Date Issued: January 10, 2020

File: ST-2019-003727

Type: Strata

Civil Resolution Tribunal

Indexed as: Figueroa v. The Owners, Strata Plan NW53, 2020 BCCRT 40

Between:

The Owners, Strata Plan NW53

Applicant

And:

BELTRAN FIGUEROA

RESPONDENT

and:

The Owners, Strata Plan NW53

 

respondent by counterclaim

 

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      The applicant strata corporation The Owners, Strata Plan NW53 (strata) initially claimed that the respondent owner Beltran Figueroa failed to pay $3,362.99 in fines. Specifically, the strata alleged Mr. Figueroa had a hot water tank installed without the strata’s approval, contrary to the bylaws.

2.      During facilitation the strata withdrew all its claims against Mr. Figueroa.

3.      Mr. Figueroa says installing a hot water tank is not a renovation. He denies breaching any bylaws. Mr. Figueroa says he cannot locate the company that installed his hot water tank, but that he gave the strata an inspection report from a certified plumber to prove the installation is safe.

4.      Mr. Figueroa also counterclaims, saying that the strata improperly pursued the bylaw fines claim, and bullied and harassed him. Mr. Figueroa claims $1,500 for legal expenses he says he incurred due to the strata’s conduct.

5.      The strata denies the counterclaim, saying it was only trying to recover valid fines from Mr. Figueroa.

6.      The strata is represented by strata council member RR. Mr. Figueroa is self-represented.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      The tribunal rules applicable to this dispute are those that were in force at the time the dispute was filed.

10.   Under section 10 of the CRTA, the tribunal must refuse to resolve a claim that it considers to be outside the tribunal’s jurisdiction. A dispute that involves some issues that are outside the tribunal’s jurisdiction may be amended to remove those issues.

11.   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.

12.   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

13.   As noted above, the strata withdrew its claims. Below, I refer to the chronology of events to provide context for my decision on the remaining issues.

14.   The issues in this dispute are as follows:

a.    Has the strata harassed or bullied Mr. Figueroa, or has it unfairly imposed a bylaw fine?

b.    Must the strata reimburse Mr. Figueroa for $1,500 in legal expenses he incurred while involved in disputes with it?

EVIDENCE AND ANALYSIS

15.   In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. The strata has withdrawn its claims, but Mr. Figueroa bears the burden in his counterclaim. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

16.   The bylaws relevant to this dispute were filed with the Land Title Office (LTO) on June 7, 2016. The relevant bylaws are:

a.    Bylaw 2(3)(c) requires an owner to repair and maintain any hot water tanks located within their strata lot.

b.    Bylaw 2(4) requires an owner to ensure that installed and new hot water tanks have an automatic shutoff valve in good working order.

c.    Bylaw 2(5) says that the strata may require approval of persons hired by the owner to repair, replace or alter portions of the strata lot that connect to common property or common utilities.

d.    Bylaw 5(1)(f) says that an owner must obtain the strata’s written approval before altering the common property located within the boundaries of the strata lot.

e.    Bylaw 23 sets a maximum $200 fine for each bylaw contravention, and a $50 maximum fine for each rule contravention.

f.     Bylaw 24 provides that an activity or lack of activity that constitutes a bylaw or rule contravention, if it continues uninterrupted for longer than 7 days, allows the strata to impose a fine every 7 days.

17.   Mr. Figueroa is the registered owner of strata lot 1, which is unit 402, in the strata.

18.   In April 2017, Mr. Figueroa requested that the strata shut down water for work to be done on unit 402 on April 17, 2017.

19.   On April 11, 2017, the strata council wrote to Mr. Figueroa, referring to Bylaw 5(1)(f), and explaining that the bylaws required him to obtain written approval before making an alteration to common property located within a strata lot.

20.   The strata asked that Mr. Figueroa submit a renovation application by April 25, 2017. The strata explained that, if the renovation was approved, the strata would require a written indemnity agreement as a condition of approval.

21.   On April 19, 2017, the strata council met. The minutes record that the strata had a report of an owner conducting renovations without prior strata approval. I infer the owner was Mr. Figueroa. The minutes do not record any decision to impose a fine on Mr. Figueroa.

22.   On May 2, 2017, Mr. Figueroa wrote to the strata. He wrote that the main water valve from the municipal water source was “extremely rusty and starting to leak”. Mr. Figueroa wrote that plumbers had advised him to get it fixed as soon as possible.

23.   On May 2, 2017, the strata wrote to Mr. Figueroa again. The strata wrote that it had a report of an installation of a furnace or hot water tank that required a renovation application to be submitted. The strata also referred to Bylaw 2(4) which requires an owner to ensure that new hot water tanks have an automatic shut off valve in good working order.

24.   The strata asked that Mr. Figueroa submit a renovation application no later than May 15, 2017.

25.   The letter explained that Mr. Figueroa could appeal this decision in writing within 14 days, pursuant to section 135 of the SPA.

26.   Mr. Figueroa wrote back to the strata, saying that he had swapped a new hot water tank for his old tank that was leaking, on an emergency basis. He denied doing renovations. Mr. Figueroa said he would get back to the strata in writing about the question of the shut off valve. The strata says it received this letter around May 10, 2017. The letter itself is dated May 2, 2017. Given the scope of the remaining claims, I find it unnecessary for me to resolve this discrepancy.

27.   It is undisputed, and I find, that Mr. Figueroa did not return the renovation application form the strata requested from him.

28.   On November 1, 2017, Mr. Figueroa’s then lawyer wrote to the strata, through the property management company, enclosing a report from Pioneer Plumbing & Heating Inc. (Pioneer report).

29.   The Pioneer report says that plumbers inspected Mr. Figueroa’s hot water heater, and that there was no need to replace the existing shut off. Earthquake strapping was installed. No other problems with the heater were identified. Pioneer charged Mr. Figueroa $177.45 for the inspection.

30.   On November 22, 2017, the strata wrote back to Mr. Figueroa’s lawyer saying that he had failed to obtain strata approval before having the hot water tank replaced. The strata refused to pay for the Pioneer report, saying it was unnecessary.

31.   On December 8, 2017, Mr. Figueroa’s lawyer wrote to the strata asking it to confirm that the $1,126.46 in bylaw fines to that date would be removed from Mr. Figueroa’s strata lot account. It was unclear how Mr. Figueroa’s lawyer knew the precise amount of fines to that point.

32.   On December 15, 2017, the strata replied, saying the fines against Mr. Figueroa would “remain as applied” to his account. The letter says that an appeal could be submitted in writing, within 14 days, per section 135 of the SPA. This was the first letter from the strata to mention a fine.

33.   The strata imposed $50 weekly fines on Mr. Figueroa’s strata lot account from May 2, 2017 to September 25, 2018.

34.   SPA section 135(1) says a strata cannot impose a fine against a person for a bylaw contravention unless it has

a.    received a complaint about the contravention,

b.    given the owner the particulars of the complaint in writing, and

c.    given the owner a reasonable opportunity to respond to the complaint (including a hearing if requested).

35.   SPA section 135(2) requires the strata to given notice in writing of a decision to fine a person for a bylaw contravention, as soon as feasible.

36.   The strata must strictly follow the SPA section 135 requirements before fines can be imposed: Terry v. The Owners, Strata Plan NW 309, 2016 BCA 449.

37.   I find that the strata failed to comply with section 135(2) of the SPA. None of the strata’s letters to Mr. Figueroa directly mention a fine. None of the strata’s letters to Mr. Figueroa or his lawyer specify the amount of any fine. To provide meaningful notice, such a letter should explain that the strata decided to fine Mr. Figueroa, the reason for the fine and the amount of the fine. Had the strata not withdrawn its monetary claim, based on the evidence filed in this dispute I would have set aside the fines for the strata’s failure to comply with the SPA section 135(2).

38.   Mr. Figueroa’s counterclaim alleging bullying and harassment falls outside the tribunal’s jurisdiction and I refuse to resolve it. (See Kornylo v. The Owners, Strata Plan VR 2628, 2019 BCCRT 1215 at paragraphs 24 to 27)

39.   However, to the extent that Mr. Figueroa’s claim is for the unfair enforcement of a bylaw against him, I find the tribunal has jurisdiction. In the Dispute Notice, Mr. Figueroa says the strata’s initial claim for bylaw fines was a tactic to extort money from him. I therefore find that the bylaw fines are a live issue before me in the counterclaim.

40.   I find that the Bylaws do not expressly acquire advance approval for an owner to replace a hot water heater. The hot water heater itself is an owner’s responsibility to replace. Further, bylaw 2(5) says the strata may require approval of the person the owner hires to replace a part of the strata lot that connects to common property, but the strata did not inform Mr. Figueroa that it was requiring that type of approval.

41.   For the reasons given above, I find the bylaw fines regarding the hot water heater were imposed contrary to SPA requirements and must be set aside if the strata has not already done so.

42.   The tribunal’s authority to order legal fees is limited to “extraordinary circumstances” under tribunal rule 9.4(3). Tribunal rule 9.4(4)(d) says that the tribunal may consider any factor it considers appropriate in deciding whether to award legal fees.

43.   I find that the circumstances here were not extraordinary. Mr. Figueroa could have complied with the strata’s information request regarding the hot water heater, rather than retaining a lawyer. In the circumstances I dismiss Mr. Figueroa’s counterclaim for $1,500 reimbursement for legal expenses.

TRIBUNAL FEES, EXPENSES

44.   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. Here, neither party was entirely successful in its claims. I therefore order each party to bear its own tribunal fees and dispute-related expenses, if any.

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

ORDER

46.   I allow the counterclaim to the extent that I order the strata to immediately set aside the bylaw fines charged to Mr. Figueroa’s strata lot account for the hot water heater issue.

47.   I dismiss the rest of the counterclaim.

48.   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.

49.   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.