Date Issued: June 19, 2019

File: ST-2018-005291

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners. Strata Plan VR1973 v. D. E. Pezzot Inc. et al, 2019 BCCRT 747

Between:

The Owners, Strata Plan VR 1973

Applicant

And:

D. E. Pezzot Inc.

Respondent

INTRODUCTION

1.      This dispute involves alleged unauthorized alterations to common property in a 2-unit strata corporation.

2.      The applicant, The Owners, Strata Plan VR 1973 (strata) is a strata corporation existing under the Strata Property Act (SPA)., The strata is represented by Janice Turko, who owns strata lot 1 (SL1) in the strata.

3.      The respondent, D. E. Pezzot Inc. owns strata lot 2 (SL2) in the strata and is represented by Dr. Don Pezzot, who resides in SL2 and I infer is a director of the company.

4.      The applicant alleges the respondent owner has violated the strata’s bylaws by installing numerous wires on the exterior of the strata’s building without authorization and has caused damage to the building’s exterior by doing so.

5.      The applicant seeks orders that require the respondent owner to remove the wires and repair the damage caused by their installation through qualified contractors.

6.      The respondent seeks recovery of its legal fees from the applicant.

7.      For the reasons that follow, I refuse to resolve the owner’s claims.

JURISDICTION AND PROCEDURE

8.      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.

9.      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.

10.   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.

11.   Under section 6 of the Act, the tribunal’s issuance of an initiating notice (also known as a Dispute Notice) has no binding effect and does not preclude a subsequent decision of the tribunal not to resolve the claim under section 11 of the Act.

12.   Section 11 of the Act provides the tribunal with discretion to refuse to resolve a claim or dispute within its jurisdiction if it considers certain circumstances apply. In particular, the tribunal may refuse to resolve a claim or dispute if issues in the claim or dispute are too complex for the tribunal’s process or otherwise impractical for the tribunal to case manage or resolve. The tribunal may exercise its authority under section 11 of the Act at any time before the tribunal makes a final decision resolving the dispute.

13.   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.  

ISSUES

14.   The issues in this dispute are:

a.    Does the applicant have authority to commence this dispute?

b.    Is the applicant’s claim out of time under the Limitation Act (LA)?

c.    Has the wiring installation caused damage to the building?

d.    Did the respondent breach the strata’s bylaws when it had the wires installed?

e.    What is an appropriate remedy, if any?

BACKGROUND, EVIDENCE AND ANALYSIS

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

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

17.   The strata was created in 1987 and is located in Vancouver, BC. It comprises two 3-storey strata lots located side by side in one building plus a separate building of 2 limited common property (LCP) parking areas.

18.   The strata plan shows the yard area at ground level on the east and south portion of the strata’s property as LCP designated for the use of the SL2 respondent owner, and the yard area on the west and north portion of the lot as LCP for the SL1 applicant owner.

19.   The Standard Bylaws of the SPA apply without amendment.

20.   Even though the SPA governs all strata corporations in BC, it is undisputed that the strata does not fully follow the SPA in that, among other things, it does not conduct annual general meetings and does not have a budget, operating fund or contingency reserve fund. However, email correspondence between the 2 owners indicates they do communicate on building repair and maintenance issues and appear to share those costs on an equal basis according to unit entitlement.

21.   In about June 2016, the respondent approved the installation of wiring servicing SL2 to be installed primarily on the south exterior wall of the building outside SL2. Photographs show a grouping of 4 separate wires attached to exterior wood siding and soffit areas by staples or clips that are screwed to the siding. Photographs also show that at one location, a portion of the wood siding was lifted or removed and reinstalled to allow for the wiring to enter SL2 through the exterior wall.

22.   In March 2017, Ms. Turko wrote to the respondent owner expressing concern over the manner in which the wires had been installed and that the installation caused damage to the siding. Ms. Turko requested the wires be removed and properly reinstalled through existing junction boxes located on the exterior of the building that the applicant alleges allow for wiring to properly connect from the exterior of the building to the interior of SL2. Ms. Turko also requested the damage to the siding be repaired to allow for the building to be washed.

23.   In November 2017, the applicant wrote to the respondent stating the damage to the siding was contrary to bylaw 3(2) which states, among other things, an owner must not cause damage to the common property. The letter was signed by Ms. Turko. The letter requested the respondent remove the wiring, including the wiring penetrating the exterior wall, and repair the damaged siding caused by staples and screws. The letter also requested the respondent retain an engineering firm to assess the “puncture hole” in the exterior wall and retain a professional to repair the “puncture hole” with all work to be paid by the respondent.

24.   On December 6, 2107, the respondent owner’s lawyer wrote Ms. Turko stating, among other things, that the respondent owner disagrees the wire installation caused siding damage and that it will obtain a building envelope review.

25.   Between December 2017 and December 2018, the parties obtained independent reports on the condition of the exterior building siding. The reports presented conflicting views on whether the wiring installation caused damage to the exterior wood siding

Does the applicant have authority to commence this dispute?

26.   This dispute was commenced by Ms. Turko in the strata’s name. At my request, I asked Ms. Turko and the respondent to provide further submissions as to the involvement of the strata, given the respondent indicated in submissions that its representative, who serves on the strata council with Ms. Turko as the only other council member, did not agree that the strata commence this dispute.

27.   In particular, I asked the parties to consider if Ms. Turko should be the applicant and the strata should be an additional respondent. The respondent agreed. Ms. Turko argued that the respondent owner’s representative agreed with the strata commencing the dispute and provided emails from the respondent owner’s representative and its lawyer to support her argument. The respondent owner says it did not agree to the strata commencing the dispute and that dispute was really that of Ms. Turko and that she should be the party commencing the dispute.

28.   In my review of the emails provided by Ms. Turko, I find the respondent did not agree to the strata commencing this dispute but rather simply agreed to participate in the dispute, if a tribunal claim was filed.

29.   As I pointed out the parties when I requested additional submissions, sections 4 and 26 of the Strata Property Act (SPA), require the powers and duties of a strata corporation to be exercised and performed by the strata council. Further, Standard Bylaw 18, that applies here, requires council decisions to be made by a majority of council members and grants the council president a second casting vote in the event of tie vote when there are only 2 council members on the council. The strata has no president, as there has been no council election as required in Standard Bylaw 13.

30.   I acknowledge Ms. Turko’s argument as presented to the respondent’s lawyer that, in essence, the respondent is in a position of conflict under section 32 of the SPA and unable to vote on matters where it has a direct or indirect interest in the result. Such matters would include voting on the applicant’s complaint about removing or relocating the wires and initiating this dispute. However, there is no evidence before me to suggest the strata council passed a motion to commence this dispute, which is what I find is required to authorize the strata to make a tribunal application. I find this to be true even though such minutes would reflect a council decision passed only by Ms. Turko.

31.   I find Ms. Turko is acting unilaterally on the strata’s behalf without the necessary authority.

32.   As a result, I do not agree that the strata has authority to commence this dispute and I refuse to resolve it under section 11(1)(c) of the Act for reasons of impracticality.

33.   As a result of my conclusion, I will not consider the remaining issues.

TRIBUNAL FEES AND EXPENSES

34.   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 decline to order reimbursement of tribunal fees, which I understand were paid by Ms. Turko, given she had the opportunity to agree to amending the parties to this dispute and declined. The applicant did not claim dispute-related expenses.

35.   Given the dispute was not considered on its merits, I also decline to order reimbursement of the respondent’s legal fees.

DECISION AND ORDER

36.   I refuse to resolve this dispute under section 11(1)(c) of the Act on the grounds that the applicant named in the Dispute Notice (strata) did not have the necessary authorization to initiate this proceeding.