Date Issued: November 14, 2018

File: ST-2017-003856

Type: Strata

Civil Resolution Tribunal

Indexed as: Mitoi v. The Owners, Strata Plan NW 2738, 2018 BCCRT 721

Between:

Florian Mitoi

Applicant

And:

The Owners, Strata Plan NW 2738

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The applicant is an owner of strata lot 1 in the respondent strata, The Owners, Strata Plan NW 2738. The applicant is self-represented. The strata is represented by a member of strata council.

2.      The strata performed extensive repair and maintenance on common property (project), which included the applicant’s ground floor patio (patio). The project changed the size and shape of the patio. This dispute arises because the strata and its contractor altered aspects of the project after the owners approved it. The applicant seeks several orders for the strata to make alterations to his patio and an order refunding one of the special levies that funded the project.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the 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.

4.      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.

5.      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.

6.      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

7.      The applicant seeks three orders with respect to the patio:

•        An order returning the patio to its state prior to the renovation.

•        An order that the strata install a larger flower bed on the patio.

•        An order to repair the steps and gate on the fence that borders the patio (fence).

8.      The applicant also seeks an order for $2,700 as a refund of a special levy that partially funded the project.

9.      The applicant made a number of allegations that I find are unrelated to the orders that he seeks. I find that the only issues in this dispute are:

a.    Were the 2 members of strata council whose units had ground floor patios and who voted in favour of the project and associated special levies at the special general meeting on March 23, 2016 (March SGM) and the annual general meeting on October 26, 2016 (AGM) in a conflict of interest?

b.    Was the vote approving the project at the March SGM valid?

c.    Were any of the differences between the proposed project and the final construction of the project a significant change in the use or appearance of common property within the meaning of section 71 of the Strata Property Act (SPA)?

d.    Did the strata council members breach section 31 of the SPA?

BACKGROUND AND EVIDENCE

10.   While I have read and considered everything that the parties have provided, I will only refer to the evidence and submissions that explain and give context to my decision.

11.   The strata is a 3 story residential building in Surrey, British Columbia. The strata has an underground parkade. The strata has a total of 42 units. The applicant’s unit is on the corner of the ground floor. There is a large tree (tree) past the outer corner of the patio.

12.   As discussed below in more detail, part of the patio is limited common property designated to the applicant’s strata lot (applicant’s LCP) and part of the patio is common property.

13.   In 2013, the strata commissioned a depreciation report. In early 2015, the strata engaged a building sciences contractor (contractor) to recommend solutions to a number of problems identified in the depreciation report. The contractor gave the strata its report in November 2015. Among other things, the contractor recommended that all of the landscaping elements around the building, including the pavers and fences on the ground floor unit’s patios, be removed and replaced to allow for the replacement of the parkade’s waterproof membrane underneath. Deterioration of the waterproof membrane was causing leaks into the underground parking and storage areas.

14.   On November 28, 2015, the strata states that it distributed the contractor’s recommendations to the owners. The applicant denies receiving the recommendations.

15.   The strata held the March SGM to vote on whether to approve the project. The applicant attended this meeting. A representative of the strata’s property manager chaired the meeting.

16.   The only business at the special general meeting was a resolution approving the project and a special levy to fund the project. The contractor attended and spent roughly an hour presenting their recommendations and answering questions from owners.

17.   Because the strata determined that the project would make a significant change to the use or appearance of common property, the resolution approving the project required a ¾ vote pursuant to section 71 of the SPA. The resolution approving the special levy required a ¾ vote pursuant to section 108(2)(a) of the SPA.

18.   The minutes indicate that the first vote resulted in 26 out of 35 votes in favour, which amounts to 74.3%. However, the chair of the meeting noted that there were 36 owners in attendance. The chair determined that one owner, the strata council president, did not receive their voter card. There was a motion to issue the voting card to that owner. The minutes state that no one objected to this motion. With that owner voting in favour, the resolution passed with 27 out of 36 votes in favour. The strata council president was one of the owners with a ground floor patio.

19.   The applicant does not claim a refund of the special levy approved at the March SGM.

20.   On April 14, 2016, the strata retained the contractor to act as project manager for the project.

21.   On June 21, 2016, the strata held an information session, which included preliminary drawings of the proposed landscaping work. The applicant attended this meeting.

22.   On July 20, 2016, the strata received a report from an arborist regarding some of the trees on common property. The arborist recommended that the tree be retained.

23.   On August 17, 2016, the strata held another special general meeting (August SGM). In the notice for the August SGM, the strata stated that only certain units would get “owner-controlled” gates on their perimeter fences. The applicant was not one of the owners who would get an owner-controlled gate. The strata stated that all other gates would be service gates for use only by the strata, which would be locked at all times.

24.   The minutes of the August SGM include approval of the special general meeting minutes for a meeting held on June 30, 2016. As the applicant points out, there was no special general meeting on June 30, 2016. However, the property manager confirmed that this was a typo and that the approval refers to the March SGM minutes. The property manager stated that the minutes would be corrected at the next annual general meeting, but it appears to have never been done. The applicant believes that this typo represents an effort by the strata to commit a fraud, but I reject this suggestion. It is clear that the owners intended to approve the minutes for the March SGM, which described the decision to issue an owner a voting card after the votes were initially counted.

25.   After the contractor put the project out for tender, the strata determined that the initial special levy would be insufficient to complete the project. The strata advised the owners of the shortfall in the notice of the AGM to be held on October 26, 2016.

26.   At the AGM, the strata voted on an additional special levy and on changing certain aspects of the project in order to reduce costs. Because the strata felt that the changes to the project were significant, the resolutions required a ¾ vote. The applicant attended this meeting. The resolutions passed with 30 of 37 owners in favour. The applicant seeks a refund his portion of this special levy.

27.   With the 2 special levies, the strata had sufficient funds to begin the project.

28.   The contractor provided a summary of work on October 31, 2016. The summary of work stated that the contractor would remove and replace the concrete pavers on the patio. The summary of work confirmed that there would be a slight angling of the patio to accommodate the tree.

29.   Construction lasted from November 2016 through June 2017.

30.   On April 11, 2017, the applicant emailed the property manager to complain that the contractor was reducing the size of his patio.

31.   The contractor produced a field report on April 18, 2017, which stated that they installed the fence as close as possible to the tree without damaging the roots.  

32.   On April 26, 2017, the strata sent the applicant a letter advising that the corner of the patio had to be moved in order to comply with the City of Surrey’s Tree Protection Bylaw (Tree Bylaw). The strata said that the overall size of the applicant’s patio had increased because the project widened the patio in other areas.

33.   On May 29, 2017, the strata sent the applicant another letter explaining why the plan for the patio changed. The strata again stated that the Tree Bylaw required that the edge of the applicant’s patio be moved in. The strata stated that they made the change in consultation with their project manager. The strata noted that the affected area was previously soil. The strata therefore took the position that the change was not a significant change to the use or appearance of the common property. 

ANALYSIS

Were the members of strata council who voted in favour of the project and associated special levies at the March SGM and the AGM in a conflict of interest?

34.   The applicant alleges that the 2 strata council members were in a conflict of interest within the meaning of section 32 of the SPA when voting for the project because their patios would be improved. The applicant points to the fact that one of the strata council members had sought approval to replace their patio pavers at their own expense in 2014. Later in 2014, the strata council member decided against changing his patio.

35.   The photographs in evidence show that the project did improve the ground floor patios. While some patios may have been in better condition than others prior to the project, I find that 13 of the 14 ground floor owners benefitted from the project. The project did not affect one of the ground floor units.

36.   The applicant states that the 2 strata council members with patios should have disclosed their interest in improved patios to the owners at the March SGM and the AGM.

37.   I note that no individual strata council members are named parties in this dispute. As such, they have not had the opportunity to provide a response to the applicant’s claims. However because of my findings, I have determined that I do not need evidence or submissions from the strata council members.

38.   Section 32 of the SPA governs situations where a strata council member has an interest in a matter under consideration by strata council. If a strata council member is in a conflict of interest, then that strata council member must disclose their interest, recuse themselves from discussion of the matter, and abstain from voting in the strata council meeting.

39.   However, the applicant’s primary issue is not that the 2 strata council members took part in strata council decisions regarding the project. The applicant submits that the 2 strata council members ought to have disclosed their interest at the March SGM and the AGM when the strata as a whole considered the project. The applicant also submits that the 2 strata council members should not have voted.

40.   However, section 32 of the SPA only applies to strata council meetings and does not apply to strata council members taking part in strata decisions at general meetings as owners.

41.   I find that the 2 strata council members did not have an obligation to disclose that the project would improve their patios or to abstain from voting on the project.

42.   With respect to their role on strata council, the strata relies on Perry et al v. The Owners, Strata Plan LMS 180, 2017 BCCRT 135. In Perry, the tribunal determined that the conflict of interest of provisions in the SPA must be read narrowly because strata council members will often derive some benefit from the decisions of council because they are owners. I agree with this reasoning although it is not binding on me.

43.   In this dispute, I find that the owners with patios were not in a conflict because most of the improvements were to common property, not the 2 strata council members’ limited common property. In addition, all of the ground floor owners except one derived some benefit from the project, which represents 13 of the 42 lots in the strata. The benefits were not unique to the 2 strata council members on the ground floor.

44.   I therefore find that the 2 strata council members were not in breach of section 32 of the SPA. I find that they were both entitled to participate in strata council meetings concerning the project and to vote on the project and associated special levies at the March SGM and the AGM.

45.   The applicant takes issue with the second special levy, in part, because the strata had previously referred to the first special levy as a “one time special levy”. I find that nothing turns on the strata’s use of the words “one time special levy”. The necessary ¾ vote of the owners present at the AGM approved the second special levy.

46.   The applicant also seeks an order under section 33(2) of the SPA, which provides certain remedies for when a strata council member breaches section 32 of the SPA. Pursuant to section 3.6(2)(a) of the Act, the tribunal does not have jurisdiction over section 33 of the SPA.

Was the vote approving the project at the March SGM valid?

47.   The applicant submits that the March SGM vote approving the project was invalid for 2 reasons. First, the applicant submits that the strata council changed the project without telling the owners prior to the vote. Second, the applicant submits that the chair should have accepted the first vote, which did not have enough votes to pass the resolution, and terminated the meeting.

48.   With respect to the first argument, the applicant believes that 2 members of strata council deliberately misled the owners regarding the nature of the project by renaming the project the “Building Perimeter Renewal Project” from its original name, the “Waterproofing Membrane Replacement Project, Parking Garage”. The applicant also submits that the one of the strata council members changed the nature of the project before the owners voted in order to get new patios. The applicant believes that the strata council misled the owners in order to get new fences, pavers and planters.

49.   The applicant’s argument has no merit. At the March SGM, the contractor spent roughly an hour presenting their findings and explaining their recommendations to the owners who were present. The nature and scope of the project was clear to all of the owners who attended to vote, including that the project would replace all of the ground floor patios’ paving stones with new paving stones, which the contractor recommended in the November 2015 recommendations. In addition, the contractor answered specific questions from the owners.

50.   With respect to the second argument, the applicant believes that the final vote cast was a fraud because the final voter was an owner with a patio. The applicant also believes that when the chair noticed the voting irregularity, the chair should have cancelled the meeting called a new special general meeting.

51.   While the vote proceeded in an unusual fashion, I find that the chair acted appropriately when they discovered the discrepancy in the number of votes cast and the number of voters present. The minutes indicate that the chair canvassed the owners present prior to providing a voting card to the final voter and that none of the owners objected. As a representative from the strata’s property manager, the chair had no interest in the outcome of the vote. I find that the vote was valid and that the resolution reached the required ¾ threshold to pass.

Were any of the differences between the initial plans and the final construction of the project a significant change in the use or appearance of common property within the meaning of section 71 of the SPA?

52.   The applicant takes issue with the fact that the construction of the patio differed from the summary of work that the contractor circulated prior to construction. The applicant points to a number of aspects of the final construction of the patio that are different from the summary of work, including:

•        The planters on the patio are only 18 inches wide instead of 30 inches wide.

•        The strata installed a gate on the patio’s fence with a dangerous step, and then locked the gate to prevent the applicant from using it to come and go from the patio.

•        The angled corner of the patio was moved farther away from the tree, reducing the size of the patio.

53.   As mentioned above, part of the patio is the applicant’s LCP and part of it is common property. There is no survey to show precisely the boundary between the limited common property and common property. However, using the strata plan filed in the Land Title Office and the summary of work, I agree with the strata that the boundary between the limited common property and common property tracks the edge of the second-floor balcony above the patio. Only part of the patio is underneath the second-floor balcony, but the patio extends well beyond the boundary created by the second-floor balcony.

54.   Therefore, I find for the purposes of this dispute that the areas of the applicant’s patio that are at issue are located on common property and not the applicant’s LCP. In particular, I find for the purposes of this dispute that the area of the planter and the part of the patio that was reduced in size as a result of the fence moving farther away from the tree are all on common property. Several of the applicant’s arguments are based on his incorrect belief that he owns the patio. In fact, under section 66 of the SPA, the applicant owns an undivided interest in the common property together with all other strata lot owners and, by definition, only has exclusive use of the portion of the patio that is the applicant’s LCP.

55.   The strata approved the project at the March SGM. The strata modified some aspects of the project at the AGM. The question is whether the changes that the strata made after the AGM were significant changes to the use or appearance of common property within the meaning of section 71 of the SPA. If they were, then they required ¾ approval of the owners.

56.   I agree with the reasoning in Page v. Section 1 of The Owners, Strata Plan NW 2099, 2017 BCCRT 84, that when a strata approves a large project, it empowers its executive to make non-significant changes without seeking fresh approval from the owners. Otherwise, work on large projects would inevitably be delayed, potentially at a significant cost. 

57.   First, with respect to the gate, I find that there was no change between the summary of work and the final construction. The gate was present on the summary of work, although it was not clear from that document that the applicant would not be able to use the gate. However, the strata council informed the applicant in the notice to the August SGM that the gate on the patio would not be owner-controlled. I therefore find that the applicant had no reasonable expectation that he would be able to use the gate prior to construction. Therefore, the strata’s actions of locking the gate and failing to install steps to the applicant’s liking were not changes to the summary of work.

58.   The applicant makes other allegations regarding the strata’s decision to lock the patio gate, but because the applicant does not seek any orders with respect to those complaints, I will not address them.

59.   With respect to the other claims, I have considered the factors for what is a significant change in use or appearance that are set out in Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333. I find that the factors from Foley that are relevant to this dispute are:

•        Is the change visible to residents and the general public?

•        Does the change affect the use or enjoyment of the applicant’s unit or an existing benefit of the applicant’s unit?

•        Does the change affect the market value of the applicant’s unit?

60.   With respect to the planter, there is no change in the use of the common property compared to the summary of work, other than perhaps a slight change in the types of plants that the planter will accommodate due to its smaller size. The planter is only visible from the applicant’s patio and perhaps the balconies above. I find that the change in the size of the planter is not a significant change.

61.   With respect to the fence, the fence is visible to both the applicant and the general public. However, a person would need to compare the patio to the summary of work in order to see the change in the fence’s location. This factor supports the strata’s position.

62.   Second, the change to the size of the patio affects an existing benefit to the applicant, whose patio was reduced in size as a result of moving the fence farther away from the tree. Both parties provided photographs and drawings of both the initial plan and what the contractor ultimately constructed. The strata says that, combined with the other changes, the patio is larger than it was prior to the project, but this submission misses the point. The issue is the difference in the size and shape of the patio between the summary of work and construction.

63.   The applicant’s evidence is that the fence is approximately 2.2 metres from the trunk of the tree. Using the summary of work and the measurements on the strata plan, I estimate that the initially planned distance between the tree and the fence was between 1 and 1.5 metres. The construction therefore pushed the corner of the fence approximately 1 metre into the patio. The patio is not a rectangle, but its rough dimensions are 5 metres wide by 12 metres long. Therefore, while this factor favours the applicant’s position, I find that the reduced size of the patio is not large enough to have a meaningful effect on the use or enjoyment of the patio. I place little weight on this factor.

64.   Third, the applicant alleges that the decrease in the size of the patio decreased the market value of his unit. He provides no evidence to support his assertion. Given the small change to the size of the patio, I am not persuaded that it had any impact on the market value of the applicant’s unit. I place no weight on this factor.

65.   The factors in Foley are not exhaustive, and I have considered other factors in coming to my decision.

66.   First, I have considered whether the strata had any choice in moving the fence. The parties dispute whether the Tree Bylaw required the fence to be moved. I am not convinced that it did. The applicant points out that the retaining walls on the other side of the tree are less than a metre from the tree. The applicant says this is evidence that moving the fence farther away from the tree was a vindictive decision by the strata that had nothing to do with the Tree Bylaw

67.   However, in addition to relying on the Tree Bylaw, the strata submits that the distance between the tree and the fence on one side and the retaining wall on the other side was dictated by the fact that the tree’s roots had grown towards the patio. The strata’s submissions are consistent with the field report of the contractor during construction.

68.   I accept that the strata was following the advice of its contractor in how close the fence could be to the tree, regardless of whether the Tree Bylaw mandated the location of the fence. This factor weighs in favour of the strata.

69.   I also place weight on the fact that the fence was on common property and not the applicant’s LCP. The applicant does not have the right of exclusive use of the parts of the patio that changed. The fact that the applicant’s patio extends past the boundary of the applicant’s LCP is a benefit to the applicant. Most of the other ground floor owners enjoy a similar benefit.

70.   For these reasons, I find that none of the changes between the summary of work and the final construction were significant changes within the meaning of section 71 of the SPA. I decline to order the strata to return the patio to its state prior to the renovation, install a larger flower bed on the patio, or repair the steps and gate that border the patio.

Did the strata council members breach section 31 of the SPA?

71.   The applicant submits that the manner in which the project unfolded was a breach of section 31 of the SPA. Section 31 of the SPA places obligations on members of strata council to act honestly and in good faith and to exercise reasonable care, diligence and skill. In support of this submission, the applicant largely repeats the same allegations that he made in support of his other arguments. I have addressed these arguments. Furthermore, my review of the evidence supports the strata’s argument that the members of strata council acted in accordance with their duties under section 31 of the SPA.

72.   I dismiss the applicant’s argument that any member of strata council breached section 31 of the SPA.

73.   Because the applicant has not been successful in any of its arguments regarding the project, I decline to order the strata to refund the applicant’s portion of the special levy.

TRIBUNAL FEES AND EXPENSES

74.   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. I see no reason in this case to deviate from the general rule. The applicant was not successful and the strata has not claimed any tribunal fees or dispute-related expenses. I therefore do not order either party to reimburse the other for tribunal fees or dispute-related expenses.

75.   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

76.   I order that the applicant’s dispute is dismissed.