Date Issued: January 29, 2019

File: ST-2018-004177

Type: Strata

Civil Resolution Tribunal

Indexed as: Campbell et al v. The Owners, Strata Plan BCS 2742, 2019 BCCRT 111

Between:

Diana Campbell, Shawnalea Airavelle, Grace Kotowska, Calin Birsan

Applicants

And:

The Owners, Strata Plan BCS 2742

Respondent

REASONS FOR DECISION
Tribunal Member:	Sarah Orr

INTRODUCTION

1.      The applicants Diana Campbell, Shawnalea Airavelle, Grace Kotowska and Calin Birsan (owners) own strata lots in the respondent strata corporation, The Owners, Strata Plan BCS 2742 (strata). The owners are self-represented. The strata is represented by a council member.

2.      The relationship between the owners and the strata is strained, to say the least. The owners have raised a number of allegations against the strata with respect to its retention and production of records, its conduct of general meetings, its retention of legal counsel, and its use of Facebook communications, among others. The strata denies all allegations and says it has at all times acted in accordance with the Strata Property Act (SPA) and its bylaws.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 121 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. Some of the evidence in this dispute amounts to a “he said, he said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanor in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the recent decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized the tribunal’s process and that oral hearings are not necessarily required where credibility is in issue.

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 123 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 issues in this dispute are:

a.    Has the strata breached its obligations under section 36 of the SPA, and if so, what is the remedy?

b.    Was Grace Kotowska’s removal from the annual general meeting (AGM) in April 2018 in breach of the SPA, and if so, what is the remedy?

c.    Should the resolutions passed at the April 2018 AGM to paint and replace the carpets in the common property be set aside?

d.    Was the strata’s retention of legal counsel in breach of the SPA or otherwise illegal, and if so, what is the remedy?

e.    Has the strata mistreated owners on Facebook, and if so, what is the remedy?

BACKGROUND AND EVIDENCE

8.      The strata was created in January 2008. It is made up of 231 residential strata lots in 3 4-storey buildings located in New Westminster BC.

9.      On January 29, 2008 the strata filed bylaws with the Land Title Office (LTO). The strata filed subsequent amendments to its bylaws in 2009, 2010, and 2016. On November 10, 2017 the strata filed new bylaws with the LTO which repealed and replaced both the Schedule of Standard Bylaws in the SPA and all previously filed bylaws, with the exception of 2 provisions related to rentals and pets. On July 12, 2018 the strata filed amendments to its bylaws related to rentals. On September 27, 2018 the strata filed amendments to its bylaws related to fines.

10.   At a special general meeting (SGM) on April 15, 2014 the ownership resolved to borrow $2,375,000 to finance deficiency and maintenance work and litigation costs against the developer and new home warranty provider. It was further resolved to finance this loan by a special levy on the owners totaling $2,375,000. At an SGM on May 25, 2015 the ownership resolved to spend an additional $445,725 on these expenditures, and to fund it by an additional special levy on the owners.

11.   At an SGM on December 15, 2016 the ownership resolved to accept a partial settlement of the litigation of $850,000. It was resolved to apply $800,00 of the settlement amount to the loan, thereby reducing the amount of the first special levy from $2,375,000 to $1,575,000.00. It was further resolved that this special levy was due and payable in 2 installments on January 5, 2017 and April 5, 2017.

12.   At some point the strata had concerns about it’s former property manager’s accounting practices so in 2017 it hired RHN Chartered Professional Accountants (RHN) to audit the strata’s financial records. The audit revealed that the special levies from April 15, 2014 and May 25, 2015 were assessed using a different unit entitlement than the unit entitlement filed with the LTO.

13.   In December 2017 some of the owners, including 2 applicants in this dispute, brought a dispute before the tribunal against the strata alleging it was negligent and breached its duty of care by failing to carry out common property repairs of owner developer deficiencies and related warranty items. The applicants in that dispute sought refunds of or relief from the special levies for which the tribunal found they were not entitled. See Kotowska et al v. The Owners, Strata Plan BCS 2742, 2018 BCCRT 802.

14.   In 2018, in response to RHN’s audit results, the strata’s new property management company Obsidian Property Management Ltd. (Obsidian) re-calculated the special levies based on the correct unit entitlement, and made any necessary adjustments to owners’ accounts.

15.   On February 16, 2018 the strata notified the owners about a townhall meeting on March 8, 2018 to discuss the results of RHN’s audit and potential refunds to owners. The townhall meeting was held on March 8, 2018 as scheduled.

16.   On April 12, 2018 the strata held its AGM. One of the owners, Grace Kotowska (Ms. Kotowska) was removed during the meeting by a majority vote.

17.   On May 14, 2018, 2 of the owners had a hearing before the strata council during which they requested that the April 2018 AGM be set aside and redone because of deficiencies with the notice and the conduct of the meeting. On May 18, 2018 the strata informed the 2 owners of its decision to deny their request to set aside the April 2018 AGM.

18.   At some point after receiving this decision from the strata council, in accordance with section 43 of the SPA, the owners obtained signatures from 20 percent of the ownership to demand that the strata hold an SGM to set aside the resolutions passed at the April 2018 AGM. The strata held an SGM on August 14, 2018. One of the petitioned items on the agenda at that meeting was to recall the resolutions passed at the April 2018 AGM. The chair of that meeting announced that the strata had received legal advice that the resolution was not valid and was unenforceable. The chair accepted the advice and bypassed the voting process for the petitioned resolution.

POSITION OF THE PARTIES

19.   The owners say the strata has breached its obligation under the SPA to provide them with requested records, and they want an order that the strata must provide these records. The owners say one of them was removed from the April 2018 AGM in breach of the SPA. They want a declaration from the strata that removal of a non-violent owner from the AGM was in breach of the SPA, and that such a breach will not happen again. The owners also want the tribunal to set aside 2 resolutions passed at the April 2018 AGM to paint and replace carpets in common areas. The owners say the strata has discriminated against them and harassed them by retaining legal counsel and that the strata was not authorized to retain council. They say the strata’s use of legal counsel is unnecessary and costly, and they want an order preventing legal counsel from doing the work of the strata’s property manager. The owners say the strata’s Facebook group is discriminatory. They want an order that the strata must not block members from the group, and that all owners who request access be allowed to join the group.

20.   The strata says it has complied with its obligations to prepare and retain records under the SPA and that is has provided the owners with all records requested in accordance with the SPA. The strata says the April 2018 AGM was conducted in accordance with the SPA, including the removal of a disruptive owner by majority vote and the passing of resolutions to paint and replace carpet in common areas. The strata says it was within its rights to retain legal counsel, and that counsel’s involvement in its affairs is not in breach of the SPA. The strata says it does not run a Facebook group, and that any Facebook groups related to the strata do not speak for the strata council or represent the strata or the strata council’s position.  

ANALYSIS

21.   In a civil claim like this one, the applicants must prove their claim on a balance of probabilities. This means the tribunal must find it is more likely than not that the applicants’ position is correct.

22.   I have only addressed the parties’ evidence and submissions to the extent necessary to explain and give context to my decision.

Has the strata breached its obligations under section 36 of the SPA, and if so, what is the remedy?

23.   Section 35 of the SPA and section 4.1 of the Strata Property Regulation (regulation) require the strata to prepare and retain various records. Section 36 of the SPA requires the strata to make these records available to an owner upon request within 2 weeks, or within one week if the request is for bylaws or rules.

24.   The owners say the strata has refused to provide them with access to various strata records in breach of section 36 of the SPA. Specifically, the owners want the strata to provide details and minutes from the March 2018 townhall meeting; a list of refunds granted after the audit and an explanation of the refund calculations; all refund and demand notices issued to owners after the audit; and monthly financial statements.

25.   With respect to the townhall meeting in March 2018, the owners say it was an SGM and that the strata failed to provide details or minutes from that meeting. Section 35 of the SPA requires the strata to prepare minutes of AGMs, SGMs and council meetings, including the results of any votes. The strata says the March 2018 townhall meeting was an information meeting only, not an SGM, and that no resolutions were discussed or voted on. The strata says it was not required to prepare minutes, and it did not do so.

26.   The minutes from the January 23, 2018 council meeting state that council would schedule a townhall meeting in response to receiving requests from many owners for more information about the audit and refunds. The minutes from the February 26, 2018 council meeting also refer to an “information only” townhall meeting to discuss the audit findings and potential refunds from special levy repairs.

27.   Aside from the owners’ allegations in their submissions, there is nothing in the evidence indicating the strata notified the owners that the townhall meeting in March 2018 was an SGM. I find the meeting held in March 2018 was an information meeting. On the plain wording of section 35, I find the strata was not required to prepare or retain minutes from this meeting.

28.   After the audit in 2017, Obsidian calculated refund amounts to all owners based on the correct unit entitlement. The minutes from the council meeting held May 14, 2018 explain how these refunds were calculated, and include a schedule of refunds to all owners. Later in May 2018, 2 of the owners independently emailed Obsidian requesting clarification on how their refund was calculated. Obsidian referred them to the minutes of the May 14, 2018 council meeting. The minutes from the September 14, 2018 SGM state that at the end of the meeting, those owners still present discussed the refunds and special levies. I find the strata has provided the owners with a list of refunds issued to each owner as well as an explanation for the calculations.

29.   The owners want the strata to disclose all refund and demand notices issued to owners about the special levy. There are many emails in evidence from Ms. Kotowska and other owners to Obsidian requesting various documents. While the scope of some of these requests are unclear, there is no record in the evidence before me that any of the owners specifically requested the refund and demand notices the strata issued to owners about the special levy.

30.   Section 35 (2) (k) of the SPA requires the strata to retain all correspondence sent or received by the strata corporation. Section 4.1 of the regulation requires the strata to retain this correspondence for at least 2 years. I have noted earlier that some of the owners were involved in another dispute before this tribunal about the special levy. The tribunal issued its decision dismissing that dispute on December 4, 2018. Section 189.4 of the SPA says that section 169 of the SPA applies to tribunal disputes. Section 169 (1) (b) of the SPA says that an owner does not have a right to information or documents relating to a legal suit (or tribunal proceeding) it has brought against an owner. I find the documents the owners have requested relate to the special levy and therefore are the subject matter of the earlier tribunal dispute. Based on section 189.4 (c) of the SPA, and the fact that there is no evidence the owners have specifically requested these documents prior to this dispute, I find the strata is not required to produce the notices of refund or demands for payment it issued to owners after the 2017 audit in relation to the special levy.

31.   The owners say Ms. Kotowska has a standing request for monthly financial statements, copies of which she has paid for in advance. The owners say that despite this standing order, Ms. Kotowska has had to remind the strata every month to send her financial statements. The strata says it has responded to every one of Ms. Kotowska’s requests in a timely manner. The strata says in some cases Ms. Kotowska has requested the financial statements before they were prepared.

32.   Based on the evidence before me, I find Ms. Kotowska has asked the strata to provide her with financial statements on a monthly basis, and in many cases she has paid the strata the related document fees in advance. I find the strata has provided Ms. Kotowska with monthly financial statements, but only after she has specifically requested them each month.

33.   In the interests of efficiency and transparency, I find it is reasonable for the strata to provide Ms. Kotowska with its financial statements every month without her having to request them every month, provided that she has paid for copies of the records in advance. However, the correspondence indicates that Ms. Kotowska wishes to review only certain pages from the monthly financial statements, and it is unclear from the owners’ submissions exactly which pages she seeks. Therefore, within 14 days of the date of this decision, I order Ms. Kotowska to inform the strata in writing which parts of the monthly financial statements she wishes to receive, including the number of pages. I order that once the strata receives written instructions from Ms. Kotowska, and provided she has paid for document fees in advance, on an ongoing basis the strata must send Ms. Kotowska its monthly financial statements by email within 2 weeks of preparing them. If Ms. Kotowska does not pay the strata in advance for copies of these records, the strata is not required to provide them until it receives payment.

Was Grace Kotowska’s removal from the April 2018 AGM in breach of the SPA, and if so, what is the remedy?

34.   The owners say that all owners have the right to be present at an AGM, and that Ms. Kotowska’s removal from the April 2018 AGM was in breach of the SPA. The owners say at the time of her removal Ms. Kotowska was discussing the “raise” Obsidian received in the budget, which they say the strata secretly allowed retroactively.

35.   The strata says that council obtained legal advice in advance of the April 2018 AGM about how to deal with disruptive owners. The Strata says at the start of the AGM all owners were notified that any outbursts that were off topic or unrelated to the AGM agenda or were disrespectful would be given one warning. If the outburst continued the chair would call a vote to have the person removed from the meeting. The minutes from the April 2018 AGM confirm this, and the owners do not deny such a warning was provided as the start of the meeting.

36.   The AGM minutes also show that prior to Ms. Kotowska’s removal, the budget was discussed. The budget included Obsidian’s annual fees, which were increased significantly from the previous year. A vote was called to approve the budget, which passed with 89 in favour, 1 against and no abstentions.

37.   The strata says Ms. Kotowska was yelling and swearing at the strata council, and that she was given multiple warnings about her behaviour, but when she refused to comply, the majority of owners voted to have her removed from the meeting. The minutes reflect this, and state the vote passed with 48 in favour, 42 against, and no abstentions.

38.   The owners say the AGM minutes are inaccurate. They say Ms. Kotowska was not swearing, and they deny that she was given 4 warnings before her removal. They say the property manager and the council were provoking her, and that they had pre-determined the outcome of the meeting. Since Ms. Kotowska’s removal was put to a majority vote of the ownership, I do not find the strata council or property manager pre-determined the outcome of the meeting, or planned in advance to have Ms. Kotowska removed. The owners also say the votes against ejecting Ms. Kotowska were not counted, and that one person’s abstention was not recorded. The minutes show 48 votes for the resolution, 42 against, and no abstentions. Aside from this allegation there is no evidence the numbers from this vote are inaccurate. I note that under section 50 (1) of the SPA, all votes at a general meeting are decided by a majority vote unless otherwise required or permitted in the SPA or regulations. Even if someone’s abstention at the AGM was incorrectly counted in favour of the vote, it would not have changed the outcome.

39.   The AGM minutes also indicate that all of the resolutions passed after Ms. Kotowska’s removal were passed with a significant majority. Even if Ms. Kotowska had remained at the meeting and she and her 12 proxies voted against each resolution, it would not have changed any of the results.

40.   Neither of the parties submitted formal statements from anyone at the AGM who is not involved in this dispute. In the absence of such evidence, I prefer the strata’s evidence, as it is supported by the minutes. While the owners say the minutes are inaccurate, there is insufficient evidence to establish their inaccuracy aside from their assertions. I find it was reasonable to call a majority vote to remove a disruptive owner and that the strata was not in breach of the SPA or its bylaws when it did so. Accordingly, I dismiss the owners claim in this regard,

41.   I note here that the owners say the inaccuracies in the AGM minutes amount to fraud. I also note that the owners make numerous allegations of fraud throughout their submissions. In Anderson v. British Columbia Securities Commission, 2004 BCCA 7 (CanLII), the court said that because fraud is a very serious allegation which carries stigma, there must be clear and convincing proof to establish the elements of fraud. I find the owners’ allegations about the inaccuracies in the AGM minutes are not supported by sufficient evidence to establish fraud. Even if I found the actions amounted to fraud, which I have not, such a claim would be outside the jurisdiction of the tribunal.

Should the resolutions passed at the April 2018 AGM to paint and replace the carpets in the common property be set aside?

42.   The owners expressed numerous concerns about the conduct of the April 12, 2018 AGM. As stated above, at a May 2018 council hearing, 2 of the owners requested the AGM be set aside and redone, which the strata denied. At the August 2018 SGM there was an item on agenda to recall the resolutions passed at the April 2018 AGM. However, at the SGM the strata said it had received legal advice that the resolution was not valid and was unenforceable. The chair accepted this advice and did not call for a vote on this resolution at the SGM. Evidently the owners still have some serious concerns about the AGM, and I will address some of those concerns below.

43.   The owners say the strata did not send the AGM information package to all owners in accordance with section 45 (1) of the SPA. They say the AGM package was not available on “Shift Suite,” an online portal, and that it was only posted to Facebook on April 7, 2018, 5 days before the AGM. The AGM was held on April 12, 2018. The minutes from the AGM state that the strata sent notice of the AGM by mail on March 21, 2017, and this is supported by an invoice the strata submitted showing photocopy and mail expenses. While the strata may have also provided notice of the AGM to owners through an online portal or on Facebook, such notice is not required by the SPA or the strata’s bylaws. I am satisfied the strata notified the owners of the April 12, 2018 AGM by mail in accordance with the SPA. 

44.   The owners say the strata council president was supposed to chair the AGM, but the strata’s property manager chaired the whole meeting without a vote. The minutes show that the strata council president asked the property manager to facilitate the meeting, and that there were no objections from the floor. I find there is insufficient evidence the strata breached its bylaw 26 about chairing meetings.

45.   The owners say that the proxies were not counted for voting at the AGM. However, the minutes indicate that at the start of the meeting there were 66 owners present in person and 24 owners present by proxy for a total of 90. The votes for each resolution up until Ms. Kotowska was removed total 90. Ms. Kotowska held 12 proxies at the AGM, and when she was removed her proxies left the meeting with her.

46.   The minutes indicate that after Ms. Kotowska’s removal from the meeting the ownership voted on a resolution to spend up to $97,000 from the contingency reserve fund (“CRF”) to paint interior walls as per the depreciation report. The minutes show the resolution passed with 63 in favour, 12 against, and 2 abstentions. While I have already found Ms. Kotowska’s removal from the AGM was not in breach of the SPA, even if Ms. Kotowska and her 12 proxies were present for the vote and voted against the resolution, it would not have changed the outcome.

47.   The minutes indicate the next item on the agenda was a resolution to spend up to $92,000 from the CRF to remove and replace the carpet flooring as per the depreciation report. The minutes show the vote passed with 77 in favour, zero against and no abstentions. Again, even if Ms. Kotowska and her proxies were present for the vote, it would not have changed the outcome.

48.   The owners say they were not allowed to question and discuss the AGM resolutions in depth, not all owners’ opinions were acknowledged, and if anyone disagreed with the property manager and council, the discussion was shut down. I have already separately addressed the issue of Ms. Kotowska’s removal from the AGM. Aside from that incident, the owners’ evidence on this point is vague. Without more specific information I am unable to find the owners have substantiated these allegations.

49.   The strata says the resolutions to spend CRF funds to paint and replace the carpets were passed in accordance with section 96 of the SPA, and I agree. I find the resolutions passed at the April 2018 AGM to spend CRF funds to paint and replace the carpet in the common areas were in accordance with the SPA and the strata’s bylaws, and there is no valid reason they should be set aside.

50.   I note that in their submissions, the owners expressed concern about the election of the new strata council at the April 2018 AGM and related errors in the AGM minutes. The AGM minutes show that 8 people were nominated, 4 people received the required majority votes to sit on council, and 7 people were elected to council. In its submissions the strata clarified that this was a typographical error, and that the minutes should have stated that 7 people received the required majority of votes. The balance of the evidence indicates that 7 people sat on council following the AGM. The owners raised concerns that the number of votes for each nominee were not recorded in the minutes. While this is true, I note that at the August 2018 SGM the ownership voted on a resolution to dissolve the current strata council and elect a new council. The resolution failed with 17 voting for and 69 voting against. I therefore find it is unnecessary for me to revisit this issue as the ownership has already voted on it.

51.   I dismiss the owners claim that the resolutions passed at the April 2018 AGM to paint and replace the carpets in the common property be set aside.

Was the strata’s retention of legal counsel in breach of the SPA or otherwise illegal?

52.   The minutes from the January 23, 2018 council meeting indicate that council was receiving “problematic discourse” from a small group of the ownership. The minutes state that council felt unequipped to deal with the nature of the communications, and it approved hiring a lawyer to manage future correspondence with Ms. Kotowska, though she is not named in the minutes. The minutes from the May 8, 2018 council meeting state that council had engaged a lawyer for assistance communicating with these “challenging owners.” Council ratified approval to spend up to $1,000 for this lawyer. Section 98 of the SPA governs strata expenditures that are not approved in the budget or at a general meeting. Section 98 (2) of the SPA allows a strata to make an expenditure that is not approved in the budget or at a general meeting if it is less than an amount specified in the bylaws, or if the bylaws are silent, the lesser of $2,000 or 5 percent of the total contribution to the operating fund in the fiscal year. The strata’s bylaws are silent and $2,000 is less than 5 percent of the strata’s annual operating fund. Therefore, I find the strata council’s approval to spend up to $1,000 on a lawyer was not in breach of the SPA.

53.   It is undisputed that the strata had legal counsel representing it at the August 2018 SGM. The owners say the strata brought 4 lawyers to intimidate the ownership, though I cannot determine from any of the evidence before me the number of legal counsel present at the meeting. The owners say the strata council needed a 3/4 vote from the ownership before it was authorized to hire legal counsel to represent it at the SGM. In the absence of such a vote the owners say the strata’s lawyers were acting without authority at the SGM, and that this amounts to fraud. Again, I note the seriousness of fraud allegations and the tribunal’s lack of jurisdiction for criminal offenses. There is nothing in the evidence to indicate that anyone at the SGM acted fraudulently. However, I must determine whether strata’s expenditure on legal counsel to attend the August 2018 SGM was in compliance with the SPA.

54.   It is unclear whether the lawyer the strata agreed to hire at its May 2018 meeting was present at the SGM. However, section 98 (3) of the SPA allows the strata to make an unapproved expenditure if there are reasonable grounds to believe an immediate expenditure is necessary to ensure safety or prevent significant loss or damage. The strata relies on this tribunal’s decision in The Owners, Strata Plan VR 942 v. Thompson, 2018 BCCRT 4 (Thompson), in which the tribunal found that section 98 (3) of the SPA applied to a strata’s legal expenditure. In that case the strata paid to have legal counsel at an AGM despite the fact there were no formal legal proceedings because the tribunal found the strata in that case had fallen into dysfunction and the expenditure was necessary. The tribunal applied the Supreme Court’s decision in Lum v. Strata Plan VR 519, 519 BCSC 49, which says a strata council has a duty to have the strata properly represented in legal proceedings in which it is involved. While I am not bound by Thompson, I find it persuasive and I rely on it. At the time of the SGM the strata was involved in this dispute as well as another dispute before the tribunal involving some of the same owners. In the circumstances, I find strata’s expenditure was necessary in accordance with section 98 (3) of the SPA.

55.   The minutes from the August 2018 SGM show that the council president and vice president were unwilling to chair the meeting, but they suggested that a lawyer from Haddock and Company should chair the meeting, as neither the strata nor Obsidian had ever engaged the lawyer, and they suggested he would be neutral. The minutes show this was put to a vote which passed with 75 votes for the motion, 19 against, and 4 abstaining. I find this process of voting in a third party to chair the SGM was conducted in accordance with the strata’s bylaw 26.

56.   The owners say the chair of the SGM should not have allowed the strata’s property manager to speak at the meeting since he was not an owner and had no right to vote. However, the strata’s bylaw 27 allows someone who is not eligible to vote to participate in a discussion at a general meeting with the chair’s permission. I find the chair was not in breach of the strata’s bylaws by allowing the strata’s property manager to speak at the August SGM.

57.   The owners say the strata discriminated against them and harassed them by hiring legal counsel to assist the strata in communicating with them. Claims of discrimination are outside the jurisdiction of this tribunal, so I decline to make an order in that regard. Discrimination claims must be brought before the British Columbia Human Rights Tribunal. I have found that the actions of the strata in relation to obtaining legal counsel have been in accordance with the SPA and the strata’s bylaws. There is no evidence before me to indicate that the strata or its legal counsel have harassed the owners or mistreated them in any way. I dismiss the owners’ claims that the strata harassed or otherwise mistreated them by hiring legal counsel.

58.   In their submissions the owners request that the “fraudulent record” in the September 2018 council minutes be corrected, and that the strata issue Diana Campbell a public apology. However, the September 2018 council minutes are not in evidence, so I am unable to determine what exactly the owners say is “fraudulent,” or what the strata would be apologizing for. Therefore, I find it is not appropriate or necessary for the strata to issue a public apology. Further, apologies are generally voluntary, and I find ordering a forced apology would serve no purpose. I dismiss the owners claim in this regard and I decline to order the strata apologize to the owners.

Has the strata mistreated the owners on Facebook, and if so, what is the remedy?

59.   The owners say the strata’s Facebook group “Copperstone BCS2742” is discriminatory because it blocks members who disagree with council despite the strata’s obligation to represent all owners and take into account all suggestions. The owners say the strata’s Facebook group should be an information portal only. The owners want the strata to allow access to this Facebook group to all owners who request it, and they want the strata to be prohibited from blocking owners from the group with whom it disagrees.

60.   As I have already noted, the tribunal’s jurisdiction does not include claims of discrimination, so I decline to make any order relating to the owners’ claims of discrimination. However, I must ensure that the strata’s use of Facebook is not in breach of the SPA.

61.   The owners submitted many excerpts of Facebook messages, some of which appear to be written by council members. It is unclear if these messages are from the Facebook group Copperstone BCS2742, although I accept that they are. The Facebook communications in evidence show a breakdown in communication between some of the owners and the strata council members. Messages from many of the owners are littered with accusations against the strata council and convey a strong sense of frustration and mistrust.

62.   The strata says it does not run the Facebook group “Copperstone BCS2742” or any other Facebook account or group. The strata says the Facebook group “Copperstone BCS2742” may be administered by current or former council members, but it does not express the views of the strata. The strata says it does not determine who is permitted to join or who is blocked from the Facebook group Copperstone BCS2742, and the strata does not discuss this Facebook group at strata meetings.

63.   The strata says it does not formally communicate with owners, or send any formal notices to owners via Facebook. The strata says it sends formal notices to owners by mail or electronically to owners who have elected to receive correspondence in that manner in accordance with section 61 of the SPA. There is no evidence before me to indicate that the strata failed to notify any of the owners of any strata meetings or business.

64.   Some of the Facebook messages in evidence from council members provide information about issues affecting the strata. An owner who was not part of that Facebook group would not be privy to that information. However, on the evidence before me I am unable to determine whether such information was provided to owners by other means at the time. In any event, none of this information purports to be official correspondence from the strata to owners.  

65.   Given the strained relationship between the owners and the strata and the nature of the Facebook communications in evidence, it seems it would be wise for any strata council members who have started Facebook groups for the purposes of conveying information not to limit or block the commenting function. However, I find there is insufficient evidence before me to determine that the strata administers the Copperstone BCS2742 Facebook group or any other Facebook group or account. I accept the strata does not administer the Facebook account. Therefore, I find the strata has not mistreated the owners on Facebook. I dismiss the owners claim in this regard and I decline to make an order relating to the strata’s Facebook communications.

TRIBUNAL FEES AND EXPENSES

66.   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. In this case the owners were partly successful in obtaining an order for monthly disclosure of financial statements to Ms. Kotowska. However, the strata has historically provided these statements to Ms. Kotowska on her request, they simply have not done so pre-emptively. Given this, and that the owners were unsuccessful with the rest of their claims, I find the owners are not entitled to their tribunal fees or dispute-related expenses.

67.   The strata wants the owners to pay for $630 in additional property management fees it incurred in relation to this dispute. It submitted an invoice indicating these fees are for the property manager’s time, document preparation, and communication with the strata’s lawyers. The tribunal will not typically order a party to pay legal or representative fees for the dispute, or for a party’s time in preparing for the dispute. I do not find this case to be out of the ordinary, and I decline to award the strata its property management fees.

DECISION AND ORDERS

68.   I order that:

a.    Within 14 days of the date of this order, Ms. Kotowska must provide the strata with written instructions indicating specifically which parts of the monthly financial statements she wishes to receive, including the number of pages.

b.    After receiving written instructions from Ms. Kotowska as described above, and provided Ms. Kotowska pays the strata the $0.25 per page document fees in advance, on an ongoing basis the strata must provide Ms. Kotowska with electronic copies of its monthly financial statements by email within 2 weeks of preparing them.

c.    If Ms. Kotowska has not paid the strata the $0.25 per page document fees in advance as described above, the strata is not required to send Ms. Kotowska that month’s financial statements, or portion of them, until payment is received.

d.    At any time Ms. Kotowska may inform the strata in writing that she no longer wishes to receive monthly financial statements from the strata, at which time this order becomes ineffective.

69.   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.

70.   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.