Date Issued: April 29, 2019

File: ST-2018-005129

Type: Strata

Civil Resolution Tribunal

Indexed as: Haw v. The Owners, Strata Plan EPS 1869, 2019 BCCRT 509

Between:

Bradley Haw

Applicant

And:

The Owners, Strata Plan EPS 1869

Respondent

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute arises after the respondent entered a contract for pest control and placed a rat bait box in a strata lot’s limited common property (LCP) yard.

2.      The applicant Bradley Haw (owner) owns strata lot 21, which is unit 36, in the respondent strata corporation, The Owners, Strata Plan EPS 1869 (strata).  He says the strata entered a $5,000 contract for pest control (contract) without the approval of the owners.

3.      The strata plan designates an LCP yard for the exclusive use of each strata lot. Unit 36 has its own LCP yard.

4.      The owner asks for an order that the strata:

a.    explain why it did not give him a copy of the contract,

b.    retract Bylaw 6 allegations about alterations to common property,

c.    apologize for harassing him about removal of the rat bait box,

d.    investigate the authorization of the $5,000 contract, and

e.    explain why there was an attempt to charge him with a bylaw violation when the bylaw is not enforced against other owners.

5.      The owner is self-represented. The strata is represented by council member.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 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.

7.      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.

8.      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.

9.      The applicable tribunal rules are those that were in place at the time this dispute was commenced.

10.   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

11.   The issues in this dispute are:

a.    whether the strata was authorized to enter into the contract in September 2017,

b.    whether the strata met its obligations under the SPA to produce a copy of the pest control contract to the owner,

c.    whether the owner violated Bylaw 6, and

d.    whether the strata attempted to enforce Bylaw 6 against the owner when it allegedly fails to enforce other bylaws?

BACKGROUND AND EVIDENCE

SPA and Bylaws

12.   Section 71 of the SPA says that a strata must not make a significant change in the use or appearance of common property unless the change is first approved by a ¾ vote at an annual general meeting (AGM) or special general meeting (SGM) or there are reasonable grounds to believe immediate change is needed to ensure safety or prevent significant loss or damage.

13.   The authors of the British Columbia Strata Property Practice Manual interpret section 71 as follows:

Note that s. 71 does not expressly prohibit an owner from changing the use or appearance of LCP over which an owner has exclusive use – but note, as well, that strata lot owners are subject to the applicable bylaws. Standard Bylaw 6(1), for example, requires an owner to obtain written approval of the strata corporation before altering common property, including LCP.

L. Joy Tataryn, ed., British Columbia Strata Property Practice Manual, looseleaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2008) at §3.25)

14.   An owner has the right to change the use or appearance of LCP over which s/he has exclusive use, subject to applicable bylaws. (See Robert C. McLaren v. The Owners, Strata Plan LMS4440, 2017 BCCRT 9 at paragraph 32)

15.   The strata’s bylaw 6 is a standard bylaw saying that an owner must have the strata’s written approval “before making an alteration to common property, including limited common property, or common assets.”

16.   The strata’s bylaw 8(c)(i) provides that the strata must repair and maintain LCP where the repair and maintenance ordinarily occurs less often than once a year. As well, Bylaw 8 provides that the strata must repair and maintain fences, railings and similar structures that enclose patios, balconies, and yards.

Background Facts

17.   On December 20, 2017, the owner emailed the property manager and asked that the rat bait box be removed from his yard, because it contained poison and he was concerned about his dog.

18.   On December 27, 2017 the property manager responded, saying the yard was LCP, and that owners could not direct the strata regarding use of the yard. He then recommended that the owner keep his dog out of the yard, if the owner was concerned about his well-being. The property manager added that the box is “…fully certified to be safe for children and pets.”

19.   On January 24, 2018, the strata wrote to the owner asking for him to stop removing the rodent bait boxes placed in the LCP yard. The strata requested that the owner return the bait box by placing it outside his garage on the morning of January 31, 2018. It indicated that the bait box would be returned to his yard “…with direction from Council to the pest control contractor to minimize the intrusiveness of the bait box in your backyard while retaining overall effectiveness towards the larger scope pest control initiative underway.”

20.   On February 1, 2018, the owner emailed the strata to confirm he had left the rat bait outside his garage and it was removed by the pest control company.

21.   On May 10, 2018, the strata again wrote to the owner indicating that he had again removed the rat bait box out of his LCP yard, without authorization. The letter said that the owner had violated Bylaw 6 and gave him an opportunity to answer the complaint in writing and to request a hearing, under the SPA section 135.

22.   On June 5, 2018, the strata wrote to the owner saying that he had again moved the rat bait box from his LCP backyard without authorization. The letter complies with the requirements of section 135 of the SPA.

23.   On June 14, 2018 the owner responded to say he had not altered common property, LCP or common assets. The owner pointed out that he had only moved the box by 6 inches and wondered if there was evidence that this made any difference to a strategic perimeter in dealing with the rodent issue.

24.   The owner requested a strata council hearing, which was to be held on June 12, 2018. The hearing did not go ahead because the hearing room was locked.

25.   On July 17, 2018, the strata wrote to the owner saying that it had decided to close the bylaw violation issue, and to place the bait box in a different location.

POSITION OF THE PARTIES

26.   The owner says the strata failed to secure a ¾ vote to approve the contract, as required by section 98 of the SPA.

27.   The strata says strata council decided to enter into the contract to respond quickly to a serious pest control issue. The strata points out that, a short time later, the owners explicitly approved the contract at the 2017 AGM.

28.   The owner says he did not receive a copy of the contract as required by section 36 of the SPA. The strata agrees that the copy was provided later than the timeline set out in section 36.

29.   The owner says he did not violate Bylaw 6, which involves altering common property, by moving the rat bait box out of his LCP yard. The strata says it has already closed this bylaw violation matter, without penalty to the owner.

ANALYSIS

Was the strata authorized to enter into the pest control contract?

30.   Section 98 of the SPA says that if a proposed expenditure has not been put forward for approval in the budget at an AGM or SGM, the strata may only make the expenditure out of the operating fund or contingency reserve fund if there are reasonable grounds to believe that an immediate expenditure is necessary to ensure safety or prevent significant loss or damage, whether physical or otherwise.

31.   The owner says the strata council president signed the pest control contract for $5,000 without owners’ prior approval at an SGM as required by the SPA section 98.

32.   At the 2016 AGM, the owners approved a budget including a $499.90 line item for pest control, and a $10,000 budget for general repairs and maintenance.

33.   On August 31, 2017, the owner emailed strata council with questions about the approach to the rat problem. He wrote that because the expense would exceed $2,000, an SGM would have to be held to get owners’ approval by a ¾ vote. Others on the strata council disagreed with him on the procedural issue.

34.   In September 2017 the strata council authorized an “aggressive” pest control plan for fiscal year 2018 (November-October) for a cost of about $5,070 total, with a $980 cost for the balance of 2017.

35.   On November 9, 2017, at the AGM, the owners approved an annual budget including pest control expenses at $5,000 for 2017/2018. The AGM Minutes record an urgent need to address the rodent infestation issue.

36.    I find that the larger $5,000 pest control expenditure was not approved by the owners until November 2017. At that time, the owners voted to approve it as part of the budget.

37.   With respect to the pest control expenses earlier in 2017, they were over budget relative to the $500 pest-control specific item approved at the 2016 AGM.

38.   However, I find they were not unapproved expenditures for the purposes of section 98.  Instead, I find that pest control expense can be categorized as a repair and maintenance obligation, and that the owners had approved up to $5,000 for general repair and maintenance in 2016/17. Given there were no other planned expenses about general repairs and maintenance, I find the owners had approved this expenditure, and the strata council had the ability to exercise its discretion to enter the pest control contract in September 2017.

39.   For these reasons, I find the strata was authorized to enter into the pest control contract in September 2017.

Was the owner’s request for a copy of the contract fulfilled?

40.   Section 36 of the SPA says that a strata must make any written contracts to which the strata is a party available for inspection and provide copies to an owner, within 2 weeks of a request.

41.   On June 18, 2018, the owner requested that the strata send him a copy of the contract.

42.   On June 19, 2018, the strata produced a 2015 document containing a proposal for mole removal, in an email from property manager AG.

43.   On June 20, 2018, the owner again requested a copy of the contract.

44.   On June 21, 2018 the property manager replied saying that the 2015 document was the only pest control type record the strata had on file.

45.   The owner then obtained the pest control contract from Orkin directly.

46.   The contract was signed September 7, 2017, by the strata council president. The pest control contract required the strata to pay about $390 plus tax per month for a 12-month term, to address rats and mice. The contract provides that, after the initial one-year term, it can be terminated by either party on 30 days written notice.

47.   On July 20, 2018, the strata provided a copy of this pest control contract to the owner via email.

48.   I find that the strata took more than 2 weeks to provide a copy of the contract to the owner. The strata did not comply with the requirements of section 36 of the SPA.

49.   Section 36 of the SPA is intended to provide strata lot owners with transparency about the strata’s activities. The 2-week deadline is intended to ensure that requests are fulfilled promptly.

50.   I find that the strata provided access to the requested document, but more slowly than the SPA requires.

Did the owner violate Bylaw 6? Or did the strata exceed its authority under the SPA?

51.   Under Bylaw 6, an owner must obtain written approval of the strata before making an alteration to the common property, including the limited common property.

52.   The strata’s alleged violation is that the owner moved the rat bait box out of his LCP yard.

53.   In The Owners, Strata Plan LMS 4255 v. Newell, 2012 BCSC 1542, the court held that a hot tub was not an “alteration” to LCP because it was not “permanent”. Following this analysis, I find that removing a bait box from an LCP yard is not an “alteration” by the owner and therefore not a violation of Bylaw 6.

54.   I have considered the strata’s repair and maintenance obligations, and the need to act to prevent damage due to rodent infestation. Based on the strata plan, which shows an area of common property directly behind the LCP yard assigned to the owner’s unit, I find that the strata could have placed the bait boxes outside the LCP and achieved the same repair and maintenance goals.  The evidence from the pest control company does not prove that placement on the LCP was the only reasonable option.

55.   I find that the owner did not violate Bylaw 6.

Hearing Request and Outcome

56.   The owner requested a hearing into the bylaw contravention issue.

57.   A hearing was scheduled for July 12, 2018. However, the room was not open for use when the owner attended. After waiting some time for access to be granted, the owner left.

58.   Strata council obtained access a few minutes after the owner left. The parties dispute the precise timing of the delay and when the room was opened.  I find that there was a delay in opening the hearing room but that the delay was modest and, based on the evidence, less than 30 minutes.

59.   The strata council decided to discuss the bylaw contravention in the owner’s absence.

60.   Strata council decided that the rat bait box could be moved “closer to common property”, where perimeter integrity would be maintained, albeit less effectively.

61.   In mid-July 2018 strata council wrote to the owner to say that no hearing could be held because the owner left. There were July 13 and July 17, 2018 copies of this same letter filed in evidence. I find the discrepancy in dates is not important to the dispute. The strata wrote that it had decided to permanently relocate the rat bait box to “…a less effective, but suitable location” and indicated that the bylaw violation issue was closed.

62.   The July 2018 letter does not specify whether the rat bait box would be placed on common property, rather than in the owner’s LCP yard.

63.   Because the strata dropped the issue that was the subject of the hearing, I make no finding about whether the modest delay in opening the hearing room denied the owner his right to a hearing under section 135 of the SPA.

Inconsistent Bylaw Enforcement

64.   The parties filed some evidence showing that visitor parking bylaws are not consistently enforced by the strata. However, violation of parking bylaws is not raised as a distinct claim in the Dispute Notice.

65.   The owner argues that the strata should not have tried to enforce Bylaw 6 against him, when it fails to consistently enforce other bylaws.

66.   Given my finding that the owner did not violate Bylaw 6, I do not find it necessary to make findings on this issue. I only observe that, given the realities of strata living, there is a challenging balance to be struck in enforcing bylaws so that the owners can live harmoniously, but without undue administrative burden.

Remedies

67.   Given that the strata abandoned the bylaw violation proceedings, I decline to order a “retraction” letter. For this same reason, I decline to require an apology letter.

68.   I dismiss the balance of the owner’s claims, for the reasons given above.

TRIBUNAL FEES AND EXPENSES

69.   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. The applicant was the only successful party in this dispute. I order the strata to pay his tribunal fees of $225.

DECISION AND ORDERS

70.   I order the strata to pay the owner $225 for tribunal fees, within 30 days of this decision.

71.   I dismiss the balance of the owner’s claims.

72.   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.

 

73.   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.