Date Issued: May 15, 2019

          File: ST-2018-007605

Type: Strata

Civil Resolution Tribunal

Indexed as: Fairburn et al. v. The Owners, Strata Plan LMS 1107, 2019 BCCRT 595

Between:

Janet Fairburn, Marcia Fetterly, Frances Saddy, and Barbara Kent

Applicants

And:

The Owners, Strata Plan LMS 1107

Respondent

REASONS FOR DECISION
Tribunal Member:	Amy J. Peck

INTRODUCTION

1.      The applicants (applicant owners) each own separate strata lots in the respondent strata corporation, The Owners, Strata Plan LMS 1107 (strata). This dispute is about the strata’s alleged failure to enforce its bylaws with respect to maintaining uniform window coverings. The applicant owners are self-represented and the strata is represented by a council member.

JURISDICTION AND PROCEDURE

2.      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.

3.      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.

4.      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.

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

6.      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, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

7.      Section 123(2) of the Act is substantially similar to section 164 of the Strata Property Act (SPA) and addresses remedies for significant unfairness in strata property disputes. It provides, among other things, that the tribunal has discretion to make an order directed at the strata or the council if the order is necessary to prevent or remedy a significantly unfair action or decision. The tribunal has jurisdiction to remedy significant unfairness on the part of a strata corporation (see The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164 at para. 119).

ISSUES

8.      The issues in this dispute are:

a.    Has the strata failed to enforce its window coverings bylaws?

b.    Should the 2 council members who have non-conforming window coverings be removed from council?

c.    Should the applicant owners be reimbursed for their tribunal fees?

BACKGROUND AND EVIDENCE

9.      I have reviewed all of the submissions and evidence submitted by the parties but I will only refer in these reasons to what is relevant to my decision.

10.   The strata was constructed in phases in the early 1990s. It consists of 5 buildings, with 176 residential units as well as some common facilities.

11.   The strata filed a complete new set of consolidated bylaws in the land title office on April 24, 2017. The relevant strata bylaws are these:

a.    Bylaw 3(6)(o) – an owner, tenant, occupant or visitor must not install any window coverings, visible from the exterior of the strata lot, which may differ in size or colour from those on the original building specifications;

b.    Bylaw 7(1)(e) – an owner must obtain the written approval of Council before making an alteration to a strata lot that involves the colour of replacement drapes, blinds or screen doors which will not conform with the original or overall colour and style of the rest of the building; and

c.    Bylaw 7(2) – Council must not unreasonably withhold its approval under subsection 7(1).

12.   I did not have access to the prior strata bylaws that may have been in force when owners made modifications to their window coverings but I find that it is unnecessary for me to review those bylaws for the purpose of my decision.

13.   The owner-developer of the strata installed vertical blinds in the majority of the strata lots during the original construction. I say the majority because there is evidence of at least 1 case where the owner-developer deducted a window covering allowance from the purchase price to allow the original owner to install different window coverings.

14.   In the last few years, the strata has considered more than once modifying the strata bylaws to allow owners to install different window coverings, but resolutions to that effect have not been approved by the requisite majority.

15.   The first evidence of an actual complaint in this dispute is an email from one of the applicant owners asking for a hearing at the June 28, 2018 council meeting.

16.   Following that hearing, on July 2, 2018, 3 of the applicant owners sent an email to the strata's property manager identifying 21 strata lots allegedly in breach of bylaw 7 with respect to window coverings. The applicant owners acknowledged in that email that, while they had taken care to include the right strata lots on the list, it may contain errors.

17.   On July 26, 2018, council directed the property manager to search the strata's records to see whether there was any evidence that different window coverings had been approved for any of the strata lots identified by the applicant owners, and to send complaint letters to those strata lots that had no such approvals on file.

18.   On August 7, 3 of the applicant owners asked the property manager for an update on their complaint and to attend a council hearing that week or next since they had had no response to their July 2 email. The property manager replied that the complaint was being investigated and that it was premature for the applicant owners to have another hearing before council's September 2018 meeting.

19.   Between August 8 and 10, the property manager sent letters to 20 strata lots where there was no approval of window covering alteration on file advising of the window covering complaint and a potential violation of bylaw 7(1)(e). The applicant owners took no issue with the fact that only 20 complaint letters were sent whereas their original list included 21 strata lots allegedly in breach of the bylaw.

20.   On August 15, 2018, the property manager asked the strata's legal counsel for advice on the complaint. By that time, the strata had received responses from some of the owners who had received a bylaw contravention letter who claimed that they had obtained approval in the past, from the owner-developer or prior strata councils. The property manager asked legal counsel what steps the strata could take in the circumstances. Since the strata presented this email, and several subsequent messages in the same email chain, I find that the strata has waived privilege over this communication chain and I will consider it.

21.   Legal counsel replied saying that the issue was whether or not the list of strata lots presented by the applicant owners had received approval for different window coverings, as bylaw 7(1)(e) allows. She advised that, while the onus was on both the strata and the owner to keep a record of approval, the burden on the strata was slightly higher. She pointed to the fact that some of these different window coverings had been in place for many years without the strata requiring them to be removed, which suggests they were approved. Her suggestion was that the council record approval of all current alterations in the minutes of the next council meeting and proceed to enforce future breaches of the window covering bylaw. The property manager did not bring bylaw 7(2) to the lawyer’s attention in this exchange.

22.   After receiving this advice, the property manager sent a follow up letter to all owners who had received a complaint letter, saying the strata was seeking legal advice and that the owners should do nothing with respect to the alleged bylaw breach for now since council would be considering next steps at its August 30, 2018 meeting.

23.   Council ultimately agreed to take legal counsel's advice and approved all existing non-conforming window coverings as of August 30, 2018. The approval vote took place partly over email and partly at the August 30, 2018 strata council meeting in order to ensure there was quorum to make the decision. The applicant owners did not challenge the validity of the vote.

24.   Two council members who have modified window coverings did not participate in the discussion or the vote on how to deal with the complaint, and they were not provided with legal counsel's opinion until after the vote had occurred. The property manager had suggested that council not approve the non-conforming window coverings in the strata lots owned by the 2 strata council members who had no record of prior approval. However, council did not accept that suggestion.

25.   On September 12, 2018, 3 of the applicant owners emailed the property manager asking for certain documents that formed the basis of council's August 30, 2018 decision on their complaint. The property manager provided the requested documents and invited the applicant owners to attend the next council meeting if they chose to.

26.   The applicant owners did attend the September 27, 2018 council meeting to express their concern about the window covering decision. In particular, they were concerned that some more recently modified window coverings were being "grandfathered" in addition to modifications that had been done some time ago.

27.   On October 4, 2018, the property manager wrote to one of the applicant owners to advise that council was standing by its decision and its interpretation of legal counsel's advice.

28.   On October 11, 2018, the applicant owners requested:

a.    a copy of the letter council received from an owner in August 2018 that attached documents from the owner-developer approving alternative window coverings, and

b.    a list of the strata lot owners that identified original owners.

The property manager provided this information on October 16, 2018.

29.   Over the next few months, council inspected and recorded the strata lot unit numbers with non-conforming window coverings. That list appears to have been finalized as of December 20, 2018. While that list is not identical to the list of strata lots the applicant owners complained about, the applicant owners did not claim that council's list was inaccurate.

30.   Council has taken several steps to confirm that it will be enforcing any further contraventions of the window covering bylaws, for example by notifying the owners in the council meeting minutes, and putting a comment to that effect in the Form K – Notice of Tenant’s Responsibilities used by the strata.

POSITION OF THE PARTIES

31.   The applicant owners argue that:

a.    Allowing non-conforming window coverings erodes the appearance of the strata.

b.    The property manager withheld important information from the lawyer when seeking legal advice, specifically that:

                              i.        two council members had non-conforming window coverings,

                            ii.        the strata had sought to change the window covering bylaw to make it more flexible at general meetings held in 2017 and 2018 but the proposed bylaw amendment was defeated both times, and

                           iii.        several of the modified window coverings had been installed as recently as within the past year.

c.    The 2 council members with non-conforming window coverings should step down to take responsibility for their breaches of the bylaws because they owe a higher duty of compliance given their positions.

d.    The majority of the current council has been in place for years so those members should be aware of what was and was not approved in terms of different window coverings.

e.    Allowing the listed strata lots to breach the window covering bylaw indicates that the bylaws mean nothing and can be blatantly broken without consequence.

f.      Council allegedly approved all the non-conforming window coverings at the August 2018 meeting but the list of approved units was not final until December 2018 so the approval was not effective.

32.   The applicant owners request that I order:

a.    the council to enforce the window covering bylaw, in particular against strata lots where modifications have been made in the past 2 years,

b.    the 2 council members with non-conforming window coverings to step down,

c.    that the result of the tribunal order be reflected in the council minutes, and

d.    the strata to pay the applicant owners' tribunal fees.

33.   The strata argues that:

a.    The strata's duty is to respond to complaints and not proactively seek out bylaw infractions to enforce. The applicant owners' complaint was the first written complaint received with respect to window coverings and the strata council responded appropriately in investigating the complaints and seeking legal advice.

b.    The strata has responded to all the applicant owners' requests for information and allowed them the opportunity to present their argument to council.

c.    The property manager provided the strata's lawyer with all relevant information.

d.    It would be a significant financial burden on strata lot owners who have alternative window coverings to order they be removed now, many of whom acquired their strata lots after the window covering change was made. The strata would be at risk of a claim from those owners if they ordered them to change the window coverings.

e.    Council made a legitimate decision by August 30, 2018 to approve existing non-conforming window coverings.

34.   The strata requests that I dismiss the applicant owners' claims.

ANALYSIS

Has the strata failed to enforce its window coverings bylaws?

35.   Once a non-trivial bylaw contravention has occurred, council does not have the discretion to choose not to enforce the bylaw. Rather, enforcement of bylaws is mandatory, as set out in section 26 of the SPA. Therefore, the first question to be answered in a dispute such as this is whether the bylaw has been breached.

36.   Section 135 of the SPA addresses the strata's investigation of a complaint. It requires that the subject owner be given the opportunity to be heard before any fine is levied. This protection is for the benefit of the owner that is the subject of the complaint, not the owner making the complaint. Other than this requirement, a strata is permitted to deal with complaints of bylaw violations as the council sees fit, so long as it complies with the principles of procedural fairness and is not “significantly unfair” to any person who appears before the council (Chorney v. Strata Plan VIS 770, 2016 BCSC 148 at para. 52).

37.   The test for whether the tribunal should intervene in a strata's bylaw enforcement decision on the basis of significant unfairness is an objective one, meaning what is relevant is what is reasonable in the circumstances and not necessarily what the individual(s) in question actually believed or expected. In particular, there are three questions to be answered:

a.    What is or was the expectation of the affected owner?

b.    Was that expectation on the part of the owner objectively reasonable?

c.    If so, was that expectation violated by an action that was significantly unfair?

(The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 763 at para. 28)

38.   What is "significantly unfair" in this context has been defined as conduct that is "burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith" (Chow v. Strata Plan LMS 1277, 2006 BCSC 335 at para. 75). This is a high bar and the applicant owners bear the burden of proving this type of conduct has occurred.

39.   I find that there has been no breach of the strata's bylaws in this dispute. While some owners do appear to have changed their window coverings without prior approval, bylaw 7(1)(e) allows council to approve those modified window coverings. Once approved, there is no more breach, which is what happened here.

40.   The applicant owners' expectations appear to be rooted in a desire to have the strata's window coverings be uniform. However, given that council's ability to approve different window coverings is written into the bylaws, the fact that several units have displayed alternative window coverings for some time, and the fact that the owner-developer itself approved different window coverings in at least 1 case, I find that expectation is not objectively reasonable.

41.   It is reasonable for the applicant owners to expect the council to be diligent in their investigation of an allegation of breach of a bylaw. However, I find that council was diligent in this case, in performing an investigation and seeking legal advice to clarify strata’s obligations. The strata was also very open with the applicant owners as the investigation proceeded and provided them with all the information the applicant owners requested. Further, the applicant owners were granted 2 oral hearings before council to present their concerns.

42.   I also find that council's actions were not significantly unfair such that the tribunal should interfere. A strata must often balance competing interests. In this dispute, the interests of the applicant owners in desiring a uniform building appearance and their concern about whether or not different window coverings were approved conflicts with the interests of the owners with modified window coverings who want to keep them. In some cases, the latter owners may have received approval that is undocumented. In other cases, they may have purchased their units after the modifications had been done.

43.   I also note bylaw 7(2), which says that council must not unreasonably withhold its consent to an owner's alteration request under any part of bylaw 7(1). It is not significantly unfair for council to have in mind the obligation of reasonable approval in assessing which interests to favour in this dispute.

44.   The strata followed legal advice to the effect that it was likely the strata's ultimate responsibility to maintain approval records, and that approving non-conforming window coverings at the next council meeting was a way to resolve the issue. That decision balances the competing interests at play and complies with the strata's obligations in a way that is not significantly unfair. Council has also shown that it takes the applicant owners' complaint seriously in that it has said it intends to strictly enforce bylaw 7(1)(e) going forward.

45.   The fact that council did not finalize the list of strata lots whose non-conforming window coverings were going to be accepted until December 2018 does not change my decision. There is no evidence that any of those window covering modifications were made after the August 30, 2018 meeting, and by noting the list in the later minutes, council confirmed its approval for those strata lots under bylaw 7(1)(e) as it is authorized to do.

46.   I conclude that there was no breach of the strata's bylaws, and that the tribunal should not interfere with the strata's response to the applicant owners' complaints.

47.   The issue of whether the 2 council members should be removed from council depends on there being a breach of the strata bylaws. Since I have found no breach, I find I do not need to consider this issue.

TRIBUNAL FEES AND EXPENSES

48.   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. However, the strata is the successful party in this dispute and the strata did not claim any fees or dispute-related expenses. Therefore, I make no order about fees or expenses.

49.   The strata must also comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the applicant owners.

ORDER

50.   I order that the applicant owners' claims and this dispute is dismissed.