Date Issued: October 10, 2019

File: ST-2019-001725

Type: Strata

Civil Resolution Tribunal

Indexed as: Morgan v. The Owners, Strata Plan KAS 1462, 2019 BCCRT 1185

Between:

FAY MORGAN

Applicant

And:

The Owners, Strata Plan KAS 1462

Respondent

And:

FAY MORGAN

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

 

INTRODUCTION

1.      The applicant (and respondent by counterclaim), Fay Morgan (owner) is co-owner of a strata lot in the respondent (applicant by counterclaim) strata corporation, The Owners, Strata Plan KAS 1462 (strata).

2.      The owner says the strata failed to maintain and repair the sensors on the parkade door, so it malfunctioned. She says her friend, RS, was driving her home, and as he drove into the parkade the door came down prematurely and damaged his truck. She says the strata then charged her strata lot account $1,304.42 for damage to the parkade door. The owner seeks an order that she does not have to pay this amount.

3.      The strata disputes the owner’s claim, and says the door was properly maintained and was operating normally. The strata says RS hit the door, and the owner is responsible to pay for the damage to the door. In its counterclaim, the strata seeks an order that the owner pay the $1,304.42 for the damaged door plus any fines for lack of timely payment for the door.

4.      The owner says she is not responsible to pay because the door was faulty. She says RS did not hit the door. She says it came down and hit RS's truck.

5.      The owner is self-represented in this dispute. The strata is represented by a strata council member.

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 by writing, telephone, videoconferencing, or a combination of these. Some of the evidence in this dispute amounts to a “they said, he said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances 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 BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

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.

ISSUES

10.   The issues in this dispute are:

a.    Must the owner pay for the parkade door repairs?

b.    Must the owner pay fines for late payment for the door repairs?

EVIDENCE AND ANALYSIS

11.   I have read all of the evidence provided but refer only to evidence I find relevant to provide context for my decision. In a civil proceeding such as this, the applicant must prove their claims on a balance of probabilities.

12.   The strata’s bylaws are those that were registered with the Land Title Office in June 2016, except for 2 subsequent amendments that are not relevant to this dispute. Bylaw 3(2) says that an owner, tenant, occupant, or visitor must not cause damage, other than reasonable wear and tear, to common property or common assets.

13.   It is undisputed that the parkade door is a common asset, as defined in SPA section 1(1).

14.   The parties agree that an incident with the parkade door and RS's truck occurred on the evening of December 21, 2018. On the morning of December 22, 2018, a strata council member emailed all strata residents and asked if anyone had information about damage to the parkade door. The owner replied that she was not sure who damaged the door, but on the previous evening when she and RS were coming in, the door came down on the roof of RS's truck and damaged it. She wrote that they waited for the door to open fully before going through. She said that later, when RS was leaving, he noticed that the door was still open.

15.   The owner provided a written statement from RS, dated May 15, 2019. RS wrote as follows (my summary):

a.    On December 21, 2018, he drove down the entrance towards the underground parkade.

b.    As he approached the parkade door, he pressed the remote opener when he was about 10 feet away. When the door fully opened, he began to drive in.

c.    As he drove through the open doorway, the door came down on the roof of his vehicle.

16.   The strata subsequently concluded that the owner was responsible for the door damage, and demanded payment of $1,304.42 for repairs.

Must the owner pay for the parkade door repairs?

17.   Under SPA section 3, the strata is generally responsible for maintaining common assets.

18.   The strata says the owner is responsible to pay for the door repairs under bylaw 3(2), as she or RS caused the damage.

19.   SPA section 133 says the strata may do what is reasonably necessary to remedy a bylaw contravention, and may require that the reasonable costs of remedying the contravention be paid by the person who may be fined for the contravention under SPA s. 130. SPA section 130 says that an owner may be fined if a bylaw is contravened by a person who is visiting the owner. Based on these provisions, if the owner or RS contravened bylaw 3(2), the strata may be entitled to charge the owner for the parkade door repair.

20.   SPA section 135 says a strata corporation cannot require an owner to pay the costs of remedying a contravention unless it has received a complaint, and given the owner written particulars of the complaint, and a reasonable opportunity to answer the complaint, including a hearing. (See Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449 and The Owners, Strata Plan NW 3075 v. Stevens, 2018 BCPC 2.) I find the strata met these requirements, as it offered the owner an opportunity for a hearing in its January 10, 2019 letter, and subsequently held a hearing at the owner’s request.

21.   Thus, the question is whether the owner or RS caused damage to the parkade door. For the following reasons, I find that RS damaged the door, and that the owner is liable to pay for the door repairs.

22.   The owner says the strata failed to maintain the parkade door equipment, particularly the sensors controlling its movement. However, I find the owner provided insufficient evidence to prove that assertion. For example, she provided no expert opinion about sensor operation, and no evidence establishing subsequent repairs or changes to the sensors. There is no suggestion that the owner is an expert in mechanics or construction, so I find her opinion about the sensors’ operation to be speculative and unpersuasive.

23.   In her December 22, 2018 email, the owner wrote that M was there at the time of the door incident, and that M commented that the door was “messed up, and has not been working right.” Since the owner did not provide a statement from M, I put no weight on her hearsay account of what M said.

24.   The strata provided an undated, handwritten note stating that M did not hear or see anything. I also place no weight on this evidence because it is unsubstantiated hearsay. For the same reasons, I place no weight on the other handwritten, unsigned, undated notes from the strata about what other witnesses allegedly said. It is not clear who wrote these notes, or when they were taken. There is no firsthand evidence from any of these witnesses to confirm the statements attributed to them.

25.   In his statement, RS wrote that the strata made a claim with the Insurance Corporation of BC (ICBC), but ICBC denied the claim because the strata “did not have adequate equipment.” I find this statement is hearsay, and is unsupported by any other evidence, such as documents from ICBC. I therefore place no weight on it.

26.   The strata provided a March 21, 2019 email from a strata council member stating that he had gone through the door earlier on the evening on December 21, 2018, and it “functioned perfectly.” While I accept this evidence, I find it is not determinative of whether the door later malfunctioned, as asserted by the owner.

27.   I find the most persuasive evidence about what happened to the door is set out in January 4, 2019 email from the garage door repair company. I place significant weight on this evidence because the company’s technician inspected the door and its components shortly after the incident. The email states as follows (my summary):

a.    After inspection, it was determined that the door had already started to close when the vehicle started to enter the doorway.

b.    Due to the vehicle’s speed, the door safety devices were not able to reverse the door completely out of harm’s way before impact.

c.    The vehicle hit the bottom edge of the door and the impact bent the bottom section inwards and upwards, and caused the bottom rollers to come out of the guide track. This caused the door to get stuck in the open position with the support cable off the drum.

d.    Both external safety devices appear to have been operational, but the door was not able to reverse in time before the impact.

e.    Installing additional vehicle sensors inside and outside the doorway was recommended, to stop this from recurring.

28.   I find that this evidence, which is not contradicted by another technical inspection or repair report, establishes that RS drove through the door after it already began to close. Thus, I conclude that RS damaged the door. The owner and RS deny this. However, in her December 22, 2108 email, the owner admitted that RS knew later that night that the door was stuck open. I find the fact that they failed to report to anyone that the door was stuck open until a strata council member sent out a group email the following day asking for information is not consistent with the owner’s assertion that the door malfunctioned. The owner says the door incident caused nearly $4,000 in damage to RS's truck. If such significant damage occurred and the door was stuck open due to a sensor malfunction, I find it more likely than not that the owner or RS would have reported the problem as soon as possible. Since they did not, and since the owner provided no concrete evidence to support her claim of sensor malfunction, I prefer the evidence of the door repair company.

29.   I also find the fact that the door repair company recommended installing additional sensors does not prove that the original sensors malfunctioned. Rather, the email explains that these were to prevent future incidents.

30.   For these reasons, I conclude that RS damaged the door, and that the owner is therefore responsible to pay for that damage under bylaw 3(2) and SPA sections 130 and 133.

31.   The strata provided invoices to support its claim for $1,304.42 for door repairs, so I order the owner to pay this amount. The strata is also entitled to pre-judgement interest on this amount under the Court Order Interest Act (COIA), from the date of the final invoice on January 26, 2019.

32.   I note that in his written statement, RS says he seeks punitive damages from the strata for “stress and duress”. RS is not a party to this dispute, so I find I have no jurisdiction to consider that request.

Must the owner pay fines for late payment for the door repairs?

33.   The strata sent the owner a final demand letter requesting payment of the door repairs by March 21, 2019. The owner did not pay, so on March 23, 2019 the strata sent another letter stating that the strata council had decided to impose fines of $50 per week starting March 22, 2019, $100 per week starting April 22, 2019, and $200 per week starting June 22, 2019.

34.   The strata did not set out an amount for this claim in its Dispute Notice or submissions. However, the most recent strata lot account statement provided in evidence, dated May 10, 2019, shows a balance of $478.54 for fines.

35.   I find the strata had no authority to impose fines for late payment of the repair costs. In its March 23, 2019 letter, the strata cited SPA section 135 as authority for the fines it imposed. However, section 135 deals with fines for a bylaw breach. The strata never gave notice that it was fining the owner for any bylaw breach, including bylaw 3(2) or any other bylaw. The strata was likely entitled to fine the owner in January 2019, when it first decided to charge the owner for repair costs arising from the breach of bylaw 3(2). However, the strata cannot simply add on fines later for the same breach, despite the owner’s failure to pay the repair costs. This is a violation of the notice and procedural requirements of SPA section 135.

36.   For these reasons, I find the owner does not have to pay any fines imposed by the strata arising from the December 21, 2018 incident or repair costs. The strata’s counterclaim that the owner pay fines for late payment for the door repairs is dismissed.

TRIBUNAL FEES AND EXPENSES

37.   As the owner was not successful in this dispute, in accordance with the CRTA and the tribunal’s rules I find she is not entitled to reimbursement of tribunal fees. The strata was partially successful in its counterclaim, so I find it is entitled to reimbursement of half its tribunal fees, which equals $87.50.

38.   Neither party claimed dispute-related expenses, so none are ordered.

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

ORDERS

40.   The owner’s claim is dismissed.

41.   I order that within 30 days of this decision, the owner pay the strata a total of $1,409.83, broken down as:

a.    $1,304.42 for parkade door repair costs.

b.    $17.91 in pre-judgment interest under the COIA, and

c.    $87.50 as reimbursement of tribunal fees.

42.   The strata is entitled to post-judgment interest under the COIA, as applicable.

43.   The strata’s counterclaim for fines is dismissed.

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

45.   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.