Date Issued: November 21, 2019

File: ST-2019-002064

Type: Strata

Civil Resolution Tribunal

Indexed as: Seeman v. The Owners, Strata Plan NW2085, 2019 BCCRT 1315

Between:

DON SEEMAN

Applicant

And:

The Owners, Strata Plan NW2085

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about sliding glass door maintenance and access to strata documents. The applicant, Don Seeman (owner), owns strata lot 69 in the respondent strata corporation, The Owners, Strata Plan NW2085 (strata). The owner asks the Civil Resolution Tribunal (tribunal) to “confirm” that the strata is responsible for maintenance and repairs of each strata lot’s sliding doors and rollers. The owner also seeks an order that the strata produce its receipts for expenses related to contractors, hydro, repairs, maintenance, and servicing (including material costs), for the last 3 years.

2.      The strata says the owner’s claims should be dismissed. It says the owner seeks declaratory relief about the sliding doors and rollers, which it submits is outside the tribunal’s jurisdiction. The strata also says the strata is not obliged to produce the requested receipts for inspection.

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 questions of the parties and witnesses and inform itself in any other 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.

Jurisdictional Matter – Declaratory Relief

8.      As noted above, the strata objects to the owner’s claim for a declaration that the strata take responsibility for the maintenance and repairs of each strata lot’s sliding glass doors and rollers.

9.      For the reasons that follow, I refuse to resolve this claim under section 10(1) of the CRTA. I find that the owner seeks an order for declaratory relief as he is requesting a declaration of the legal rights and duties of the parties: Lee v. Li, 2002 BCCA 209 at paragraphs 18 to 19. I also find that the tribunal does not have jurisdiction to make the order sought by the owner.

10.   Many cases consider the jurisdiction of the Provincial Court of British Columbia to order declaratory relief. These cases are relevant as the Provincial Court was created by statute under the Provincial Court Act. The tribunal was similarly created by statute under the CRTA.

11.   In Shantz, Gorman and Godfroid, 2012 BCPC 81, the Provincial Court considered its power to order declaratory relief. It cited Fraser v Houston, [1996] B.C.J. No. 2096 (S.C.) for the principle that in order to be entitled to seek a declaratory order, the plaintiff must show a right under contract, statute, or equity. The court then noted that in Kaiser Resources Ltd. v. Western Canada Beverage Corp. (1992), 71 B.C.L.R. (2d) 236 (S.C.), the British Columbia Supreme Court said the declaratory order’s legal existence is based upon a Rule of Court, and without such a Rule, there can be no declaratory order.

12.   The court in Shantz concluded the following at paragraph 50:

The Provincial Court is a statutory court and derives nearly its entire jurisdiction from various statutes and court rules. There is nothing in the Small Claims Act or Small Claims Rules that confers upon the Provincial Court jurisdiction to grant declaratory relief. Since the Provincial Court is not a court of equity, it has no equitable jurisdiction to grant declaratory relief.

13.   In Dalla Rosa v. Town of Ladysmith, 2017 BCPC 178, the court wrote that the Provincial Court did not have the jurisdiction to provide declaratory relief, save in narrow circumstances. It said that the Provincial Court is a statutory court with no inherent jurisdiction beyond what is expressly given or could be reasonably inferred from the Small Claims Act and the Small Claims Rules. The inferred jurisdiction is procedural and not substantive.

14.   The court noted that under the Small Claims Act the Provincial Court had no express authority to grant equitable remedies under the Law and Equity Act. The court also wrote that a claim seeking a declaratory order is beyond the jurisdiction of the Provincial Court, unless the order is incidental to a claim for relief in which the court has jurisdiction, such as specific performance. I note that section 3(1) of the Small Claims Act explicitly states that the Provincial Court has jurisdiction in a claim for specific performance of an agreement.

15.   Ultimately, the court in Dalla Rosa found that the claimant was seeking declaratory or injunctive relief that was beyond the court’s jurisdiction.

16.   I conclude from the above that the tribunal cannot provide a declaratory order without authority from the CRTA, a tribunal rule, or other legislation, such as the SPA. However, the tribunal may be able to make a declaratory order if such an order is incidental to a claim for relief in which the tribunal has jurisdiction. Based on the courts’ comments in Shantz, Gorman and Godfroid and Dalla Rosa, I find the scope for such incidental orders to be very narrow.

17.   CRTA section 123(1) says the tribunal may make orders in a strata dispute that order a party to do something, refrain from doing something, or pay money. CRTA section 123(2) says that the tribunal may also make an order directed at the strata, strata council, or a person who holds 50% or more of the votes, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights. However, the order under section 123(2) must relate to SPA sections 90, 117, and 160. These in turn relate to the removal of liens and other charges, the forced sale of a strata lot to collect money owing, and court orders if the strata decides not to repair or replace damaged property.

18.   Section 123(3) states that, despite section 123(1), the tribunal may not make orders requiring the sale or other disposition of a strata lot or as prescribed by regulation.

19.   I find that there is nothing in these sections that provide the tribunal jurisdiction to grant the declaratory relief sought by the owner in this dispute. Section 123(1) does not provide an open-ended list. The owner’s claim for relief must therefore fit under one of the categories of section 123(1) for the tribunal to order it.

20.   The owner is not seeking an order for the strata to do anything. It is undisputed that his glass sliding doors are fixed. He is not seeking an order that the strata immediately fix the glass sliding doors of the other owners. He is not seeking an order for the strata to stop from doing anything or to pay money. Instead, the owner wishes the tribunal to state what the strata’s duties are to the owners generally, with respect to sliding glass door and roller maintenance. This does not fit within a category of available orders under section 123(1).

21.   Section 123(2) does not apply because the owner has not claimed that the strata acted in a significantly unfair manner.

22.   I also find that the order sought is not incidental to a claim for relief in which the tribunal has jurisdiction. While the tribunal has jurisdiction to consider the interpretation of the SPA and strata bylaws under CRTA section 121(1)(a), in this claim the declaratory order is the claim for relief. It is therefore not incidental to another claim for relief in which the tribunal has jurisdiction.

23.   I have also considered CRTA section 61. Section 61 states that 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. On its face, the wording is very broad. However, I find that CRTA section 61 must be read in conjunction with CRTA section 123, which explicitly states what orders this tribunal may make in strata claim disputes. Put another way, I find I must interpret the broad wording of section 61 as being limited by the jurisdiction conferred under CRTA section 121 and the orders available under CRTA section 123. I conclude that CRTA section 61 does not provide me the authority to make the declaratory order sought in this claim.

24.   I note that the CRTA provides no express authority to grant equitable remedies under the Law and Equity Act. Further, the Law and Equity Act does not state it applies to the tribunal. The parties have not identified any other basis upon which the tribunal can provide a declaratory order.

25.   In summary, I find the owner’s claim regarding the strata’s responsibility for sliding glass door maintenance and roller replacement is a claim for declaratory relief. I refuse to resolve this claim under section 10(1) of the CRTA as it is outside the tribunal’s jurisdiction.

ISSUE

26.   The remaining issue is whether I should order the strata to provide access to receipts for money spent on contractors, hydro bills, materials, services, repairs, and maintenance for the last 3 years

EVIDENCE AND ANALYSIS

27.   In a civil claim such as this, the applicant owner bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

28.   The owner says the strata has failed to provide certain requested documents. SPA section 35 sets out a list of the records that the strata must prepare and retain. SPA section 36 says that on request, the strata must make the records listed in section 35 available for inspection and provide copies to an owner, tenant, or person authorized by an owner or tenant within 2 weeks.

29.   In a January 3, 2019 email the owner requested “all…records”. The strata asked the owner to be more specific. In a January 7, 2019 email, the owner requested “[all] financial records”, all maintenance records, an email contact list of every owner, all legal reports, and all risk management reports. In this dispute, the owner has narrowed his request to receipts for money spent on contractors, hydro bills, materials, services, repairs, and maintenance for the last 3 years. I will therefore focus on these documents.

30.   The strata did not provide the requested receipts. The owner says the strata is required to have such receipts under SPA section 35(1)(d). Alternatively, the owner says the strata is required to retain such receipts under SPA section 35(2)(j) and (o). The strata disagrees with the owner’s interpretation of these provisions.

31.   SPA section 35(1)(d) states that the strata must prepare “books of account showing money received and spent and the reason for the receipt or expenditure”. SPA section 35(2)(j) states that the strata must retain copies of income tax returns, if any. Finally, SPA section 35(2)(o) states that the strata must retain copies of any other records required by the regulations.

32.   I find that SPA sections 35(1) and (2), including the specific subsections cited above, do not require the strata to retain the receipts sought by the owner. Although the strata might use receipts to prepare some of the documents referred to, such as books of account, the provisions do not require the strata to retain them. As the requested receipts are not listed under SPA section 35, I find that the owner is not entitled to request them under SPA section 36.

33.   The authorities support my conclusion. In The Owners, Strata Plan NWS 1018 v. Hamilton, 2019 BCSC 863, the court wrote that the tribunal has no authority to order the strata to produce documents not covered by SPA section 35. Similarly, in Kayne v. Strata Plan LMS 2375, 2007 BCSC 1610, the court said a record or document that is not set out in SPA section 35 is generally not available to an owner or tenant. At paragraph 15, the court noted that the SPA does not required the production of every bill or receipt that may be reflected in the in the books of account showing money received and spent. The court concluded that the financial statements provided to the petitioner met the requirements of the SPA.

34.   Given the above, I find that the strata is not required to disclose the requested documents. I dismiss this claim.

TRIBUNAL FEES AND EXPENSES

35.   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.

36.   The strata is the successful party in this dispute. The strata paid no tribunal fees and does not claim dispute-related expenses. I therefore decline to make any orders for any party to pay tribunal fees or dispute-related expenses.

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

ORDERS

38.   Under CRTA section 10(1) I refuse to resolve the owner’s claim that the strata be declared responsible for sliding glass door maintenance and roller replacement.

39.   I dismiss the owner’s remaining claims.