Date Issued: March 19, 2019

File: ST-2018-007040

Type: Strata

Civil Resolution Tribunal

Indexed as: Douglas v. The Owners, Strata Plan BCS 3668, 2019 BCCRT 345

Between:

Diana Douglas

Applicant

And:

The Owners, Strata Plan BCS 3668

Respondent

INTRODUCTION

1.      The applicant, Diana Douglas (owner), owns a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS 3668 (strata). The owner is self-represented. The strata is represented by a member of its strata council.

2.      The owner says they have 2 defective windows in their strata lot that cause severe condensation and mould on the interior of the windows. They seek an order that the strata replace the defective windows or install windows that open at the top to improve ventilation.

3.      The strata says there is no evidence the windows are defective and without such evidence, the owner may ask for permission to replace the windows through an alteration request under the strata’s bylaws. The strata asks the tribunal to dismiss the owner’s claims.

4.      For the reasons that follow, I dismiss the owners’ claims.

JURISDICTION AND PROCEDURE

5.      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.

6.      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 “she said, they said” scenario as to why the windows were not investigated as planned. Credibility, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour 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. Further, 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.

7.      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.

8.      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, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.  

ISSUES

9.      The issues in this dispute are:

a.    Has the owner proved their claim that the 2 windows are defective?

b.    If so, what is an appropriate remedy?

BACKGROUND, EVIDENCE AND ANALYSIS

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

11.   In a civil proceeding such as this, the applicant owner must prove their claim on a balance of probabilities.

12.   The strata was created in September 2009 and consists of 10 residential apartment-style strata lots in a single 3-storey building. The strata is located in West Vancouver, B.C. and exists under the Strata Property Act (SPA).

13.   The strata’s bylaws were amended on February 3, 2010 by filing bylaws different than the Schedule of Standard Bylaws under the SPA. I find the Standard Bylaws do not apply. The bylaws were again amended on December 11, 2017. The bylaws about repair and maintenance of common property did not change between February 3, 2010 and December 11, 2017 and require the strata to repair and maintain common property. The bylaws do not make the strata responsible for interior repairs to a strata lot.

Has the owner proved their claim that the 2 windows are defective?

14.   The strata agrees it is responsible for the repair and maintenance of the 2 subject windows but says they are not defective.

15.   The strata says the owner has a condensation issue, like other strata lots in the building, and that other strata lot owners were able to correct condensation in their strata lots by adding a dehumidifier and improving ventilation, as recommended in a warranty review report prepared for the strata by an engineering firm in 2014.

16.   The owner says the strata agreed to retain an engineering firm to inspect the 2 allegedly defective windows and then agreed to repair or replace the windows as a compromised solution given the cost of retaining an engineering firm would be similar to the cost of replacing the windows with operable window opening at the top of the window rather than the bottom, to improve ventilation. The 2018 strata council meeting minutes, and 2017 and 2018 correspondence exchanged between the parties, confirms that the strata attempted to arrange for an engineering firm to inspect the subject windows and that it obtained a quotation to replace them.

17.   However, the strata’s view is that it never agreed to replace the operable windows as suggested by the owner. Based on the strata council minutes and correspondence provided in evidence I agree with strata that there is no evidence of the strata’s agreement to pay for the subject window replacement. Although it is unclear why the strata did not follow through with the inspection of the windows, I do not agree that it was being deceptive as the owner suggests.

18.   The owner says that another strata lot (#10) owner had similar condensation problems and sold out of frustration after disclosing the issue to the strata lot purchasers. The owner’s assertion that the strata’s suggested improvements to correct the condensation issue is a temporary measure requiring owners to remain full time in the strata lots is not supported by the evidence. The new owners of strata lot #10 provided a signed statement dated December 15, 2018 that their condensation issues appear to be resolved after they followed the “advice and actions” recommended to them to remedy condensations issues.

19.   The owner says they are away for extended periods of time and cannot leave ground floor windows open, for security reasons, or electrical dehumidifiers running, for safety reasons, while they are away. However, the owner did not say they investigated the possible solutions suggested by the strata. The owner also did not investigate other solutions that might address their security and safety concerns, such as restricting the window’s opening or installing humidistat controls that could operate while the owner is away. As I have mentioned, the strata is not responsible under its bylaws for the owner’s strata lot. The owner is responsible for the repair and maintenance of their strata lot, even while they are not in residence.

20.   For these reasons, I find the owner has not proven their claim on a balance of probabilities. I dismiss the owners’ claims.

21.   I agree with the strata that its bylaws permit the owner to request permission to have the windows replaced at the owner’s cost by altering the owner’s strata lot or the common property. There is no such request before me to consider, and so I leave that to the owner to consider as they see fit.

TRIBUNAL FEES AND EXPENSES

22.   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. Here, the strata was the successful party but paid no tribunal fees and claimed no dispute-related expenses. Accordingly, I make no order in this regard.

23.   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.

ORDER

24.   I order the owners’ claims and this dispute dismissed