Date Issued: September 5, 2019

File: ST-2018-008089

Type: Strata

Civil Resolution Tribunal

Indexed as: Turpin v. The Owners, Strata Plan NW 2496, 2019 BCCRT 1053

Between:

Richard Turpin

Applicant

And:

The Owners, Strata Plan NW 2496

Respondent

INTRODUCTION

1.      The applicant, Richard Turpin (owner), is a registered owner of a strata lot in the respondent strata corporation, The Owners, Strata Plan NW 2496 (strata).

2.      The strata fined the owner for late payment of strata fees in September 2018. The owner acknowledges the payment was late but says the strata should waive the fine of $200. He also submits that the strata council’s former president, PG, is bullying and harassing him and asks that “appropriate action” be taken to stop this. The strata disagrees and says it appropriately fined the owner. It also denies that PG bullied or harassed the owner.

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

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims 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. The tribunal must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the tribunal’s process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The tribunal may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

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

ISSUES

8.      The parties reached an agreement on certain issues before this adjudication, which included the withdrawal of the strata’s counterclaim. The following issues remain.

a.    Should the $200 fine for late payment of strata fees be removed from the owner’s account?

b.    Did PG bully or harass the owner, and if so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

9.      In a civil claim like this one, the applicant must prove their claim on a balance of probabilities. This means the tribunal must find it is more likely than not that the owner’s position is correct. I have only addressed the parties’ evidence and submissions to the extent necessary to explain and give context to my decision.

Should the $200 fine for late payment of strata fees be removed from the owner’s account?

10.   Strata bylaw 1(1) states that an owner must pay strata fees on or before the first day of the month to which the strata fees relate. Bylaw 31(a) states that the strata may fine an owner $200 for each bylaw contravention.

11.   It is undisputed that the owner paid his strata fees late on September 4 rather than September 1, 2018. In a letter dated September 7, 2018, strata’s counsel wrote to the owner stating that he had breached bylaw 1 by failing to pay strata fees on time. Counsel referred to section 135 of the Strata Property Act (SPA) and asked for a response or request for a hearing within 14 days.

12.   Section 135 of the SPA says a strata cannot impose a fine on an owner for a bylaw contravention unless it has received a complaint about the contravention, given the owner the particulars of the complaint in writing, given the owner a reasonable opportunity to respond to the complaint, and given the owner notice in writing of its decision to impose the fine. The requirements of section 135(1) must be strictly followed before a fine can be imposed, otherwise the fine may be invalid: Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449.

13.   For the following reasons, I find that the $200 fine for late payment of strata fees should not be removed from the owner’s account.

14.   On September 21, 2018, the owner wrote a detailed letter to the strata. He explained that the strata fee payment was late because banks were closed from September 1 to 3, 2018, due to the long weekend. He also wrote that the fine would be a hardship due to his health. He also outlined some difficulties he said he had with PG and said he did not wish him to be involved in any decision-making regarding the fine. He concluded that he wanted the fine waived or a hearing in the alternative.

15.   As documented in meeting minutes, at a September 26, 2018 council meeting, the owner spoke to strata council. He admitted to late payment of the September 2018 strata fees. He advised of banking difficulties and health problems that prevented him from working full time. He also said he was not fully aware of all strata bylaws.

16.    After the owner left the room, the strata council voted upon and decided to impose a fine for the owner’s breach of bylaw 1. They also voted to warn the owner that he was in breach of bylaw 1(5). This bylaw requires owners to pay strata fees through either preauthorized debit or 12 post-dated cheques. Bylaw 1(5) became part of the strata’s bylaws on November 3, 2017.

17.   The meeting notes indicate that the owner’s failure to comply with bylaw 1(5) was part of strata’s decision-making process. The strata reasoned that by failing to comply with bylaw 1(5), he brought about the late payment. The notes also show that the strata received an email from the owners’ financial institution stating that the owner had not set up any regular direct deposit payment system. This October 5, 2018 email was provided in evidence. This email contradicted the owner’s comments that he had set up monthly preauthorized debit payments. The strata sent written notice of its decision to fine the owner $200, in an October 10, 2018 letter.

18.   I find that strata complied with section 135 of the SPA. Strata’s counsel provided particulars of the bylaw contravention in writing and provided a reasonable opportunity to respond, including an in-person hearing. The owner was then given written notice of the fine.

19.   The parties dispute whether the owner had ever been late paying strata fees in the past. However, I found this to be of limited relevance. The strata meeting minutes show that strata council based its decision primarily upon the owner’s statement that he had set up preauthorized debit payments, when the October 5, 2108 email showed that he had in fact not done so. The strata’s decision was therefore supported by the evidence.

20.   In summary, the owner breached the strata’s bylaws in September 2018 and was fined in accordance with both the SPA and the strata’s bylaws. I dismiss this claim.

Did PG bully or harass the owner, and if so, what is the appropriate remedy?

21.   The owner says that, starting in 2016, both PG and the strata representative in this dispute “teamed up”, almost from the day he moved in, to “discredit and assassinate [his] character”.

22.   I dismiss this claim for the following reasons.

23.   First, the owner seeks an order to specifically stop PG from bullying and harassing him. PG is not a named party in this dispute. I am unable to bind a non-party with an order.

24.   Second, the strata provided its own list of bad behaviour that it accuses the owner of. Both the owner and the strata provided letters from third parties in support of each of their positions. One of these letters accuses the owner of bullying the strata council. Another letter from a former strata council member accuses the strata council of creating an environment so toxic that he sold his unit in spring/summer 2019.

25.   I do not find it necessary or constructive to list all the various allegations in detail. Instead, I find that the owner’s allegations relate to personality conflicts or disagreements with the way the strata conducts its business, rather than bullying by PG. Further, the strata disagrees that PG engaged in the more serious allegations, such as uttering veiled threats and forging log book entries.

26.   I dismiss this claim.

TRIBUNAL FEES AND EXPENSES

27.   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. I see no reason in this case not to follow that general rule. I therefore order the owner to reimburse the strata for tribunal fees of $100, which are unrelated to the withdrawn counterclaim. The strata also claimed $31.50 in mailing expenses and $10 for photocopying. I order the owner to reimburse the strata for these amounts.

28.   The strata also listed three invoices for legal services. I did not find it entirely clear if the strata had abandoned its claim for legal fees as part of withdrawing its counterclaim. In any event, tribunal rule 9.4 sets out that, except in extraordinary cases, the tribunal will not order a party to pay legal or representative fees for the dispute. This is not an extraordinary case. I therefore decline to order reimbursement of the strata’s legal fees.

29.   The strata corporation must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the owner.

ORDERS

30.   Within 30 days of this decision, I order the owner to pay the strata a total of $141.50, broken down as follows:

a.    $100 in tribunal fees, and

b.    $41.50 in dispute-related expenses.

31.   The strata is also entitled to post-judgment interest under the Court Order Interest Act, as applicable.

32.   I dismiss the owner’s claims.

33.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing a validated copy of the attached order in the Supreme Court of British Columbia (BCSC). The order can only be filed if, among other things, the time for an appeal under section 123.1 of the CRTA has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as a BCSC order.

34.   Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia (BCPC). However, the principal amount or the value of the personal property must be within the BCPC’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the CRTA, the owners can enforce this final decision by filing a validated copy of the attached order in the BCPC. The order can only be filed if, among other things, the time for an appeal under section 123.1 of the CRTA has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as a BCPC order.