Date Issued: April 23, 2019 File: ST-2018-007031
Type: Strata
Civil Resolution Tribunal
Indexed as: Louhimo v. The Owners, Strata Plan PG 33, 2019 BCCRT 491 BET W E EN :
Risto Louhimo
APPLICANT
A ND :
The Owners, Strata Plan PG 33
RESPONDENT
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REASONS FOR DECISION |
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Tribunal Member: |
Lynn Scrivener |
INTRODUCTION
1. This dispute is about the cleanup of a spill in a parking stall. The applicant, Risto Louhimo, says that the respondent, The Owners, Strata Plan PG 33 (strata), did not act appropriately when cleaning up the spill, which caused him financial harm. The strata disagrees with the applicant’s position.
2. The applicant is self-represented. The strata is represented by a member of the strata council.
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. 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.
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 10 of the Act, the tribunal must refuse to resolve a claim that it considers is not within the tribunal’s jurisdiction. A dispute that involves one or more issues that are within the tribunal’s jurisdiction and one or more that are outside its jurisdiction may be amended to remove those issues that are outside its jurisdiction.
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.
ISSUES
8. The issues in this dispute are:
a. whether the $2,099.21 in cleanup costs charged to the applicant should be reversed;
b. whether the strata should be ordered to provide notice of strata council meetings and minutes from those meetings;
c. whether the strata should be ordered to act in accordance with the Strata Property Act (SPA); and
d. whether the strata should be ordered to cease harassing the applicant and the applicant’s tenant.
BACKGROUND AND EVIDENCE
9. The strata is located in Fort St. John, British Columbia and is comprised of 27 strata lots. The applicant purchased strata lot 13, which is also known as suite 210, in 2013.
10. The strata was formed under previous legislation. The Strata Property Act (SPA) replaced this previous legislation on July 1, 2000. On January 1, 2002, the strata’s bylaws were deemed to be replaced with the Schedule of Standard Bylaws under the SPA. Amendments to bylaws regarding pets and video surveillance were filed at the Land Title Office in 2017 and 2018.
11. Bylaw 3 addresses the use of property. Bylaw 3(1)(a) states that an owner, tenant, occupant or visitor must not use a strata lot, the common property (CP) or common assets in a way that causes a nuisance or hazard to another person. According to bylaw 3(2), an owner, tenant, occupant or visitor must not cause damage, other than reasonable wear and tear, to the CP, common assets, or those parts of a strata lot which the strata must repair and maintain.
12. Bylaw 8 sets out the responsibilities for the repair and maintenance of property by strata corporation. It says that the strata must repair and maintain common assets of the strata corporation, CP that has not been designated as limited common property (LCP) and specified portions of LCP and strata lots.
13. Bylaw 14(4) says that the council must inform owners about a council meeting as soon as feasible after the meeting has been called. Bylaw 19 states that the council must inform owners of the minutes of all council meetings within 2 weeks of the meeting, whether or not the minutes have been approved.
14. The strata plan does not specifically address the status of the outdoor parking areas. Section 1 of the SPA defines “common property” as “that part of the land and buildings shown on a strata plan that is no part of a strata lot”, which I find includes the parking area. While particular parking stalls are assigned to specific strata lots, it would appear that these spots have not been designated as LCP and form part of the strata’s CP.
15. In early April of 2018, a spill occurred in an exterior parking stall assigned to the applicant’s strata lot and used by his tenant. According to the applicant, the spill resulted from a fuel tank being stolen from the tenant’s vehicle.
16. The applicant says he first became aware of the spill on April 11, 2018, when the owners of suite 106 sent him an email message to advise that their tenants were complaining about the smell emanating from the spill. According to this message, the tenants could not open their windows due to the odour, and the owners asked the applicant to address the matter.
17. On April 12, 2018, the tenants sent an email message to the strata apologizing for the spill. The tenants stated that they would place some absorption pads on the spill and would “be in contact with strata council to discuss a more thorough clean-up”. This message was forwarded to the applicant by the tenants shortly after it was sent to the strata.
18. An undated letter from the contractor who cleaned up the spill stated that it had been contacted by the strata to “steam and vacuum up waste hydrocarbons”. The contractor attended at the site on April 13, 2018 to clean up the spill and transport the waste for proper disposal. The letter suggests that the strata was dissatisfied with the amount charged for the service ($2,099.21), but the contractor stated that it has no control over the fees charged by the disposal facilities.
19. In an email exchange on April 25, 2018, the members of the strata council appear to have decided to send the contractor’s invoice to the applicant for payment. It is not clear when this was done.
20. On May 15, 2918, the applicant sent an email message to the strata council members in which he questioned the process used to determine the necessary scope of work to address the spill, to authorize the expenditure, and to hold him responsible for the costs. He also questioned whether the strata was maintaining a contact list for strata lot owners and advised that he had not received notice of strata council meetings or minutes for an unspecified period of time. The applicant advised the strata that he was “open to discussing remedies to the current invoicing situation”.
21. On May 15, 2018, the strata decided to pay the contactor’s invoice to avoid late penalties.
22. On August 9, 2018, the applicant requested a hearing about the spill-related expenses and to discuss the alleged bylaw infractions associated with his strata lot. He also requested hard copies of strata council meeting minutes for 2017 and 2018. A September 25, 2018 letter advised that the applicant could choose the timing of the hearing and, while minutes had been sent already by email, the requested hard copies would also be provided. The applicant had already commenced this dispute by the time the strata offered him a hearing date. It does not appear that the hearing ever occurred.
POSITION OF THE PARTIES
23. The applicant admits that there was a fuel spill in a parking stall assigned to suite 210, and says that this was the result of a fuel storage tank being stolen from his tenant’s vehicle. He says that the strata failed to comply with the SPA with respect to the clean-up and holding him responsible for the associated costs. The applicant also says that the strata failed to hold a meeting to discuss the matter and did not contact him or his tenants before the work was performed. The applicant states that the applicant failed to obtain quotes, and that the scope of work ordered by the strata was beyond the scope required to clean up the spill.
24. According to the applicant, the strata council has an ongoing grudge against him due to his previous position as president of the strata council. The applicant says the strata has harassed him and his tenants. The applicant also claims that he has not been provided with notice of strata meetings or the associated minutes for the past 2 years. The applicant asks for orders that he not be responsible for the amount of the contractor’s invoice, that the strata provide notice and minutes for strata council meetings, that the strata follow the SPA, and that the strata stop harassing him and his tenants.
25. The strata says that it has had many previous problems with vehicles owned by the applicant’s tenants leaking oil inside the parking areas and on the street in front of the building, as well as other matters such as pet waste in common areas, the improper disposal of garbage, and the use of parking stalls and electrical plug-ins that are assigned to other residents. The strata also says that the applicant has been late with his strata fees.
26. According to the strata, the liquid from the spill was being tracked into the building. As its maintenance person advised that the spill was too big to be cleaned up in the same manner as previous spills, the strata engaged the contractor. The strata’s position is that the applicant should be responsible for this expense. The strata says that it is self-managed, and works hard to keep things running smoothly. The strata asks that the applicant’s claims be dismissed.
ANALYSIS
Charge Back of Cleanup Costs
27. There is no dispute that a spill occurred in a parking stall assigned to the applicant’s strata lot and used by his tenants. The evidence contains images that show a large puddle of dark-coloured liquid surrounded by ice and snow. One image shows what appear to be absorption pads or some other material covered and surrounded by the liquid. There also appears to be oil-covered solids in the middle of the puddle, but it is not clear whether this is ice, snow, sawdust, or some other material.
28. I am satisfied that the spill created nuisance and damage in excess of normal wear and tear due to the odour and mess being tracked into the building. I find that the spill contravened the owner and tenant responsibilities outlined in bylaw 3. According to bylaw 8, the strata bears responsibility for the maintenance of this CP.
29. I acknowledge the applicant’s submission that the strata arranged for work that was excessive given the size of the spill and that it did so to penalize him. I do not find that the evidence from the contractor establishes that the equipment used was not appropriate the size and type of cleanup, and note that the contractor stated in an email message that the “services provided [sic] is the standard equipment dispatched on regulated product spills”. Further, I do find that the evidence supports the conclusion that the strata acted to penalize the applicant or his tenants.
30. Section 133 of the SPA provides that the strata may do what is reasonably necessary to remedy a contravention of its bylaws or rules including doing work on or to a strata lot, the CP or common assets, and removing objects from the CP or common assets. This section also states that the strata may require that the reasonable costs of remedying the contravention be paid by the person who may be fined for the contravention.
31. Under the strata’s bylaws, the applicant and his tenants are responsible for the spill and the contravention of bylaw 3. Section 133 of the SPA gives the strata the authority to remedy this bylaw contravention. However, I do not find that the strata appropriately followed the SPA in seeking payment of the associated costs by the applicant.
32. Section 135 of the SPA states that a strata must not impose a fine against a person, require a person to pay the costs of remedying a contravention or deny a person the use of a recreational facility for a contravention of a rule or bylaw unless the strata has received a complaint about the contravention, given the owner or tenant the particulars of the complaint, in writing, and a reasonable opportunity to respond (including a hearing, if requested). Section 135 says that if a tenant is in contravention of a bylaw or rule, the strata must give notice of the complaint to the person’s landlord or owner.
33. The applicant says that he became aware of the spill issue as a result of an email from other owners, not from the strata. Although the strata says it issued a written notice of the problem to the applicant, the only message in evidence was the April 11, 2018 email message from the other owners. This message stated that there would be a carbon copy to the strata council, but it does not indicate that it was sent on behalf of the strata council. I find that this message does not amount to notification from the strata as contemplated by section 135 of the SPA.
34. This is not a situation where there was a procedural irregularity surrounding a bylaw contravention that was rectified prior to the imposition of fines or costs. By sending the contactor’s invoice to the applicant, I find that the strata was requiring the applicant to pay the costs of remedying the contravention without first providing the required notice. As the strata did not comply with the requirements of section 135 of the SPA, the costs of remedying the bylaw contravention cannot be charged back to the applicant. Therefore, I find that the applicant is not responsible for the $2,099.21 invoice from the contractor.
Meeting Notice and Minutes
35. As discussed above, bylaws 14 and 19 require the strata to give notice of meetings to owners and to provide minutes within 2 weeks of the meeting. The strata says it has provided the applicant with minutes, but the applicant says that he has not received the required notices or minutes.
36. It would appear that the strata communicates with the applicant primarily through email, and that there has been some difficulty in this regard, although the applicant says his email address has not changed. The strata says that it has provided minutes, but did not specifically address the required notice of meetings. Based on the evidence before me, it is not clear whether these notices are being provided to the applicant or other owners.
37. If it is not doing so already, the strata must provide the applicant and all strata lot owners with notice of strata council meetings and meeting minutes as required by bylaws 14 and 19.
Compliance with the SPA
38. The applicant seeks an order that the strata act in accordance with the SPA. I find that it is not necessary to order the strata to follow the SPA or carry out its statutory duties, as it is already legally obligated to do so. I dismiss this aspect of the applicant’s claim.
Harassment
39. The applicant asks that the strata be ordered to cease harassing him and his tenants. A January 28, 2019 letter from one of his tenants describes what the tenant claims are examples of harassment and punishment at the hands of the strata. I find that, in effect, the applicant is asking for a restraining order against the strata.
40. The applicant’s claims in this regard focus on one particular member of the strata council. As this individual is not a party to this dispute, I cannot make an order against him.
41. Even if the individual member was a named party, I would not grant the order sought by the applicant. The tribunal’s jurisdiction in strata property matters is contained in section 121 (formerly section 3.6) of the Act. Allegations of harassment are outside of the tribunal’s jurisdiction for strata property claims as they do not involve the matters set out in section 121(1) of the Act. In the absence of statutory jurisdiction, I refuse to resolve this aspect of the applicant’s claim under section 10 of the Act.
TRIBUNAL FEES AND EXPENSES
42. 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. As the applicant has been largely successful in this case, I order the strata to reimburse the applicant for tribunal fees of $225.00. The applicant did not claim dispute-related expenses.
43. 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
44. I order that:
a. the applicant is not responsible for the contractor’s invoice in the amount of $2,099.21 and any charge back of this amount against his strata lot must be reversed;
b. if it is not doing so already, the strata must provide the applicant and all strata lot owners with notice of strata council meetings and meeting minutes as required by bylaws 14 and 19; and
c. within 30 days of the date of this decision, the strata must pay $225.00 to the applicant for reimbursement of tribunal fees.
45. The applicant is also entitled to post-judgment interest under the Court Order Interest Act, as applicable.
46. The remainder of the applicant’s claims are dismissed.
47. 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.
48. 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.
Lynn Scrivener, Tribunal Member