Date Issued: August 25, 2020

File: ST-2019-009561

Type: Strata

Civil Resolution Tribunal

Indexed as: Zacharias v. The Owners, Strata Plan NW779, 2020 BCCRT 952

Between:

JAMES ZACHARIAS and KATHLEEN NORRIS

ApplicantS

And:

The Owners, Strata Plan NW779, PAVEL LUDROVSKY and JARMILA LUDROVSKY

RespondentS

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      The applicants, James Zacharias and Kathleen Norris, own a strata lot in the respondent strata corporation, The Owners, Strata Plan NW779 (strata). The strata is a residential duplex with 2 strata lots. The respondents, Pavel Ludrovsky and Jarmila Ludrovsky, own the other strata lot.

2.      Mr. Zacharias and Ms. Norris say the building’s roof needs to be replaced in the near future. They want an order requiring the owners to contribute $78.13 per month to the contingency reserve fund to ensure adequate reserves are available to replace the roof in the future. The Ludrovskys say there is no evidence that the roof needs to be replaced. They also argue that any potential roof repairs can be funded by a special levy when the repairs are needed.

3.      The strata has not filed a response to the dispute notice.

4.      Mr. Zacharias and Ms. Norris are self-represented. Mr. Ludrovsky represents himself and Ms. Ludrovsky. The strata is not represented in these proceedings.

5.      For the reasons that follow, I dismiss Mr. Zacharias’ and Ms. Norris’ claim.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

7.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. Though I found that some aspects of the parties’ submissions called each other’s credibility into question, I find I am properly able to assess and weigh the documentary evidence and submissions before me without an oral hearing. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always necessary when credibility is in issue. Further, bearing in mind the CRT’s mandate of proportional and speedy dispute resolution, I decided I can fairly hear this dispute through written submissions.

8.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT 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 CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

ISSUES

10.   The issues in this dispute are:

a.    Have the Ludrovskys or the strata failed to perform a duty they owe under the Strata Property Act (SPA) or the bylaws to fund the contingency reserve fund?

b.    If so, should the parties be required to contribute $78.13 per month to the contingency reserve fund for future roof repairs?

BACKGROUND AND EVIDENCE

11.   In a civil claim such as this, Mr. Zacharias and Ms. Norris must prove their case on the balance of probabilities. While I have read all of the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.

12.   The strata is a residential duplex created in 1977.

13.   It appears from the Land Titles Office filings that the strata has not filed bylaws. Section 120 of the SPA says the Standard Bylaws apply if a strata does not file bylaws. So, I find that the Standard Bylaws apply to the strata.

14.   Standard Bylaw 8 says the strata corporation must repair and maintain the common property (CP).

15.   Mr. Zacharias and Ms. Norris want the strata to begin saving funds for a future roof replacement. The roof warranty shows that the current roof was installed in 2002. The current roof has a 25-year limited warranty.

16.   Mr. Zacharias and Ms. Norris provided a roofing estimate from Penfold Roofing dated March 12, 2019. Penfold Roofing (Penfold) estimated charges of $13,075 to $16,525 to replace the roof, depending the roof type.

17.   Mr. Zacharias and Ms. Norris say the Penfold Roofing representative told them that they would need to re-roof within 3 years. The Ludrovskys say there is no evidence that the roof needs to be replaced in the immediate future.

18.   The strata held a special general meeting (SGM) on April 23, 2019. The owners considered a motion to increase contingency reserve fund contributions in anticipation of a roof replacement in 8 years. Mr. Zacharias and Ms. Norris submitted one vote in favor of the motion. Mr. Ludrovsky submitted one vote opposed to the motion. The motion was defeated. All owners approved a motion to contribute to contingency fund reserves based on the provisions in Strata Property Regulation 6.1.

19.   Mr. Zacharias and Ms. Norris want an order requiring the owners to contribute $78.13 per month to the contingency reserve fund to ensure adequate reserves are available to replace the roof in the future. The Ludrovskys say potential roof repairs can be funded by a special levy when the repairs are needed.

ANALYSIS AND REASONING

20.   In a civil claim such as this, Mr. Zacharias and Ms. Norris must prove their case on the balance of probabilities. While I have read all of the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.

21.   Mr. Zacharias and Ms. Norris have filed their dispute against both the Ludrovskys and the strata. I will consider their claims against each party separately.

Claim against the Ludrovskys

22.   The SPA defines CP as property that is not designated as part of a strata lot on the strata plan. Since the roof of the building is not designated as being part of a strata lot on the strata plan, I find the roof is CP. Section 72 of the SPA and Standard Bylaw 8 say the strata must repair and maintain CP. So, I find that the strata is responsible for the maintenance of the roof.

23.   To fund infrequent repairs such as roof replacements, section 92 of the SPA says the owners must contribute to a contingency reserve fund. Section 93 of the SPA says the strata determines the amount of the annual contingency reserve fund contributions. Strata Property Regulation 6.1 says the contingency reserve fund must be at least 25% of the amount budgeted for the operating fund. The strata’s contingency reserve fund contributions for the 2019 budget met this requirement.

24.   Mr. Zacharias and Ms. Norris argue that the Ludrovskys are not fulfilling their strata council duties by opposing increases to the contingency reserve fund contributions. Mr. Zacharias and Ms. Norris refer to Section 31 of the SPA which 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 exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances.

25.   The CRT decision in Kornylo v. The Owners, Strata Plan VR 2628, 2019 BCCRT 1387 (referring to The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32), held that only a strata corporation, not an individual owner, can bring a claim against a strata council member for breaching section 31 of the SPA. Although the decision in Kornylo is not binding on me, I find the reasoning persuasive and I apply it here. So, I find that Mr. Zacharias and Ms. Norris do not have legal standing to make a claim against the the Ludrovskys for breaching section 31 of the SPA.

26.   For the above reason, I dismiss Mr. Zacharias’ and Ms. Norris’ claim against the Ludrovskys.

Claim against the strata

27.   I will now address Mr. Zacharias’ and Ms. Norris’ claim against the strata in this dispute.

28.   Mr. Zacharias and Ms. Norris make the same claim against strata as they asserted against the Ludrovskys.

29.   The strata was named as a respondent, but it failed to file a Dispute Response. I am satisfied the strata received the Dispute Notice by personal delivery based on the evidence provided in that regard. Specifically, I find the strata was provided with a copy of the Dispute Notice by personal delivery to a strata council member on March 5, 2020.

30.   CRT rule 4.1 says that a party named as a respondent who fails to respond to a properly served Dispute Notice is in default. So, I find that the strata is in default.

31.   CRT rule 4.3(1) says that a party in default is generally presumed to be liable. However, in the previous CRT decision of Cudmore v. The Owners, Strata Plan BCS4252, 2020 BCCRT 92, it was held that CRT rule 4.3 gives the tribunal member discretion in deciding whether to apply this presumption. Although the decision in Cudmore is not binding on my decision in this matter, I find the reasoning in that decision persuasive and I apply it here.

32.   Using this discretion, I decline to presume that the strata breached its duty to Mr. Zacharias and Ms. Norris. I do so because Mr. Zacharias and Ms. Norris have not satisfied their burden of proving their claim because they have not provided sufficient evidence that the roof needs to be replaced.

33.   I find expert opinion evidence is necessary in this case to determine whether the roof needs repairs because this subject matter is technical and outside the knowledge and experience of the ordinary person (See Bergen v. Guliker, 2015 BCCA 283).

34.   Although Mr. Zacharias and Ms. Norris say a Penfold representative told them the roof would need to be replaced within 3 years, I do not give this statement any weight because this evidence does not satisfy the CRT rules’ requirements for expert evidence for the following reasons.

35.   CRT rule 8.3 says an expert must state their qualifications in writing in order to provide expert evidence and I need to be satisfied that they have the sufficient education, training or experience to provide their expert opinion. In this matter, there is no evidence of the Penfold representative’s credentials to provide an expert opinion. Mr. Zacharias and Ms. Norris did not provide the Penfold representative’s name, job title or any information regarding the person’s roofing qualifications. I am not satisfied that the Penfold representative has sufficient expertise to provide an expert opinion regarding the condition of the roof, as required by CRT rule 8.3. Also, the applicants’ summary of the Penfold representative’s opinions is less persuasive than a written statement from the Penfold representative would be. For these reasons, I do not admit the Penfold representative’s alleged opinions as evidence and I have not considered these opinions in my decision.

36.   The only other evidence that Mr. Zacharias and Ms. Norris provided regarding the need to replace the roof was the warranty for the existing roof. Although this warranty shows that the current roof was installed in 2002 and it included a 25-year limited warranty, I do not find this evidence persuasive. The expiration of the existing roof in 2027 does not prove that the roof will need to be replaced at that time. There is no evidence before me showing that the useful life of the current roof will not continue after the roof warranty expires.

37.   I find Mr. Zacharias and Ms. Norris have not provided sufficient evidence that the roof needs repairs now or in the future. Without proving that the roof needs repairs, I find that Mr. Zacharias and Ms. Norris have failed to satisfy their burden of proving their claim. In these circumstances, I exercise my discretion under CRT rule 4.3(1) to decline to presume that the strata breached its duty to Mr. Zacharias and Ms. Norris on basis of the strata’s default status.

38.   In the absence of a presumption of liability under CRT rule 4.3(1), I find that Mr. Zacharias and Ms. Norris have failed to prove that strata acted improperly because there is insufficient evidence that the roof needs to be replaced.

39.   So, I dismiss Mr. Zacharias’ and Ms. Norris’ claim against the strata.

CRT FEES AND EXPENSES

40.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Since Mr. Zacharias and Ms. Norris were unsuccessful in their claim, I dismiss their request for reimbursement of their CRT fees. Since no party requested reimbursement of dispute-related expenses, none are ordered.

41.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Zacharias and Ms. Norris.

ORDERS

42.   I dismiss Mr. Zacharias’ and Ms. Norris’ claim and this dispute.

43.   Under sections 57 and 58 of the CRTA, a validated copy of the CRT’s order can be enforced through the Supreme Court of British Columbia. The order can also be enforced by the Provincial Court of British Columbia if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.