Date Issued: April 10, 2019

File: ST-2018-006012

Type: Strata

Civil Resolution Tribunal

Indexed as: Fung et al v. The Owners, Strata Plan NW 1294, 2019 BCCRT 443

Between:

Shu Hung Fung and Mei Mui Peggy Lee

ApplicantS

And:

The Owners, Strata Plan NW 1294

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.      The applicants, Shu Hung Fung and Mei Mui Peggy Lee (owners), jointly own strata lot 6 (SL6) in the respondent strata corporation, The Owners, Strata Plan NW 1294 (strata). The owners raise 4 claims in this dispute:

a.    At a special general meeting (SGM) in December 2011, the strata passed a resolution to impose a special levy to pay for replacement windows throughout the strata. This resolution should be declared invalid.

b.    At an annual general meeting (AGM) in January 2013, the strata passed a motion to initiate court action against the owners. This motion should be declared invalid.

c.    In June 2018, the strata issued an incorrect Form B – Information Certificate (Form B), and must re-issue a correct certificate.

d.    The strata must repair the windows in SL6 to conform with the rest of the strata.

2.      The strata denies the substance of these claims. It also says that claims (a), (c), and (d) are statute-barred under the Limitation Act (LA).

3.      The owners are self-represented. The strata is represented by a strata council member.

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 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.

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 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.

8.      Tribunal documents incorrectly show the name of the respondent as The Owners, Strata Plan, NWS 1294. Based on section 2 of the SPA, the correct legal name of the strata is The Owners, Strata Plan NW 1294. 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 to direct the use of the strata’s correct legal name in these proceedings. Accordingly, I have amended the style of cause above.

ISSUES

9.      The issues in this dispute are:

a.    Does the tribunal have jurisdiction to order the strata to issue a new Form B to replace that the one issued in July 2018? If so,

                              i.        Is the July 2018 Form B invalid, and if so, what changes are appropriate?

b.    Are the owners’ remaining claims out of time under the LA? If not,

                              i.        Was the special levy resolution passed at the December 2011 SGM invalid, and if so, what remedy is appropriate?

                            ii.        Must the strata repair the windows in SL6?

                           iii.        Was the motion to initiate court proceedings passed at the January 2013 AGM invalid, and if so, what remedy is appropriate?

BACKGROUND AND EVIDENCE

10.   I have read all of the evidence provided but refer only to evidence I find relevant to provide context for my decision. In a civil proceeding such as this, the applicant owner must prove each of their claims on a balance of probabilities.

11.   The strata was created in 1979 under the Strata Titles Act, a predecessor to the current Strata Property Act (SPA). The strata consists of 18 residential strata lots in 4 buildings. The owners purchased SL6 in September 2010.

12.   In mid-December 2011, the strata council circulated a notice for an SGM to be held on December 31, 2011. Three resolutions set out in the meeting notice related to the installation of and funding for new windows throughout the strata.

13.   The owners say they received the SGM notice on December 16, 2011, which the strata does not dispute. On December 22, 2011 the owners wrote to the strata council stating that the SGM notice was received too late to meet the notice period requirement in the SPA, and that the resolutions set out in the notice did not include all elements required under the SPA. The owners asked that the strata council not convene the SGM and re-issue the notice in order to meet all SPA requirements. The strata declined.

14.   At the December 31, 2011 SGM, strata owners passed a ¾ vote resolution to enter into a contract to replace the windows. Strata owners passed a second ¾ vote resolution to pay the down payment for the windows from the contingency reserve fund (CRF). The minutes state that a unanimous vote resolution was passed to pay the remaining window costs through a special levy. The owners dispute these minutes. They say they abstained from the special levy vote, so it was not unanimous.

15.   The owners say the resolutions passed at the December 31, 2011 SGM are invalid because the strata missed the deadline to provide proper notice, the provided notice had incorrect and insufficient particulars, and the vote for the special levy was not unanimous, as required under the SPA.

16.   The correspondence in evidence shows that after the SGM, the parties disagreed about whether the owners were required to pay the special levy, and whether the strata’s contractor would install new windows SL6. The owners did not pay, and new windows were installed everywhere except SL6. The owners say the strata refused to provide the windows, and the strata says the owners failed to provide the window contractor access and inform him of their window selection.

17.   At an AGM on January 12, 2013, a majority of strata lot owners voted in favour of a motion put forward at the meeting by another owner. The motion was to instruct the strata council to initiate court proceedings against the owners to compel them to install the same windows used in the rest of the strata. The owners say this motion was invalid because it was not included in the notice of meeting.

18.   Based on the evidence before me, it appears that no court action was initiated against the owners. However, the Form B the strata issued to the owners in June 2018 says that upon the sale of SL6, the owners must pay $5,400 for a special levy that was already approved. In its attachments to the Form B, the strata included letters to the owners related to the window issue dated February 3, 2012 June 4, 2013, July 16, 2013. These letters state that the owners were required to install new windows before selling SL6. The July 16, 2013 letter says a statement would be attached to their Form B indicating that the window issue was not resolved. The letter also says the strata would not be responsible for any leakage or damage from the present windows.

19.   As previously stated, the owners request declarations that the resolution from the December 2011 AGM and the motion from the January 2013 AGM be declared invalid. They also seek an order that the strata replace the windows in SL6, and issue a corrected Form B. The strata says the owners are not entitled to these orders, and that at least some of their claims are statute-barred under the Limitation Act.

REASONS AND ANALYSIS

Does the tribunal have jurisdiction to order the strata to issue a new Form B?

20.   The owners say the Form B issued by the strata in June 2018 is incorrect, as it has no date, says the CRF is zero, reports an incorrect amount owed to the strata for the special levy, and includes “misleading correspondence”. They seek an order that the strata re-issue a corrected Form B.

21.   Previous tribunal decisions have found that orders to correct Form B certificates are outside the tribunal’s jurisdiction: see Proulx et al v. The Owners, Strata Plan VR 841, 2019 BCCRT 297; Pilehchianlangroodi v. The Owners, Strata Plan LMS 1816, 2019 BCCRT 367. While these prior tribunal decisions are not binding precedents, I find their reasoning persuasive, and I rely on it.

22.   Form B information certificates are issued under section 59 of the SPA. Section 59 sets out all the procedural and content requirements applicable to Form B certificates, including who can request them from the strata corporation, when they must be provided, and what they must contain. SPA section 59(6) states as follows:

On application by the strata corporation, by an owner or by a person who is affected by a certificate, the Supreme Court may make any order it considers just in the circumstances to give effect to or relieve the strata corporation from some or all of the consequences of an inaccurate certificate.

23.   In Proulx and Pilehchianlangroodi, cited above, a tribunal vice chair reasoned that since the Supreme Court has authority to order corrections to a Form B certificate, such orders are outside the tribunal’s jurisdiction. I agree with this reasoning, and adopt it. Section 59(6) is specific that only the Supreme Court may make such orders.

24.   Under section 10(1) of the Civil Resolution Tribunal Act, the tribunal must refuse to resolve a claim that it considers is not within its jurisdiction. I find the owners’ claim about the Form B certificate is outside of the tribunal’s jurisdiction, and I therefore refuse to resolve it.

Are the owners’ remaining claims out of time under the LA?

25.   Section 13 of the Act confirms that the LA applies to disputes before the tribunal. Section 6 of the LA says the basic limitation period is 2 years, and that a claim may not be commenced more than 2 years after it is discovered.

26.   The LA defines a "claim" as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. I find that the owners’ claims in this dispute are “claims” as defined in the LA.

27.   The current version of the LA came into force on June 1, 2013. Section 30 says the former version of the Limitation Act applies to claims that pre-existed June 1, 2013. Under the former LA, a person generally has 6 years to file a claim regarding strata property issues, except for damages in respect of injury to person or property, which had a 2 year limitation period. The limitation period begins to run the day after the claim is “discovered”.

28.   Both versions of the LA say a claim is “discovered” on the first day that the person knew or reasonably ought to have known that the loss had occurred, that it was caused or contributed to by an act or omission of the person against whom the claim may be made, and that a court or tribunal proceeding would be an appropriate means to seek to remedy the loss.

29.   For disputes filed before January 1, 2019, like this one, the limitation period was paused when the Dispute Notice was issued. The Dispute Notice for this dispute was issued on August 17, 2018.

December 31, 2011 SGM Resolution

30.   The owners seek an order or declaration that the resolution imposing a special levy for window replacement passed at the December 31, 2011 SGM was invalid. Since the owners were present at this meeting, they knew about this resolution at the time it occurred, so I find they discovered their claim on that date. This is before June 1, 2013, so a 6-year limitation period applies, under the former LA. This means that the limitation period for this claim expired on December 31, 2017. The owners did not file their dispute with the tribunal until August 17, 2018, so their claim about the December 31, 2011 resolution is barred under the LA. I therefore dismiss this claim.

Window Replacement

31.   The owners seek an order that the strata repair the windows in SL6, to conform with the other strata lots in the building.

32.   On January 19, 2012, a lawyer acting for the owners at that time wrote to the strata about the window issue. The lawyer specifically noted he was writing on behalf of the owners. He wrote on page 2 of his letter that the strata must replace the windows in SL6, at the strata’s cost, and must make arrangements with the owners to commence that work by February 3, 2012.

33.   Similarly, in a March 29, 2012 letter to the strata, a different lawyer acting for the owners wrote that the owners demanded that the strata take immediate steps to replace with windows in SL6 no later than April 30, 2012, or else they would commence a petition in BC Supreme Court.

34.   Based on this correspondence, I find the owners discovered their window replacement claim by March 29, 2012 at the latest. This is before June 1, 2013, so a 6-year limitation period applies, under the former LA. Since the owners did not file their dispute with the tribunal until August 2018, I find this claim is barred because it was filed outside the limitation period. I therefore dismiss this claim.

January 12, 2013 AGM Motion

35.   The owners’ sole remaining claim is about the validity of the motion passed at the January 12, 2013 AGM to initiate court proceedings against the owners. The owners seek an order or declaration that the motion is invalid.

36.   I find the owners were aware of this motion when it was passed, so they discovered it on January 12, 2013. Since this is before June 1, 2013, a 6-year limitation period applies, under the former LA. This means the limitation period expired on January 12, 2019. The owners filed their dispute before that date, so I find it was filed within the limitation period, and is not statute-barred.

37.   According to the meeting minutes, the motion received 13 votes in favour and 1 vote against, with 3 abstentions. The motion stated as follows:

MOTION

To instruct Council to initiate Court proceedings against the Owners of Unit #6, in order to compel them to install the same new windows as the rest of Heritage Park without delay.

38.   Despite this motion, there is no indication in the evidence before me that litigation against the owners was ever commenced.

39.   The owners say this motion was invalid because it was not included in the AGM notice package, including on the AGM agenda circulated in advance to owners. I agree, in part.

40.   There was no resolution about court proceedings against the owners (or anyone) mentioned in the January 2013 AGM agenda, or in the notice documents. Rather, the AGM minutes indicate that the disputed motion was proposed by an owner during the course of the meeting, under the agenda item “Old Business”. There was a maintenance report which said that window installations were successfully completed in all strata lots in March 2012, with the exception of SL6. The minutes indicate that there was a discussion at the AGM about the windows in SL6, and one owner wished to proceed to court to seek an order that the SL6 owners install the same new windows as in the other strata lots. The motion was then put forward during the meeting, and was voted on.

41.   I find that this procedure does not meet the requirements set out in the SPA. Section 171(2) of the SPA says that before a strata corporation can sue as a representative of all owners, the suit must be authorized by a resolution passed by a ¾ vote at an AGM or SGM. Section 45(1) of the SPA says written notice of an AGM or SGM must be given at least 2 weeks in advance. Section 45(3) of the SPA says that the meeting notice must include a description of the matters that will be voted on at the meeting, including the proposed wording of any resolution requiring a ¾ vote.

42.   While individual owners can put forward a resolution, there is a very specific procedure that must be followed. SPA section 46 says that persons holding at least 20% of the strata corporation’s votes may propose a resolution, but it must be included in the meeting notice and agenda. Thus, there is no ability to put forward a resolution requiring a ¾ vote, such as a vote to initiate court proceedings, from the floor of a meeting.

43.   Section 27 of the SPA allows a resolution passed by a majority vote at an AGM or SGM to “direct or restrict the council in the exercise of power and performance of duties”. Such a motion can be put forward from the floor of a meeting, without notice. Under this provision, the January 12, 2013 motion to instruct council to initiate court proceedings was a valid direction to the strata council. However, under SPA section 171(2), the strata was still obligated to obtain authorization by a ¾ vote, with proper notice, at a subsequent SGM or AGM before commencing any lawsuit. Since this was never done, the January 12, 2013 motion had no effect. For this reason, I find the issue is moot (of no practical significance), and so no order or declaration is necessary. I therefore dismiss this claim.

Summary

44.   I find I have no jurisdiction to order the strata to issue an amended Form B certificate, so I refuse to resolve that claim. I find the owners’ claim about the December 2011 SGM and their claim to have their strata lot windows repairs are barred under the LA, so I dismiss those claims. I dismiss the owners’ claim about the validity of the January 12, 2013 AGM motion because it is moot.

Fees and Expenses

45.   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. As the owners were unsuccessful in this dispute, I dismiss their claim for reimbursement of tribunal fees and dispute-related expenses. I would have dismissed the owners’ claim for $59.21 in dispute-related expenses in any event, since they owners provided no receipts or particulars to explain the expenses.

ORDERS

46.   The owners’ claims, and this dispute, are dismissed.

47.   The strata must comply with the provisions in section 189.4 of the SPA, by not charging dispute-related expenses against the owners.

48.   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.

49.   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.