Date Issued: November 16, 2018

File: ST-2017-006533

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan LMS 1328 v. Throssell, 2018 BCCRT 733

Between:

The Owners, Strata Plan LMS 1328

Applicant

And:

Michael Raymond Throssell

Respondent

A N D :

The Owners, Strata Plan LMS 1328

 

RESPONDENT BY COUNTERCLAIM

                   

REASONS FOR DECISION
Tribunal Member:	Darrell Le Houillier

INTRODUCTION

1.      The applicant and respondent by counterclaim, The Owners, Strata Plan LMS 1328 (strata), is a strata corporation. The respondent, Michael Raymond Throssell (owner), owns a strata lot in the strata. The strata wants the owner to reimburse it $1,205.90 for cleaning expenses the strata incurred after, it says, the owner’s visitors spread blood throughout parts of the strata’s building. The strata also wants the owner to pay $800.00 in fines for violating the strata’s bylaws on 4 occasions. The owner argues he should have to pay nothing to the strata.

2.      The owner seeks, by counterclaim, $5,000.00 in damages for harassment by the strata. The owner also seeks an order for the strata to stop harassing him. The strata denies it is harassing the owner.

3.      A member of the strata council represents the strata. The owner is self-represented.

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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.

7.      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

8.      The issues in this dispute are:

a.    Is the strata entitled to charge the owner  $1,205.90 for cleaning expenses?

b.    Is the strata entitled to fine the owner  $800.00 for bylaw violations?

c.    Is the strata harassing the owner and, if so, what is an appropriate remedy?

BACKGROUND AND EVIDENCE

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

10.   On June 24, 2016, there was a fight in the owner’s home. A knife was involved and blood from injured participants was spread in multiple locations within the strata’s building. The blood was left in hallways and stairwells not contained in the owner’s home.

11.   The owner says that the people involved in the fight were intruders in his home. The owner had previously given one of them, a woman, a fob and keys with which she could access the building and his home. The owner had previously told this woman that she was not welcome in his home. He had asked for the keys and fob back but she had not given them back. He had been considering changing the locks and deactivating the fob but had not gotten around to doing so. He did not invite any of the people involved in the fight into his home on June 24, 2016.

12.   The owner says that the people involved in the fight had assaulted a friend of his earlier in the evening of June 24, 2016. At least one of these people made threatening comments about being able to come back to the owner’s home and he was fearful. He spoke to the police, who asked the owner if he would like these people removed from his home. He declined.

13.   On July 6, 2016, the strata provided to the owner an invoice outlining the costs it incurred to deal with the blood left throughout the building. Cleaning cost $439.40, according to an attached invoice, dated June 29, 2016, from the cleaning company. Overtime for the building caretaker to deal with the incident, including with police, cost $210.00. The property management company’s administrative time spent cost $556.50. This totals $1,205.90. The strata provided telephone, fax, and email contact information if the owner had any questions.

14.   On August 4, 2016, the strata notified the owner that it was levying three $200 fines against him, each for one reported violation of the strata’s bylaws. The first was that the owner moved into the building on May 6, 2016 without approval. The second was that the owner caused a nuisance and unreasonable noise affecting another owner on an unspecified date. The third was that the owner allowed a dog to run on common property or land that is a common asset without being leashed or secured on an unspecified date.

15.   The owner notified the strata council he contested the three fines levied against him. The strata council invited him to attend a meeting on September 13, 2016 to argue his case. The owner did not attend the meeting. He says this was because a member of the strata council told him he would come to get the owner for the meeting but did not do so. The strata says the owner was given clear direction to attend, the meeting times and places for the strata council are posted on bulletin boards in the building’s lobby, along with contact information for the property manager.

16.   On May 25, 2017, the strata notified the owner that he was being fined $200 for unreasonable noise involving dragging/banging furniture and screaming/screeching late into the evening on May 1, 2017.

17.   The owner says he received warnings for two of the incidents for which the strata later decided to fine him: allowing a friend to have a dog off leash and for “loud talking.” The owner says other fines involved his nephew singing in the owner’s home, doing laundry at 9:30 p.m. and shower doors falling off their tracks. The owner denies having moved into the building on May 6, 2016. He says he moved into his home in 2015 and that he followed all the rules required at that time. He clarified that a friend moved some personal possessions and clothing into his home on May 6, 2016 but no furniture.

18.   The owner says a caretaker hired by the strata harassed him by monitoring who visited his home, yelling at him, insinuating she knew his nephew had spat in an elevator in the building, ordering him to take a picture down from a window, and threatening the owner with further fines. The owner says the caretaker started telling a relative of his, who also lives in the building, about those who came and went from the owner’s home. After telling the caretaker of his sexual orientation, the owner says others in the building began referring to him by insulting words related to his sexual orientation. The owner says there is a history of discrimination on the basis of sexual orientation by the strata, and that other homosexual owners had successfully sued the strata on that basis.

19.   The owner also says that the strata council president has told him the strata could use fines to get the owner out of the building. The owner says this is what is happening in his case, as the strata is not fining others for the same things the owner is doing.

20.   The strata provided a ledger summarizing payments the owner had made to the strata.

POSITION OF THE PARTIES

21.   The strata argues that I should order the owner to reimburse it for $1,205.90 spent to clean blood spread throughout common areas of the strata’s building because the blood was spread there by his visitors. The owner argues that he is not responsible for the expenses incurred to clean up blood spread throughout the building because those responsible were intruders, not his visitors.

22.   The strata argues that I should order the owner to pay the $800 in fines levied against him for violations of the strata’s bylaws. The owner argues that the fines that were the subject of a warning should not be able to be converted into fines, just to punish him unjustly for the damage resulting from the June 24, 2016 fight or to harass him. He described the other fines as unjust and overreactions to normal activities or accidents. The owner also argues that the strata is levying fines of $200, the maximum allowable under the bylaws, to harass him and unjustly punish him.

23.   The owner seeks $5,000 by way of a counterclaim for harassment. He says that the strata harasses him with fines inappropriately and this has left him scared to have company over or to use his home normally, for fear of further fines. He says the caretaker is harassing him. He says the actions of the strata and the caretaker have aggravated an anxiety disorder from which he suffers. The strata denies either it or the caretaker is harassing the owner.

24.  Both the strata and the owner seek costs and interest under any order I make.

ANALYSIS

Is the strata entitled to charge the owner $1,205.90 for cleaning expenses?

25.   Section 119(2) of the Strata Property Act (SPA) allows a strata to create its own bylaws.

26.  Section 130 of the SPA permits a strata to enforce a bylaw by fining an owner for actions taken by the owner, a person visiting the owner, or a person the owner admitted to the premises for any reason. Section 133 of the SPA allows a strata to require that someone who could be fined under section 130 of the SPA pay “reasonable costs” of remedying a contravention of its bylaws.

27.   The strata’s bylaw #3 governs the use of property by owners. It requires that visitors not use a strata lot in a way that causes a hazard for another person. It also requires that a visitor not cause any damage beyond normal wear and tear to the strata’s common property. The bylaw also states that an owner is responsible for the damage caused by any of his or her visitors.

28.   There is no dispute that the hallways and stairwells where the blood was left is common property. Those areas are not contained in any strata lot and, as such, meet the definition of common property found in section 1 of the SPA. The crux of the dispute on this issue is whether the people involved in the fight in the owner’s home were visitors as discussed in the strata’s bylaw #3.

29.   I find that the woman the owner found in his home was a visitor. Even though the owner had told the woman with the key to his home to return it, he did not describe having taken any further steps to restrict her access to the building or to his home. He was able to get her fob disabled quickly after June 24, 2016 but did not do so. The owner presented no satisfactory reason for why he could not have done so ahead of time. He must bear the responsibility of having given her access to the building, even if he later regretted that decision.

30.   Furthermore and separately, I find that the woman and the others that were in the owner’s home when he returned there on June 24, 2016 became visitors by the time the fight occurred. The police gave the owner the chance to remove all those who had been in his home when he got home. He did not take the police up on that offer. At that point, he accepted the presence of those people in his home and, while he may later have regretted that choice, I consider all of them to have become visitors when he did not take the opportunity to have them leave his home. I do not find it persuasive that he was frightened by the conduct of those people earlier in the evening. The police offered him assistance and he declined that assistance. He bears the responsibility of that choice.

31.   I find that leaving blood in common areas of the strata’s building amounts to damage, insofar the blood must be cleaned up for reasons of safety and aesthetics and there is an associated expense. There is an impact to the value of the common property, even if temporary, that must be addressed. As such, I find that leaving blood in common areas constitutes a violation of the strata’s bylaw #3. Even if I am wrong on this point, however, I find that visitors fighting, particularly while using a knife or knives, is a violation of the strata’s bylaw #3 because using the strata lot as a venue for a fight constitutes a hazard to at least one other person (the other person involved in the fight).

32.   As a result of these findings, I conclude that the strata is permitted under section 133 of the Act to require the owner to repay “reasonable costs” of cleaning up the blood. I find that the invoiced amount for the cleaning was reasonable. I also find that the overtime payable to the caretaker was reasonable, given that she had to deal with cleaners and the police following this incident. These costs amount to $649.40 in total.

33.   No explanation has been provided as to what time the property management company spent administering problems resulting from the blood smears or the fight itself. A letter from the property management company indicated that the strata council dealt with a security company who did not charge for its services and that the caretaker dealt with the police. It is not clear to me what the property management company did. The strata bears the burden of proof that the $556.50 cost charged by the property management company was a “reasonable cost” and it has not done so.

34.   The strata’s letter of July 6, 2016 satisfied the requirements of the SPA for requiring a strata lot owner to repay the costs of remediating a bylaw contravention. Those requirements are listed in section 135 of the SPA, and indicate that the strata must have received a complaint about the contravention, given written particulars about the complaint, and allowed the owner a reasonable opportunity to answer the complaint. The letter of July 6, 2016 explained the bylaw contravention and provided contact information for the owner, so that he could answer the complaint.

35.   As a result, I conclude and order that the strata is entitled to recover $649.40 for cleaning expenses following the June 24, 2016 fight in the owner’s home.

Is the strata entitled to fine the owner  $800.00 for bylaw violations?

36.    As noted above, section 119(2) of the SPA allows the strata to make bylaws and section 130 allows the strata to fine an owner for a violation of a bylaw.

37.   The strata’s bylaw #22 governs fines against owners. It allows a $200 fine to be levied for each breach of a bylaw.

38.   The first bylaw violation asserted by the strata was that the owner moved into the building on May 6, 2016 without approval. The strata has not described which bylaw was broken and, upon review of the bylaws, it is not clear to me that any bylaw requires approval of move in dates by the strata. I do not need to decide that, however.

39.    I find that the owner did not move in on May 6, 2016. The strata’s ledger indicates the owner paid a move in fee on October 9, 2015. That was the month he began paying regular monthly strata fees. Based on this consistent evidence from the strata, I conclude the owner moved into his home in October 2015.

40.   The owner explained that a friend moved some effects into his home on May 6, 2016 but she was not moving in to his home. The strata bears the burden of proof to establish that the owner or this visitor violated the bylaws and it has not met that burden. The strata has not described the amount of or type of material being brought to the owner’s home on May 6, 2016 and, as a result, I find that there was no move in on that date. Moving some clothing and personal effects into a home does not amount to a move in. It follows that the strata is not entitled to the $200 fine levied for the first bylaw violation.

41.   The second bylaw violation described by the strata was that the owner caused a nuisance and unreasonable noise on an unspecified date. The owner has explained that this may have related to his nephew singing, him talking loudly, shower doors falling off their tracks, or doing laundry. These are speculative explanations. I do not fault the owner for this, however, as the strata presented insufficient details to establish what nuisance/noise was at issue or when the strata says it occurred. Again I note that the strata bears the burden of proof and I find that it did not meet that burden with respect to the second reported bylaw violation.

42.   The third bylaw violation described by the strata was that the owner allowed a dog to run on common property or land that is a common asset without the dog being leashed or secured. The owner did not disagree that he had done so. This is a violation of the strata’s bylaw #35(6), which requires that animals are leashed or otherwise secured when on common property or land that is a common asset.

43.    The owner has made several arguments why this fine should not be enforced. The critical point is whether he was treated fairly by the strata council. As described in Chorney v. Strata Plan VIS 770, 2016 BCSC 148 (CanLII), a strata corporation may deal with bylaw violation enforcement as it sees fit, but in doing so it must be procedurally fair to an owner. I find that the strata did not satisfy this requirement in this case.

44.   The strata denied the owner a right to be heard. After the owner protested the fine for having a dog off leash, the strata offered the owner the chance to explain himself in an oral hearing and the owner accepted that offer. I find that he was told someone from the strata council would get him at the appropriate time on September 13, 2016. I also find that no one did so and, in his absence, decided to impose the fine. The owner asserted these facts in documented evidence submitted to the tribunal and I find them to be persuasive.

45.   The strata did not provide a detailed reply. It asserted the owner was given a clear explanation of how to attend the oral hearing, but did not provide any further detail. The August 4, 2016 letter does not provide any directions. The strata’s explanation on that point is not persuasive to me. The strata also argued the owner knew when and where the strata council meeting was taking place and how to contact the property manager. This is no answer for the owner being told someone would come and get him at the appropriate time. The strata told the owner how he could argue his case in person and then did not keep to that process. He did not have a chance to present his case after offered that chance. This was procedurally unfair and contrary to section 135 of the SPA. Because the strata was not procedurally fair in deciding to levy the fine, I conclude that the fine can not be enforced.

46.   The fourth bylaw violation described by the strata was that furniture was being moved and there was screeching/screaming late into the evening on May 1, 2017. No statement describing this incident was provided. The strata provided a bare assertion of fact, which the owner denied. He provided a contrary statement. Again, the strata bears the burden of proof to establish the owner violated a strata bylaw on May 1, 2017. I find that the strata has failed to meet its burden with respect to the fourth reported bylaw violation.

47.   I conclude that the owner strata is not entitled to fine the owner for the alleged bylaw contraventions.

Is the strata harassing the owner and, if so, what is an appropriate remedy?

48.   It is not clear what mechanism the owner seeks to use to resolve this issue. There are two potentially available to him: under the SPA and under the court-generated law of tort. Given that the owner’s complaint is against the strata, I consider the SPA to be the most likely mechanism to address.

49.   Section 164 of the SPA permits the tribunal to make an order to prevent or remedy a “significantly unfair” action by, threatened action by, or decision of a strata, including a strata council, in relation to an owner.

50.   The owner’s argument fails with respect to section 164 of the SPA because he provided insufficient evidence. Section 164 provides oversight for a strata, including the council. The owner has not provided enough evidence to support that the council has treated him in a “significantly unfair” fashion. He says the caretaker has harassed him, as has other owners in the building. These other owners include one who, according to the owner that is a party to this dispute, is an associate of at least one strata council member.

51.   The owner relies on conjecture to link the strata council with these other owners. He has asserted a connection between them without supplying enough evidence to show such a connection. The owner did not provide enough evidence to show that the strata, including the strata council, is responsible for the conduct of these other owners about whom the owner involved in this case complained. Accordingly, I find that the strata is not responsible for any harassment by other owners in this case.

52.   The owner also took issue with the conduct of the caretaker. The owner did not raise his complaints in an official capacity with the strata before it filed with the tribunal. The strata council cannot be said to have treated the owner unfairly by allowing the caretaker to continue to work and harass him, where the evidence does not show that he complained about the caretaker through any official channels before this dispute was filed with the tribunal. Accordingly, I find that the strata was not “significantly unfair” toward the owner because of the conduct the owner attributed to the caretaker. The strata cannot act unfairly with respect to an issue it did not know about and I find the owner provided insufficient evidence to show that the strata knew about the caretaker’s reported conduct.

53.   Insofar as the strata’s decisions to fine the owner, and threats reportedly made by one member of the strata council to do so, I find that the owner was not subjected to significant unfairness. Conduct that is significantly unfair means conduct that is unfairly prejudicial or oppressive and that is burdensome, harsh, wrongful, lacking in probity or fair dealing, or done in bad faith. This is discussed in Reid v. Strata Plan LMS 2503, 2003 BCCA 126 (CanLII) and Chow v. The Owners, Strata Plan LMS 1277, 2006 BCSC 335 (CanLII).

54.   The strata council threatened to fine the owner when he violated the bylaws. I understand that this may be distressing to the owner, particularly given that the strata made several attempts, now unsuccessfully, to levy fines. The fact remains, however, that the owner listed more violations he suspected could have been responsible for his fines than were, in fact, responsible for those fines. I accordingly find that the strata is not fining the owner for every possible violation. I find that the strata was fining the owner aggressively, but not to a significantly unfair level. As I have said, the strata is entitled to deal with bylaw enforcement as it sees fit, so long as it remains procedurally fair. It is not procedurally unfair to take an aggressive stance on fines in order to have owners comply with the strata’s bylaws.

55.   I do not find it persuasive that the owner is being unduly targeted. He says another owner has had dogs off leash to the knowledge of the caretaker and/or the strata. No details about either incident have been provided to me and, as such, the burden of proof has not been satisfied that there is any unfair treatment. As I said with respect to the strata’s assertions, simply saying so is not sufficient proof.

56.   I have concluded that the strata’s actions do not fall afoul of section 164 of the SPA. The counterclaim must therefore be unsuccessful. I note that I would have arrived at the same outcome if I had considered the counterclaim under the court-generated law of tort, instead of through the remedy contained in the SPA.

57.   It is an open question whether there is a tort of harassment in British Columbia. In Mainland Sawmills Ltd. et al v. IWA – Canada et al, 2006 BCSC 1195, the court defined what would need to be proven in such a case without saying whether one can sue for harassment in British Columbia. The court most recently performed the same analysis in Williams v. Simon Fraser University, 2018 BCSC 1787 (CanLII). Harassment is proven where a guilty party engages in “outrageous conduct”, either intending to cause or reckless about causing emotional distress. The emotional distress must also have been severe or extreme.

58.   There are two similar, closely associated torts recognized in British Columbia: intentional and negligent infliction of emotional suffering. The two styles of infliction of emotional suffering require all proof required for harassment, plus proof of a visible and provable illness, such as physical harm or a psychiatric illness. Harassment, if it exists as a tort in British Columbia, is therefore easier to prove.

59.   In either case, the owner’s case fails. I find that the owner did not suffer severe or extreme emotional distress. He stated that his anxiety disorder was worsened but did not provide any details about medical or psychological treatment. He did not provide evidence of any new medication intake or changes to existing medication intake. There was some emotional reaction, but the owner did not provide enough evidence to show that it was severe or extreme. I find that the owner’s claim of harassment, whether considered under the tort of harassment or under one of the torts of infliction of emotional suffering, has not been proven to the required standard.

TRIBUNAL FEES, EXPENSES AND INTEREST

60.   Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. The strata was partly successful in one of the two issues in this dispute. The owner was not successful in the issue he raised. Given the limited success of the strata, I consider it appropriate to order the owner to reimburse the strata for half of its fees. I therefore order the owner to reimburse the strata for tribunal fees of $112.50. I do not order the strata to reimburse the owner for any of his tribunal fees.

61.   For the same reason, I also consider it appropriate for the owner to reimburse the strata with half the amount of the expenses it incurred in bringing the dispute to the tribunal. As a result, I order the owner to reimburse the strata for expenses of $5.36.

62.   I calculated pre-judgment interest based on the Court Order Interest Act, R.S.B.C. 1996, c. 79 (Court Order Interest Act), from the date of the invoice for the blood cleanup, June 29, 2016. The interest applied to the cleanup expenses and the caretaker’s overtime, totalling $649.40.

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

DECISION AND ORDERS

64.   I order the owner to pay to the strata, within 30 days this decision is issued, $781.60. This amount is broken down as follows:

a.    $649.40 to reimburse the strata for expenses associated with cleaning blood in common areas of the strata’s building;

b.    $14.30 in pre-judgment interest under the Court Order Interest Act, R.S.B.C. 1996, c. 79 (Court Order Interest Act), from June 24, 2016; and

c.    $112.50 in tribunal fees; and

d.    $5.36 in expenses.

65.    The strata is also entitled to post judgement interest under the Court Order Interest Act.

66.   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 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.

67.   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.