Date Issued: May 27, 2020

File: ST-2019-006593

Type: Strata

Civil Resolution Tribunal

Indexed as: Johnson v. The Owners, Strata Plan K407, 2020 BCCRT 577

Between:

JANE JOHNSON and VICTOR JOHNSON

ApplicantS

And:

The Owners, Strata Plan K407

Respondent

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This dispute is about a strata council’s enforcement of parking rules and dog bylaws in a residential strata.

2.      The applicants, Jane Johnson and Victor Johnson (owners), are owners of strata lot 8, also known as unit 108, in the respondent strata, The Owners, Strata Plan K407. The owners say the strata assured them they could change parking stalls to appropriately accommodate Ms. Johnson’s physical disability, and that their son’s dog could visit the strata lot. The owners say the strata did not assign them an acceptable parking stall, fined them for violating dog bylaws only after they complained about parking, and harassed them.

3.      The owners say they relied on strata council promises about parking and dogs, and never would have purchased the strata lot, and then renovated it, if they had known about the parking situation and dog prohibitions. They claim a total of $160,000 from the strata, broken down as follows:

a.    $100,000 for strata lot renovation expenses,

b.    $25,000 for real estate commissions on the strata lot purchase,

c.    $10,000 for moving expenses, and

d.    $25,000 for medical expenses for health and stress issues.

4.      The strata says it never agreed to the owners’ parking or dog requests, although it did its best to accommodate their parking needs. The strata says it fairly enforced the strata’s bylaws, and did not harass the owners, so it owes them nothing.

5.      The applicants are each self-represented in this dispute, but their evidence and arguments were submitted by Ms. Johnson. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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.

Preliminary Matters

10.   The parties agree that the owners filed a dispute with the BC Human Rights Tribunal (HRT) around September 2018 or after. It appears the HRT dispute was about reasonably accommodating the owners’ parking needs due to Ms. Johnson’s disability, for which she used a wheelchair. The owners withdrew their HRT complaint in January 2020. In this dispute, the owners do not directly claim that the strata violated the BC Human Rights Code (Code). However, the owners’ claims touch on the related issue of whether the strata treated the owners significantly unfairly in addressing their requests for accessible parking options.

11.   The tribunal’s jurisdiction over strata matters is set out in CRTA section 118, and includes disputes about a decision, action, or threatened action by a strata in relation to an owner. I find the tribunal’s has jurisdiction to consider the owners’ claims.

ISSUES

12.   The issues in this dispute are:

 

a.    Was the strata’s administration of its parking rules significantly unfair to the owners, and if so, what is an appropriate remedy?

b.    Was the strata’s enforcement of dog-related bylaws significantly unfair to the owners, and if so, what is an appropriate remedy?

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities. I have read all of the submitted evidence, but refer only to the evidence I find relevant, to provide context for my decision.

14.   The strata was formed in 1981, under the Condominium Act, the predecessor to the Strata Property Act (SPA). On April 12, 2011, the strata repealed and replaced all its bylaws under the SPA, and later passed bylaw amendments. The owners purchased the strata lot in June 2017, and moved into the strata lot in early August 2017.

15.   The owners argue, essentially, that when they purchased the strata lot, they expected the strata council to provide them with a more accessible parking stall than was assigned to the strata lot at the time of purchase. The owners also expected that their son’s dog would be allowed to visit the strata lot. The owners say they are not satisfied with the parking options arranged by the strata council, and that they have been fined for allowing their son’s dog on strata property, contrary to their expectations.

16.   The owners say they never would have purchased the strata lot if they had known about the parking and dog issues, so they seek payment from the strata for the real estate commissions and moving expenses they paid for buying and moving into the strata lot. The owners also say they would not have renovated their strata lot and are owed the cost of the renovations, because they feel they can no longer live in the strata due to the strata’s actions, and they intend to move out. In addition, the owners say they are owed medical expenses for health and stress issues caused by the strata’s actions. No receipts for medical expenses were provided, so it is unclear whether the owners seek payment of out-of-pocket medical expenses, or general damages for health and stress issues. But given the outcome of my decision, nothing turns on this.

Harassment by strata council members

17.   The owners say the strata council harassed them. I find that a strata council is not an individual, so only strata council members are capable of harassment. No strata council members were named as parties to this dispute, and I cannot make orders against non-parties.

18.   Further, even if strata council members were named as parties, I would not make an order against them based on alleged harassment, for the following reasons.

19.   Section 31 of the SPA 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. In the circumstances of this dispute, I find that the owners’ harassment allegations are a claim that the strata council members violated SPA section 31.

20.   In Wong v. AA Property Management Ltd., 2013 BCSC 1551, the BC Supreme Court considered an owner’s claim that strata council members had acted improperly in managing the strata’s affairs. The court concluded, at paragraph 36, that the only time a strata lot owner can sue an individual strata council member is for a breach of the conflict of interest disclosure requirement under SPA section 32. Remedies for breaches of SPA section 32 are specifically excluded from the tribunal’s jurisdiction by CRTA section 122(1)(a).

21.   Similar to Wong, in The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 267, the BC Supreme Court said that the duties of strata council members under SPA section 31 are owed to the strata corporation, and not to individual strata lot owners. This means that a strata lot owner cannot sue a strata council member for a breach of section 31.

22.   Wong and Sze Hang are binding court precedents, and the tribunal must apply them. Therefore, I dismiss the owner’s claims of harassment against the strata council members under section 31.

23.   As noted above, the owners do not seek a reversal of any bylaw fines, or claim that any bylaws are invalid. I infer from the owners’ submissions that they claim the amounts in this dispute because they believe the strata council treated them significantly unfairly over the parking and dog issues. As a result, I will consider whether the strata’s actions were significantly unfair.

Was the strata’s administration of its parking rules significantly unfair to the owners, and if so, what is an appropriate remedy?

24.   The strata plan shows that the strata’s parking area is common property. The parties admit that the strata provided a Form B Information Certificate to the owners before they purchased the strata lot, which said common property parking stall 36 was assigned to the strata lot, and had been allocated with strata council approval.

25.   The strata bylaws are silent about how parking is assigned. On July 24, 2017, before moving in, the owners emailed the strata council to request an extra parking stall, and to be placed on a parking stall waiting list if necessary. The owners’ email did not say why they sought a second parking stall.

26.   The strata responded on July 24, 2017 and provided the owners with a “welcome package” that included rules about how the strata assigned parking. The validity of these parking rules is undisputed, so I make no finding about whether the rules were properly instituted. The parking rules say that each strata lot comes with only 1 assigned parking stall. The rules say that extra parking stalls can be rented as available, and are assigned on a first come, first served basis.

27.   According to October 2, 2017 strata council meeting minutes, the strata was in the process of removing items in the parkade to make room for Ms. Johnson to park her mobility scooter, and installing an electrical outlet for recharging the scooter. No other parking issues were reported, including the owners’ request for an additional parking spot. The strata says the owners did not tell the strata council the requested extra parking stall was related to Ms. Johnson’s disability for many months.

28.   While the evidence shows the owners followed up with the strata council about their position on the parking waiting list, I find the owners did not say the extra parking stall was required for Ms. Johnson’s disability before they moved in to the strata lot, or for several months after. On the evidence before me, I find the owners were placed on the waiting list in the same way that other owners were, in accordance with the strata’s parking rules. The first evidence of the owners identifying the parking request as a disability accommodation is in letters sent in the summer of 2018. I find this was after the owners completed the strata lot renovations they commenced in 2017.

29.   After the owners requested a more accessible parking stall in the summer of 2018, the strata responded by creating a marked loading zone next to an elevator, where the owners were permitted to park while loading and unloading. The strata council said that it could not provide a parking stall with an open area beside it, or one adjacent to a rented stall, without the corresponding owners and renters agreeing to transfer their assignments. Based on correspondence in evidence, I find that the strata council contacted the four strata lot owners who had parking stalls with adjacent open areas. Two of them had health issues, and none of them were willing to transfer their parking assignments.

30.   Around August 2018, the owners say they told the strata that they might make a complaint to the HRT about their parking situation. The owners say this caused the strata council to “ban” visits from their son’s dog, which I discuss below. In an August 21, 2018 email to the strata council, the owners said they would not have purchased the strata lot if they had known their son’s dog could not visit.

31.   There is little evidence before me about the owners’ HRT complaint. I note that section 8 of the Code says that, unless there is a bona fide and reasonable justification, a person must not, because of a physical or mental disability, discriminate against another person regarding any accommodation, service, or facility customarily available to the public. The tribunal has determined that this duty to accommodate can apply to a strata corporation (for example, in D. v. The Owners, Strata Plan VIS ----, 2017 BCCRT 68). Once a request for accommodation is made, a strata corporation must assess whether accommodation is required under the Code (see D., as well as Thompson v. The Owners, Strata Plan BS 1455 et al, 2017 BCCRT 27).

32.   It is undisputed that in June 2019, apparently as part of the HRT dispute resolution process, the strata secured another owner’s permission for the owners to use parking stall 24, which had an open space beside it. In an email dated June 14, 2019, the owners confirmed to the strata that stall 24 would “work well for us.” However, the owners declined to accept the stall 24 offer because the strata insisted on enforcing the bylaws prohibiting large dogs. I find it unnecessary to decide whether the Code required the strata to accommodate the owners’ accessible parking request, because I find the owners confirmed that the strata’s offer of stall 24 was an acceptable accommodation.

33.   The question before me is, in these circumstances, were the strata’s actions about parking significantly unfair to the owners?

34.   The tribunal has jurisdiction to determine claims of significant unfairness. Section 164 of the SPA is similar to section 123(2) of the CRTA, which gives the tribunal authority to issue orders preventing or remedying a significantly unfair action, decision, or exercise of voting rights: The Owners, Strata Plan LMS 1721 v. Watson, 2018 BCSC 164 at paragraph 119.

35.    The courts and the tribunal have considered what “significantly unfair” means, and have equated it to oppressive or unfairly prejudicial conduct. In Reid v. Strata Plan LMS 2503, 2003 BCCA 128, the BC Court of Appeal interpreted a significantly unfair action as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith and/or unjust or inequitable.

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

The test under s. 164 of the Strata Property Act also involves objective assessment. [Dollan] requires several questions to be answered in that regard:

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?

37.   The owners’ expectation was that the strata council would assign them a more accessible parking stall, or two adjacent stalls.

38.   Was that expectation reasonable? The owners purchased the strata lot knowing that it came with parking stall 36. It was open to the owners or their realtor to check stall 36 before purchasing the strata lot. I find there is no evidence that anyone promised the owners a wheelchair accessible parking stall before they bought the strata lot. I find the owners did not request disability accommodated parking for several months after purchasing the strata lot, until after they completed home renovations. This alone supports a finding that the owners’ parking expectations were not reasonable.

39.   The owners appear to believe the strata should have unilaterally transferred or taken possession of one or more other owners’ parking stalls, potentially including rented spaces that the other owners had waited years to obtain. The owners do not say how the strata could fairly balance the rights of those other owners, including their health and disability needs, if the other owners’ assigned common property parking stalls were transferred or cancelled. It is undisputed that other strata lot owners have health issues. The strata says it believed repossessing or transferring parking stalls without the assigned owners’ permission would cause the affected owners to claim unfair treatment. As a result, I find it was reasonable in the circumstances for the strata to seek the agreement of other parking stall owners, or a vote at a special or general meeting, before reassigning parking in a way that was not set out in the strata’s parking rules. On the evidence before me, I find that the owners’ parking expectations were unreasonable.

40.   Further, even if I had found that the owners’ parking expectations were reasonable, I would have found that those expectations were not violated by significantly unfair strata actions. I find that once the owners requested disability accommodated parking around the summer of 2018, the strata made significant efforts to accommodate the owners’ parking requests while balancing the needs of other parking stall owners. These efforts included developing a loading zone area by an elevator, canvassing whether several other owners would be willing to transfer their parking stall assignments, and considering the rearrangement of storage. In addition, the owners acknowledge that parking stall 24 was acceptable to them, but they declined it because of the strata’s insistence that the owners comply with the strata’s dog bylaws. Given my finding below, that the strata did not act significantly unfairly in enforcing dog-related bylaws against the owners, I find the owners’ expectation of an exception to those bylaws was not reasonable. So, I also find that the strata’s offer of parking stall 24 was fair, and that the owners’ refusal of stall 24 was not reasonable.

41.   The owners also appear to allege other instances of unfair treatment by the strata council, the strata lot’s former owners, and other strata lot owners, largely involving repairs or maintenance requests unrelated to parking or dogs. But the evidence does not support these limited accounts of unfair treatment, so I am not persuaded by those arguments.

42.   The owners also allege that the unredacted Dispute Notice for this tribunal dispute was distributed to other strata lot owners. It is not clear on the evidence whether the strata distributed the Dispute Notice, or to whom. However, the owners acknowledge that the strata council updates all owners on such disputes through council meeting minutes, and they do not take issue with that practice. Further, tribunal decisions such as this one include the allegations contained in the initiating Dispute Notice, and are publicly available on the tribunal’s website. In these circumstances, where the owners claimed a very significant payment from the strata, I find it was fair and reasonable to inform all strata lot owners about the dispute, including by distributing the Dispute Notice.

43.   Overall, I find that the strata’s administration of its parking rules was not significantly unfair to the owners. So, I dismiss this aspect of the owners’ claim.

Was the strata’s enforcement of dog-related bylaws significantly unfair to the owners, and if so, what is an appropriate remedy?

44.   When the owners purchased the strata lot, the bylaws permitted no visiting pets, and specified a maximum allowable height and weight of dogs kept by strata lot owners, tenants, or occupants. The bylaws were changed on December 14, 2017 to permit visiting pets that met the same maximum size requirements for pets kept by owners, tenants, or occupants. The owners provided no evidence confirming the height and weight of their son’s dog. However, the owners do not deny that their son’s dog exceeded the size and weight limits set out in the bylaws. So, on balance, I find that the son’s dog did not meet the maximum size requirements for a kept or visiting dog.

45.   The owners’ son co-owns the strata lot, although neither he nor his dog lives there. As noted, the size requirements for both visiting and non-visiting dogs are the same. Further, according to the December 14, 2017 bylaw amendments, strata lot owners may only keep a dog on a strata lot if it is registered with the strata council and sufficient veterinary and vaccination information is provided. There is no evidence that the owners or their son ever attempted to register the son’s dog as an owner pet, and I find it would not be permitted on strata property in any event due to its size. I find the son’s dog is a visiting pet.

46.   The owners say they would not have purchased the strata lot if they had known their son’s dog was not permitted to visit. They say they did not obtain a copy of the bylaws before purchasing the strata lot. The owners also say they were able to borrow a copy of the bylaws, but it is not clear when. Regardless, bylaws apply to strata lot owners even if the owners are not aware of them. If visits from their son’s dog were important to the owners, I expect they would have ensured such visits were permitted under the strata bylaws before they purchased the strata lot. The owners do not argue that any bylaws are invalid, and they do not deny that visits from their son’s dog violate the bylaw prohibition on large dogs.

47.   However, the owners say that a strata council member in 2017 and 2018, M.K., promised them an exception to the large visiting dog prohibition. I do not find this argument persuasive, for several reasons. First, in a March 21, 2020 email to the owners, M.K. confirmed that her conversations with the owners about their son’s dog took place after they purchased the strata lot. So, I find their purchase decision was not influenced by the alleged promise of a dog bylaw exception. Second, M.K. said she told the owners that she would do her best to work with the strata council to consider making an exception for the son’s dog. But M.K. said she was “outvoted,” and that the strata council did not agree to an exception for the enforcement of the large dog bylaws.

48.   I place significant weight on M.K.’s email, as it clearly lays out the circumstances surrounding the visiting dog issue and is consistent with the other evidence before me. I place less weight on the owners’ submissions on this issue, which are less clear and do not always align with the evidence. I find neither M.K. nor the strata council decided the bylaw prohibiting large dogs would not be enforced against the owners for their son’s visiting dog.

49.   M.K. also said, and I find, that the owners could have attempted to organize a special general meeting to vote on a change to the strata’s visiting dog bylaws, but did not. I also find that the strata council investigated and proposed to the owners that their son use a nearby “dog day care” that could accommodate dogs with health issues, but it appears the owners and their son did not take advantage of that suggestion. It is undisputed that the strata warned the owners in late 2018 that they would be fined if their son’s dog continued to visit, after which the strata issued fines for the dog’s further visits. The owners say the strata council issued a retroactive fine in December 2018 for a violation the year before, but I find this was simply a typographical error in the year of the violation date.

50.   Turning to whether the strata’s enforcement of the dog-related bylaws was significantly unfair, what were the owners’ expectations? The owners expected that the “no large dogs” bylaw would not be enforced for visits by their son’s large dog.

51.   Was this expectation reasonable? I find it was not, for the reasons that follow. When the owners purchased the strata lot, the strata’s bylaws at that time prohibited all visiting dogs, and placed size restrictions on non-visiting dogs. I find the owners did not discuss with strata council any exceptions to the dog bylaws until after they purchased the strata lot. I find the owners could have taken steps to propose an amendment to the dog bylaws, but did not. I find their son could have used a dog day care or investigated other dog minding for his visits, but there is no evidence that he did.

52.   The owners say that the strata council only fined them for violating the large dog bylaws because they had threatened to make an HRT complaint about the accessible parking issue, and that there had been no issue with the dog before then. I am not persuaded by this argument. The evidence shows other strata lot owners complained about the son’s visiting dog, including in July 2018. This was shortly before those bylaws were reviewed at strata council meetings beginning in August 2018, including the owners’ visiting dog situation. I find there is no evidence that the strata council changed its enforcement of the visiting dog bylaw in response to the owners’ threatened or actual HRT complaint.

53.   The owners also say that a previous strata lot owner had a large dog, so it is unfair to prohibit their son’s large visiting dog. I find that the owners were unaware of the previous large dog until after purchasing the strata lot. The strata does not deny that a previous strata lot owner had a large dog, although there is no evidence of the height and weight of that dog. But the strata says it could not ignore bylaw complaints from owners, including about large visiting dogs, and it needed to enforce its dog bylaws. Importantly, I find there is no evidence of any bylaw complaints about the previous large dog, but other strata lot owners did complain about the owners’ visiting dog. In addition, it appears the previous dog was owned by a strata lot owner and resident, at a time when the bylaws permitted no visiting dogs. There is no evidence that the strata previously failed to enforce prohibitions on visiting dogs, as opposed to non-visiting dogs kept by strata residents. On balance, I find it was not reasonable to expect visits from a large dog, given the complaints about the son’s visiting dog, and the lack of evidence that visiting dog prohibitions were previously unenforced.

54.   Since it was not reasonable for the owners to expect permission to host a large dog, I find that the strata’s enforcement of its dog-related bylaws was not significantly unfair to the owners.

55.   Having determined that the strata’s actions were not significantly unfair, I dismiss the owners’ claims against the strata.

TRIBUNAL FEES AND EXPENSES

56.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. The owners were unsuccessful, so they are not entitled to any tribunal fees. No other tribunal fees were paid, and no expenses were claimed.

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

ORDER

58.   I dismiss the owners’ claims, and this dispute.