires requests for moves to be made 5 days in advance accompanied by the fee. The bylaw also requires a $500 damage deposit for the elevator to be collected at the time of the move-in, which was not collected here. I find the strata’s defence here is essentially the same as that used in Cody Watson.  That is, the bylaw states the move-in fee is $200 and so that is what the strata charged.  The strata states the fee is to cover staff time involved in arranging the move and the use of the elevator.

131.      Watson confirmed the test for reasonableness for a move-in fee bylaw is the test set out in The Owners, Strata Plan LMS 3883 v. De Vuyst, 2011 BCSC 1252.  That is, the approach in determining whether fees are reasonable means objectively reasonable, such as on assessment of objective evidence. Whether fees are reasonable should depend on:

a.    Prevailing market conditions at the time: and /or

b.    The costs incurred by the strata corporation facilitating moves into and out of the property.

132.      There is no evidence before me to suggest other strata corporations apply a full move-in fee to all owners or tenants, especially those that move without furniture.  Unlike in Cody Watson or De Vuyst, there is also no evidence before me about the strata’s cost involved in overseeing a move-in without furniture.  However, I find the same principles apply here and that I am able to draw an adverse inference based on the strata’s limited response to the applicants’ claim. Absent any evidence to the contrary, I accept that the strata’s $200 move-in fee is within the range of move-in fees charged by other strata corporations. 

133.      Based on an August 20, 2016 email from the applicants’ tenant, the strata was aware the elevator lock-off was unnecessary due to the limited amount of the tenant’s belongings being moved into SL43.

134.      I find the $200 move-in fee charged to the applicants for the fall 2016 move in of their approved tenant meets the definition of a significantly unfair action set out in Reid above as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith and/or unjust or inequitable. In particular, I find the move in of 3 suitcases required no involvement of strata staff time, not unlike an owner returning from vacation.

135.      Although not binding on me, I find the reasons in Cody Watson, with which I agree, apply equally here.  I find the strata treated the applicants in a significantly unfair manner when it charged them a $200 move-in fee for their tenant in 2016.

136.      Based on the wording of bylaw 37, I find it is specifically intended to cover moves into and out of the building that involve the use and locking-off of the elevator and the involvement of the strata’s staff.  Here, there was no requirement to lock off the elevator and no staff time involved with the tenant’s move into the building, other than the processing of the Form K and updating the strata corporation records.

137.      I find the applicants’ agreement to pay a reduced fee of $25 is reasonable in the circumstances. Accordingly, I order the strata to reimburse the applicants $175 of the $200 move-in fee paid by them by cheque dated August 30, 2016.

138.      In light of my findings above about the application of bylaw 37, I agree with the applicants that the strata should consider revisions to the bylaw as it might apply to moves into and out of the building when locking off the elevator is not required. I order the strata, at its next general meeting to propose appropriate bylaw amendments to address these types of situations that include the minimal involvement of staff time.[1]

Are the applicants entitled to $4,579.55 in compensatory damages for the strata’s lack of attention to required repairs that resulted in the applicants’ alleged significant physical discomfort and loss of enjoyment of SL43 or to punitive damages for the alleged long term impact of the strata’s inactions?

139.      Given my earlier findings about the strata’s reasonable repair and maintenance of common property, I do not see that the applicants are entitled to any compensatory or punitive damages as a result of the strata’s action or inaction.

140.      I decline to order the applicants’ requested remedies in this regard.

Is either party entitled to reimbursement of tribunal fees, legal fees, expenses, or interest?

141.      The strata claims $7,575.68 in expenses it says it paid, but provided receipts for only $6,389.50.  This amount includes $784 paid to an architect for a report about ramp access and $5,605.50 paid to exp for investigation and reporting on the alleged issues in SL43 in 2013.  I decline to award the architect expenses as the ramp issue was not before me.  I also decline to award the strata reimbursement of the exp fees because these expenses were paid in 2013 as part of its regular repair and maintenance obligations, prior to the commencement of this dispute in 2017.  That I have dismissed the majority of the applicant’s claims does not mean the applicants must now pay those expenses.

142.      As for the parties’ respective claims for legal fees, tribunal rule 132 permits me to make an order for legal fees only in extraordinary cases, which I find do not exist here. The applicants claim for legal fees is $999.30 and the strata claim is $7,575.68.  While the volume of evidence and submissions was significant from both parties, ultimately the issues were not that complicated and therefore, neither’s party’s claims are extraordinary.

143.      As a result, I decline to make an order for reimbursement of legal fees.

144.      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. Given my conclusions above, I find the parties have been equally successful.  As such, I also decline to order reimbursement of tribunal fees or dispute-related expenses.

145.      The Court Order Interest Act (COIA) applies to the tribunal. I find the strata owes the applicants pre-judgement interest on $175 of unfairly charged move-in fees from the date it was paid August 30, 2016, to the date of this decision.  I calculate pre-judgement interest to be $2.67.

146.      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 ORDERS

147.      I order that, within 30 days of the date of this decision, the strata pay the applicants at total of $177.67 broken down as follows:

a.    $175.00 for partial reimbursement of the 2016 move-in fee, and

b.    $2.67 for prejudgement interest under the COIA.

148.      The applicants are entitled to post-judgement interest under the COIA, as applicable.

149.      I further order the strata must comply with its current bylaw 19 by meeting the 2 week deadline of informing its owners of strata council meeting minutes.

150.      I further order the strata, at its next general meeting, propose bylaw amendments that address moves into and out of the building that do not require locking off the elevator.1

151.      The remaining applicants’ and strata claims are dismissed.

152.      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.

153.      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.