Date Issued: August 26, 2020

File: ST-2019-010452

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan 1769 v. Dagenais, 2020 BCCRT 957

Between:

The Owners, Strata Plan 1769

Applicant

And:

JUSTIN DAGENAIS and JENNIFER DAGENAIS

Respondents

And:

The Owners, Strata Plan 1769

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is largely about the use of surveillance equipment. The Owners, Strata Plan 1769 (strata), is a strata corporation. Justin Dagenais and Jennifer Dagenais (owners) are registered owners of a strata lot in the strata. The strata filed the initial claim in this dispute and the owners filed a counterclaim.

2.      The strata says the owners breached a rule that prohibits the use of surveillance equipment. They seek payment of fines totaling $120 plus $50 for each week after November 18, 2019 ($2,120 in total). They also seek an order for the owners to comply with the rule against surveillance equipment.

3.      The owners disagree. They counterclaim for an order for the strata to reverse the fines. They also seek an order to remove the rule at issue. The owners also seek an order to allow them to place a surveillance camera above their garage door. They also seek document production, discussed below. The owners also want the strata council minutes to be edited to remove what they say are false statements. Finally, the owners also request compensation for time spent on this dispute.

4.      A strata council member represents the strata. Ms. Dagenais represents the owners.

JURISDICTION AND PROCEDURE

5.      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.

6.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Both parties to this dispute call into question the credibility, or truthfulness, 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. I note the decision in Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

7.      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.

8.      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

9.      The issues in this dispute are as follows:

a.    Did the strata act in a signficantly unfair manner regarding the owners’ use of surveillance equipment, and if so, what is the appropriate remedy?

b.    Must the strata allow the owners to place a surveillance camera back above the garage door of their strata lot?

c.    Must the owners pay the strata’s fines, or should the strata reverse them?

d.    Must the owners comply with the rule against surveillance camera usage?

e.    Must the strata provide any documents to the owners by mail?

f.     Must the strata amend any strata council meeting minutes?

g.    Must the owners be compensated for time spent on this dispute?

BACKGROUND, EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the strata bears the burden of proving its claims on a balance of probabilities. The owners bear this burden on their counterclaim. While I have reviewed all the evidence and arguments, I only address them to the extent necessary to explain my decision.

11.   The strata consists of 22 strata lots that provide townhouse-style residential housing. The strata lots are spread throughout 6 different buildings that are arranged in a triangular pattern around a grassy area. A roadway connects the buildings.

12.   The owners are the registered owners of strata lot 2. According to the strata plan, the adjoining roadways and the driveway leading up to strata lot 2 are common property.

13.   The owners say that in early 2019 residents on their roadway began to verbally threaten them and vandalize their car. The owners say this was because they would occasionally park on the road in front of their neighbors. The owners say they parked legally, but the residents wanted to keep these parking spaces for their own use. The owners did not say exactly where they parked on these occasions or who they upset. The owners say the residents subsequently vandalized their car while it was parked in their strata lot’s driveway.

14.   It is undisputed that near the end of April 2019 the owners installed a security camera on the exterior of their garage, above the garage door. The strata plan shows the garage is part of the strata lot. The owners say they used it and there was no further car damage after this.

15.   I will next refer to the email evidence. Each party placed email contents in word processing documents. As neither party objected to this, I accept that the parties copied their emails accurately.

16.   On June 30, 2019, another strata lot owner emailed the strata council to complain about the camera. On July 30, 2019, 2 other strata lot owners emailed other owners to complain about the camera.

17.   In emails dated July 3, 9 and 26, 2019, the strata council emailed the owners to say that the camera breached the Personal Information and Privacy Act and that it could not approve its installation. The strata also wrote that the camera breached bylaws 6(1) and 3(1). It said it would levy a $200 fine on a recurring basis. The strata is not seeking payment of the fines described in the July 2019 emails in this dispute.

18.   The strata’s bylaws are registered in the Land Title Office. Bylaw 6(1) says that an owner cannot change or add to the exterior of their strata lot or appearance or structure, or any improvements thereto, without prior approval from the strata council. Bylaw 3(1) says that an owner must not use a strata lot, common property, or common asset in a way that causes a nuisance, is illegal, or unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets, or another strata lot.

19.   In August 2019, the strata surveyed the other owners by email about whether the use of surveillance equipment should be prohibited or controlled. At the next strata council meeting of September 25, 2019, the strata council approved a rule based on the survey results. The rule says that owners are not permitted to install or use surveillance equipment on strata property (“surveillance rule”).

20.   On October 9, 2019, the strata sent a letter to the owners. The strata council wrote that it had decided the owners had breached the surveillance rule. Presumably, this was for the owners’ camera above their garage doors. It levied a $20 fine $20 and advised it would impose new fines every 7 days.

21.   On October 18, 2019, the owners removed the camera from their garage. The strata is not seeking any fines from the October 9, 2019 letter in this dispute.

22.   The strata emailed the owners on November 1, 2019 to thank them for removing the cameras. However, the strata council wrote that it learned that the owners had mounted a dash camera in their car, which is regularly parked in the driveway of their strata lot. The strata asked the owners to forward the dash camera’s brand name, model number, and description to see if its use breached the rule.

23.   In a November 18, 2019 letter, the strata council wrote that the owners had not replied with the requested information. The letter also mentioned that the owners had cameras mounted on their kitchen windows. The council concluded that the owners had contravened the surveillance rule since October 21, 2019 through these actions. It requested payment of $60 for 3 weeks of fines. It also said the fine would be raised from $20 to $50 per week on November 25, 2019. It also intended to file an application for dispute resolution with the CRT after December 6, 2019, to seek payment.

24.   Bylaw 23(1)(ii) says the strata may fine an owner a maximum of $50 for each contravention of a rule, and bylaw 24(1) allows the strata to impose for fines for continuing contraventions every 7 days.

Issue #1. Did the strata act in a signficantly unfair manner regarding the owners’ use of surveillance equipment, and if so, what is the appropriate remedy?

25.   The owners say the strata treated them in a significantly unfair manner. SPA section 164 sets out the BC Supreme Court’s authority to remedy significantly unfair actions. The CRT has jurisdiction over significantly unfair actions under CRTA section 123(2), which has the same legal test as cases under SPA section 164. See 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?

26.   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”.

27.   Based on the owners’ submissions and the remedies sought, I find the owners’ expectation is that they should be allowed to use surveillance equipment to monitor the areas around their strata lot, without limitation. I find that the owners’ expectation is neither objectively reasonable nor was it violated by an action that was signficantly unfair. I find the surveillance rule is valid and enforceable and the strata did not act in a significantly unfair manner by creating the rule, as discussed below.

28.   The surveillance rule says owners may not use surveillance equipment on strata property. “Strata property” is not a defined term in the SPA. I interpret it to mean common property, which is owned by the strata lot owners. I find this interpretation and the rule itself consistent with SPA section 125(1), which says a strata corporation may only make rules governing the use, safety, and condition of common property and common assets, and cannot make rules governing the use of a strata lot.  

29.   The owners cited section 2 of the BC Privacy Act, which says that an act or conduction is not a violation of privacy if it is incident to the exercise of a lawful right of defence or person or property. I do not find this relevant to the issue of the enforcement of strata rules and bylaws. In the non-binding decision of Parnell v. The Owners, Strata Plan VR 2451, 2018 BCCRT 7, a CRT Vice Chair commented at paragraph 22 that it may be generally permissible to videotape people. However, this did not override the strata’s ability to govern in accordance with the SPA and its own bylaws. I find this would apply to the rules as well.

30.   I also note that in the non-binding decision of Kuan et al v. The Owners, Strata Plan NW 2603, 2019 BCCRT 802, a CRT member found that a bylaw limiting video surveillance and photography was valid. The bylaw said that an owner could not take pictures or video of any person or thing without the expression permission of that person or the strata council. The CRT member found that the bylaw was valid, and dash cameras violated the bylaw, unless they were off while driving on and off common and limited common property.

31.   The owners say the surveillance rule unfairly targets them, but I disagree. In Kuan the CRT member wrote that the surveillance bylaw clearly targeted the applicants. However, it was not discriminatory or otherwise invalid because it applied to all owners. I find the same reasoning applies to the surveillance rule.

32.   The owners also say they require the cameras to ensure the safety of themselves and their property. However, I am not satisfied on the evidence that the safety issue is severe enough to show that the strata acted unfairly.

33.   The owners provided a video showing several dents spread out over one side of their car. The owners say a mechanic that repaired the damage said the dents looked deliberate. However, the mechanic provided no evidence, such as a statement, to support the owners’ submission. As such, I am not satisfied on a balance of probabilities that the dents were the result of vandalism. It has also been more than a year since the owners’ car was last damaged. I find this does not support any pressing security concern.

34.   The owners also reported some damage to their mailbox near the end of July 2019. I am not satisfied on the evidence that any of the owners’ cameras would cover the area where the mailbox is or otherwise serve as a deterrent.

35.   I find the evidence also shows the strata proceeded in good faith. As noted above, the strata conducted a survey of owners in August 2019 before making the surveillance rule. In their August 30, 2019 email, the strata council wrote that 25 owners in 17 units replied. A majority indicated that they wished for surveillance equipment to be limited or prohibited.

36.   I note that SPA section 125(6) also says a rule ceases to have effect unless ratified by a resolution passed by a majority vote at either an annual general meeting or special general meeting held before then. I find this also lessens any unfairness to the owners, as all strata owners will have an opportunity to vote if it is to continue.

37.   In summary, I find the strata did not act in a signficantly unfair manner. I dismiss the owners’ claim to have the strata remove or otherwise not enforce the surveillance rule.

Issue #2. Must the strata allow the owners to place a surveillance camera back above the garage door of their strata lot?

38.   The owners say they should be allowed to place their surveillance camera back above their garage door. As stated above, bylaw 6(1) says that an owner cannot change or add to the exterior of their strata lot or its appearance or structure, without prior approval from the strata council.

39.   I have found that the owner placed the surveillance camera on the exterior of their strata lot. I find these facts share similarities to those in Parnell. In that decision, the Vice Chair concluded doorbell cameras and surveillance cameras were “alterations” that required the strata’s written approval under the bylaws, before installation. I find the surveillance camera is both a change and addition to the exterior of the owners’ strata lot under bylaw 6(1). As the owners did not seek the required approval from the strata council, I dismiss this part of the owners’ claim.

Issue #3. Must the owners pay the strata’s fines, or should the strata reverse them?

Breach of the Surveillance Rule

40.   I find the owners breached the surveillance rule from October 21, 2019 onwards by using the dash camera on common property. The strata says the owners regularly remounted the dash camera each time they parked in their driveway. Taken as a whole, the owners’ submissions raised issues about the sufficiency of the strata’s evidence. However, the owners do not deny placing the dash camera in their car or turning it on. I find it unlikely the owners would simply leave the dash camera inoperative in their car, given their stated security concerns.

41.   I find the dash camera was used on the driveway, which is common property. I find the fact that it was in a car at the time does not change the fact that the dash camera was used on common property.

42.   The strata also say the owners breached the surveillance rule by using a camera mounted on their kitchen window. I disagree this breached the surveillance rule. Under SPA section 125(1), the strata cannot make rules governing the use of strata lots. I reach this conclusion regardless of whether the owners activated the camera while it was on their kitchen window.

Proper Notice

43.   Under SPA section 135(1), before imposing bylaw or rule fine, the strata must have received a complaint, given the owner written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if one is requested. Under section 135(2), the strata must also give the owner written notice of its decision “as soon as feasible”.

44.   In Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449, the BC Court of Appeal found that strict compliance with SPA section 135 is required before a strata corporation can impose fines. The court also determined that bylaw fines may be found to be invalid if the procedural requirements set out in section 135 are not followed. I find the same consideration apply to rule fines as well, as SPA section 135 says it applies to both.

45.   Here, I am not satisfied that the strata has strictly complied with SPA section 135. I find the strata failed to provide full particulars of the rule infraction before imposing fines. In the November 1, 2019 email, the strata asked the owners for further information about their dash camera. Overall, I found the email vague on whether the owners were facing any fines at the time. The strata did not actually allege that the owners had breached the surveillance rule. Instead, it advised that it was asking for the information in order to “provide assurance to other owners of the strata community” that the dash came would not “compromise their personal privacy”. The strata also did not mention the camera in the owners’ kitchen window until its next letter.

46.   In the November 18, 2019 letter, the strata referred to the kitchen camera as one of the reasons for the fine. I have already decided that the owners did not breach the surveillance rule by using the kitchen camera.

47.   Further, the strata advised the owners in the November 18, 2019 letter that the owners were entitled to a hearing. SPA section 135 requires the strata to provide a hearing if requested, before the fine at issue is imposed. I conclude the strata failed to meet this requirement because it offered the hearing at the same time it levied a fine. As the initial fine was not imposed correctly, the strata also cannot rely on SPA section 135(3) to impose additional fines for continuing contraventions.

48.   Given the above, I order the strata to immediately reverse the fines on the owners’ strata lot account for breaching the surveillance rule.

Issue #4. Must the owners comply with the rule against surveillance camera usage?

49.   The strata seeks an order for the owners to comply with the surveillance rule. I have found that the owners breached the rule by operating the dash camera. I therefore order the owners to comply with the surveillance rule.

Issue #5. Must the strata provide any documents to the owners by mail?

50.   There are 2 aspects to this claim. The owners say the strata has refused to provide certain documents. The owners also say the strata refused to provide the documents by mail as requested.

51.   I will first consider whether the strata has failed to provide any requested documents. SPA section 35 and section 4.1 of the Strata Property Regulation (SPR) require the strata to prepare and retain various records. Under SPA section 36(1), if an owner requests access to any of these records, the strata must make the records available for inspection and must provide copies. SPA section 36(3) says the strata corporation must comply within 2 weeks of the request, or within 1 week for bylaws or rules.

52.   The owners say that they requested strata council meeting minutes in an October 18, 2019 letter. They also say they have since obtained the minutes from the strata’s property manager. I infer the property manager provided these documents by mail. The owners also provided as evidence strata council meeting minutes from May 2018 to February 2020. The minutes in evidence appear complete.

53.   Given the above, I am not satisfied that the strata breached any obligations under the SPA or SPR to provide requested documents. The owners have not identified any missing pages or documents. Consistent with my conclusion, the strata says its property manager provided the owners all the strata council meeting minutes to date.

54.   The owners also requested “any other missing documents that we might be unaware of”. I decline to make this order. I am not satisfied the strata failed to provide any other requested documents.

55.   I next consider whether the strata should provide documents to the owners by mail. In the October 18, 2019 letter, the owners requested the strata to communicate to them via letters instead of email. However, the owners wrote that they would still accept emails about contractors, water or power issues, or anything “imminent”. The owners also wrote they wished to receive copies of the strata council meeting minutes or other “official documents” by mail.

56.   In a November 1, 2019 letter, the strata council replied that it would continue to communicate by email. However, it would send correspondence related to the rules, bylaws, and the AGM by both mail and email.

57.   SPA section 61 sets out how the strata must give to an owner a notice, record or document the strata is “required or permitted to give to a person under [the SPA or] the bylaws”. The section lists several methods available to the strata. SPA section 61(1)(vii) says the strata may email documents “to an email address provided by the person for the purpose of receiving the notice, record or document.”

58.   In the non-binding decision of Schuler v. The Owners, Strata Plan BCS 4064, 2018 BCCRT 175, at paragraph 33 to 35, a CRT Vice Chair considered SPA section 61(1)(vii). He found that notice by email is only permitted under this section if the owner has provided the strata an email address for the purpose of receiving the notice, record, or document. The Vice Chair concluded that if an owner does not want to receive notice by email, the strata must provide it by some other means that is permitted under SPA section 61.

59.   I find the reasoning in Schuler applicable and persuasive. If the owners do not wish to receive notices, records, or documents by email, the strata must use one of the other means listed in SPA section 61.

60.   Having said that, I decline to make any orders about this claim. In their October 18, 2019 email, the owners requested the strata to use their email for some notices and not others. I find that under SPA section 61, the owners can only provide an email address for receiving all notices, records, or documents, or refuse to provide an email address at all. The legislation does not require the strata to comply with the owners’ request to have some notices sent by email and not others. As such, I am not persuaded that the strata breached its obligations under SPA section 61.

61.   I leave it to the owners to consider if they wish to ask the strata to stop sending all notices, records, or documents by email. I dismiss the owners’ claim.

Issue #6. Must the strata amend any strata council meeting minutes?

62.   SPA section 35(1)(a) requires the strata to keep minutes of strata council meetings, including the results of any votes. I find there are no SPA or bylaw provisions about retractions or corrections of minutes. However, in the non-binding decision of Claridge v. The Owners, Strata Plan LMS 223, 2020 BCCRT 161, a CRT member found that there is an implicit requirement that the minutes be reasonably accurate so that they do not mislead the owners. I agree with the CRT member’s comments.

63.   The owners have asked the strata to retract several statements from the strata council meeting minutes as false. I will discuss them in turn.

The July 24, 2019 Minutes

64.   The owners say that the strata wrote in the July 24, 2019 minutes that the owners had contravened the regulations of the Office of the Information and Privacy Commissioner of BC (OIPC) and strata bylaw 3(1). The owners say this is false based on their conversation with an OIPC representative.

65.   The strata says the strata council incorrectly stated the owners contravened any regulations of the OIPC or strata bylaw 3(1). It says it will amend the minutes to reflect this. Given this, I order the strata to amend the July 24, 2019 strata council meeting minutes by removing any statements that the owners contravened the regulations of the OIPC or strata bylaw 3(1).

 The October 30, 2019 Minutes – Safety and Vandalism

66.   In the October 30, 2019 minutes, the strata council replied to several questions from the owners of unit 12. The owners of unit 12 asked if there was cause for concern about safety and vandalism. The strata wrote that it was not aware of any specific instances of vandalism. It added that the owners of strata lot 2 had advised that someone had broken into their mailbox and stolen their mail but provided no other details. The strata added that one of the applicant owners said one of their neighbors (not named) was responsible for the theft.

67.   The owners say this is inaccurate as they never named or blamed anyone for the damage. They also say they advised that the mailbox had been tampered with, and that mail could have been stolen (rather than was stolen). They also say they provided the strata with further details of vandalism, though they did not say what these were. The strata disagrees the above statements contain any inaccuracies.

68.   Having reviewed the evidence and submissions, I find this part of the minutes was reasonably accurate given its purpose. The strata responded to a question about security concerns and mentioned the mailbox incident. I am not satisfied that this part of the minutes requires amendment.

The October 30, 2019 Minutes – Speeding

69.   In a section labelled “Correspondence from Owners”, the owner of unit 20 wrote that the applicant owners had reported concerns over speeding. The owner of unit 20 wrote that the reports were evidence that the owners were using a camera to record speeders, in areas beyond their limited common property.

70.   The owners say the strata inaccurately reported this as fact as the owners observed speeding by direct observation. I disagree. I accept the strata’s submission that it was simply reporting what the owner of unit 20 had written. I decline to order any correction of these minutes.

The November 8, 2019 Minutes

71.   The November 8, 2019 minutes say that the cameras in the kitchen window and car recorded areas of the common property. The owners object to this because there was “no evidence of recording or not recording”. I disagree and find a reasonable person would infer the owners used the cameras, particularly given the owners’ stated security concerns.

72.   The minutes also say that an owner of unit 1 was concerned that the cameras could record their use of a security keypad for their garage. The owners say the minutes should be corrected because their cameras can do no such thing. I disagree. As before, I find the strata was merely relaying the complaint it received. I decline to orer any correction of these minutes.

The Minutes Generally

73.   The owners also objected to the strata council using words such as “claimed” or “alleged” when discussing the owners’ complaints. I find the strata council reasonably used these words in the minutes and decline to order any amendment.

Issue #7. Must the owners be compensated for time spent on this dispute?

74.   The owners seek compensation of $3,300 for time spent on the dispute. They say they spent 40 to 90 hours alone on dealing with the CRT dispute resolution process, and many more on the dispute generally.

75.   The applicable CRT rules are those that were in place at the time this dispute was commenced. At the time, CRT rule 9.4(3) stated that, except in extraordinary cases, the CRT will not order one party to pay another for a representative’s time spent on a dispute. Consistent with this rule, the CRT generally does not award parties compensation for their time spent dealing with the dispute. See, for example, the non-binding decisions of Wahedullah v. Kular, 2019 BCCRT 610 and Tenten v. The Owners, Strata Plan VR113, 2019 BCCRT 1427.

76.   I decline to order the requested compensation. I find the general practice referred to in Wahedullah and Tenten appropriate in this case. I would also not order the requested amount because I find the owners were not largely successful in their claims.

CRT FEES AND EXPENSES

77.   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.

78.   I find that success has been divided in this dispute. Both parties succeeded on some parts of their claims and failed on others. Both parties also failed to prove their monetary claims. I decline to award any CRT fees or dispute-related expenses to either party.

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

ORDERS

80.   I order the strata to immediately reverse any charges on the owners’ strata lot account for contraventions of the surveillance rule.

81.   I order the owners to immediately comply with the surveillance rule.

82.   I order the strata to amend the July 24, 2019 strata council meeting minutes by removing any statements that the owners contravened the regulations of the OIPC or strata bylaw 3(1).

83.   I dismiss the strata’s remaining claims.

84.   I dismiss the owners’ remaining claims.

85.   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.