Date Issued: July 11, 2019

File: ST-2019-002151

Type: Strata

Civil Resolution Tribunal

Indexed as: Buckland v. The Owners, Strata Plan KAS 3635, 2019 BCCRT 844

BETWEEN:

TIM BUCKLAND

APPLICANT

AND:

The Owners, Strata Plan KAS 3635

 

RESPONDENT

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

 

INTRODUCTION

1.      The applicant, Tim Buckland (owner), owns strata lot 9 in the respondent strata corporation, The Owners, Strata Plan KAS 3635 (strata), a bare land strata corporation.

2.      The owner claims the strata is unfairly enforcing its bylaws by allowing some owners to have garbage enclosures on their property. The owners seeks an order that the strata enforce its bylaws equally on all owners, or call a special general meeting (SGM) and repeal the bylaw in question.

3.      The strata claims the approved garbage enclosures do not violate the bylaws and submits it enforces all bylaws equally among owners.

4.      The owner is self-represented. The strata is represented by a strata council member.

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. 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 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.

ISSUES

9.      The issues in this dispute are:

a.    What is the correct interpretation of the strata’s bylaws about the visibility of garbage bins?

b.    Has the owner been treated significantly unfairly?

c.    What is an appropriate remedy?

BACKGROUND, EVIDENCE AND ANALYSIS

10.   In a civil dispute such as this, the applicant bears the burden of proof. This means the owner has to provide evidence to prove each of his 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.

11.   The strata was created in February 2009 and is a bare land strata corporation comprising 162 strata lots located in Lake Country, British Columbia.

12.   The strata repealed its bylaws and filed a complete new set of bylaws at the Land Title Office (LTO) on August 1, 2013. The strata’s relevant bylaws are as follows:

a.    Bylaw 5(9): No dog runs or kennels, accessory buildings or storage sheds, playground equipment, trampolines, wading pools, basketball hoops, hockey nets or like items may be constructed or placed on any part of any strata lot or common property.

b.    Bylaw 8(2): No garbage or recycling functions are permitted to be visible from roads or neighbouring properties.

13.   Section 3.0 of the developer’s Design Guidelines, which are referenced in the Statutory Building Scheme registered against title to each lot in the strata, states that a purchaser of a strata lot will not erect or maintain any improvement, dwelling, building wall, fence, pole, aerial or other structure on a lot that differs from the plans other than specified and approved in writing by the developer. The section goes on to say that the developer shall provide various construction plan options and has the sole right to approve or reject any plans presented for alterations to pre-built homes.

14.   The minutes from the annual general meeting (AGM) held August 14, 2013, noted the “garbage can rule” and stated the rule was in place to ensure garbage cans were not kept outside, and that there was a discussion about the possibility of having a screened enclosure to house owners’ garbage bins beside their homes. At that time, the developer was the president of the strata.

15.   On August 31, 2015, the developer wrote to all current strata lot owners, whether their homes were completed or not, offering outdoor garbage / recycling bin enclosures for sale, to be constructed by the developer. The enclosures were attached to the side of the home, with front and side panels, leaving the back end and the top open. If interested, the owners were instructed to contact the developer. LTO documents show the owner gained title to his strata lot in October 2015, but it is undisputed that the owner received this email offer directly from the developer on August 31, 2015.

16.   Subsequently, in an email on October 31, 2017, the developer advised the strata council that although it offered the garbage enclosures to existing owners in August 2015, it was no longer offering the garbage enclosures to completed homes, due to the need to retrofit the enclosures and because they were “extremely busy”.

17.   On August 15, 2018, an email was sent to all owners on behalf of the strata council, reminding them to be in compliance with bylaw 8(2) by September 14, 2018, by either having their garbage bins in an approved garbage enclosure or within their garages. Council advised either of those options were compliant with bylaw 8(2).

18.   In December 2018, council conducted an assessment of the strata property for compliance with bylaw 8(2). It found 2 properties, 1 of which was the owner’s, that were not in compliance, as their garbage bins were freestanding outside their home. On January 11, 2019, the owner was sent a bylaw violation notice advising the same.

19.   In response, the owner moved his garbage bin into his garage and responded to the strata council with a complaint about the approved garbage enclosures. He also indicated in his letter that due to the orientation of his lot, he was unable to build an enclosure, and stated that the garbage enclosures as approved were in contradiction of bylaw 8(2) because the bins could still be seen from behind the enclosure, from a neighbour’s backyard and from the street.

20.   In response to the owner’s complaint, the strata advised that the lot he complained of had their garbage bins contained within an approved garbage enclosure, and therefore were not in violation of bylaw 8(2).

21.   Ultimately, as the owner moved his visible garbage bin into his garage, no fine was levied against him.

22.   As noted above, the owner argues that the strata is not enforcing the bylaws equally because garbage bins can still be seen from the back on those lots with garbage bin enclosures, and that the garbage enclosures violate bylaws 5(9) and 8(2). The applicant seeks an order that the strata enforce bylaw 8(2) equally on all strata lot owners, or call an SGM and have the owners vote on removing bylaw 8(2).

23.   The respondent argues that it has acted fairly in its enforcement of bylaw 8(2) and that the developer-approved garbage enclosures do not violate the bylaws.

What is the correct interpretation of the strata’s bylaw about the visibility of garbage bins?

24.   Bylaws are to be given their plain and ordinary meaning: The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32, citing Harvey v. The Owners, Strata Plan NW 2489, 2003 BCSC 1316.

25.   In light of this, I must determine the correct interpretation or intent of the garbage bin visibility bylaw based on its plain and ordinary meaning in the context of the bylaw as a whole. That is, I must consider the bylaw’s purpose, which is to restrict the visibility of garbage bins, as well as the plain meaning of the words.

26.   While I agree with the owner that bylaw 8(2) specifically states garbage and recycling bins are not to be visible from roads or neighbouring properties, I do not agree that the bylaw prohibits the bins from being kept in the enclosure. Although the owner says the bins can be seen from the rear of the enclosure, the photos provided were from relatively close proximity to the back of the enclosure. I am satisfied that the intent of the bylaw was to promote a neat and tidy view of the homes on the strata lots from the roads and neighbouring properties generally, and that the developer designed and constructed the garbage enclosure with the intent of complying with bylaw 8(2), which the strata argues it does.

27.   The owner also argues that the garbage bin enclosures violate the bylaws and are in essence a “storage shed”, which specifically violate bylaw 5(9). In contrast, the strata argues that the enclosure falls short of a “shed”, which by definition requires a “roof”.

28.   I have reviewed the photos and design specifications of the developer-approved garbage enclosures. As stated above, the enclosures are essentially 3 sided, with the home making up 1 side, a front panel and side panel making up the other 2 sides, and the back end and top (or “roof”) are open. I disagree with the owner that the enclosure is tantamount to a “storage shed”. Although the garbage bins are effectively “stored” behind the enclosure, I find it the structure is for aesthetic purposes in hiding otherwise unsightly garbage and recycling bins, rather than something that is to be utilized for storage. Based on my review of the enclosures, I do not find they violate bylaw 5(9).

29.   The owner further argues that allowing the garbage enclosures is unfair as not all strata lots are able to build a similar structure. He argues that his lot is unique and a garbage enclosure is not practical. However, the owner also admitted that he contacted the developer about their offer of constructing a garbage enclosure, and was not responded to. As noted above, for some time in 2015, the developer offered to construct the approved garbage enclosures for a fee, but by October 2017 they no longer offered this service. There is no evidence before me about when the owner sought to have the garbage enclosure constructed. The developer is not a party to this action, and I do not make any findings about whether the owner properly contacted the developer regarding the garbage enclosure.

30.   Nothing in this decision restricts the owner from contacting the developer again to determine whether he is still eligible for the garbage enclosure. I also note that the strata advised owners they may apply to the strata council for approval of a garbage enclosure that is similar to that provided by the developer, and that such an approved structure would comply with the bylaws. Based the evidence, I am satisfied the owner’s strata lot is not so unique as to exclude the option of an approved garbage enclosure.

31.   Given all the above, I find that the garbage bin enclosures do not violate either bylaw 8(2) or 5(9). Additionally, I find that the strata did not unequally enforce those bylaws against parties without garbage enclosures, as I have found the garbage enclosures were designed to comply with the bylaws and were offered to every owner at some point. Further, owners were not restricted from later constructing a garbage enclosure even if they did not select to have one built by the developer.

Has the owner been treated significantly unfairly?

32.   The owner alleges he has been treated unfairly by the strata in not being able to keep his garbage bin at the side of his home without a garbage enclosure. He further argues that the strata council has performed their duties in contravention of section 31 of the Strata Property Act (SPA) which says that every council member must act honestly and in good faith, and exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances. For the reasons that follow, I find the strata has not acted significantly unfairly.

33.   Section 164 of the SPA permits the courts to make orders to remedy or prevent significant unfairness in strata disputes. Section 123(2) of the Act contains similar language to section 164 of the SPA, and addresses remedies for significant unfairness. Section 123(2) provides that the tribunal has discretion to make an order directed at the strata, the council or a person who holds 50% of more of the votes, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights.

34.   The courts and the tribunal have considered the meaning of “significantly unfair” in a number of contexts, equating it to oppressive or unfairly prejudicial conduct. In Reid v. Strata Plan LMS 2503, 2003 BCCA 128, the British Columbia Court of Appeal interpreted a significantly unfair action as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith and / or unjust or inequitable.

35.   The owner says that he has been treated unfairly by the strata because his lot is not amenable to a garbage enclosure, and because garbage enclosures were never offered to existing home owners. However, based on my reasons above, I disagree. I find that the evidence shows the owner’s property is capable of housing a garbage enclosure, which he sought to have constructed, and that the developer did offer garbage enclosures to all existing owners. The owner produced the email from the developer with the offer in evidence, and advised he contacted the developer to request such an enclosure.

36.   I appreciate the owner’s expressed frustration about the garbage enclosures, noting that they were not offered before he purchased but were offered later, before he moved in, and to all subsequent purchasers. However, I find the garbage enclosures were offered equally to all owners, both through the developer and subsequently through approval from the strata council. I do not find the strata’s actions in finding the garbage enclosures complied with bylaw 8(2) resulted in the owner being treated unfairly.

37.   The owner also submits the strata did not comply with SPA section 34.1, as it failed to provide him with a hearing within 4 weeks of his request.

38.   On January 28, 2019, in response to the strata council denying his complaint about another owner’s garbage bins being visible from behind their garbage enclosure, the owner requested a hearing pursuant to section 34.1 of the SPA. After not hearing back, the owner followed up on February 20, 2019 and was subsequently forwarded a letter from the strata council dated January 30, 2019 that stated they could not meet quorum for a hearing within the 4 week deadline, and proposed March 6, 2019 for the hearing. The hearing was held on March 6, 2019 and the strata’s decision was provided to the owner, in writing, on March 11, 2019.

39.   The strata admits that although the letter was drafted on January 30, 2019, there was a delay in having council approve the letter and it was not sent until February 20, 2019.

40.   Although the owner felt the strata was being dishonest in “back-dating” the letter, I find the strata’s explanation for the delay was reasonable, and I do not find they were trying to deceive the owner. In any event, the owner does not seek any damages for the delayed hearing, and therefore I decline to make such an order.

41.   Given all of the above, I dismiss the owner’s claims and do not need to consider any appropriate remedies.

42.   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.

43.   Further, the owner noted that the strata council approved 2 storage sheds in the common property pool area, which do not comply with bylaw 5(9). The owner also provided photos which show garbage bins in the common property pool area that are visible and not behind a garbage enclosure, which he says is contrary to bylaw 8(2). As the owner has not made any claims related to these issues, I decline to make an order, but I do encourage the strata to ensure its own compliance with the bylaws.

TRIBUNAL FEES AND EXPENSES

44.   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 owner has been unsuccessful in its claim, I find he is not entitled to reimbursement of his tribunal fees. No dispute-related expenses were claimed.

45.   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

46.   I order the applicant’s claims, and this dispute, dismissed.