Date Issued: September 3, 2019

File: ST-2019-001358

Type: Strata

Civil Resolution Tribunal

Indexed as: Dillon v. The Owners, Strata Plan 1035, 2019 BCCRT 1042

Between:

DIANE DILLON

Applicant

And:

     The Owners, Strata Plan 1035

Respondent

 

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.      The applicant, DIANE DILLON, was a tenant in a strata lot (unit 17) in the respondent strata corporation, The Owners, Strata Plan 1035 (strata) from about January 2018 until May 2019. The applicant is self represented and has identified special accommodation needs, which I have considered in reaching my conclusions. The strata is represented by a strata council member.

2.      The applicant says the strata owes her $22,808 for various expenses or damages she allegedly suffered while she was a tenant in the strata. Specifically, she seeks orders for the following:

a.    $900 compensation for papers destroyed in a flood, including labour for reprinting the papers,

b.    $1,300 for reimbursement of hydro expenses.

c.    $1,200 as reimbursement of costs to clean up unit 24 (above unit 17),

d.    $1,800 for moving expenses,

e.    $8,400 for 1-years’ rent,

f.     $9,000 for damage to her van, and

g.    $208 for water testing.

3.      The strata denies responsibility and requests that I dismiss the applicant’s claims.

4.      For the reasons that follow, I dismiss the applicant’s claims and this dispute.

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 (CRTA). 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 other electronic means, 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.

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 CRTA, the tribunal must refuse to resolve a claim that it considers is not within the jurisdiction of the tribunal.

9.      Under section 61 of the CRTA, the tribunal may make any order or give any direction in relation to a tribunal proceeding it thinks necessary to achieve the objects of the tribunal in accordance with its mandate. In particular, the tribunal may make such an order on its own initiative, on request by a party, or on recommendation by a case manager.

10.   Under section 123 of the CRTA 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.  

PRELIMINARY ISSUES

11.   There are 2 preliminary issues. The first is whether the tribunal has jurisdiction to continue to hear the dispute given the applicant is no longer a tenant in the strata. If the answer to the first issue is that the tribunal does have jurisdiction, then the second issue is whether the tribunal should continue to hear the dispute, dismiss it, or refuse to resolve it because the applicant is no longer a tenant.

12.   Section 189.1(1) of the SPA states only strata corporations, owners and tenants can request dispute resolution with the tribunal. It is undisputed the applicant was a tenant as defined under the SPA at the time the Dispute Notice was issued on May 30, 2019. The evidence shows she was required to vacate the rented strata lot on May 31, 2019 because the landlord wished to complete renovations to unit 17. It is unclear when the applicant moved out but, based on the submissions, I conclude she was no longer a tenant sometime in June 2019.

13.   As I noted in Kervin v. The Owners, Strata Plan LMS 3011, 2017 BCCRT 146, the CRTA, tribunal rules, and the SPA are silent as to the tribunal’s jurisdiction should the status of an applicant change during a tribunal proceeding. In Kervin, I found there is nothing in the legislation that expressly states the tribunal does not have jurisdiction if an applicant ceases to be an owner during the tribunal process. For the same reasons, I find the tribunal has jurisdiction to continue to resolve this dispute where the applicant is a tenant who ceases being a tenant before the dispute resolution process concludes.

14.   In Kervin, I also found the tribunal has discretion to resolve the dispute under section 61 of the CRTA and tribunal rules to dismiss, refuse to resolve, or continue to hear the dispute. The main difference between dismissing a dispute and refusing to resolve it is that a dismissal is a final decision of the tribunal which may not subsequently be brought back before the tribunal or another legally binding process. In refusing to resolve a dispute, the parties are not restricted from raising the dispute in another legally binding process or bringing the dispute back to the tribunal if circumstances change.

15.   I set out a number of factors the tribunal should consider when exercising its discretion under section 61 when an applicant owner ceases to be an owner that I find apply equally to a tenant. The factors are:

a.    Whether all of the parties to the claim or dispute agree that the claim or dispute should be resolved by the tribunal;

b.    Whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute;

c.    The stage in the tribunal proceeding at which the applicant ceases to be an owner;

d.    The relative prejudice to the parties of the tribunal’s potential order; and

e.    The effect of continuing the proceeding on the tribunal’s resources and mandate.

16.   Based on these factors, I find the tribunal should continue to hear the dispute for the following reasons.

17.   The parties do not both agree the tribunal should hear the dispute. The strata says the tribunal should not hear the dispute, but the applicant did not address the issue in her response submissions. While the issues raised by the applicant are only important to the parties, and the applicant left the strata after starting the dispute resolution process, the process continued, and all arguments and evidence were provided.

18.   I find prejudice to the applicant if I do not proceed to hear this dispute outweighs the prejudice to the strata if I dismissed or refused to resolve the dispute on the basis the applicant ceased to be a tenant. I say this because this dispute is now at the end of adjudication stage and the tribunal has received all arguments and evidence from the parties.

19.   Finally, I find the dispute is now before me and I find the effect of continuing it is not an improper or significant use of the tribunal’s resources. My decision follows.

ISSUES

20.   The remaining issues in this dispute are:

a.    Should I refuse to resolve this dispute because the applicant did not first request a hearing with strata council?

b.    Has this dispute already been resolved?

c.    If not, is the applicant entitled to the requested compensation from the strata?

BACKGROUND, EVIDENCE AND ANALYSIS

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

22.   In a civil proceeding such as this, the applicant must prove each of her claims on a balance of probabilities.

23.   The strata is a 48-unit residential strata corporation located in Port Hardy, B.C. It was created in 1981 under the Condominium Act (CA) and continues to exist under the Strata Property Act (SPA).

24.   The general index of the strata shows the only bylaw amendments filed at the Land Title Office (LTO) were those of April 17, 2009. Under Strata Property Regulation 17.11, the strata’s bylaws are the Schedule of Standard Bylaws under the SPA plus the April 17, 2009 amendments. I address the bylaws relevant to this dispute in my analysis below as necessary.

25.   During the approximate 18-month tenancy, the applicant claims unit 17 was flooded by the tenant in unit 24 above her on 16 occasions. She does not list the specific dates of the water losses but claims they are the cause of her damaged paperwork and increased hydro expense resulting from the increased number of loads of laundry she had to do. She also says the numerous water leaks from unit 24 resulted in mold in both unit 17 and 24 that negatively affected her health. She says she paid to clean unit 24 in May 2019 after the tenant vacated that unit because of alleged mold and foul odours coming from unit 24 that affected her health.

26.   In addition, the applicant claims that the strata failed to install security cameras and removed a perimeter fence that resulted in theft of personal belongings and damage to her van.

27.   Finally, I infer her claim for reimbursement of water testing relates to her claimed health issues.

Should I refuse to resolve this dispute because the applicant did not first request a hearing with strata council?

28.   The strata says the applicant did not request a hearing with the strata council before requesting dispute resolution, contrary to section 189.1(2) of the SPA. The strata also correctly notes that the tribunal can waive the requirement on request of the applicant.

29.   I find I have discretion under section 61 of the CRTA noted above, to waive the hearing requirement in order to achieve the objects of the tribunal in accordance with its mandate. I find it is in keeping with the principles of fairness to allow the dispute to continue. Based on the parties’ submissions and the applicant’s special accommodations, I find it unlikely that a hearing would have resolved this dispute. Accordingly, I exercise my discretion and waive the hearing requirement under section 189.1(2) of the SPA.

Has this dispute already been resolved?

30.   I do not find that this dispute has already been resolved.

31.   The strata says at the time the applicant filed her dispute with the tribunal, she concurrently filed a claim with the Residential Tenancy Branch (RTB) citing the same concerns. The strata says this is contrary to section 178.1 of the SPA. I disagree.

32.   Section 178.1 of the SPA says a dispute must not be referred to arbitration once an initiating notice under section 6 of the CRTA (also known as a Dispute Notice) has been issued. While the RTB claim is an arbitration proceeding, section 178.1 expressly refers to an arbitration proceeding under section 177 of the SPA, which I find the RTB proceeding is not.

33.   I have also considered if this dispute is res judicata, or already decided, under common law, and find it is not.

34.   In East Barriere Resort Limited et al v. The Owners, Strata Plan KAS1819, 2017 BCCRT 22, the tribunal chair aptly explained that res judicata can arise in two ways at paragraph 24:

The first is called cause of action estoppel, which stops someone from pursuing a matter that was or should have been the subject of a previous process. The second is called issue estoppel, which stops someone from raising an issue that has already been decided in another process. (Eschbamer v. Wallster, 2013 BCCA 76 at paragraph 12, quoted with approval in Tuokko v. Skulstad, 2016 BCSC 2200 at paragraph 16).

[emphasis in original]

35.   The strata argues that the RTB claim cited the same concerns as this dispute and relies on the RTB decision dated July 24, 2019 provided in evidence. As explained in East Barriere, the test for each form of estoppel has separate parts that must all be met in order to establish the applicant’s claims are res judicata, or have already been decided.

36.   The test for cause of action estoppel has 4 parts.

a.    There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of “finality”];

b.    The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of “mutuality”];

c.    The cause of action and the prior action must not be separate and distinct; and

d.    The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

37.   The test for issue estoppel has 3 parts. 

a.    The same question has been decided;

b.    The judicial decision deciding the question is final; and 

c.    The parties or their privies were the same in the judicial decision and the subsequent proceeding.

38.   In each test, the parties must be the same. Given the RTB decision does not name the strata as a party, I find a claim under each form of estoppel must fail.

39.   For these reasons, I find the matters in this dispute have not already been resolved.

Is the applicant entitled to the requested compensation from the strata?

40.   I find an appropriate way to address the applicant’s claims is to group her claims and requested remedies into 3 categories. The first relates to alleged water losses, the second relates to security allegations, and the third I will categorize as “other”. For the reasons that follow, I find the applicant is not entitled to the requested compensation.

Alleged water losses

41.   I will first address the applicant’s requested claims and remedies resulting from the alleged water losses from unit 24. I find these to include the following from above:

a.    $900 compensation for papers destroyed in a flood, including labour for reprinting the papers,

b.    $1,300 for reimbursement of hydro expenses.

c.    $1,200 as reimbursement of costs to clean up unit 24.

42.   There is no dispute that water damage was sustained to unit 17, although the strata does not agree there were 16 separate incidents as claimed by the applicant. However, under section 72 of the SPA and bylaw 8, the strata is responsible to repair and maintain common property, the structure and exterior of the building and certain items attached to the exterior of the building.

43.   Under bylaw 2, a strata lot owner must repair and maintain their strata lot, except for repair and maintenance that is the responsibility of the strata.

44.   In order to be successful in her claims, the applicant must prove the strata was responsible for the water losses or negligent in not addressing its responsibilities. The applicant has not proved either.

45.   In the Dispute Notice, the applicant admits the unit 24 tenant was the cause of the water losses stating, “my home was flooded 16 times by tenant in #24”. The applicant did not provide specific details about how the water loses occurred. I find the applicant has not met the burden of proof to show the that the losses were the strata’s fault, such as failure to repair and maintain common property piping in unit 24. Therefore, I dismiss the applicant’s claims for destruction of personal papers and reimbursement of hydro expenses.

46.   As for the applicant’s claim for the costs of cleaning unit 24, there is no evidence before me that the strata was aware of the applicant’s concerns with unit 24 or refused to clean the unit. I again note that common property was not the cause of water loss, therefore the strata is not responsible. Given the owner of unit 24 or their tenant, are likely responsible for the condition of the unit, the applicant may have a cause of action against them, but I find the strata is not responsible as I have noted.

47.   For these reasons, I find the applicant has not established that the strata is liable for the applicant’s damaged papers, hydro expenses and costs to clean unit 24.

Alleged security issues

48.   I include the applicant’s claim for $9,000 about damage to her van in this category.

49.   The applicant made several allegations about theft from unit 17 and damage to her van. She says the building was generally unsafe and she connects the strata’s removal of a perimeter fence or failure to install security cameras to increased security issues. I agree with the strata that the applicant did not provide any evidence to establish that the removal of the fence decreased the level of security in general or was the caused the damage to her van. While the local police may have recommended the installation of security cameras, as the applicant alleges, that does not mean the strata is obligated to install them. Finally, the applicant has not provided evidence that the van was damaged on the strata’s common property.

50.   I find the applicant has failed to provide sufficient evidence prove the alleged damage to her van was caused by or in any way related to the strata. For this reason, I dismiss the applicant’s claim for $9,000 in damages to her van.

Other claims

51.   The applicant’s remaining claims are:

a.    $1,800 for moving expenses,

b.    $8,400 for 1-years’ rent, and

c.    $208 for water testing

52.   She does not explain how she attributes these claims to the strata.

53.   The evidence shows on January 30, 2019 the applicant’s landlord gave her 4 months notice to vacate unit 17 under section 49(6) of the Residential Tenancy Act. The notice was provided in evidence and required the applicant to vacate her unit by May 31, 2019, which it appears she did. The applicant’s rental agreement was not provided in evidence. However, based on the evidence and submissions, I find the strata was not the applicant’s landlord nor the owner of the strata lot rented to the applicant. Given the rental agreement is a contract between the applicant and the strata lot owner, I find the strata is not liable for any claim for reimbursement of moving expenses or rent. I dismiss the applicant’s claims for reimbursement of $1,800 for moving expenses and $8,400 for rent.

54.   As for the applicant’s claim for reimbursement of a water testing expense, the strata says it was not notified of any concerns about water quality and the applicant did not request the strata test the drinking water. Even if the applicant did make such a request, the evidence shows the applicant had the water tested and sent a water sample to the Town of Port Hardy maintenance supervisor. In an email dated July 11, 2019, the supervisor states he received the water sample from the applicant on June 1, 2019 that the sample results were:

…within the Maximum Acceptable Concentrations (MACs) and Aesthetic Objectives (AOs) set forth by Health Canada in the Guidelines for Canadian Drinking Water Quality Summary Table.

55.   Given the water met the expected standards, I find the applicant must bear the cost of the water sample testing. I dismiss her claim for reimbursement of the water sample testing expense.

TRIBUNAL FEES AND INTEREST

56.   Under section 49 of the CRTA, 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. Here, the strata was the successful party but did not pay tribunal fees or claim dispute-related expenses, so I make no order.

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

DECISION AND ORDER

58.   I dismiss the applicants’ claims and this dispute.