Date Issued: June 11, 2019

File: ST-2018-007393

Type: Strata

Civil Resolution Tribunal

Indexed as: Sharma v. The Owners, Strata Plan VR 610, 2019 BCCRT 714

Between:

Vivian Sharma

Applicant

And:

     The Owners, Strata Plan VR 610

Respondent

INTRODUCTION

1.      This dispute is about reimbursement of legal fees.

2.      The applicant, Vivian Sharma, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan VR 610 (strata).

3.      During the case management or facilitation phase of this dispute, the parties resolved several claims involving repair and maintenance of an exterior window, a garden area, and a fence, but failed resolve the applicant’s claim for legal fees.

4.      The applicant asks for an order that the strata, reimburse her $1,634.21 for legal fees. The strata asks that the owner’s remaining claim be dismissed.

5.      The applicant is self-represented, and the strata is represented by a council member.

6.      For the reasons that follow, I refuse to resolve the applicant’s claim for legal fees.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

11.   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, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.  

ISSUE

12.   As noted, parties were successful in reaching a negotiated settlement of repair and maintenance issues involving an exterior window, a garden, and fence during the case management phase of the dispute process. I find these issues are not before me.

13.   The sole issue to be decided is whether the applicant is entitled to an order that that the strata reimburse her $1,634.21 for legal fees.

BACKGROUND, EVIDENCE AND ANALYSIS

14.   I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.

15.   In a civil proceeding such as this, the applicant must prove their claims on a balance of probabilities.

16.   The strata is a residential strata corporation located in Vancouver, B.C. comprising 41 strata lots in a single 4-storey building. The strata was created in April 1979 under the Strata Tiles Act, a predecessor to the Strata Property Act (SPA) and exists under the SPA.

17.   The strata bylaws are those filed in the Land Title Office (LTO) on December 6, 2016, which replaced all previous bylaws, however, I find there are no bylaws that are relevant to the owner’s remaining claim before me.

18.   On December 7, 2017, the strata’s property manager issued a Form B – Information Certificate, under section 59 of the SPA. Among other things, the Form B indicated that there were no agreements under which the owner of SL14 took responsibility for expenses relating to alterations made to SL14, the common property or the common assets.

19.   LTO documents show the applicant purchased strata lot 14 (SL14) on January 5, 2018.

20.   Between July 2018 and October 2018, when the Dispute Notice was issued, the applicant exchanged various correspondence with the strata and its property manager about responsibility to replace broken handles of an exterior window of SL14, and maintenance of an area enclosed by a fence, both of which are common property.

21.   The strata argued it had an agreement with the prior owner of SL14 to repair and maintain the common property within the fenced area and the common property fence itself, despite that the Form B disclosed that no such agreement existed. It also argued the broken window handle was the applicant’s responsibility.

22.   The applicant retained a lawyer to assist her with her dispute with the strata. The invoices provided in evidence show the applicant’s lawyer was involved in writing letters to the strata about the issues, including the apparent inaccurate Form B.

23.   The applicant provided copies of 2 lawyer invoices: One for the months of August and September 2018 and the other for the month of October 2018. The invoice amounts are $770.01 and $431.20 respectively, for a total of $1,201.21.

Is the applicant is entitled to an order that that the strata reimburse her $1,634.21 for legal fees?

24.   I note at the outset that applicant has only provided proof of legal fees totalling $1,201.21. However, as discussed below, nothing turns on the applicant’s failure to prove her claim, given my finding that her claim is outside the tribunal’s jurisdiction under the Act.

25.   I find the applicant’s outstanding claim for legal fees substantially relates to an inaccurate Form B. I find this to be true given the submissions of the applicant that state:

[The] Form B clearly documented the seller did not build/alter common property, which in fact is false representation on behalf of Strata Plan VR610…. The council insisted they had an agreement with [the] seller confirming she assumed full responsibility of gardening and fence maintenance. They ignored my request for a copy of such an agreement. This agreement would also be a required attachment to Form B. I relied on the information provided on Form B and Property Disclosure document and made an informed decision.

26.   I infer the decision made by the applicant was to purchase strata lot 14.

27.   I find my conclusion is also confirmed by the September 10, 2018 letter from the applicant’s lawyer to the strata that states, “Ms. Sharma was not aware of the existence of the agreement [with the seller] when she purchased the property because the Strata failed in its duty to provide accurate information on the Form B certificate.”

28.    A Form B is issued under section 59 of the SPA, where a strata corporation is required to disclose certain information relating to a particular strata lot and the strata corporation on the request of an owner, purchaser, or person authorized by an owner or purchaser. The required information is set out in section 59(3) and includes at subsection (c), “any agreements under which the owner of the strata lot described above takes responsibility for expenses relating to alterations to the strata lot, the common property or the common assets”.

29.   Section 59(6) of the SPA, which I find is the section of the SPA I must interpret to determine the tribunal’s jurisdiction, reads:

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

30.   I have previously considered if section 59(6) of the SPA is within the tribunal’s jurisdiction and have determined it is not. As I found in Pilehchianlangroodi v. The Owners, Strata Plan LMS 1816, 2019 BCCRT 367, a person affected by an inaccurate Form B must apply to the BC Supreme Court to obtain relief.

31.   Therefore, I find the claim to be outside the tribunal’s jurisdiction as set out in section 59(6) of the SPA. Under section 10 of the Act, I refuse to resolve the applicant’s claim.

32.   If I am wrong in my conclusion about the applicant relying on the Form B, I would dismiss the applicant’s claim for reimbursement of legal fees for the following reasons.

33.   As set out in the tribunal’s rules, the tribunal generally does not order reimbursement of legal fees, except in extraordinary cases. This follows from the general rule in section 20(1) of the Act that parties are to represent themselves in tribunal proceedings.

34.   Further, although the owner indicated she was seeking reimbursement of legal fees, she did not provide any submissions explaining why I should depart from the tribunal’s general rule. I agree with the strata and see no extraordinary reason which would lead to a departure from the general rule in this case. Therefore, I would not not order reimbursement of legal fees.

TRIBUNAL FEES AND EXPENSES

35.   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 to deviate from the general rule in this case. I find the strata was the most successful party but did not pay any tribunal fees or dispute related expenses. I decline to order reimbursement of the applicant’s tribunal fees.

36.   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.

ORDER

37.   I refuse to resolve the applicant’s claim for reimbursement of legal fees under section 10 of the Act.