Date Issued: May 9, 2019

File: ST-2018-004798

Type: Small Claims

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan BCS 1152 v. Kaminska, 2019 BCCRT 554

BETWEEN:

The Owners, Strata Plan BCS 1152

APPLICANT

AND:

Bozena Kaminska

 

RESPONDENT

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

 

INTRODUCTION

1.      The applicant is a strata corporation consisting of 4 residential strata lots in Vancouver, British Columbia (strata). The strata is represented by the strata council president.

2.      The respondent, Bozena Kaminska, is the owner of a residential strata lot in the strata. The respondent is self-represented.

3.      The strata claims that the respondent owes the strata for unpaid strata fees. The respondent refuses to pay the strata fees because of their concerns over the strata’s management and finances, and says their share is not being calculated properly.

4.      The strata seeks $12,000 in unpaid expenses.

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. 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 “he said, she said” scenario. The credibility of interested witnesses, 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. 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 that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is an 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 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.

9.      Under section 123 of the Act, in resolving this dispute the tribunal may make one or more of the following orders:

a.    Order a party to do or stop doing something;

b.    Order a party to pay money;

c.    Order any other terms or conditions the tribunal considers appropriate.

ISSUE

10.   The issue in this dispute is whether the respondent has to pay their alleged unpaid portion of strata expenses despite their concerns regarding the strata’s management and finances? If so, how much does the respondent owe the strata in strata fees?

BACKGROUND AND EVIDENCE

11.   In a civil dispute such as this, the applicant strata bears the burden of proof. This means the strata has to provide evidence to prove each of its claims on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

12.   The strata was created in February 2005 and is a self-managed strata corporation comprising 4 residential strata lots in 2 buildings. Three in a triplex, strata lots 1 through 3, and one standalone home, strata lot 4. The respondent owns the home, and the other 3 lots are owned by the strata council president.

13.   The Schedule of Unit Entitlement filed with the Land Title Office (LTO) indicates the strata’s total unit entitlement is 529, and strata lot 4’s unit entitlement is 260, or about 49% of the total unit entitlement.

14.   The general index of the strata filed at the LTO shows there are no registered bylaw amendments. Therefore, under section 120 of the Strata Property Act (SPA), I find the strata’s bylaws are the Standard Bylaws under the SPA. Bylaw 1 of the strata’s bylaws requires all owners to pay strata fees on the first day of each month.

15.   The strata seeks an order that the respondent pay $12,000 for unpaid strata fees from 2013 to 2018. The strata identified the following total expenses, of which it says the respondent is responsible for 49%:

a.    2013: $4,475.19

b.    2014: $5,479.73

c.    2015: $5,831.64

d.    2016: $6,085.72

e.    2017: $6,480.86

f.      2018: No total was provided.

16.   However, I find that the strata has not provided evidence to support the amounts noted above. Rather, I am satisfied the respondent received invoices for the total common expense amounts set out below in each of the corresponding years:

a.    2013: $417.72

b.    2014: $5,479.73

c.    2015: $5,831.46

d.    2016: $6,085.72

e.    2017: $1,582.86

f.      2018: $5,293.00.

17.   In the circumstances and for the purposes of this decision, I find the total expenses here equal the total strata fees payable by all strata lots. Based on my review of the invoices, I agree with the strata that the expenses include insurance, utilities and gas and are the strata’s common expenses. The parties agree that the respondent paid the entire amount of the gas bills until some point in August 2017. The strata admits 51% of the gas costs from 2013 to August 2017 paid by the respondent are owed by strata lots 1, 2 and 3, but that the respondent has not provided any invoices regarding the amounts owing.

18.   The respondent does not dispute that they have failed to pay their proportionate share of the strata expenses in question, but states that they are only required to pay 1/4 of the expenses, not 49% as demanded by the strata.

19.   The respondent says she asked for the strata to provide proper financial documentation of the expenses before she will pay. The strata says it provided all invoices to the respondent, and in any event, it asked an accountant to prepare financial statements but did not proceed as the respondent refused to pay for her share of the cost of the preparation. The respondent also states the strata improperly dealt with some common property repairs, specifically the outdoor lighting around her home.

20.   The respondent did not file a claim against the strata.

POSITION OF THE PARTIES

21.   The strata argues that the respondent must pay its share of the strata expenses as strata fees. The strata also seeks to be reimbursed for its tribunal fees.

22.   The respondent does not dispute that they have failed to pay strata fees, but argues they are only required to pay 1/4 of the expenses as they own only 1 of the 4 lots in the strata.

ANALYSIS

23.   The SPA applies to all strata corporations, however, the evidence suggests the strata has not followed the requirements of the SPA such as calling general meetings and passing budgets. There is also no evidence the strata has established an operating fund or a contingency reserve fund (CRF), which is a mandatory requirement under section 92 of the SPA.

24.   Under section 92 SPA, owners must contribute to the strata’s common expenses through strata fees. As earlier noted, bylaw 1 sets out that strata fees are to be paid monthly.

25.   Section 99 of the SPA states the owners must contribute to the operating fund based on the approved budget and sets out how the strata must calculate strata fees. The calculation is based on unit entitlement. Section 99 also states that it is “subject to section 100.” This means if a strata corporation wants to use a basis to calculate strata fees other than by unit entitlement, it must first pass a resolution by unanimous vote.

 

26.   There is no evidence before me that the strata ever passed such a resolution under section 100 of the SPA. Therefore, I find the strata must calculate strata fees based on unit entitlement. Section 99 calculates strata fees based on unit entitlement as follows:

27.   As noted above, the respondent’s unit entitlement is 260 out of a total unit entitlement of 529. This means she is responsible to contribute about 49% towards the strata’s common expenses.

28.   There is no requirement that strata fees calculated under section 99 of the SPA must be paid in equal instalments. This means that although strata fees are required to be paid monthly, the fees for one month may be for a different amount than other months.

29.   The SPA and the strata’s bylaws both require the respondent to pay strata fees. Neither the SPA nor the strata’s bylaws permit the respondent to withhold strata fees because they disagree with the actions of the strata or the strata council. The respondent must pay their strata fees regardless of whether they agree with how the strata operates or how the strata spends its money. This is a mandatory requirement under section 92 of the SPA and the strata’s bylaw 1.

30.   Therefore, while I reviewed all of the evidence provided by the respondent, I find that the evidence related to the respondent’s concerns over the management, finances, lighting, and operation of the strata do not apply to the issues in this dispute, given that the respondent did not file a claim against the strata.

31.   I turn now to the strata’s entitlement to payment of strata expenses by the respondent for 2013 to 2018.

32.   The Limitation Act applies to tribunal disputes. A limitation period is a specific time period within which a person may pursue a claim. If the time period expires, the right to bring the claim disappears.

33.   Section 8 of the Limitation Act says that a claim is “discovered” on the first day that the person knew or ought reasonably to have known that the loss 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.

34.   The limitation period for this claim is two years.

35.   The strata’s bylaws say that strata fees must be paid on or before the first day of the month to which the strata fees relate. No evidence has been provided about when the invoices were provided to the respondent and when payment was therefore requested. The evidence before me includes copies of invoices totaled by year, as set out above, which I have found to be strata fees for the purpose of this dispute. Absent any evidence to the contrary, I find it is reasonable for me to infer that by December 31 of the year in which the expense was incurred, the strata knew or ought reasonably to have known that the respondent was unwilling to pay. Accordingly, the 2013 strata fee issue was discovered by December 31, 2013, the 2014 strata fee issue was discovered by December 31, 2014, the 2015 strata fee issue was discovered by December 31, 2015, the 2016 strata fee issue was discovered by December 31, 2016, the 2017 strata fee issue was discovered by December 31, 2017, and the 2018 strata fee issue was discovered by the time the Dispute Notice was filed.

36.   The tribunal issued the Dispute Notice on July 23, 2018. Therefore, I find any claims discovered before July 23, 2016 are out of time under the Limitation Act. This is beyond the 2-year limitation period for the 2013, 2014 and 2015 claims for unpaid strata fees. For this reason, I find the strata’s claim for unpaid strata fees from 2013 to 2015 is statute-barred. I refuse to resolve this aspect of the strata’s claim under section 10 of the Act.

37.   With respect to the strata’s claim for 2016 to 2018 strata fees, I find there is no limitation issue and the claim may proceed.

38.   On the evidence before me, I find that the respondent owes $6,370.53 ($2,991.09 for 2016 strata fees, $777.97 for 2017 strata fees, and $2,601.47 for 2018 strata fees) for unpaid strata fees from 2016 to 2018, which amounts to 260/529^ths or about 49% of the total invoices provided for that time period, as listed above. I order the respondent to pay the strata this amount as full payment of all outstanding strata fees to July 23, 2018, the date the Dispute Notice was filed.

39.   I make no decision on reimbursement for the gas bills prior to August 2017 given they were not provided in evidence. I note nothing in this decision restricts the respondent from claiming the strata's portion of the gas bills, if the parties are unable to agree on an amount.

40.   Given the tribunal’s mandate of recognizing the ongoing relationship between parties, I encourage the parties to work together in a productive and constructive manner in future, and to follow the statutory requirements of the SPA regarding governance of the strata.

TRIBUNAL FEES, EXPENSES AND INTEREST

41.   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 strata has been successful in its claim, I order the respondent to reimburse the strata $225.00 for tribunal fees. The strata did not claim dispute-related expenses.

42.   Under section 107 of the SPA, the strata may only claim interest on unpaid strata fees if allowed under a bylaw. The strata does not have such a bylaw. However, the strata is entitled to interest under the Court Order Interest Act, which I have calculated as $114.64 ($81.02 related to unpaid 2016 strata fees, $15.64 related to unpaid 2017 strata fees, and $17.98 related to unpaid 2018 strata fees).

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 respondent.

DECISION AND ORDERS

44.   I refuse to resolve the strata’s claims for unpaid strata fees prior to July 23, 2016 because they are out of time under the Limitation Act.

45.   I order that within 30 days of the date of this order, the respondent pay the strata a total of $6,727.16, broken down as follows:

a.    $6,370.53 for unpaid strata fees from 2016 to 2018;

b.    $131.63 for pre-judgment interest under the Court Order Interest Act; and

c.    $225.00 for tribunal fees.

46.   The strata is also entitled to post-judgment interest, as applicable.

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 123.1 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 strata 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 123.1 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.