Date Issued: September 16, 2019

File: ST-2019-003186

Type: Strata

Civil Resolution Tribunal

Indexed as: Section 2 of The Owners, Strata Plan BCS 4327 v. Fan, 2019 BCCRT 1087

Between:

Section 2 of The Owners, Strata Plan BCS 4327

Applicant

And:

CHUN LI FAN

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The applicant, Section 2 of The Owners, Strata Plan BCS 4327 (section), is the residential section of the strata corporation, The Owners, Strata Plan BCS 4327 (strata). The respondent, Chun Li Fan, owns a residential strata lot in the strata, which is part of the section.

2.      This dispute is about $800 in fines. The section fined the respondent $600 for keeping plants and other items on her patio and another $200 because the respondent had LED lights in her window. The section wants an order that the respondent pay the fines, which she has refused to do. The respondent says that the section imposed the fines unfairly.

3.      The section is represented by a member of the residential section executive, GW. The respondent is self-represented.

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 by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both sides to this dispute call into question the credibility, or truthfulness, of the other. However, in the circumstances of this dispute, I find that it is not necessary for me to resolve the credibility issues that the parties raised. I therefore decided to hear this dispute through written submissions.

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.

8.      Tribunal documents incorrectly show the name of the respondent as Strata Corporation 2 of Strata Plan BCS4327. Based on section 193(4) of the Strata Property Act (SPA), the correct legal name of the strata is Section 2 of The Owners, Strata Plan BCS 4327. Given the parties operated on the basis that the correct name of the section was used in their documents and submissions, I have exercised my discretion under section 61 to direct the use of the section’s correct legal name in these proceedings. Accordingly, I have amended the style of cause above.

ISSUES

9.      The issues in this dispute are:

a.    Did the section act significantly unfairly when it imposed fines for the items on the respondent’s patio?

b.    Did the respondent breach the bylaws by hanging the LED lights?

BACKGROUND AND EVIDENCE

10.   In a civil claim such as this, the section must prove its case on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.

11.   The strata consists of 104 strata lots in a mixed-use building that includes a 14 floor residential tower. The respondent’s strata lot is a townhouse-style residential strata lot. It includes a patio between its front door and the public sidewalk, which is limited common property (LCP). There is a tall hedge along the boundary between the patio and the sidewalk except for a metal gate.

12.   The strata filed a consolidated set of bylaws in the Land Title Office on May 16, 2016, which include the following relevant bylaws.

13.   Bylaw 8(a) prohibits using common property in a way that causes a nuisance, disturbance or hazard to another person. Bylaw 8(c) prohibits using common property in a way that unreasonably interferes with the rights of other persons to use and enjoy the common property. Bylaw 8(e) prohibits using common property in a way that is contrary to the common property’s purpose as shown on the strata plan.

14.   Bylaw 45(13) says that an owner cannot hang or display any “laundry, washing, clothing, bedding or other articles” from windows so that they are visible from the outside of the building.

15.   Bylaw 46 prohibits the owner from placing planters or similar items on her LCP patio unless, in the opinion of the strata council, the planters are in keeping with the “balance of the development in terms of design, quality, proportion and colour”.

16.   On July 23, 2018, the section’s property manager sent a letter to the respondent about the planters on her patio’s stairway, which the property manager said could cause a tripping hazard for landscapers. The property manager said that this was a breach of bylaw 46.

17.   In response to this letter, the respondent says that she rearranged the inside of her strata lot to accommodate the potted plants and other items that had been on her patio. She is a piano teacher and therefore has several pianos in her strata lot, which she says makes it crowded and difficult to clean without temporarily placing items on the patio to create room. She says that most of the time there is nothing on her patio.

18.   The property manager sent another letter on July 30, 2018, alleging that the applicant was “storing personal items” on her patio. The property manager said that this was a breach of bylaws 8(a), 8(b), 8(c) and 46. The property manager said that the respondent had until August 1, 2018 to remove the personal items. The letter included 4 photographs of the respondent’s patio, which show a broom, a small table, and several small potted plants. Three of the photographs were taken from inside the respondent’s LCP.

19.   On August 5, 2018, the property manager wrote to the respondent that if the respondent did not remove the personal items on her patio by August 8, 2018, the section would remove them.

20.   The respondent says on August 8, 2018, she was in the middle of cleaning her house and front yard when GW approached her unit with his camera. The respondent says that he attempted to enter her locked patio gate so that he could take photographs of her patio. She refused to allow him entry, so he called the police. She went inside to avoid him. She says that there were items on her patio at the time but only temporarily while she cleaned. According to the section, the respondent removed the items from the patio after GW called the police.

21.   On August 10, 2018, the strata imposed a $200 fine. In the letter notifying the respondent of the fine, the property manager attached another photo taken from the respondent’s patio that shows a potted plant on a table and a shelf with another potted plant in it. Again, the photographs were taken from inside the respondent’s LCP.

22.   On October 26, 2018, the property manager emailed the respondent about LED lights that she had hung in her front window. The property manager followed up with a more formal letter on November 7, 2018, alleging that the lights breached bylaw 45(13).

23.   On November 22, 2018, the strata imposed another $200 fine for having personal items on her patio.

24.   On November 26, 2018, the strata imposed a $200 fine for the LED lighting in the window.

25.   At some point in early January 2019, GW entered onto the respondent’s patio to remove items from the respondent’s patio. The respondent says that when GW brought the items back, he left a garbage bag and cardboard box on her patio, which she refused to clean up. The section says that they contained the respondent’s belongings, which the respondent denies. The respondent says that GW stole her umbrella, which the section denies.

26.   These events were contentious. Given my conclusions in this dispute, which are set out below, I find that I do not need to resolve who is right about these events. In the end, the respondent refused to remove the garbage bag and box. On January 17, 2019, the section fined the respondent another $200 for storing personal items on the patio. The letter included 2 more photographs taken from the respondent’s LCP.

ANALYSIS

Did the strata act significantly unfairly when it imposed fines for the items on the respondent’s patio?

27.   The respondent says that the section has treated her unfairly by imposing the fines. She says that her front gate is typically locked and GW enters her LCP to take photographs to try to catch her in a bylaw breach. The respondent says that this is a breach of her privacy and makes her feel harassed and bullied.

28.   While the respondent does not use the specific language of “significant unfairness”, I find that her submissions raise the issue. Under section 123(2) of the CRTA, the tribunal can make an order to remedy a significantly unfair action or decision.

29.   I note that section 123(2) of the CRTA does not explicitly give the tribunal jurisdiction over sections in a strata corporation. Nevertheless, I find that the tribunal has jurisdiction to make an order directed at a section to remedy a significantly unfair action or decision. Section 194(2) of the SPA says that sections have the same powers and duties as a strata corporation, including the enforcement of bylaws. Furthermore, section 190 of the SPA says that the provisions of the SPA apply to sections. I find that these provisions show a legislative intent for sections to be treated in the same way as strata corporations. There is no sensible reason why the legislature would give the tribunal jurisdiction over significantly unfair actions by a strata corporation but not significantly unfair actions by a section. I find that this would be an absurd reading of section 123(2) of the CRTA.

30.   The leading case that sets out the test for significant unfairness under section 164 of the SPA is Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. The British Columbia Supreme Court (BCSC) confirmed that the same test applies under section 123(2) of the CRTA in The Owners, Strata Plan BCS 1721 v. Watson, 2017 BCSC 763. The test is:

a.    What is or was the expectation of the affected owner?

b.    Was that expectation on the part of the owner objectively reasonable?

c.    If so, was that expectation violated by an action that was significantly unfair?

31.   The section says that it treats everyone equally. The section points to the fact that it imposed $8,575 in fines in the last fiscal year and it only fined the respondent $800. The section says that when it has received complaints from the respondent about other strata lots, it dealt with those complaints promptly and appropriately. However, the section does not explain whether it was reasonable or fair for GW to enter the respondent’s patio without notice, even though the respondent raised this issue.

32.   With the exception of August 8, 2018 and January 5, 2019, there is no evidence that the section provided any notice before entering the respondent’s patio. None of the photographs that the strata relied on when it imposed the 3 fines were taken on August 8, 2018 or January 5, 2019.

33.   As mentioned above, several of the property manager’s letters included photographs that were taken from the respondent’s patio. In this dispute, the section provided several other photographs from between August 2018 and January 2019 that were also taken from the respondent’s patio. The section does not dispute that GW took these photographs or that GW entered the respondent’s patio without notice.

34.   I acknowledge that there are some photographs in evidence that suggest that some of the items on the respondent’s patio may have been slightly visible from the public sidewalk. However, I find that the section did not rely on any of these photographs when it imposed the fines. Rather, it relied on evidence that GW collected by letting himself onto the respondent’s patio.

35.   I find that the section’s right to enter the respondent’s LCP is governed by section 77 of the SPA. Section 77 of the SPA says that the respondent must allow the section reasonable access to their LCP to allow the section to exercise its powers and perform its duties. One of the section’s duties is to enforce its bylaws.

36.   Does section 77 of the SPA give the residential section the right to access the respondent’s LCP without notice to investigate a potential bylaw breach? I find that it does not. I find that section 77 of the SPA requires the section to provide reasonable notice of its intention to access LCP, except in emergency situations.

37.   Bylaw 12 says that an owner must allow access to their strata lot at a reasonable time on 48 hours’ written notice to ensure compliance with the bylaws. While bylaw 12 does not apply to LCP, I find that it informs how much notice is reasonable because an owner has a privacy interest in their LCP similar to their privacy interest in their strata lot.

38.   Turning to the test from Dollan, l find that the respondent had a reasonable expectation that the section would not enter her LCP to investigate potential bylaw breaches without giving reasonable notice. The section breached this reasonable expectation.

39.   As for the third part of the test, did the section breach the respondent’s expectations in a significantly unfair manner? The courts have described actions that are “significantly unfair” as being burdensome, harsh, wrongful, lacking in probity of fair dealing, unjust or inequitable. See Reid v. Strata Plan LMS 2503, 2003 BCCA 128.

40.   I find that the section’s actions were significantly unfair. First, the section’s actions were wrongful, because the section breached to section 77 of the SPA. Second, the section’s actions were burdensome, because they impacted the respondent’s ability to quietly enjoy her home. Third, the section’s actions were harsh, because the section’s invasion of the respondent’s privacy was out of proportion to the seriousness of the potential bylaw breach.

41.   Given the section’s significantly unfair actions, I find that the appropriate remedy is to cancel the fines. I order the section to cancel the 3 fines it imposed on the respondent for breaching bylaw 46.

Did the respondent breach the bylaws by hanging the lights?

42.   The remaining fine is for a breach of bylaw 45(13), which prohibits hanging “laundry, washing, clothing, bedding or other articles”. As mentioned above, the section says that the respondent’s window lights breached bylaw 45(13). The respondent does not think that this bylaw prohibited her from hanging lights.

43.   Neither party provided detailed submissions about the proper interpretation of bylaw 45(13). I decided not to seek further submissions on this issue because I find that the resulting delay would be contrary to the tribunal’s mandate to provide speedy dispute resolution, especially considering there is only $200 at stake. Furthermore, I find that I can reasonably infer the section’s position such that it is unlikely that further submissions would be helpful.

44.   I infer that the section considered the lights to be an “other article” because the lights clearly do not fit within any of the specific items listed in bylaw 45(13). Was the strata’s interpretation of the bylaw reasonable? For the reasons that follow, I find that it was not.

45.   I find that the words “other articles” must be read in the context of bylaw 45(13) and in the context of the bylaws as a whole.

46.   Therefore, the words “other articles” are informed by other items listed in bylaw 45(13), which are generally things that a resident might hang to wash or dry. I find that an “other article” must share common traits with the other items in the list. Decorative lights do not share anything in common with the rest of the items listed in bylaw 45(13).

47.   Furthermore, considering the bylaws as a whole, the bylaws are specific and detailed. Bylaw 45, which governs the use of property, has 19 subsections. Bylaw 45(14) prohibits shades, awnings, and window or balcony guards or screens. Bylaw 45(16) prohibits signs, billboards, notices or other advertising. Given this level of detail, I find that it is not a reasonable interpretation of bylaw 45(13) that it prohibits decorative lights hanging in a window. If the strata had intended to ban hanging anything at all in the strata’s windows, it could have passed a much simpler bylaw to that effect. If the strata had intended to ban decorative window lights, it could have included a specific bylaw banning lights.

48.   Therefore, I find that the respondent did not breach bylaw 45(13) by hanging the lights. Accordingly, the fine for that breach must be immediately cancelled.

Other Issues

49.   The respondent made several other arguments about the section’s conduct. For the most part, I find that there is no useful purpose in addressing those arguments. However, there are 2 issues that the parties raised in their submissions that I will discuss in the hopes of assisting the parties moving forward: the proper interpretation of bylaw 46 and the respondent’s request for a hearing.

Bylaw 46

50.   After the July 23, 2018 letter, the section repeatedly said that storing “personal items” on LCP was a contravention of bylaw 46. However, bylaw 46 does not prohibit personal items on a patio. There is no bylaw that prohibits all personal items on a patio. Rather, a combination of bylaws 45(17) and 46 govern what a resident may place on a patio.

51.   Bylaw 45(17) says that an owner cannot place any items on their patio except “freestanding, self-contained planter boxes, summer furniture and accessories”.

52.   Bylaw 46 places additional requirements on residents who live in strata lots with balconies and patios that are not enclosed, like the respondent. For non-enclosed balconies and patios, the resident cannot place planters or similar items on the patio unless, in the opinion of the strata council, the planters are in keeping with the “balance of the development in terms of design, quality, proportion and colour”.

53.   Therefore, it is not accurate for the section to rely on bylaw 46 to tell an owner with a non-enclosed patio to remove all “personal items” from their patio. Rather, those owners are permitted by the bylaws to have planter boxes, summer furniture and accessories, as long as the strata council considers them to be consistent with the building’s aesthetic.

54.   Other than the garbage bag and cardboard box that were on the respondent’s patio in January 2019, the section’s complaints were about planters and a shelving unit. I find that these items were only prohibited if the strata council determined that they are inconsistent with the building’s aesthetic in terms of “design, quality, proportion and colour”.

55.   Therefore, the section’s letters to the respondent did not accurately describe how she breached the bylaw because they did not inform her about whether, or how, the plants and other accessories on her patio were out of “balance” with the building. There is no evidence that the section considered the impact on the building’s aesthetic.

56.   Therefore, even if I had not found that the strata acted significantly unfairly, I would have found that it had failed to prove that the respondent breached bylaw 46 by having potted plants and other accessory items on her patio.

Failure to Provide a Hearing

57.   On August 14, 2018, after receiving notice of the first fine, the respondent asked for a hearing before strata council.

58.   On August 16, 2018, the property manager wrote to the respondent refusing to grant a hearing unless the respondent explained why she wanted one. The property manager also insisted that the respondent have a “legal representative” present.

59.   The respondent says that this refusal was a breach of section 34.1 of the SPA, which requires a strata council to grant a strata council hearing within 4 weeks of an owner requesting one. I agree with the respondent that there is no basis in section 34.1 of the SPA to place such conditions on an owner’s right to have a hearing.

TRIBUNAL FEES, EXPENSES AND INTEREST

60.   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. The section was not successful so I dismiss its claim for tribunal fees and dispute-related expenses.

DECISION AND ORDERS

61.   I order that the section immediately cancel the fines it imposed on the respondent on August 10, November 22 and November 26, 2018, and January 17, 2019.

62.   The section’s claims are dismissed.

63.   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 BCSC. Once filed, a tribunal order has the same force and effect as a BCSC order.

64.   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 residential section can enforce this final decision by filing a validated copy of the attached order in the BCPC. Once filed, a tribunal order has the same force and effect as a BCPC order.