Date Issued: April 23, 2020

File: ST-2019-006008

Type: Strata

Civil Resolution Tribunal

Indexed as: Hodal v. The Owners, Strata Plan LMS 1107, 2020 BCCRT 440

Between:

KIMBERLY D HODAL

Applicant

And:

The Owners, Strata Plan LMS 1107

Respondent

And:

KIMBERLY D HODAL

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Kate Campbell, Vice Chair

INTRODUCTION

1.      This dispute is about an alleged breach of a strata corporation’s window covering bylaws.

2.      The applicant, and respondent by counterclaim, Kimberly D. Hodal, co-owns strata lot 112 (SL112) in the respondent strata corporation, The Owners, Strata Plan LMS 1107 (strata). The strata is also the applicant in the counterclaim.

3.      The applicant is represented by a family member, FH, who is also the occupant and co-owner of SL112. For convenience, I will refer to the applicant and FH as “the owners”. I note that FH is not a party to this dispute, although I find nothing particularly turns on that, given my reasons below.

4.       The owners say the strata has wrongfully tried to enforce bylaws about window coverings. They say the bylaws are unenforceable, and they also deny any bylaw breach. The applicant seeks general damages and an order that the strata stop “harassing” the owners by attempting to enforce the window covering bylaws.

5.      The strata is represented by a strata council member. In its counterclaim, the strata says the window covering bylaws are enforceable, and the owners breached them. The strata seeks orders that the owners replace the window coverings, and payment of an unspecified amount of fines for the continuing bylaw contravention. The strata also seeks payment of expenses for “litigation support” provided by its property manager.

6.      For the reasons out below, I dismiss both the applicant’s claims and the strata’s counterclaims. I find the applicant has not proven significant unfairness by the strata, so is not entitled to damages or any other remedy. The strata has not proven any bylaw breach, so I have not order the applicant to pay fines or replace the disputed window coverings.

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 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.

10.   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.

¾ Vote Authorization for Counterclaim

11.   The owners say the strata’s counterclaim, including its claim for reimbursement of legal expenses, was not authorized by a ¾ vote of the strata ownership at a general meeting. They say the counterclaim should therefore be struck.

12.   I do not agree. Section 171(2) of the Strata Property Act SPA) says that before a strata corporation may sue as a representative of all owners, the suit must be authorized by a resolution passed by a ¾ vote of the ownership at an annual or special general meeting (my emphasis added). As explained in The Owners, Strata Plan NW 177 v. Martin, 2020 BCCRT 285 at paragraphs 74 to 76, this ¾ vote requirement applies to court proceedings, but not to tribunal disputes.

13.   “Sue” is defined in SPA section 1(1) as “the act of bringing any kind of court proceeding”. “Suit” is defined as “any kind of court proceeding”. Since the tribunal is not a court, I find a tribunal claim is not a “kind of court proceeding”, and is therefore not a “suit”. Since SPA section 171(2) only applies to “suing” and “suits”, as defined in section 1(1), I conclude that ¾ vote authorization is not required for a tribunal proceeding.

14.   Also, SPA section 189.4 supports the conclusion that section 171(2) does not apply to the tribunal. Section 189.4 specifies that some specific provisions about court proceedings apply to the tribunal, but section 171(2) and the ¾ vote authorization for a proceeding is not included in these.

15.   The owners also say the strata filed its counterclaim too late, and before the strata council voted to do so. The counterclaim Dispute Notice shows that the Dispute Notice was issued on December 16, 2019. However, other tribunal documents confirm that the strata actually filed the counterclaim with the tribunal on December 13, 2019. This was within the filing deadline.

16.   It appears from the evidence that the strata council did not vote to approve filing a counterclaim until December 19, 2019. However, Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610, the BC Supreme Court (BCSC) held that a strata council can make informal decisions between meetings, which are valid as long as they are “ratified by a properly constituted and minuted meeting of the council.” I therefore find the strata’s counterclaim is not barred because the council vote did not occur until December 19, 2019. If the vote had not passed, the strata would simply have had to withdraw the counterclaim.

17.   For these reasons, I find it is appropriate for the tribunal to decide the counterclaim.

ISSUES

18.   The issues in this dispute are:

a.    Are the strata’s window covering bylaws enforceable?

b.    If so,

                              i.        Did the strata need a written complaint in order to fine the owner?

                            ii.        Did the owner breach the bylaws?

c.    Did the strata treat the owner in a significantly unfair manner?

d.    What remedies are appropriate in this dispute?

e.    Is the strata entitled to reimbursement of expenses?

BACKGROUND

19.   I have read all the evidence provided but refer only to evidence I find relevant to provide context for my decision.

20.   Some of the history relevant to this dispute is set out in a previous tribunal decision involving the same strata corporation as in this dispute, Fairburn et al. v. The Owners, Strata Plan LMS 1107, 2019 BCCRT 595 (published May 15, 2019). That dispute was also about alleged breaches of the strata’s bylaws about window coverings.

21.   The strata was constructed in phases in the early 1990s. It consists of 176 residential strata lots in 5 buildings. It is undisputed that the owner developer of the strata installed vertical blinds in most but not all of the strata lots during the original construction.

22.   The strata bylaws relevant to this dispute state as follows:

a.    Bylaw 3(6)(o) – an owner, tenant, occupant or visitor must not install any window coverings, visible from the exterior of the strata lot, which may differ in size or colour from those on the original building specifications;

b.    Bylaw 7(1)(e) – an owner must obtain the written approval of Council before making an alteration to a strata lot that involves the colour of replacement drapes, blinds or screen doors which will not conform with the original or overall colour and style of the rest of the building; and

c.    Bylaw 7(2) – Council must not unreasonably withhold its approval under subsection 7(1).

d.    Bylaw 7(3) – an owner, occupant, or tenant must not alter a strata lot in any manner which in the opinion of council will alter the exterior appearance of the building.

23.   In Fairburn, several strata lot owners filed a dispute with the tribunal. They claimed the strata had failed to enforce the window covering bylaws. They said that about 20 strata lots, including 2 owned by strata council members, had non-conforming, unapproved window coverings.

24.   The tribunal member dismissed the applicants’ claim. She found that after receiving the applicants’ complaint, the strata council had voted to retroactively approve all existing non-conforming window coverings as of August 30, 2018. The tribunal member found the strata was entitled to do this under bylaws 7(1)(e) and 7(2), which allow council to approve non-conforming window coverings.

25.   Because of the retroactive approval vote, the tribunal member found there was no bylaw breach. In her reasons, the tribunal member noted that several strata lots had displayed alternative window coverings for some time, and in at least 1 instance the owner developer approved different window coverings at the time of initial purchase.

EVIDENCE AND ANALYSIS

26.   In a civil proceeding like this one, the applicant must prove her claims on a balance of probabilities. Similarly, the strata must prove its counterclaims on a balance of probabilities.

Are the strata’s window covering bylaws enforceable?

27.   The owners say the strata’s window covering bylaws are not enforceable, based on the tribunal’s decision in Fairburn, and because throughout the strata’s history, various forms of window coverings have been permitted.

28.   Based on the evidence before me, including photographs and a November 1993 Statement of Adjustments for strata lot 6, I accept that for some time, at least some strata lot owners have window coverings that are different from those installed by the owner developer. That is also consistent with the tribunal member’s findings in Fairburn.

29.   The owner says that in Fairburn, the tribunal noted that “any expectation of complete uniformity in window coverings is unreasonable.” That is correct, as stated in paragraph 40 of Fairburn. However, having carefully read Fairburn, the tribunal member did not make any finding that the window covering bylaws were unenforceable. I also find that is not the necessary implication of her decision, and in fact she specifically contemplated that the bylaws would be enforced in the future.

30.   In Fairburn, the tribunal member found the strata was entitled to retroactively approve non-conforming window coverings under bylaw 7(1)(e), as it did at council meetings on August 30, 2018, November 22, 2018, and December 20, 2018. That does not mean all the bylaws about window coverings therefore became unenforceable going forward. Rather, the tribunal member specifically noted in paragraph 44 that, “Council has also shown that it takes the applicant owners' complaint seriously in that it has said it intends to strictly enforce bylaw 7(1)(e) going forward.” Thus, while certain owners had retroactive approval for non-conforming window coverings, the bylaws would be strictly enforced against other owners going forward.

31.   For these reasons, I find that the strata’s window covering bylaws are generally enforceable. There is no finding in Fairburn that they are unenforceable. Also, I find the window covering bylaws do not meet any of the grounds in SPA section 121(1) which make a bylaw unenforceable (conflict with another enactment, conflict with an easement, or restricting the right of an owner to dispose of the strata lot).

Did the strata need to receive a written complaint before fining the owner?

32.   The owner says in order to enforce the window covering bylaw, the strata must produce a written, signed complaint. The case law does not support that assertion. Rather, in The Owners, Strata Plan NW3075 v. Stevens, 2018 BCPC 2, the provincial court held in paragraph 52 that a verbal complaint is sufficient. In Himmelmann v. The Owners, Strata Plan LMS 2064, 2018 BCCRT 426, a tribunal vice chair held that under the SPA, a complaint made about a bylaw contravention can be made verbally and can be made by a strata council member, and the strata is not required to provide copies of complaint letters. While Himmelmann is not binding on me, Stevens is. I agree with the reasoning in both of these decisions, and adopt it. I therefore find the strata is not required to obtain or provide a written complaint in order to impose a bylaw fine, or to pursue its counterclaim for payment of those fines.

Did the owner breach the window covering bylaws?

33.   In its June 7, 2019 letter to the owners, the strata said the owners had breached bylaw 3(6)(o) by installing “sheer drapes”. As noted above, bylaw 3(6)(o) prohibits the installation of any window coverings, visible from the exterior of the strata lot, which may differ in size or colour from those on the original building specifications.

34.   In its July 2, 2019 letter to the owners, the strata repeated its warning about bylaw 3(6)(o), and also said the owners’ sheer drapes were a violation of bylaws 7(1)(e) and 7(3).

35.   As noted, bylaw 7(1)(e) requires written approval of council before making an alteration to a strata lot that involves the colour of replacement drapes, blinds or screen doors which will not conform with the original or overall colour and style of the rest of the building. Bylaw 7(3) prohibits any alteration to a strata lot which “in the opinion of Council will alter the exterior appearance of the building”.

36.   As the strata says in its counterclaim that the owners breached the window covering bylaws, it bears the burden of proving that claim. The strata submitted as follows:

The Applicant's sheer window coverings (i) differ in size or colour from the original vertical blinds, (ii) do not conform with the original or overall colour and style of the rest of the building and (iii) in the opinion of Council, alter the exterior appearance of the building. Indeed, the Applicant's sheers are different in style, colour and size from the original vertical blinds; as a result, they alter the exterior appearance of the building.

37.   For the following reasons, I find the strata has not met the burden of proving these alleged bylaw breaches. Specifically, the strata provided no evidence about what the owners’ window coverings look like. Thus, the strata has not established that the owners’ drapes alter the appearance of the building, or that they do not conform with the overall colour and style of the building. Also, the strata provided no evidence about the “original building specifications”, so I cannot conclude that the owners’ drapes differ in size and colour from those specifications.

38.   The strata did not provide any photos or drawings of the disputed window coverings. It also did not provide any other evidence establishing what they actually look like, such as a witness statement. While the owners provided photos showing the window coverings of various strata lots, from both interior and exterior views, it is unclear whether any of these photos show the SL112 window coverings.

39.   The owners admit they removed the vertical blinds that were in the strata lot when they purchased it in May 2018, and shortly thereafter replaced them with “white (vertically) hanging window coverings.” The owners say they were aware of the bylaws, but did not think they needed council permission the change the window coverings because there were “myriad colours and styles of window coverings displayed throughout” the strata. They said that the overall colour theme appeared to be white or off-white, so they considered that no council approval was necessary to install different white window coverings.

40.   Given their awareness of the bylaws, it would have been reasonable for the owners to notify the strata of their intention to change the window coverings when they applied for permission to renovate other parts of SL112 on June 25, 2018. However, as previously stated, I find the strata has not proven any specific bylaw breach.

41.   Specifically, I find the strata has not proven a breach of bylaw 3(6)(o), as it has not proven that the owners’ window coverings differ in size or colour from those on the original building specifications. I find the November 1993 Statement of Adjustments the owners provided establishes that the owner developer installed some from of vertical blinds in most strata lots (but not all). However, apart from the phrase “vertical blinds”, there is no evidence about what those blinds looked like, and there is no evidence before me about what the original building specifications were. I find the evidence is insufficient to conclude that the owners’ white window coverings differ in size or colour from the original building specifications.

42.   I also find the strata has not proven a breach of bylaw 7(1)(e). That bylaw specifically says that an owner needs written permission to alter “the colour of replacement drapes, blinds or screens doors which will not conform with the original or overall colour and style of the rest of the building” (my bold emphasis added). Since the evidence before me suggests that the owners replaced white or off white vertical blinds with white sheer drapes, I find they did not change the colour of the window coverings, and therefore did not trigger bylaw 7(1)(e). Also, even if the bylaw was triggered, the photos provided by the owners show that their building contains many different drapery colours and styles, so I find the strata has not established that the owners’ draperies are non-conforming with that overall colour and style.

43.   Finally, I find the strata has not proved a breach of bylaw 7(3), as there is no evidence (such as a photo) showing that the owners’ new window coverings altered the exterior appearance of the building.

44.   For these reasons, I dismiss the strata’s claims for bylaw enforcement. I do not order payment of fines, and I do not order the owners to replace their window coverings.

Significant Unfairness

45.   Under CRTA section 123(2), the tribunal may make an order directed at the strata corporation, the 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. This is similar to the BCSC’s power under SPA section 164.

46.   The owners say the strata treated them in a significantly unfair manner in its attempts to enforce the window covering bylaws, and in refusing to schedule a council hearing after 6:00 pm.

47.   For the following reasons, I find the strata did not act in a significantly unfair manner.

48.   The BC Court of Appeal considered the language of section 164 of the SPA in Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. The test established in Dollan was restated by the BCSC in The Owners, Strata Plan LMS 1721 v. Watson, 2018 BCSC 164 at paragraph 28:

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

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

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

49.   In other cases, such as Radcliffe v. The Owners, Strata Plan KAS1436, 2015 BCCA 448, courts have held that the sole question to be determined is whether the disputed action was significantly unfair, such as defined in Reid v. Strata Plan LMS2503, 2003 BCCA 126. In Reid, the court said that actions are “significantly unfair” when they are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable.

50.   Under either test, I find the applicant’s claim for significant unfairness cannot succeed.

51.   The owners say the strata should not have attempted to enforce the window covering bylaws against them. While the owners say that the bylaws were unenforceable after the tribunal decision in Fairburn, I do not agree, for the reasons set out above. Rather, I find that under SPA section 26, a strata has an ongoing duty to enforce its bylaws. In Fairburn, the parties argued that previous attempts to change the window covering bylaws failed to receive the necessary support at general meetings in 2017 and 2018. Given that and SPA section 26, the strata was obliged to enforce its window covering bylaws. This is particular true as the tribunal member specifically noted that the strata intended to strictly enforce these bylaws in future. For that reason, I do not accept the owners’ argument that the tribunal’s enforcement efforts unfairly targeted them. I also note that they could have requested approval for their window coverings, either in advance or retroactively, as was granted to other owners.

52.   Despite the fact that the strata has failed to actually prove any bylaw breach, I find it was reasonable for it to attempt bylaw enforcement. In its December 2018 council minutes, the strata recorded the unit numbers of 24 strata lots that were specifically granted retroactive approval for non-conforming window coverings. The owners’ strata lot was not on that list. While the owners say they changed their window coverings before that, the strata disputes this. The owners did not make a submission or provide evidence about specifically when they changed their window coverings. I find they have not established that their window covering change occurred before August 2018, when the strata retroactively approval all non-conforming window coverings, or before December 2018, when approval for specific strata lots was granted. For these reasons, I find the applicant has not proven that the window coverings in her strata lot ought to have been retroactively approved. I also find the owners have not proved their assertion that the strata “willfully omitted” them from the list of grandfathered window covering approvals set out in the December 2018 council minutes.

53.   Finally, I find the applicant has not proven that she was unfairly targeted in the strata’s bylaw enforcement. She has not evidence of a strata lot that was not on the grandfathered list set out in the December 2018 minutes that was permitted to have visible non-conforming window coverings. While the owners provided photos of many strata lots, no unit numbers were provided, so I cannot know these were not on the December 2018 grandfathered list.

54.   For all of these reasons, I do not find the strata’s bylaw enforcement attempts were burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable. I therefore find the strata’s actions were not significantly unfair.

Council Hearing

55.   On July 12, 2019, the owners requested a council hearing. The strata offered a hearing date, and the owners repeatedly requested different dates. The strata offered various dates during the day, and the owners said they could not attend until after 6:00 pm. The strata eventually scheduled a hearing, but the owners did not attend.

56.   I find this action by the strata was not significantly unfair. I find the reasonable expectation test applies to this claim of significant unfairness, and I find the owners had no objectively reasonable expectation that the strata council would offer them an evening hearing time. There is no such requirement in the SPA or Strata Property Regulation. Also, the owners provided no evidence about why neither of them, nor any representative, could attend any of the offered hearing times.

57.   For these reasons, I find the strata did not treat the owners in a significantly unfair manner.

Remedies

58.   The applicant requests an order that the strata stop “harassing” the owners by attempting to enforce the window covering bylaws. I decline to make that order, as for the reasons explained previously I find the strata was entitled to attempt to enforce its bylaws. Given my decision in this dispute, I find no further order about bylaw enforcement is necessary or appropriate.

59.   The applicant also seeks $10,150 in general damages, or alternatively an order that the strata pay $10,000 to a public interest organization. No rationale was provided to support either amount.

60.   The owners characterize this claim as one for “general damages”. However, since I have found the strata was entitled to attempt to enforce its bylaws, and did not act in a significantly unfair manner, I decline to order general damages. Also, as previously noted, it was open to the owners to request permission to change their window coverings, which would likely have prevented this dispute.

Strata’s Dispute-Related Expenses

61.   The strata requests reimbursement of an unspecific amount it paid to its property manager for “litigation support”. I deny this claim, for the following reasons.

62.   First, tribunal rule 9.4(1) says that the unsuccessful party will usually be required to pay the successful party’s tribunal fees and reasonable dispute-related expenses. The strata did not succeed in its counterclaims, so I find it was not a successful party.

63.   Second, tribunal rule 9.4(3) says that except in extraordinary circumstances, the tribunal will not order one party to pay another party’s legal fees in a strata property dispute. I find this claim is analogous to a claim for legal fees. This dispute was not extraordinary, as it involves a fairly standard bylaw interpretation matter. It did not involve an usually large volume of evidence or submissions, and did not involve unusually complex legal issues. For this reason, I deny reimbursement of litigation support expenses.

64.   Also, I would not have ordered reimbursement in any event, as the strata did not provide any evidence to prove the amount of reimbursement, such as invoices or time records.

Special Costs

65.   The strata also submits that special costs are appropriate in this dispute. As discussed in Parfitt et al v. The Owners, Strata Plan VR 416 et al, 2019 BCCRT 330, special costs are an unusual order, in which a court will order a party to pay all or part of another party’s legal costs. An award of special costs by the court is only made in exceptional circumstances, and is intended to chastise a party for reprehensible, scandalous or outrageous conduct. By rebuking such conduct, the court punishes and deters bad behaviour and distances itself from it: Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352, at para. 37.

66.   The tribunal does not have authority to order special costs, as the power to do so comes from the BC Supreme Court Rules, which do not apply to the tribunal. However, as previously explained, the tribunal does have the power to order reimbursement of dispute-related expenses in some circumstances. I find those circumstances do not apply here, particularly since the strata was unsuccessful in proving its claims.

67.   The leading case in British Columbia with respect to special costs is Garcia v. Crestbrook Forest Industries Ltd., [1994] B.C.J. No. 2486 (BCCA). The Court of Appeal said that special costs should be ordered against a party when their conduct in the litigation was reprehensible, in the sense of deserving of reproof or blame.

68.   In Hirji v. Owners Strata Corporation VR44, 2016 BCSC 548, the court provided detailed reasons on special costs in the context of a strata dispute. The court noted prior decisions and confirmed the “reprehensible” test from Garcia. The court stated in paragraph 5 of Hirji that an award of special costs should only be made in exceptional circumstances where an element of deterrence or punishment is necessary because of the reprehensible conduct. The court cited the prior authority of Westsea Construction, which says the court must exercise restraint in awarding special costs, and not all forms of misconduct meet the threshold of “reprehensible”. The court said reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court’s process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant.

69.   I find that these factors considered in Hirji are not present here. I do not find there was conduct that rose to the level of reprehensible, and necessitating deterrence or punishment.

70.   For these reasons, I dismiss the strata’s claim for reimbursement of litigation support expenses.

Applicant’s Tribunal Fees

71.   I have found the applicant is entitled to keep her window coverings, since the strata did not prove any bylaw breach. However, I find the owner has not proven her other claims for general damages or significant unfairness. I therefore find the applicant was partially successful, so I order reimbursement of half her tribunal fees, which equals $112.50. The applicant did not claim dispute-related expenses, so I order none.

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

ORDERS

73.   I dismiss the applicant’s claims, the strata’s counterclaims, and this dispute.

74.   I order the strata to reimburse the applicant $112.50 for tribunal fees, within 30 days of this decision.

75.   The applicant is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

76.   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.

77.   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, a party 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.