Date Issued: March 24, 2020

File: ST-2019-006681

Type: Strata

Civil Resolution Tribunal

Indexed as: Eaton v. The Owners, Strata Plan BCS 3648, 2020 BCCRT 329

Between:

TIM EATON

Applicant

And:

The Owners, Strata Plan BCS 3648

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This applicant, Tim Eaton, is a former owner of a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS 3648 (strata). The applicant says the strata failed to respond in a timely manner to 4 issues he raised at a July 12, 2018 hearing. The applicant says the strata also breached a bylaw by failing to provide him a second requested hearing. Although not expressly raised in his submissions, I find the applicant’s claim is one of significant unfairness, as explained in my reasons.  

2.      The applicant seeks $6,500 for reimbursement of strata fees. He also seeks orders for the strata to provide explanations for its conduct in future council minutes.  

3.      The strata disagrees it should pay. It says any delay was because of difficulties caused by the strata council and the strata property manager changing at the time. The strata also says it cannot waive or return strata fees under the Strata Property Act (SPA) and the applicant has not claimed any other form of damages. The strata also says the applicant has not shown he suffered any loss.

4.      The applicant is self-represented. A strata council member represents the strata.

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. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

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.      SPA section 189.1(1) says that an owner or tenant may request that the tribunal resolve a dispute over any strata property matter over which the tribunal has jurisdiction. In previous decisions the tribunal has considered whether it has jurisdiction over disputes from former strata lot owners or tenants that sold their strata lots or moved out before filing their dispute. See, for example, the Vice Chair’s decision of Gill v. The Owners, Strata Plan EPS 4403, 2020 BCCRT 228, which concerns a former tenant.

10.   The applicant is a former owner of a strata lot in the strata. A title search shows the applicant remained the registered owner of the strata lot until he sold it and moved out in October 2019. The applicant submitted his application for dispute resolution in August 2019. The parties did not raise the tribunal’s jurisdiction as an issue.

11.   Given the above, I find the applicant owned his strata lot when he filed his application for dispute resolution. He was therefore entitled at the time to request the tribunal to resolve this dispute under SPA section 189.1. I find the tribunal has jurisdiction to hear the applicant’s claim, even though he is a former owner.

ISSUE

12.   The issue is whether the strata acted in a manner that was significantly unfair to the applicant, and if so, what remedies are appropriate.

BACKGROUND AND EVIDENCE

13.   In a civil claim such as this, the applicant 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.

14.   The applicant moved into the strata lot in October 2015. In November 2015 he left to stay at a winter home in Florida. Upon his return in March 2016, he noticed an aluminum barricade on one side of his outdoor patio. Photos of the barricade show it is attached close to a preexisting raised garden. The barricade runs parallel to the garden. I will discuss the origin of the barricade in greater detail below.

15.   Approximately 2 years later, the applicant asked the strata for a hearing, which was held on July 12, 2018. The applicant’s first complaint is that the strata did not fully address the issues raised at the hearing, which included dealing with the barricade.

16.   The July 12, 2018 council meeting minutes show the applicant asked the strata to do the following:

a.    investigate the origin of the barricade,  

b.    rent or obtain a public announcement system for its general meetings,

c.    address light and noise nuisances arising from the strata’s amenity centre, and

d.    plant new shrubs outside his strata lot for increased privacy.

17.   The strata did not reach any immediate decisions on these issues. It held council meetings on September 5 and 13, 2018 and decided that the building site manager would remove the barricade. The strata also decided to obtain a quote for planting more shrubs. The strata also resolved to ask the building site manager if the outdoor lights of the amenity centre could be redirected. The minutes note the strata did not address the applicant’s issues any further because of time constraints. Although not documented, the applicant says the strata also agreed to obtain a public announcement system at the time.

18.   On March 31, 2019, the applicant wrote the strata’s property manager for an update as it appeared no action had been taken. The strata’s property manager wrote back that it would bring these matters up with the strata council at the next meeting on April 29, 2019.

19.   According to the minutes, the strata council decided to have a handyman examine if the barricade could be removed. The strata also decided to put the outdoor lights on a timer. Finally, the strata noted that other owners had requested additional shrubs. The strata decided it would review obtaining privacy planters or shrubs for all owners, but the installation would be at the owners’ expense.

20.   The applicant’s second complaint is that the strata did not provide a requested hearing. On July 22, 2019, the applicant emailed the strata’s property manager asking for a hearing with the strata. The applicant wrote that he had “yet to receive a decision regarding the matters…brought up” at the July 12, 2018 hearing. The property manager replied that the strata had made decision on those issues and quoted the April 29, 2019 minutes, summarized above. The property manager also included the building site manager in his reply, so that the manager could provide an update once the barricade was reviewed. The building site manager did not reply and no hearing took place.

21.   The strata subsequently obtained a September 10, 2019 email from the strata’s developer indicating the barricade was a preexisting feature of the patio. The strata did not remove the barricade. The applicant moved out the following month in October 2019 as he sold his strata lot.

ANALYSIS

22.   As noted above, the applicant says the strata took too long to deal with the issues raised at the July 2018 hearing (particularly the barricade) and failed to provide the hearing requested in July 2019. The applicant says by doing so, the strata breached bylaw 15.

23.   The strata’s bylaws are the Standard Bylaws under the SPA, with amendments. The owner provided an excerpt of bylaw 15. Bylaw 15(1) says that an owner may request a hearing at a council meeting. Bylaw 15(2) says the strata council must hold hearing within 1 month of the hearing request. Finally, bylaw 15(3) says that if the purpose of the hearing is to seek a strata council decision, the council must give a written decision within 1 week after the hearing.

24.   Standard bylaw 15 was repealed in 2009 when similar wording was added to the SPA under section 34.1. One difference is that SPA section 34.1(3) says the strata council must hold a hearing within 4 weeks a hearing request, rather than 1 month. Nothing turns on this difference in this dispute. I find that SPA section 34.1 applies and the applicant made his hearing requests under this provision.

25.   Although not expressly raised in his submissions, I find the applicant’s claim is one of significant unfairness. The tribunal used this framework to consider whether the strata unreasonably delayed remediation investigations and repairs in the decision of Chen v. The Owners, Strata Plan NW 2265, 2017 BCCRT 113. While not binding, I find its reasoning applicable to this dispute.

26.   SPA section 164 sets out the BC Supreme Court’s authority to remedy significantly unfair actions. The tribunal has jurisdiction over significantly unfair actions under CRTA section 123(2), which has the same legal test as cases under SPA section 164: The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164. The test, from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, is as follows:

a.    What is or was the expectation of the affected owner?

b.    Was that expectation on the part of the owner objectively reasonable?

c.    If so, was the expectation violated by an action that was significantly unfair?

27.   In Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, the Court defined a significantly unfair action as one that is “burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith”.

28.   There are 2 expectations at issue. First, the applicant expected the strata to hold a hearing within 1 month of his July 22, 2019 written request. I find this expectation was objectively reasonable. As noted above, SPA section 34.1(2) says the strata council must hold a hearing within 4 weeks after the hearing request is made.

29.   I find this expectation was violated by an action that was significantly unfair. The strata breached SPA section 34.1(2) as it did not hold the requested hearing at all. While I acknowledge that strata continued to investigate the origins of the barricade, this did not remove its responsibility to hold the hearing.

30.   Second, the applicant says the strata took too long to resolve the issues raised at the July 2018 hearing, especially the barricade. He notes that 14 months passed from when he raised the issue of the barricade in July 2018 to when the strata finally refused to remove the barricade in September 2019. I find the applicant expected the strata to resolve the issues quicker, and this expectation was reasonable. While I acknowledge the strata wanted more time to investigate the issue, I find that 14 months was too long for the applicant to wait for a final outcome.

31.   I acknowledge that the strata council was replaced in October 2018 elections and its property manager was replaced in December 2018. However, many months still passed after these changes were made, before the strata addressed the applicant’s issues (including the barricade) in a final manner.

32.   The difficulty is the appropriate remedy. The applicant requests the return of $6,500 in strata fees (13 months’ worth) because of the strata’s “poor leadership”. In Liverant v. The Owners, Strata Plan VIS 5996, 2010 BCSC 286 the court confirmed at paragraph 26 that owners must contribute strata fees based on unit entitlement under SPA section 99, or though a different formula adopted under SPA section 100. The court wrote that relief based on significant unfairness does not extend to changing unit entitlement. That court held that “direct compliance with a specific provision of the governing legislation cannot, by definition, be significantly unfair”. In Schultz et al v. The Owners, Strata Plan KAS 3313, 2018 BCCRT 148, a tribunal Vice Chair considered Liverant and concluded that the applicant owners’ strata fees could not be reduced.

33.   I am bound to follow Liverant. Although not binding, I also find Schultz et al applicable. I find that I am unable to order the return of strata fees.

34.   What about damages? The applicant did not claim any. There is no indication that the applicant spent money or otherwise acted in reliance on the strata’s decisions. The applicant did not elaborate upon the inconvenience, if any, caused by the strata’s delay in addressing the issues of the public announcement system, light and noise nuisance from the amenity centre, and request for new shrubs.

35.   The applicant says the barricade trapped debris and made it difficult for a family member to retrieve a ball when playing. However, I find the strata did not cause these difficulties.

36.   The weight of the evidence supports the conclusion that the barricade was a preexisting feature that the applicant failed to notice. The strata provided a September 10, 2019 email from the building developer. The developer had the opportunity to review an attached picture of the barricade. Its representative wrote that the barricade was part of the original construction and it was there when the applicant moved in.

37.   I note the picture attachment is not in evidence. However, the applicant provided photos of the barricade. In one such photo, another similar barricade is visible in a neighboring strata lot. I also note that the owner had only moved in for a month before he went on vacation and noticed the barricade upon his return. These facts make it plausible that the applicant was mistaken about the layout of his patio.

38.   The applicant denies the barricade was a preexisting feature and says the strata has “discontinued maintaining that the barricade was installed before we moved in”. I find this stretches the strata’s submissions too far. The strata does not explicitly disagree that the barricade was installed during the applicant’s 2015-2016 trip, but it provided the September 10, 2019 email, discussed above. Ultimately, I find this email to be the best evidence of the origin of the barricade. The applicant has not provided any other plausible explanation and there is no evidence proving that the strata installed it during the applicant’s 2015-2016 trip.

39.   For those reasons, I decline to award the applicant strata fees or any damages.

40.   The applicant also seeks an order for the strata to explain in future minutes why it delayed and withheld information from its handyman or building site manager. I find such an order unnecessary. I find there is no indication that the strata’s handyman or building site manager actively withheld information. I am also mindful that the applicant has sold and moved out of his strata lot, lessening any value this order might have.

41.   Given the above, I dismiss the applicant’s claims.

TRIBUNAL FEES AND EXPENSES

42.   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.

43.   Although I am unable to order the requested remedies, in these circumstances I find the applicant is the successful party. This is because he showed that the strata treated him in a signficantly unfair manner. I order the strata to reimburse the applicant $225.00 in tribunal fees within 14 days of this decision. As the applicant did not claim for disputed-related expanses, I do not order any.

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

ORDERS

45.   Within 14 days of the date of this order, I order the strata to pay the applicant a total of $225.00 in tribunal fees.

46.   I dismiss the applicant’s remaining claims.  

47.   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).

48.   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 applicant 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.