Date Issued: September 17, 2019

File: ST-2019-001753

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan NW 499 v. Louis et al, 2019 BCCRT 1093

Between:

The Owners, Strata Plan NW 499

Applicant

And:

REGINALD TIMOTHY VERNON LOUIS and RODERICK
VALENTINE LOUIS

Respondents

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      This is a dispute about the payment of strata fees. The respondents, Reginald Timothy Vernon Louis and Roderick Valentine Louis, are the owners of a strata lot in the applicant strata corporation, The Owners, Strata Plan NW 499 (strata).

2.      The strata claims $2,791.84 in strata fees from August 1, 2018 to March 1, 2019. The respondents do not deny that they have not paid strata fees but have refused to pay them.

3.      Each of the respondents is self-represented. Reginald Louis filed a Dispute Response but provided no other evidence or submissions. He does not live in the strata lot and apparently has no role in its management.

4.      Roderick Louis, who is Reginald Louis’s brother, lives in the strata lot. He has a lengthy history of litigation with the strata. Roderick Louis provided evidence and a more detailed Dispute Response. I will therefore refer to Roderick Louis as Mr. Louis, which is consistent with the court cases involving these parties.

5.      The strata is represented by a strata council member, PR.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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.

PRELIMINARY ISSUE

10.   In his Dispute Response, Mr. Louis alleged that the strata council had not authorized PR to represent the strata in this dispute by voting at a strata council meeting.

11.   During facilitation, the case manager suggested that PR provide evidence that the strata council authorized him to represent the strata. PR failed to do so. Mr. Louis told the case manager that he believed that PR’s failure to provide such evidence “invalidated” the tribunal proceedings and said that the tribunal should not proceed with the dispute.

12.   In response, the case manager told Mr. Louis that only a tribunal member has the authority to dismiss a dispute or order the strata to produce evidence. The case manager told Mr. Louis that he could make arguments about these issues in his submissions.

13.   Apparently, Mr. Louis contacted several members of the tribunal’s staff to argue that the strata’s claim should be dismissed. His emails are not before me, but I have reviewed the tribunal’s responses. The tribunal reiterated several times that Mr. Louis was free to make his arguments in his written submissions as part of the tribunal decision process.

14.   Mr. Louis provided no submissions about PR’s authority to represent the strata, despite having the opportunity to do so. In fact, Mr. Louis did not provide any submissions at all during the tribunal decision process.

15.   I decline to order the strata to produce further evidence or to dismiss this dispute based on PR’s alleged lack of authority to represent the strata. I rely primarily on Mr. Louis’s failure to provide submissions despite being clearly and repeatedly told that he should do so if he wanted the tribunal to consider these issues.

16.   I also note that while the strata’s bylaws include a general requirement that strata council decisions are made by majority vote, there is no specific requirement that the strata council must appoint a representative by majority vote. Even if the bylaws required a vote to appoint a representative for this dispute and the strata council failed to do so, I find that this would not render this dispute a nullity or justify a dismissal. Rather, I find that the appropriate remedy would be to stay the proceeding until the strata council held the necessary vote. Therefore, Mr. Louis’s position that I should dismiss this dispute based on PR’s alleged lack of authority lacks merit.

17.   Furthermore, the amount at stake in this dispute is relatively modest. Part of the tribunal’s mandate is to resolve disputes flexibly, quickly and economically. I find that seeking more evidence from the strata would delay the conclusion of this dispute for no discernable benefit, which would be inconsistent with the tribunal’s mandate.

18.   Accordingly, I decided to resolve this dispute based on the evidence and submissions before me.

ISSUE

19.   The issue in this dispute is whether the respondents owe the strata any strata fee arrears, and if so, how much.

BACKGROUND AND EVIDENCE

20.   In a civil claim such as this, the strata as the applicant 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.

21.   The strata is a 3 floor residential building consisting of 18 strata lots.

22.   The strata and Mr. Louis have been involved in litigation for over a decade. I have reviewed all the reported decisions of the Supreme Court of British Columbia (BCSC) and the British Columbia Court of Appeal. The most recent case was The Owners, Strata Plan NW499 v. Kirk, 2018 BCSC 1249, which provides important background and context for this dispute. I note that, at the time of the hearing in Kirk, Mr. Louis was not a registered owner of the strata lot even though he had lived there since 2000. At that time, he only had a beneficial interest in the strata lot as a beneficiary to his mother’s estate, which owned half of the strata lot through its executrix, Mr. Louis’s sister. On January 19, 2018, Mr. Louis was registered on title as an owner in his capacity as the administrator of his mother’s estate.

23.   In Kirk, the strata had claimed strata fee arrears from Mr. Louis dating back to 2012. Mr. Louis refused to pay, arguing among other things that the strata had not given his sister proper notice of the strata’s annual general meetings.

24.   The Court agreed with Mr. Louis that the strata had intentionally and wrongfully deprived his sister of her right to notice of meetings. The Court concluded that this failure rendered all bylaws and budgets from 2012 onwards invalid. As such, the Court found that Mr. Louis did not owe any strata fee arrears because the strata had not passed any valid budgets.

25.   However, the Court noted that this did not mean that Mr. Louis was relieved of his obligation to contribute to the strata’s expenses. The Court said that Mr. Louis would have to pay strata fees, including retroactive strata fees, once the strata had properly convened a general meeting and passed retroactive budgets.

26.   The Court made its decision on July 25, 2018. In this dispute, the strata claims strata fees starting on August 1, 2018.

27.   The strata’s fiscal year runs from April 1 to March 31. The strata initially passed a budget for the 2018/2019 fiscal year at its annual general meeting on April 4, 2018. The respondents’ strata fees under that budget were $348.98 per month. Because of the ruling in Kirk, that budget was rendered invalid.

28.   In this dispute, the strata did not initially provide evidence that it had held a general meeting to pass a retroactive budget for the 2018/2019 fiscal year. In response to my request, the strata provided minutes of a special general meeting on February 20, 2019 (SGM). At the SGM, the strata passed a resolution retroactively ratifying the 2018/2019 budget.

29.   I gave the respondents the opportunity to provide submissions about the new evidence, but neither did.

ANALYSIS

Do the respondents owe the strata fee arrears and, if so, how much?

30.   The strata makes 2 claims in its Dispute Notice. In the first claim, the strata asks for an order that the respondents pay $2,791.84 in strata fee arrears.

31.   As mentioned above, neither respondent made submissions about the validity of the 2018/2019 budget passed at the SGM, despite having the opportunity to do so. Accordingly, I find that the strata validly charged the respondents $348.98 per month in strata fees for the period from August 1, 2018 to March 1, 2019.

32.   I will now turn to the defences Mr. Louis raised in his Dispute Response.

33.   Mr. Louis says that the strata’s property manager has told him that he owes more than $30,000 in strata fee arrears. He says that if he pays the amount the strata claims in this dispute, he should not have to pay any of the other strata fee arrears.

34.   The way Mr. Louis frames this defence raises the issue of res judicata, which is a legal concept that prevents parties from bringing multiple legal proceedings about the same issue. He essentially argues that the strata should have to bring one dispute about all the respondents’ alleged strata fee and special levy arrears.

35.   This dispute is limited to the period August 1, 2018 to March 1, 2019. The question of whether the respondents owe the strata any other money, whether as strata fees or special levies, is not before me. If the strata brings a new tribunal dispute about strata fee arrears that accrued before August 1, 2018, or any unpaid special levies, Mr. Louis may argue that the strata should have claimed them in this dispute. I make no comment about the strength of that potential defence, as it has no application in this dispute.

36.   Mr. Louis also says that he has offered several times to start paying strata fees on the condition that the strata comply with the terms of a May 2009 settlement agreement. Mr. Louis does not specifically say how the strata breached the settlement agreement.

37.   Mr. Louis made a similar argument in Strata Plan NW 499 v. Kirk, 2015 BCSC 1487. Mr. Louis had withheld strata fees because he believed that the strata had breached the May 2009 settlement agreement. The Court concluded that the alleged breach, if true, did not give him the right to stop paying strata fees. The same reasoning applies to this dispute.

38.   Therefore, I reject both of Mr. Louis’s defences. Reginald Louis’s Dispute Notice does not raise any defences.

39.   As for who must pay the strata fee arrears, I note that there is a reference in Kirk to an agreement between Mr. Louis and Reginald Louis that Mr. Louis will pay the strata fees. If that is still the case, it is an issue between the respondents. I find that they are both jointly responsible for strata fees as registered owners. I find that the respondents must pay $2,791.52 in strata fee arrears from August 1, 2018 to March 1, 2019. I order them to do so within 14 days of the date of this decision.

40.   The strata’s second claim is for “an order to pay in full all strata fees arrears and to pay strata fees monthly as required under our bylaws”. As I interpret this claim, the strata wants a declaration confirming the respondents’ ongoing obligation to pay strata fees. Given that the respondents’ ongoing obligation to pay strata fees depends on the strata passing budgets at its annual general meeting, I find that an indefinite future-looking order that the respondents pay their strata fees would be inappropriate. I dismiss this claim. However, I note that the respondents are required to pay their strata fees on a monthly basis, as set out in the Strata Property Act and the strata’s bylaws.

41.   Nothing in this decision affects the strata’s ability to bring a new tribunal dispute for the payment of unpaid strata fees other than for the period August 1, 2018 to March 1, 2019, or unpaid special levies.

TRIBUNAL FEES, EXPENSES AND INTEREST

42.   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 to deviate from the general rule. I therefore order the respondents to reimburse the strata for tribunal fees of $225. The strata did not claim any dispute-related expenses.

43.   Although not mentioned in the Dispute Notice, the strata says that the respondents must pay 10% interest on unpaid strata fees. The strata’s bylaws filed in the Land Title Office (LTO) on May 24, 2012 provided for 10% interest on strata fees. However, in Kirk, the Court declared these bylaws invalid and found that the Standard Bylaws applied. The Standard Bylaws do not provide for interest on unpaid strata fees.

44.   The strata filed new bylaws in the LTO on March 14, 2019, which also provide for 10% interest on unpaid strata fees, but I find that this bylaw does not have retroactive effect. Therefore, there is no bylaw that permits the strata to charge 10% interest on the strata fee arrears claimed in this dispute.

45.   In the absence of a bylaw, the strata is entitled to court order interest under the Court Order Interest Act. I find that the respondents must pay court ordered interest starting February 20, 2019, because the respondents had no legal obligation to pay strata fees under the 2018/2019 budget until the SGM.

DECISION AND ORDERS

46.   I order that the respondents pay the strata a total of $3,047.85 within 14 days of the date of this decision, broken down as follows:

a.    $2,791.84 in strata fee arrears,

b.    $31.01 in prejudgment interest, and

c.    $225 in tribunal fees.

47.   I dismiss the strata’s remaining claims.

48.   The strata is also entitled to post judgement interest under the Court Order Interest Act.

49.   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.

50.   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 strata 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.