Date Issued: March 4, 2019

File: ST-2018-005148

Type: Strata

Civil Resolution Tribunal

Indexed as: Lane et al v. The Owners, Strata Plan 212, 2019 BCCRT 249

Between:

Kurt Lane, Phyllis Cameron, Adriana McMullen, Mary Robichaud, Brian Shields, Maureen Shields, June Slack and Barbara Lane

Applicants

And:

The Owners, Strata Plan 212

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      This is a dispute about the removal of trees on the common property of the respondent strata corporation, The Owners, Strata Plan 212 (strata).

2.      The applicants are all owners of strata lots in the strata. Together, they own 6 strata lots. Phyllis Cameron owns strata lot 3. Barbara Lane and Kurt Lane own strata lot 21. Adriana McMullen owns strata lot 17. Mary Robichaud owns strata lot 20. Brian Shields and Maureen Shields own strata lot 30. June Slack owns strata lot 26.

3.      In June 2018, the strata planned to remove 4 trees from common property (2018 trees). The applicants opposed the removal of the 2018 trees, but the strata removed them in September 2018, after the applicants had commenced this dispute.

4.      The applicants sought orders that were initially intended to protect the 2018 trees, as follows:

•          That the strata cease removing trees and significantly pruning branches.

•          That an independent arborist investigate any proposed alteration to the trees.

•          That the strata must consider alternatives to the removal of trees.

•          That the strata must follow the Strata Property Act (SPA) before making significant changes to common property.

5.      The applicants acknowledge that the above orders are moot insofar as the 2018 trees are concerned. Nevertheless, the applicants say the orders would clarify the strata’s obligations in relation to any subsequent proposal to remove trees. The applicants say that the strata plans to remove more trees in 2019.

6.      The applicants also seek an order that the strata spend $30,000 to replace trees that the strata removed between 2012 and 2015. After the strata cut the 2018 trees down, the applicants amended this claim to include replacement trees for the 2018 trees. The applicants also added a claim seeking an order that the strata retract a statement that it made about the applicants and apologize to the applicants.

7.      Mr. Lane represented the applicants. The strata is represented by a member of strata council.

JURISDICTION AND PROCEDURE

8.      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.

9.      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.

10.   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.

11.   Under section 123 of the Act and the tribunal rules, in resolving this dispute the tribunal may order a party to do or stop doing something, order a party to pay money, and order any other terms or conditions the tribunal considers appropriate.

12.   Tribunal documents incorrectly show the name of the respondent as either The Owners, Strata Plan VIS 212 or VIS 212. Based on section 2 of the SPA, the correct legal name of the strata is The Owners, Strata Plan 212. Given the parties operated on the basis that the correct name of the strata was used in their documents and submissions, I have exercised my discretion under section 61 of the Act to direct the use of the strata’s correct legal name in this dispute. Accordingly, I have amended the style of cause above.

ISSUES

13.   The issues in this dispute are:

a.    Was the removal of the 2018 trees a significant alteration in the appearance of common property?

b.    If so, was the removal of the 2018 trees immediately necessary to ensure safety or prevent significant loss or damage?

c.    If the strata removed the 2018 trees contrary to section 71 of the SPA, what remedy is appropriate? Should I order the strata to plant any trees?

d.    Should I order the strata to retract its statement and apologize to the applicants?

BACKGROUND AND EVIDENCE

14.  In a civil claim such as this, the applicants must prove their case on a balance of probabilities. Both parties provided a considerable amount of evidence and submissions. I have read and considered everything the parties have provided, but I will only refer to what is necessary to explain and give context to my decision.

15.   The strata consists of 36 residential strata lots in a 4-story building in Victoria.

16.   The building was constructed in the 1970s. At that time, the developer planted a number of immature pine and spruce trees as part of the landscaping. Over the next 40 years, the trees grew to tower over the building. As they grew, the trees became crowded and the strata has removed several trees over the years to ensure they were appropriately spaced.

17.   In March 2015, the strata council approached Mr. Lane to tell him that it planned on removing a spruce tree adjacent to the Lanes’ patio (spruce tree) because it was affecting another owner’s patio. The strata also said that the spruce tree was a potential hazard and had sap rot.

18.   On May 24, 2015, 8 owners, including Mr. Lane and 3 of the other current applicants, wrote to strata council opposing the removal of the spruce tree. On May 26, 2015, the strata’s arborist pruned the spruce tree, but the extent of the pruning was more extensive than the strata had intended. The Lanes were extremely upset, as the pruning had essentially stripped the spruce tree of all of the branches that were visible from the Lanes’ unit.

19.   The dispute over the spruce tree simmered over the spring and summer of 2015. Mr. Lane’s lawyer sent a letter to the strata and Mr. Lane had a hearing with strata council. Mr. Lane wanted the strata to stop removing trees unless they had a resolution passed by a ¾ vote pursuant to section 71 of the SPA, approving what he considered a significant change to common property.

20.   There were 4 other trees that the strata was considering removing in the summer of 2015 because they were infested with aphids and ants. Ultimately, the strata decided to band and spray the trees to try to save them, rather than remove the trees.

21.   On June 25, 2018, the strata council met and decided to remove the 2018 trees, a birch tree and 3 pine trees. The minutes also refer to a spruce tree that may need to be removed, which I understand to be the spruce tree.

22.   The owners received the minutes of the June 25 strata council meeting on July 9 and the Lanes immediately wrote to the strata council demanding that it not proceed to remove the 2018 trees.

23.   In their letter, the Lanes said that they did not believe that the strata had the authority to remove any trees without first passing a ¾ resolution under section 71 of the SPA, unless there was a risk that the tree would topple.

24.   The strata responded on July 17, 2018. The strata said that it had made extraordinary efforts to save some of the trees in 2015, but that they had come to represent an unreasonable risk to people and property. The strata said that it was following the advice of its tree contractor.

25.   The strata said that the birch tree at issue was damaging a retaining wall. The strata said that one of the pine trees produced needles and pine cones that blocked drains and posed a safety hazard. The strata also said that the trees blocked the light.

26.   The strata said that the other 2 pine trees were damaging the stone pad for wheelchair access. The strata said that an owner had requested the removal of the spruce tree because it was too close to the building. The strata also suspected that the roots of some of the trees were affecting a retaining wall and drain. The strata said that the 2018 trees were top-heavy and at risk of toppling in a windstorm.

27.   On July 25, 2018, the day after the strata became aware of this dispute, the strata agreed to postpone the tree 2018 removal.

28.   On September 5, 2018, the day before the parties attended a facilitation as part of the tribunal’s facilitation process, the strata’s contractor cut down the 2018 trees. The strata says that the 2018 trees were removed “for public safety, liability and to prevent property loss”. The strata provided no notice of this action, and the applicants learned of the decision to remove the 2018 trees “by the sound of chainsaws”. The strata says that it takes weeks to book an arborist and it felt that the work needed to be done before the winter storms.

29.   The applicants say that the strata plans to remove several more mature trees in 2019, including the spruce tree outside of the Lanes’ unit. The strata says that it has not made any final decisions about further tree removal.

POSITIONS OF THE PARTIES AND ANALYSIS

30.   Section 71 of the SPA says that the strata must not make a significant change in the use or appearance of common property unless either the change is approved by a resolution passed by a ¾ vote at an annual or special general meeting, or there are reasonable grounds to believe that an immediate change is necessary to ensure safety or prevent significant loss or damage. This section raises 2 separate questions. Was removing the trees a significant change in the appearance of common property? If so, was removing the trees necessary to ensure safety or prevent significant loss or damage?

Was removing the trees a significant change in the appearance of common property?

31.   The factors in determining whether a change is “significant” within the meaning of section 71 of the SPA are well established: see, for example, Foley v. The Owners, Strata Plan VR 287, 2014 BCSC 1333. I find that the factors relevant to this dispute are:

•          Whether the change is visible to residents of the strata.

•          Whether the change is visible to members of the general public.

•          Whether the change affects the use or enjoyment of one or more units.

•          Whether the change impacts the marketability or value of a unit.

•          How the strata has governed itself with respect to previous changes to common property.

32.   It is also well established that the above factors are a guide, but whether a change is significant or not will depend on the facts of each case. In particular, there is no rule about whether the removal of trees is a significant change in the appearance of common property.

33.   To illustrate, 2 tribunal cases have considered whether the removal of trees by a strata corporation was a significant change within the meaning of section 71 of the SPA, with opposite results.

34.   In Maguire v. The Owners, Strata Plan VIS5830, 2017 BCCRT 77, the strata corporation removed approximately 28 trees, leaving 109 trees still on the property. The tribunal noted that the strata was surrounded on 3 sides by covenant areas and a nature reserve of mature trees. The removal of the trees was not visible to the residents or the general public due to the sheer number of trees on and around the common property. In that context, the tribunal determined that the removal of the trees was not a significant change in the appearance of common property.

35.   In contrast, in Tuddenham et al v. The Owners, Strata Plan K 660, 2018 BCCRT 421, the tribunal considered the removal of 12 trees from common property directly adjacent to a row of townhomes. The tribunal relied on the fact that the trees were mature. The townhomes were in an urban area and the trees provided shelter and privacy. The change was highly visible and detracted from the owners’ use and enjoyment of their strata lots. The tribunal found that the change was ugly and may affect the market value of the adjacent townhomes. The tribunal found that the change was significant and ordered the strata to plant replacement trees.

36.   The applicants say that the removal of the trees was significant because, unlike other condominium developments in the area, the strata’s common property included a number of large evergreen trees. They say that these trees provide a unique park-like setting and year-round privacy from the street and neighbouring buildings.

37.   Several applicants say that the removal of the trees has adversely affected their use and enjoyment of their strata lots, and particularly their balconies. Several applicants also say that the large evergreen trees were a deciding factor in choosing to purchase a lot in the strata. The applicants also say that the trees provided valuable services such as moderating temperature and abating noise.

38.   The applicants say that the removal of the trees detracts from property values. The applicants provide a report from an arborist who determined that the amenity value of one of the trees was $6,000.

39.   The strata says that the removal of the trees was not a significant change. They say that there are still around 25 trees on the strata’s property, although based on the photographs in evidence I find that they are not all mature evergreen trees. They say that there are also trees on adjacent City property. The applicants say that the trees on City property beside the strata are deciduous and do not provide year-round privacy.

40.   The strata says that the removal of the trees is an aesthetic improvement. They say that views and light are more important than trees for marketing the strata’s units. The strata says that only the applicants think that the removal of the trees was negative.

41.   The strata also submits that a ¾ vote is only necessary for unbudgeted items. The strata says that its budget includes a line item for tree preservation and maintenance, which covers tree removals. The strata does not explain this submission further. I find that section 71 of the SPA requires a ¾ vote be passed for a significant change to the appearance of common property regardless of whether the money for the change is in the strata’s budget.

42.   I find that the strata’s main argument conflates the question of whether the removal of the trees was significant change with whether it was a desirable change. Whether a large evergreen tree outside a window presents an aesthetic asset or nuisance is a matter of preference. The question is not whether removing the trees was the best decision for the strata to make. The question was whether the strata council was entitled to make the decision without passing a resolution under section 71.

43.   I find that in the context of the strata and its surrounding neighbourhood, the removal of the trees was highly visible from many units in the strata. The removal was also visible by the general public, although to a lesser extent. I accept that the removal negatively impacted the use and enjoyment of some of the strata lots, although I also accept that not all owners viewed the removal as negative.

44.   As for the impact on the marketability or market value of the units in the strata, the applicants rely on the amenity value of a tree, which is not evidence of the impact of the removal of a tree on the market value of any particular unit. However, based on the evidence of both parties, I accept that the removal of the trees impacted the marketability of some strata lots, for better or worse. I am not able to find that the removal of the trees had an impact on the market value of the any of the strata’s units.

45.   The strata generally follows the procedures set out in the SPA when considering changes to common property. In other words, this is a not a dispute involving a strata corporation that has a history of making decisions about common property informally. However, as outlined above, the strata has always removed trees without seeking a resolution under section 71 of the SPA.

46.   On balance, after weighing the factors set out above, I find that the removal of the 2018 trees was a significant change in the appearance of common property. I rely primarily on my assessment of the visual impact of the removal of the 2018 trees and the extent to which it affected some owners’ use and enjoyment of their strata lots.

47.   The applicants also claim that pruning and thinning the tree branches are a significant change in the appearance of common property because, in the past, this work has affected the views from certain units. This particular complaint dates back to the significant pruning of the spruce tree.

48.   While I accept that it is true that the pruning has affected some views, I do not agree that pruning or trimming done by a qualified arborist is a significant change in the appearance of common property. I find that there is a substantial difference between removing some branches of a tree and removing the tree entirely.

49.   Therefore, I find that pruning or thinning of tree branches done by a qualified arborist does not engage section 71 of the SPA. If the majority of owners are displeased with the strata’s pruning or thinning plans, they may direct the council in the performance of its duties pursuant to section 27 of the SPA. Otherwise, I find that pruning and thinning branches with the assistance of a qualified professional falls within the strata council’s scope of authority to repair and maintain common property under section 72 of the SPA.

Was removing the trees immediately necessary to ensure safety or prevent significant loss or damage?

50.   Section 71(b) of the SPA allows the strata to make significant changes to the appearance of common property without a resolution if the strata has reasonable grounds to believe that there is an immediate need to make the change to protect people or property. The strata says that section 71(b) applies to all of the 2018 trees. The applicants say that there was no immediate need to remove the trees.

51.   The strata says that the 2018 trees posed 3 distinct risks.

52.   First, the strata says that the pine needles and pine cones posed a slipping hazard. They say that several owners use mobility aids such as walkers and canes. The strata says that an owner once slipped on a pine cone and broke her elbow. The strata says that it sometimes has to clear the parking lot several times per week, at considerable cost.

53.  The applicants agree that the tree drops needles and cones. They say that there is nothing unusual or hazardous about a pine tree shedding needles or cones. They say that removing a mature pine tree because it drops needles and cones is out of proportion to the supposed hazard it poses. They say that the strata could simply keep sweeping them up.

54.  Second, the strata says that it had to remove the trees before winter, when there are windstorms. The strata says that during one winter storm, a branch fell off one of the trees and into the parking area. The strata does not say which tree lost this branch or what year this happened. The strata also provided information from BC Hydro about a large number of trees falling on power lines during the 2018-19 storm season.

55.  The applicants say that the strata has not provided any evidence that the 2018 trees posed a particular risk of falling.

56.   Third, the strata says that the 2018 trees were damaging the strata’s infrastructure. The strata says that the 2018 trees were causing cracks in the parking lot’s asphalt and in a retaining wall. The strata says that the pine trees’ needles had caused unnecessary expense by blocking storm drains. The strata says that it had an obligation to protect the integrity of the strata’s common property by removing the trees.

57.   The applicants say that the retaining wall is straight and intact, and that the “crack” that the strata relies on was insignificant. The applicants say that the strata provided no evidence to support its claim that any shifting or cracking in the retaining wall was caused by a tree as opposed to normal subsiding or other causes.

58.  Along the same lines, the applicants say that the strata has no evidence that the 2018 trees were causing damage to the parking lot asphalt. The applicants say that the asphalt is uneven in areas nowhere near any trees and that the unevenness is just natural aging of the asphalt. The strata says that the pattern of bulging and cracking of the asphalt makes it obvious that tree roots are to blame.

59.  As a general point, the applicants say that the fact that the strata postponed removing the 2018 trees from June to September 2018 shows that the risks identified were not immediate. They say that there was plenty of time to call a special general meeting and hold a vote so that the owners could weigh the risks the strata identified against the cost and impact of removing the trees.

60.  Section 45 of the SPA says that a special general meeting can be called on 2 weeks’ written notice. I find that the requirement that a change be “immediate” exists to give a strata corporation the ability to deal with true emergency situations that cannot reasonably wait for a special general meeting without posing a risk to people or property.

61.  With this in mind, for the reasons discussed below, I agree that the strata’s arguments do not show that there was an immediate need to remove the 2018 trees.

62.  With respect to the strata’s arguments about pine needles and cones posing a slipping hazard, there is no evidence that the problem of pine needles and cones had become suddenly worse such that it presented an emergency situation. Rather, the strata’s evidence is that the pine needles and cones have been an ongoing issue on common property for many years. More importantly, there is no evidence that the 2018 trees, in particular, were shedding hazardous pine needles and cones. As mentioned above, there are still several pine trees left on the strata’s common property. The strata does not explain why the 2018 trees posed an immediate risk to people and property while the other trees did not.

63.  Along similar lines, with respect to the strata’s arguments about the hazard posed by falling branches and trees in windstorms, the strata does not explain why the 2018 trees posed an immediate hazard whereas the strata’s remaining trees did not. I find that the strata’s evidence does no more than establish the general point that trees can fall in windstorms, which is not controversial. The strata provides no evidence that the 2018 trees were at risk of falling during the 2018-19 storm season, let alone at an immediate risk of falling. The strata’s arguments that their actions likely saved their entire neighbourhood from a power outage and potentially saved the lives of pedestrians are speculative.

64.  Finally, with respect to the retaining wall and the asphalt, the strata has provided no objective evidence, such as expert evidence, that the 2018 trees were causing any damage. More importantly, even if I accept the strata’s argument that the 2018 trees were causing damage, there is no evidence that the damage was progressing at such a rate that removing the trees was an immediate need.

65.  Therefore, I find that there is no evidence that any of the 3 risks that the strata identified required the immediate removal of the trees. The strata had no reasonable grounds to believe that immediate removal was necessary. Therefore, I find that section 71(b) of the SPA does not apply to the removal of the 2018 trees.

66.  In result, I find that the strata breached section 71 by removing the 2018 trees without a resolution passed by a ¾ vote at a general meeting. I will address the appropriate remedy below.

67.   As for any future removal of trees, the evidence before me is not entirely clear about which trees the strata is considering removing in 2019, with the exception of the spruce tree. The strata denies that it has made any firm decisions on whether to remove any trees in 2019.

68.   Both parties provided evidence and submissions specifically about the spruce tree. I find that I have sufficient evidence before me to conclude that removing the spruce tree would be a significant change in the appearance of common property. I find that there is insufficient evidence before me to make the same conclusion about any other particular tree.

69.   As both parties pointed out in their submissions, plants grow and change and, as a result, landscapes are constantly in flux. I therefore consider it inappropriate to make an indefinite order based on my current assessment that removing the spruce tree would be a significant change in the appearance of common property. If the strata considers it desirable to remove any trees in the future, including the spruce tree, it will need to make its own determination about whether it is a significant change in the appearance of common property in keeping with the findings and principles laid out in this decision. In this regard, I note that the fewer trees remain on the property and the larger the trees become, the greater the visual impact of each subsequent removal.

70.  I therefore dismiss the applicant’s claim for an order prohibiting the removal of trees without a resolution under section 71.

71.   For clarity, my decision should not be read as advocating in favour of removing or retaining trees. I make no comment on whether the strata should have removed the 2018 trees or whether the strata should remove any remaining trees. This dispute is only about whether the strata followed the correct process, not whether the strata made a reasonable decision.

Remedy

72.   The applicants seek an order that the strata spend $30,000 to replace 5 trees removed between 2012 and 2015. After the strata removed the 2018 trees, the applicants also asked for an order that they be replaced, but did not amend the amount of money they sought. The applicants say that the $30,000 figure is based on an amenity value of $6,000 per tree for 5 trees.

73.   The Dispute Notice was issued on July 23, 2018. I recognize that there may be an issue with the limitation period under the Limitation Act for remedies associated with the removal of trees prior to July 23, 2016. Neither party addressed this issue in their submissions. However, because of my ruling, I find that the potential limitation period issue is not relevant to the outcome of this dispute.

74.   With respect to the amount of money the applicants want the strata to spend, there is no evidence from an arborist or other expert about how much it would cost to replace the trees that the strata removed. The amenity value of the trees is not the same as the amount of money that it would take to replace them. The applicants acknowledge that the cost to replace mature trees would be exorbitant. I find that the $30,000 figure is not a reliable or useful estimate of how much it might cost to plant replacement trees.

75.   More importantly, the applicants have not provided any concrete plan about how many trees the strata should plant, where the strata should plant them, or what species of tree is appropriate. The applicants generally believe that new trees can be planted where the old trees were, but there is no specific evidence about what they propose.

76.   The strata says that it is considering replacement trees or shrubs where appropriate, but also provides no details about what it is considering. The strata simply says that some trees should not be replaced because they were initially planted too close to infrastructure. Neither party provided evidence from an arborist or horticulturist to support their views.

77.   This is in contrast to the situation in Tuddenham, in which there was evidence about the number and species of tree that the strata corporation should plant to replace the trees. In addition, in that dispute the tribunal was able to determine that each tree that had been removed could be replaced by a new tree. The applicants have not provided similar evidence.

78.   In the absence of clear evidence, I find that it would be inappropriate for me to make a specific order that the strata plant trees to replace old trees or that the strata should spend a specific amount on tree replacement.

79.   I therefore dismiss the applicants’ claim for an order that the strata plant new trees. For the same reasons, I dismiss the applicants’ claim for an order that the strata consider alternatives to removing further trees.

80.   However, considering the strata breached section 71 when it removed the 2018 trees, I find that it is reasonable to make an order to provide structure around the decision about whether to plant new trees.

81.   In its submissions, the strata expressed an openness to planting trees as appropriate, although they do not have a formal plan to do so. The strata has engaged a horticulturist in the past when making landscaping decisions. In the interests of transparency and to assist the parties to move forward, I order that the strata commission a written report from a certified horticulturist or arborist to make recommendations about the planting of new trees on the strata’s common property, including the number, location, species and cost of any proposed new trees. I order that the strata distribute the horticulturist’s report to the owners.

82.   For clarity, I make no order about what the strata should do once it receives the horticulturist’s report. The strata is not bound by the horticulturist’s recommendations or bound to plant any new trees. I find that the decisions about whether to plant new trees, where to plant new trees, or what species any new trees to choose are within the strata council’s scope of authority over repair and maintenance of common property. While I make no order in this regard, given the history of this dispute, I strongly encourage the strata to ensure that all owners are aware, in advance, of its intentions relating to tree maintenance and removal. As mentioned above, section 27 of the SPA provides the owners with a democratic process should the strata council’s landscaping decisions be at odds with the wishes of the majority of the owners. The strata may also consider a bylaw amendment to specifically address its approach to making decisions about tree maintenance and removal to minimize the risk of future disputes.

 

 

Should I order the strata to retract statements and apologize?

83.   The applicants say that the strata made inaccurate and derogatory comments about the applicants in strata council minutes, which were distributed to the owners. They seek an order that the strata retract the statements and apologize.

84.   The strata’s statements are not before me. The applicants did not provide them because they related to the facilitation phase of this dispute. The applicants wished to respect tribunal rule 27, which generally prohibits evidence from the tribunal’s facilitation process from being disclosed as part of the tribunal decision process.

85.   The tribunal generally does not order apologies because forced apologies are not genuine expressions of remorse, and are therefore unhelpful and unproductive.

86.   I find that the same reasoning applies to the applicants’ demand that the strata retract its statements about this dispute. I find that a forced retraction would serve no purpose. In addition, these reasons, which will be published and publicly available, will provide an explanation to the owners about the nature of this dispute and the positions that the parties have taken.

87.   I dismiss the applicants’ claims for a retraction and apology.

TRIBUNAL FEES AND EXPENSES

88.   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. I find that the applicants were the successful parties in this dispute. I therefore order the strata to reimburse the applicants for tribunal fees of $250. The applicants did not claim any dispute-related expenses.

89.   I dismiss the strata’s claim for $25 in tribunal fees.

90.   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.

DECISION AND ORDERS

91.   I order that:

a.    Within 14 days of the date of this decision, the strata will pay to the applicants $250 to reimburse the applicants for their tribunal fees.

b.    Within 30 days of the date of this decision, the strata will retain a certified horticulturist or arborist to make written recommendations about the planting of new trees on the strata’s common property, including the number, location, species and cost of any proposed new trees.

c.    Within 14 days of receiving the horticulturist’s or arborist’s written recommendations, the strata will distribute them to all of the strata’s owners.

92.   The applicants are entitled to post-judgment interest, as applicable.

93.   The applicants’ remaining claims are dismissed.

94.   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.

95.   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.