Date Issued: November 29, 2019

File: ST-2019-003816

Type: Strata

Civil Resolution Tribunal

Indexed as: Wong v. The Owners, Strata Plan LMS 2919, 2019 BCCRT 1345

Between:

JANIS WONG and SYLVIA BASCOU VALLARINO

Applicants

And:

The Owners, Strata Plan LMS 2919

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about proxy votes. The respondent, The Owners, Strata Plan LMS 2919 (strata), is a strata corporation. The applicants, Janis Wong and Sylvia Bascou Vallarino (owners), own strata lots 125 and 105 respectively in the strata.

2.      The owners say the strata breached the Strata Property Act (SPA) by allowing its employee to serve as proxy for eligible voters. The employee, KC, is not a party to this dispute. The strata disagrees with the owners’ claims and says KC may serve as proxy because he also owns a strata lot in the strata.

3.      Jains Wong represents the owners. A strata council member represents the strata.

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.

8.      In arguments the owners asked the tribunal to “instruct” the strata to produce sign-in attendance sheets for all annual general meetings (AGMs) and special general meetings (SGMs) from 2016 to 2019 inclusive. The parties provided no other submissions on the issue. The owners did not include a request for document production in their requested remedies. Based on the context, I find the owners wanted the sign-in sheets as evidence to support their claim.

9.      I do not find it necessary to obtain this evidence to make my decision. I will therefore not address document production in my decision.

ISSUES

10.   There are two issues in this dispute:

a.    Did the strata breach the SPA by allowing its employee to act as a proxy?

b.    If so, what is the appropriate remedy?

BACKGROUND AND EVIDENCE

11.   In a civil claim such as this, the applicant owners bear 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.

12.   The parties do not dispute the background facts. The strata property consists of 196 strata lots. KC is the strata’s caretaker. An employment contract shows he began working for the strata in April or May 2016. KC also owns a strata lot in the strata.

13.   Under SPA sections 54 to 56, an eligible voter may vote in person or by proxy at an AGM or SGM. KC acted as proxy for eligible voters on multiple occasions that include:

a.    the AGM of June 27, 2017,

b.    the SGM of April 17, 2018, and

c.    the AGM of June 25, 2018.

14.   The owners complained about this in a July 31, 2018 letter. They said that KC breached the SPA by acting as proxy at the June 25, 2018 AGM. In an August 12, 2018 email, the owners also expressed concern over the number of proxies KC held. On August 23, 2018, in an email to the owners, the strata wrote that KC had the right to be a proxy holder.

15.   The owners requested and attended a hearing on April 9, 2019. After listening to the owners, the strata notified the owners that it had decided that KC could continue to serve as proxy.

16.   The strata council meeting minutes for April 9, 2019 are in evidence. According to the minutes, the strata’s property manager obtained a legal opinion on the issue. The legal opinion said there was no relevant case law. The strata does not refer to this opinion in its submissions. The opinion is not in evidence.

17.   I have reviewed the strata’s bylaws, filed in the Land Title Office. The strata says the bylaws are silent on this issue. I find this to be accurate.

POSITION OF THE PARTIES

18.   The owners say the strata breached SPA section 56(3) by allowing KC to act as proxy.

19.   SPA section 56(3) says that anyone may be a proxy, subject to regulations. There are two exceptions to this. The first exception is an employee of the strata corporation. The second is a person who provides strata management services to the strata corporation. A person who falls into either exception can be a proxy only if permitted under the Strata Property Regulation (regulation).

20.   The parties did not provide any case law. I was unable to find a relevant decision. However, some secondary sources provide guidance.

21.   The British Columbia Strata Property Practice Manual states that there is no regulation. Further, in the absence of regulation, “any person can be a proxy except for an employee of the strata corporation or section or a person who provides strata management services to it”: L. Joy Tataryn, ed., British Columbia Strata Property Practice Manual, looseleaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2008) at § 7.49.

22.   Similarly, the British Columbia Law Institute states in its Report of Governance Issues for Stratas that the “effect of this absence of regulation is an employee of a strata corporation can’t be a proxy”: Report of Governance Issues for Stratas (Vancouver, BCLI Report No. 85, January 2019) at 115.

23.   I conclude from my review of the law, including legislation, that there is no regulation that permits an employee of a strata corporation to be a proxy.

24.   The owners say KC is an employee and is therefore prohibited from acting as a proxy under SPA section 56(3).

25.   The strata says KC can hold proxies in his capacity as an owner. The strata also relies on the bylaws, as they do not prohibit KC from acting as proxy.

ANALYSIS

Issue #1. Did the strata breach the SPA by allowing its employee to act as a proxy?

26.   For the reasons that follow, I agree with the owners that KC may not act as proxy.

27.   The parties agree that KC is a strata employee. This is documented in an employment contract between KC and the strata. SPA section 56(3) says that a strata employee may not act as a proxy. There is no dispute that KC served as proxy at multiple general meetings. There is also no dispute that KC did this with the strata’s approval.

28.   I find the wording of SPA section 56(3) to be clear. The secondary sources reviewed are also consistent. I find that a strata employee may not act as proxy.

29.   The strata relies on the fact that KC owns a strata lot. However, under SPA section 56, being owner does not affect whether someone is also considered a strata employee. There is no wording to suggest otherwise.

30.   Similarly, SPA section 56 does not provide an owner with any particular right to act as proxy. Generally, anyone can serve as proxy, subject to the SPA, regulations and exceptions noted above. The relevant exception here is being a strata employee.

31.   I conclude that the strata breached SPA section 56(3) by allowing its employee to serve as proxy for other owners at general meetings held by the strata.

32.   I must now consider the appropriate remedy.

Issue #2. What is the appropriate remedy?

33.   The owners are not asking to overturn the result of a vote. Instead, they seek orders about KC and all present and future strata lot owners who are also strata employees. The owners say such persons should be

a.    ordered to refrain from serving as proxy or influencing the outcome of any AGM or SGM vote, and

b.    instructed that they can never serve as proxy.

34.   I order the strata to immediately comply with section 56(3) of the SPA by no longer accepting proxies from any of its employees, including KC, at all future general meetings.

35.   I decline to order that strata lot owners who are also strata employees refrain from influencing the outcome of any AGM or SGM vote. This is a different issue from whether such persons can serve as proxy. It is not prohibited under the SPA.

TRIBUNAL FEES AND EXPENSES

36.   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.

37.   The owners are the successful party in this dispute. I order the strata to reimburse Ms. Wong $225.00 in tribunal fees within 30 days of the date of this decision. She is the primary applicant, and I leave it to the owners to determine apportionment. The owners did not claim for dispute-related expenses. I therefore order none.

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

ORDERS

39.   I order the strata to immediately comply with section 56(3) of the SPA by no longer accepting proxies from any of its employees, including KC, at all future general meetings.

40.   I order the strata, within 30 days of the date of this decision, to pay Ms. Wong $225.00 in tribunal fees.

41.   Ms. Wong is entitled to post-judgment interest under the Court Order Interest Act as applicable.

42.   I dismiss the remaining owners’ claims.

43.   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.

 

44.   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 owner 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.