Date Issued: January 28, 2020

 File: ST-2019-002537

 Type: Strata

Civil Resolution Tribunal

Indexed as: Chayka v. The Owners, Strata Plan NW 1718, 2020 BCCRT 107

Between:

GEORGE CHAYKA

 Applicant

And:

 The Owners, Strata Plan NW 1718 and NICK PETRIE                                                                                                                      

 RESPONDENTS

REASONS FOR DECISION
Tribunal Member:	Kathleen Mell

           

INTRODUCTION

1.      The applicant, George Chayka (Mr. Chayka), owns a strata lot in the respondent strata corporation, The Owners, Strata Plan 2548 (strata). The co-respondent, Nick Petrie (Mr. Petrie), owns the strata lot next door to Mr. Chayka. This dispute is about whether the strata failed to enforce its bylaws by allowing Mr. Petrie, and other strata lot owners, to hang bicycles off devices in their carports.

2.      Mr. Chayka says that the strata is not enforcing the bylaw against bicycle racks. He also states that the strata is acting inappropriately and giving special treatment to strata council members. Mr. Chayka requests an order that the strata enforce the bylaws and that Mr. Petrie’s bicycle rack be removed. He also asks for an order that the strata be prohibited from ratifying the rule allowing hanging bicycles on hooks in the carports.

3.      Mr. Petrie says that the bicycles are hung on hooks and not racks which does not violate the bylaws. It says the majority of strata lot owners are in favour of hanging bicycles on hooks in the carports. Mr. Petrie represents himself but provided joint submissions with the strata.

4.      The strata says that it properly enforced the bylaws. The strata also submits that hanging bicycles from hooks and not racks is not prohibited under the bylaws and is permitted under a rule. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

5.      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.

6.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. In some respects, this dispute amounts to a “he said, they said” scenario with both sides calling into question the credibility of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the 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 the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

7.      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.

8.      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.

9.      Both parties referenced this tribunal’s vice-chair’s previous decision dismissing Mr. Chayka’s claim about a door because it was filed outside the time limits set out in the Limitation Act. As this issue has already been decided by the vice-chair, it is not before me. Therefore, I have not considered any submissions relating to the door issue.

10.   The strata submits that Strata Rule 35 requires any dispute with the strata be referred to voluntary arbitration but Mr. Chayka refused to take part in that process. I first note that the arbitration is voluntary and Mr. Chayka is not obligated to take part. Also, in reviewing the materials there is no suggestion that Mr. Chayka was ever invited to take part in voluntary arbitration and in fact, the strata told Mr. Chayka that it had made its decision and did not want to discuss the matter further. Mr. Chayka then requested a hearing. Based on this, I place no weight on the strata’s submission that Mr. Chayka should have pursued voluntary arbitration before filing a claim with this tribunal.

11.   The strata and Mr. Petrie also made submissions about Mr. Chayka harassing Mr. Petrie’s family. None of these allegations were supported by any evidence. I also note that the respondents did not file a counterclaim. Further, the issue of harassment is outside this tribunal’s jurisdiction. I will not consider these allegations in resolving this dispute.

12.   Mr. Chayka also submitted a photo after the deadline for filing evidence. There is a suggestion that this relates to an issue of his fiancée being intimidated by Mr. Petrie. Again, the issue of harassment is outside the jurisdiction of this tribunal. I have not taken that photo into account in reaching my decision.

ISSUES

13.   The issues in this dispute are:

a.    Did the strata breach the standard of care for strata council members?

b.    Is hanging bicycles on devices in the carport contrary to the bylaws?

c.    Is the rule allowing bicycles to be hung from hooks in the carports permitted under the Strata Property Act (SPA)?

EVIDENCE, FINDINGS AND ANALYSIS

14.   In a civil dispute such as this, the applicant must prove his claim. He bears the burden of proof on a balance of probabilities.

15.   While I have reviewed all of the material provided, I have only commented below on the evidence and submissions necessary for this decision.

Did the strata breach the standard of care for strata council members?

16.   Mr. Chayka says that the strata council members have not met the required standard of care in dealing with the bicycle issue and have acted in conflict of interest by preferring the interests of the strata council’s own members who also have bicycles hung in their carports. Mr. Petrie is a strata council member. I interpret this as a claim under SPA sections 31 and 32.

17.   The remedies for conflict of interest by strata council members are set out in SPA section 33. (See Dockside Brewing Co. Ltd. v. Strata Plan LMS 3837, 2007 BCCA 183.) CRTA section 122(1)(a) says the tribunal has no jurisdiction over a claim under SPA section 33. I therefore make no findings or orders about conflict of interest in this decision.

18.   SPA Section 31 sets out the standard of care for strata council members. It says that in exercising the powers and performing the duties of the strata corporation, each council member must act honestly and in good faith with a view to the best interests of the strata corporation, and must exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances.

19.   I decline to order that the strata council comply with section 31. Based on the BC Supreme Court’s decision in The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32, I find Mr. Chayka has no standing to make a claim under SPA section 31. In Sze Hang, the court said the duties of strata council members under SPA section 31 are owed to the strata corporation, and not to individual strata lot owners (see paragraph 267). This means that a strata lot owner, or group of owners cannot succeed in a claim against the strata, the strata council, or individual strata council members for a breach of section 31.

20.   Sze Hang is a binding precedent and the tribunal must apply it. Following Sze Hang, I therefore dismiss Mr. Chayka’s claim for a remedy under SPA section 31.

Is hanging bicycles on devices in the carport contrary to the bylaws?

21.   Bylaw 44.7 says that a resident must not display or erect fixtures, poles, clotheslines, racks, free standing storage sheds and similar structures permanently or temporarily on limited common property, common property or land that is a common asset.

22.   All parties agree that Mr. Petrie’s carport is limited common property and that he has a device attached to the wall of the carport on which he hangs a bicycle.

23.   In May 2018, Mr. Chayka wrote to the strata asking them to ensure that the device was taken down. Mr. Chayka says he only realized later that other members of council had bicycle racks in their carports. When Mr. Chayka first complained he indicated that the bicycle was unsightly.

24.   The strata initially responded in June 2018 by saying that hanging bicycles on racks did not breach the bylaw relating to cleanliness. The strata referred to bylaws 41.1 and 44.2 which say that disposable items and garbage must be removed appropriately and that personal items must not hinder sidewalks, entrances, exits or other common property. It is noteworthy the strata did not consider bylaw 44.7. against racks at this point and in the July 16, 2018 strata council minutes discussing the issue it referred to the device as a rack.

25.   At the November 26, 2018 annual general meeting the owners rejected a bylaw amendment that would have included a prohibition against hanging bicycles in an open carport. 13 owners were in favour and 26 were opposed. The bylaw did not pass but bylaw 44.7 prohibiting racks remained.

26.   In November 2018 Mr. Chayka drew the strata’s attention to bylaw 44.7. On February 13, 2019, the strata’s property manager sent Mr. Chayka a letter stating that the strata determined that Mr. Petrie’s bike was hanging from a hook and not a rack. The letter also said that the strata had come to its conclusion and would not discuss the matter further.

27.   Mr. Chayka requested a hearing which took place on April 29, 2019. The strata sent Mr. Chayka a letter on May 3, 2019 that said that Mr. Petrie’s bike was stored on a hook and that bylaw 44.7 does not prohibit hooks.

28.   Mr. Chayka then filed an application with this tribunal. On July 15, 2019 the strata unanimously approved rule 6.6 allowing bicycles to be hung on a hook in an open carport. I note that section 125(5) of the SPA states that if a rule conflicts with a bylaw, the bylaw prevails.

29.   The main question in this dispute is whether the device Mr. Petrie uses to hang his bicycle on is a hook. For the reasons outlined below, I find that the device is a rack and therefore explicitly prohibited by bylaw 44.7.

30.   I have already noted that before the strata knew that anything turned on the description of the device, it referred to it as a rack. I have reviewed the pictures of the bike hanging from the apparatus. It is not a simple hook. It is a hook that loops through the front wheel of the bicycle. The hook is then attached to a metal piece that the wheel itself rests on. The longer metal piece connects to the entirety of the rounded part of the wheel where it meets the wall. The longer metal piece is affixed to the wall by screws.

31.   Mr. Chayka has submitted a picture from a seller’s website which shows a similar device. It is called a “hanging bike rack wall mount.” The respondents have not provided any evidence that the device is not a bike rack except pictures from a distance where you cannot actually see the device in any detail. The respondents’ submission is that it is a hook because it has a hook. The close-up pictures show that the device is clearly larger and more complex than just a hook. Based on all the evidence I find that the device is a bicycle rack and therefore prohibited under bylaw 44.7.

Remedy

32.   The respondents submit that the tribunal cannot order the rack’s removal as Mr. Petrie is entitled to the particulars of the complaint made against him and a reasonable opportunity to respond. I find that Mr. Petrie has fully engaged in the tribunal’s process and has had ample opportunity to respond to the complaint made against him, which is that he has installed a rack in his carport in violation of the bylaws. I find that it is not a breach of procedural fairness to order the strata to enforce the bylaws by making sure that Mr. Petrie’s rack is taken down.

33.   I also note that notice does not apply here as no notice is required to remedy a contravention under SPA section 133(1)(b).

34.   Mr. Chayka has submitted that other owners have similar devices which breach the bylaws. Those owners were not named in this dispute and did not have the opportunity to respond. I make no order against other owners. It is up to the strata to enforce the bylaws and take appropriate steps to ensure that other owners are complying with the bylaws.

Is the rule allowing bicycles to be hung from hooks in the carports permitted under the SPA?

35.   Mr. Chayka requests an order prohibiting the strata from ratifying the rule that bicycles are allowed to hang from hooks. Mr. Chayka says that this rule was not passed correctly as one of the members of council who seconded the rule and voted for the rule has bicycles hanging on racks in his carport.

36.   The rule was passed unanimously by all 4 members (after Mr. Petrie absented himself) and therefore I find that it is irrelevant if one of the members voting has bicycles hanging in his carport. Even if that member had not voted the rule would still have been seconded and passed by the remaining members.

37.   Nothing in this decision says that no item can be hung on a hook in a carport, possibly including a bicycle. The analysis as to whether a hanging apparatus is a rack, fixture, hook, or other device is fact specific. I decline to order that the strata is prohibited from ratifying the rule that bicycles are allowed to hang from hooks. It would be speculative of me to presume that all hooks would be in violation of the bylaw. However, as noted, to the extent the rule contradicts the bylaw, the bylaw will prevail. Therefore, if the hook is actually a rack or a fixture or anything else set out in bylaw 44.7, it will not be permitted unless the bylaw is amended.

TRIBUNAL FEES AND EXPENSES

38.   Under section 49 of the Act, and the tribunal’s rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. As Mr. Chayka was successful in this dispute, he is entitled to have his $225.00 tribunal fees reimbursed. Because the strata and Mr. Petrie were unsuccessful, they are not entitled to have any expenses reimbursed.

ORDERS

39.   I order that Mr. Petrie’s bicycle rack be taken down immediately.

40.   I order the respondents to reimburse Mr. Chayka his $225.00 in tribunal fees within 30 days of this decision.

41.   I dismiss Mr. Chayka’s remaining claims.

42.   Mr. Chayka is entitled to post-judgment interest as applicable under the Court Order Interest Act.

43.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia (BCSC), a validated copy of the order which is attached to this decision. 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.