Date Issued: September 4, 2020

File: ST-2019-010627

Type: Strata

Civil Resolution Tribunal

Indexed as: Weiler v. The Owners, Strata Plan VR437, 2020 BCCRT 1000

Between:

KEVIN WEILER

Applicant

And:

The Owners, Strata Plan VR437

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about a deteriorating parkade and whether its repairs and maintenance should be further delayed. The applicant, Kevin Weiler, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan VR437 (strata). Mr. Weiler says the strata has breached its obligation to repair and maintain the strata’s parkade under section 72 of the Strata Property Act (SPA). He seeks orders for the strata to repair the parkade and for the strata to raise funds of $7,822,210 by special levy to do so.

2.      The strata acknowledges it is responsible for the upkeep of the parkade. However, it disagrees that it should be forced to repair the parkade at this time. It says other projects have greater urgency, such as modernizing and replacing the strata’s 6 elevators and stopping water ingress into its 2 buildings. The strata also says the owners have voted 4 times without a sufficient majority to approve funding for repairing the parkade. The strata says the results of such votes should stand.

3.      Mr. Weiler represents himself. A strata council member represents the strata.

4.      This dispute is 1 of 3 about parkade repairs, discussed in my reasons in ST-2020-001168 and ST-2020-003377. I have written 3 separate decisions for these disputes because they have no parties in common. My findings are based on the evidence before me in each separate dispute.

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 in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

7.      The 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.

The March 9, 2020 Preliminary Decision

9.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. In a preliminary decision a CRT Vice Chair decided that the issues in this dispute are within the CRT’s jurisdiction. She observed that the issue was whether the strata met its duty to maintain and repair common property under the SPA. She noted that the CRT frequently decides such disputes. Mr. Weiler also provided CRT decisions showing that the CRT has made orders similar in nature to what he seeks in this dispute.

10.   I agree with the Vice Chair’s reasoning and decision. I find that the CRT has the jurisdiction to grant the remedy sought by Mr. Weiler. The CRT can compel a strata corporation to repair common property. The BC Supreme Court issues such orders under SPA section 165, whereas the CRT can issue such orders under CRTA sections 123(1)(a) and (c). See Bonnie S. Elster, ed. British Columbia Strata Property Practice Manual, loose-leaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2008) at §4.32, which refers to CRTA section 48.1 (now section 123(1)). Although not binding, the CRT decisions of James MacArthur v. Strata Plan K588, 2016 BCCRT 2 and Dickson et al v. Strata Plan K 671, 2018 BCCRT 147 also show the CRT making such orders.

Waiver of Council Hearing

11.   It is undisputed that Mr. Weiler requested a strata council hearing by email on December 11, 2019 for unspecified reasons but withdrew the request the next day. He then filed his application for dispute resolution on December 20, 2019.

12.   SPA section 189.1(2) says an owner may not request the CRT to resolve a dispute unless they have requested a council hearing under SPA section 34.1, or the CRT, on request by a party, directs that this requirement does not apply.

13.   Mr. Weiler requests that I waive the hearing requirement. The strata opposes this on the grounds that the matter is not urgent, and the strata would have granted any reasonable hearing request.

14.   I find that Mr. Weiler did not request a hearing under SPA section 34.1 as he failed to give the reason for his request, as required by that provision. However, I find it appropriate to waive the hearing requirement in this dispute. The owners have voted 4 times on a resolution to approve expenditures for the purpose of repairing and maintaining the parkade. Each time, the resolution failed to obtain the necessary approval by 3/4 of the votes. I find that a hearing would have no practical effect on resolving this dispute. Mr. Weiler seeks a remedy largely because of the votes of the owners. I therefore direct that the hearing requirement set out in section 189.1(2) of the SPA is waived.

ISSUES

15.   The issues in this dispute are as follows:

a.    Did the strata breach its obligations to repair and maintain the parkade?

b.    If so, what is the appropriate remedy?

BACKGROUND, EVIDENCE AND ANALYSIS

16.   In a civil claim such as this, Mr. Weiler bears the burden of proof on a balance of probabilities. Although I have reviewed all the evidence and submissions, I have only addressed them to the extent necessary to explain my decision.

17.   As discussed below, I find that the strata breached its obligation to repair and maintain its parkade. My decision is based on several factors that include the following. The evidence shows that the parkade needs the repairs. A solid majority of owners support these repairs. The strata says that it wishes to delay the parkade repairs in order to prioritize elevator replacement and to address water ingress. However, there is little evidence before me of the severity of these issues or that the strata is taking actual steps to address them. Based on the submissions, I also found the strata’s opposition to the parkade repairs to be equivocal. I find it appropriate in the circumstances to order the strata to perform its statutory obligation to repair and maintain the strata’s parkade. The strata is also authorized to impose a special levy on the owners, based on their respective unit entitlement, not exceeding $7,882,310 in total. My reasons follow.

Background of the Strata’s Parkade

18.   The history of the strata and the strata’s parkade is outlined in 3 reports written by different engineering firms. They are a July 14, 2015 parkade assessment report from Read Jones Christoffersen Ltd. (RJC Report), a December 20, 2018 assessment from Morrison Hershfield (MH Report), and a June 4, 2018 evaluation report from Sense Engineering (SE Report).

19.   The strata is part of 5 strata corporations known collectively as the Woodcroft Estates. The 5 strata corporations provide apartment-style housing and their buildings are located close to each other.

20.   The strata corporations are parties to a signed April 1993 agreement to form a council that coordinates various expenditures. The council is known as the Woodcroft Association of Strata Councils. The agreement states that the Association is responsible for establishing priorities and coordinating the planning for programs and services that are common to meeting the needs of its member strata corporations. The strata’s bylaws, which are registered in the Land Title Office, require the strata to join this council.

21.   Woodcroft Estates has a total of 6 high-rise residential buildings constructed over 3 underground parkades. The 3 parkades were built in 3 phases between 1973 and 1977. Each phase involved building 2 residential towers and an associated 3-level underground parkade. There are about 1800 underground parking stalls and 125 above-ground visitor stalls in total. Phase 1 construction consisted of building the strata’s parkade. The 2 other parkades are located on its western and eastern sides.

22.   The strata in this dispute consists of 2 of these buildings and 1 of the parkades. The strata plan shows the parkade is the strata’s common property. The 2 buildings have a combined 507 residential strata lots.

23.   The February 26, 2020 minutes refer to a “1977 Cost Sharing Agreement”. While this document is not before me in this dispute, I infer it contains the terms of how the Woodcroft Estates shares the cost of expenditures relating to some of the common property of its members. Consistent with this, a July 10, 2018 depreciation report for the strata notes that the Woodcroft Estates shares the cost of the parkades and the strata’s share of expenses is 37.535%.

The Condition of the Parkade

24.   I find the engineering reports to be generally consistent with each other. They show that the 3 parkades have required repairs for many years to 3 different components: the concrete, the steel elements, and the moisture protection system covering the parkade plaza. The steel elements include plates with bearing pads, and bolts or plates connecting walls to the foundation. The parkade plaza is the portion of each parkade that is most exposed to the exterior. It is a buried roof deck located beneath landscaped areas that include both construction materials and vegetation.

25.   The RJC report is the most comprehensive. It says that RJC evaluated the 3 parkades previously in 1996. RJC’s tests indicated that there was corrosion in the reinforcing embedded in the concrete. RJC recommended repairs at the time. These included structural repairs to the concrete, steel, and corbel bearing pads, removal and replacement of plaza landscaping and waterproofing membrane, and applying a waterproofing membrane to the parking slabs (which had no apparent moisture protection system installed). RJC noted that since then, some repairs had taken place. The only comprehensive repair program occurred in 2005.

26.   I find from the reports that the strata’s parkade is in a state of disrepair. As of 2015, RJC concluded that all 3 parkades were in poor condition. It wrote that the deterioration in the concrete top surfaces since 1996 had substantially increased. RJC observed significant corrosion-related deterioration in both the concrete and steel elements of each parkade. The concrete deterioration was significant enough to possibly affect structural capacity. RJC recommended removing and replacing the concrete in affected areas either immediately or in the short term. RJC concluded that concrete deterioration would progressively increase to the point that parkade structural capacity would be impaired, requiring stall closures and the shoring of the structure in areas of concern.

27.   Of the steel elements, RJC wrote that some had deteriorated to the point that the structural capacity of the parkades could be affected. Some of the steel elements appeared to be exposed to moisture on a regular basis, meaning that corrosion was expected to continue.

28.   As for the waterproofing membrane over the parkade plazas, RJC wrote it appeared to have failed as there was active water leakage throughout the parkades. RJC noted that it wrote the membrane had likely reached the end of its expected service life in its 1996 evaluation. RJC concluded that the moisture protection system had to be restored, otherwise the concrete and steel elements could not be protected in all 3 parkades. RJC also recommended adding waterproofing to the interior parkade slab. RJC recommended repairs totaling $13,700,000 to take place over the next 6 years to the concrete and steel elements and waterproofing systems in all 3 parkades.

29.   Likewise, the SE report noted that most of the water contributing to the observed damage was entering through the plaza. The report similarly recommended repairing the concrete and steel elements, redoing the waterproofing of the plaza, and applying new waterproofing to the interior floor slabs. The SE report recommended dividing the work over approximately 11 phases over the course of nearly 3 years, for a cost of $19,118,000 for all 3 parkades.

30.   The MH report also noted evidence of constant water ingress. It recommended installing new plaza waterproofing and redoing the existing landscaping and roadways at an estimated cost of $22,000,000. It also recommended waterproofing the interior floor slabs as well for $4,400,000. The total work recommended by MH in the 3 parkades, which included other elements, was estimated at $36,787,500.

The Urgency of Repairs

31.   The parties disagree on the urgency of the repairs. I am satisfied that the strata’s parkade is not in danger of immediate collapse. The SE report says it did not identify locations where structural failure or collapse was imminent. Consistent with this finding, in a February 25, 2020 letter, a representative for the District of North Vancouver advised that it had not considered or suggested that access to the strata’s parkade should be shut down. The District declined to comment on whether any specific repairs should take place.

32.   From the evidence, I find that the most urgent issue was the steel corbels in the phase 3 (eastern) parkade. The corbels are steel brackets that support the floor beams. The RJC Report and SE Report both expressed grave concerns about the corbels. The eastern parkade is not the strata’s parkade. In any event, the strata says, and I find, that the corbels were repaired recently.

33.   Having said that, the RJC Report clearly expressed concern over the concrete deterioration affecting the parkades’ structural capacity. The RJC Report also referred to reports of falling concrete within the parkade which damaged cars, which I will discuss below. I find that the parkade therefore presents some degree of hazard, and the water damage, if left unchecked, will create increasingly unsafe conditions.

The Strata’s Attempts to Raise Funds

34.   The Woodcroft Estates decided to enlist RJC to obtain bids for plaza and parkade restoration work. As documented in its October 8, 2019 letter to the Woodcroft Estates, RJC subsequently obtained bids from 4 contractors and recommended Polycrete Restorations Ltd. (Polycrete) for an estimated contract price of $14,176,849. Accounting for allowances, contingencies and GST, RJC recommended budgeting $20,500,000 in total. RCJ explained that allowances include consulting fees, permits, and testing. Contingencies are for unforeseen circumstances. The work was planned for 3 phases with each phase lasting about 1 year. Phase 1 totaled $5,417,606 before allowances, contingencies, and GST.

35.   Each of the 5 strata corporations of the Woodcroft Estates had their owners vote on approving repairs and raising funds through special levies.

36.   It is undisputed that on 4 occasions, the strata’s ownership voted on a 3/4 vote resolution to fund repairs for its parkade. The votes were held at an August 2018 special general meeting (SGM), a January 29, 2020 SGM, and a February 26, 2020 annual general meeting (AGM). The parties did not say when the fourth vote occurred. I infer the August 2018 vote involved an April 2018 estimate from Polycrete about the parkade work, before RJC obtained bids in October 2019.

37.   The resolutions (which I infer were largely similar at each meeting) did not receive the required votes to pass. The strata says, and I accept, that the voting results of the owners were 22%, 62%, 74% and 66% in favour at each meeting. The last 2 results were from the January and February 2020 votes, which are also the most recent votes.

38.   It is undisputed that the 4 other strata corporations that form part of the Woodcroft Estates have passed the necessary resolutions to obtain funding for their share of the parkade expenses. This happened in February 2020. By the terms of their agreement, the Woodcroft Estates members can vote to make decisions or pass resolutions, which have the same force and effect as if passed at a separate meeting of the strata council of each participating strata corporation. However, there is nothing before me to suggest that the other member of Woodcroft Estates can compel the strata to participate in the parkade repairs if the strata’s members do not approve the special levy by the necessary 3/4 vote majority. In any event, this would be inconsistent with SPA section 108, which sets out the requirements for a strata corporation to raise money from its owners.

39.   The resolution for the January and February SGMs said the proposed work included the following: 1) removing plaza landscaping, overburden, asphalt and existing waterproofing; 2) installing new waterproofing, landscaping, asphalt and overburden on plaza slabs; 3) conducting concrete repairs within the parkades; 4) installing traffic deck coatings on suspended parking surfaces within the parkades; and 5) repair of drains and/or installation of new drains to allow appropriate drainage of waterproofed slabs.

40.   The resolution also says the work would be undertaken in 3 phases over 3 years. Phase 1 would involve work on the strata’s parkade. Phases 2 and 3 would involve the western and eastern parkades, respectively.

41.   The resolution goes on to state that the total estimated cost for all work at all 3 parkades is $21,000,000. The resolution would have authorized the strata to pay for its part of the parkade project through a special levy totaling $7,882,310, under the cost-sharing formula used by the Woodcroft Estates.

42.   At the February 26, 2020 AGM, the owners voted in favour of amending the resolution by reducing the sum raised from $7,882,310 to $6,500,000. This occurred after a principal from “Urban One”, a local construction company, attended to discuss an estimate. The resolution as amended failed to pass with the owners voting as follows: 199 in favour, 101 opposed, 2 abstentions, 1 spoiled ballot, and 1 blank ballot.

POSITIONS OF THE PARTIES

43.   It is undisputed that the parkade is the strata’s common property. Mr. Weiler says the strata breached its statutory obligations by failing to repair and maintain the parkade. He says the repairs must be started immediately as project costs increase substantially each year the project is delayed. He also says the parkade poses an ongoing safety concern.

44.   The strata does not dispute the need for the parkade repairs at some point. It submits that replacing all 6 strata elevators (3 in each building) is more urgent because of fire regulations and safety and health concerns. The strata says another more urgent matter is reported water ingress into some strata lots. The strata say that, unlike the other members of the Woodcroft Estates, it has failed to be diligent in carrying out its repair and maintenance responsibilities. The strata says this is because the recommendations of various reports have been deferred, postponed, or put on hold.

45.   Somewhat inconsistently, the strata also says it is unfortunate that a resolution to fund the strata’s share of the parkade project did not pass. It notes strata council made “exhaustive efforts” to convince owners to vote in favour of a funding resolution.

Issue #1. Did the strata breach its obligations to repair and maintain the parkade?

The Applicable Law

46.   Under SPA section 72, the strata must repair and maintain common property and common assets. Bylaw 9 also requires the strata to repair and maintain common property and assets, as well as the structures and exterior of buildings. SPA section 3 also says the strata corporation is generally responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners.

47.   As stated in Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784 at paragraphs 23 to 32, the strata has a fundamental duty to repair and maintain its common property. In performing that duty, the strata must act reasonably in the circumstances. The starting point for the analysis should be deference to the decision made by the strata council as approved by the owners. In carrying out its duty, the strata must act in the best interests of all the owners and endeavour to achieve the greatest good for the greatest number. That involves implementing necessary repairs within a budget that the owners as a whole can afford and balancing competing needs and priorities. Courts (and by extension, the CRT also) should be cautious before inserting themselves into the process.

48.   Case law provides examples of situations where the owners in a strata corporation are unable to agree on funding repairs. These cases consider SPA section 165, and I find the test under that section to be the same for orders issued by the CRT under CRTA sections 123(1)(a) and (c).

49.   In Browne et al. v. The Owners, Strata Plan 582, 2007 BCSC 206, the owners in the strata corporation disagreed on how to conduct necessary building envelope repairs. The strata could not obtain the necessary 3/4 majority vote in favour of a special levy to fund the repairs. Under SPA section 165, the court ordered the strata corporation to perform its statutory obligation to repair the building envelope. The court also authorized the strata to issue a special assessment to the owners to raise up to $1,803,000 for the repairs.

50.   The court wrote at paragraphs 26 to 29 that the strata’s obligation to maintain the common property continues regardless of whether the owners dissent on how to proceed with repairs. The court said this was the case, even if the strata’s failure results from the refusal of owners to authorize the work and the special assessment necessary to carry it out. This is nonetheless a failure of the strata corporation to fulfill its clear statutory obligation, though the strata’s actions may be free of neglect. See also Tadeson v. Strata Plan NW 2644 (1999), 1999 CanLII 6999 (BCSC), as cited in Browne et al.

51.   Case law also discusses the application of SPA section 165 in the context of deadlocks created by the competing interests of different factions of owners. In Enefer v. Strata Plan LMS 1564, 2005 BCSC 1866, the court found that there were different factions that were in a deadlock position that could not raise the required 3/4 majority to approve funding. The owners had already approved partial funding for repairs through 2 previous resolutions but not the third. The court found the strata council was unable to perform its duty of repair due to the deadlock and authorized the strata corporation to issue a special levy.

52.   In Santos v. The Owners, Strata Plan LMS 1509, 2016 BCSC 1775, several owners and occupants of a residential complex asked the court to appoint an administrator to oversee necessary repairs regarding water ingress. The petitioners also asked for an order under SPA section 165 for the strata corporation to fulfil its statutory duties to repair and maintain the building envelope and other common property, and an order for a special levy to be used to fund the repairs.

53.   The court found that the strata corporation’s failure to repair the building envelope spanned the course of many years. It concluded that further delay and further votes would not remedy the deadlock between the owners and could serve to exacerbate an already untenable situation. The court appointed an administrator to “remedy executive dysfunction” and ordered a special levy to a maximum amount of $16,827,000 for the cost of necessary repairs.

54.   Although not raised by the parties, I also considered SPA subsections 173(2) to (4), which came into force on December 12, 2013. These subsections allow for strata corporations to apply to the court for an order approving a resolution to approve a special levy to raise money for maintenance and repairs. They require the strata corporation to show that at least 51% of the owners voted in favour of the resolution; the levy is for maintenance or repair of common property or common assets; and the maintenance or repair is necessary to ensure safety, or prevent significant loss or damage, whether physical or otherwise.

55.   In Santos at paragraph 59, the court rejected the argument that this new provision effectively circumscribed the authority and discretion of the court to issue a special levy in the proper circumstances. The court wrote, “Put differently, the broad remedial powers of the Court under the Act have been expanded rather than constrained by the enactment of s. 173(2).”

56.   I have also considered the non-binding CRT decision of Dickson et al, cited above. In Dickson et al, a CRT member (now Vice Chair) ordered the strata corporation to restore a decorative pond to its original state. The pond was common property. Despite holding 3 separate votes, the owners had been unable to pass a 3/4 vote resolution to repair or replace the pond. Citing Kayne v. The Owners, Strata Plan LMS 2374, 2013 BCSC 51 and Browne et al., the Vice Chair noted that dissension among owners about the appropriate approach to repairs does not absolve the strata corporation from its duty to repair and maintain common property.

The Need for Repairs

57.   I conclude from the engineering reports that the parkade repairs are both necessary and overdue. The RJC Report says the plaza membrane needed replacement since 1996, more than 20 years ago. The 2015 RJC Report documents subsequent damage to the parkade’s concrete and steel elements from deferring this work.

58.   RJC observed “advanced corrosion” in the concrete of the parkades, which was expected to continue. RJC recommended removal and replacement of affected concrete immediately or in the short term. Based on the evidence before me, this has yet to occur in the strata’s parkade.

59.   RJC also noted that the Woodcroft Estates maintenance staff reported falling concrete in the parkades that was damaging cars. RJC wrote that scaling loose concrete could address this issue. Presumably, this would have been included as part of the “concrete repairs” referred to in the February 2020 resolution.

60.   Consistent with the above, the MH Report states that the parkade plaza is in only fair to poor condition. The report recommend work largely to be done from years 2019 to 2024 to prevent further damage. Commencing the work now would therefore be consistent with the MH Report’s recommendations.

61.   The water ingress also affects the strata parkade’s electrical systems. The SE report says water was seen actively pouring into the main complex electrical room in the strata’s parkade. Several electrical receptacles, junction boxes, exit lighting and electrical conduits also showed water damage. The situation is serious enough that the strata’s landscaped ponds have been emptied to minimize water seepage.

62.   As noted in Weir at paragraph 28, in resolving problems of this nature, there can be “good, better or best” solutions available. Choosing a “good” solution rather than the “best” solution does not render that approach unreasonable. The strata has not presented “good, better, or best” solutions. The evidence shows that the plaza membrane must be replaced to stop the water ingress problem in the parkade. Other elements require work as well. The real question is whether the repairs should be done now or later.

63.   I have found that the strata’s parkade is not in imminent danger of collapse. However, I do not find the case law shows that a crisis or urgent situation is required before the CRT may order the strata to act. For example, the court in Browne based its conclusions on the demonstrated need for repairs.

64.   I note that Polycrete’s winning bid is not before me. However, I find from the MH and SE Reports that by coordinating repairs with the other members of the Woodcroft Estates, Polycrete could potentially minimize both traffic and parking disruption for the strata’s owners. Conducting repairs now would allow for that possibility.

65.   The MH Report suggested that repairs occur in a phased manner, starting from one end of the buildings to another, to avoid going over completed landscape areas. The MH report also noted the need for temporary roadways in the plaza areas to facilitate waterproofing and landscaping. It stated the back roadway behind 5 of the 6 buildings is also outside the plaza area and would be a “an integral roadway for traffic movement”. The resolution at issue contemplates doing the repair work in a phased manner, with the strata’s parkade starting at phase 1.

66.   Similarly, the SE Report recommended dividing the work into 11 phases, in order to temporarily relocate vehicles to preserve onsite parking while allowing work to be completed.

67.   The strata provided no evidence that conducting repairs on its own would be cheaper or more convenient. It has not suggested that it would prefer to conduct repairs on its own nor has it taken any steps to explore this possibility. There is nothing before me that suggests that Polycrete’s bid is overpriced or that it would be unable to do the job. RJC described a competitive bidding process in its October 8, 2019 letter, receiving bids from 4 different contractors. The strata submits it tried to convince owners to vote in favour of the repair project.

The Argument for Delaying Repairs

68.   What would be the benefit of delaying repairs? The strata has not provided an alterative plan for parkade repairs to serve as a comparison. Instead, its argument is largely that it must be allowed to prioritize replacing its elevators and address water ingress into the strata lots.

69.   I would ordinarily place significant weight on the strata's argument. As noted in Weir, cited above, as a starting point, the decisions of strata council are entitled to deference. However, the strata provided limited evidence to support its submission. It relied predominantly on the July 10, 2018 depreciation report for its 2 buildings.

70.   The strata says the elevators must be urgently repaired due to safety issues, fire regulations, and health concerns. It also says one of the elevators is normally out of order until 9:00 p.m. to 7:00 a.m. and another is very noisy. The depreciation report does not document these concerns. It notes that the strata’s elevators were partially modernized in 2009 and were “generally smooth and quiet from our on-site experience”. It refers to an elevator assessment report in 2017 that recommends further repairs. The the strata did not provide the 2017 report or any other report about the elevators.

71.   As to the water ingress issue, the strata says the building walls and brick cladding are leaking, causing mould to grow in strata lots. The depreciation report does not mention this. It says it provides no assessment of the building envelope, exploratory openings, or moisture tests. It notes that the “exterior walls were generally intact and consistent without any apparent damage or abnormal wear” and “sealants were noted to be intact”. It says the strata obtained an exterior envelope assessment report. The strata did not provide this report or any other report about the exterior envelope as evidence.

72.   The strata also says the elevators and water ingress issues are referred to in the March and April 2020 meeting minutes, but I was not provided copies of these.

 

73.   The strata listed other issues that it needs to address, including loose and falling concrete from soffits, balconies, power-washing and painting the buildings and parkade, pool and jacuzzi repair, maintenance, and upgrade, and recreational facility upgrades, repairs, and redecorating. The strata also mentioned falling concrete in the parkade as a concern, though I find the contemplated repairs would address this.

74.   Based on what is before me, the strata has yet to take any concrete steps to address the elevators, the water ingress issue, or the large array of other issues it has identified. For example, the strata submitted it was still “seeking professional opinions about the elevators” and “hopefully moving towards the goal” of presenting the owners with resolutions to vote on for the first time.

75.   In these circumstances, I find that identifying theses issues is not equal to prioritizing them as repairs. The strata’s own submissions support the conclusion that it has failed over the years to make necessary expenditures on maintaining a wide array of common property. It acknowledges not following the recommendations of various reports it previously obtained. The strata says, “Consequently…the two [strata] buildings are in a very rundown state and in desperate need of repairs, upgrade, and maintenance”. In these circumstances, I do not find that failing to repair other common property should justify further delaying repairs on the parkade.

76.   I also find that, read as whole, the strata’s submissions show that its first preference was to repair the parkade and it encouraged the owners to vote accordingly, up to the February 2020 AGM. I find this inconsistent with its argument that other repairs require priority.

77.   Given the above, I find this to be a situation where the strata’s failure to maintain the parkade is due to disagreement between the owners rather than an issue of prioritization. There have been 4 failed attempts to pass the resolutions necessary to fund repairs. I find that the strata has failed to fulfill its statutory obligations because the owners have refused to authorize the work and the special levy necessary to carry it out. The situation therefore resembles, in key respects, the scenarios discussed in the decisions of Browne et al., Enefer, and Santos. As stated above, the court found it appropriate to intervene in each of those cases.

78.   Although not raised by the strata, I also considered whether SPA section 173(2) reduced the situations in which the CRT should issue a special levy. However, as noted in Santos, SPA section 173(2) expanded rather constrained the court’s remedial powers. I find that reasoning applies in this dispute.

79.   For these reasons, and in these unusual circumstances, I place little weight on the strata’s argument that it must be allowed to prioritize repairs.

Financial Hardship

80.   The strata also says the owners are facing financial hardship which would be worsened by the repairs. As noted in Oldaker v. The Owners, Strata Plan VR 1008, 2007 BCSC 669 at paragraph 72, one of the considerations in any case where expensive repairs are required will be the ability of the owners to finance those repairs.

81.   To support its position, the strata points to building insurance rate increases, an increase in strata fees of 25% retroactive to January 2, 2020, and the impacts of the COVID-19 pandemic. The resolution in evidence indicates that each strata lot can expect a special levy of $10,000 to $20,000 for the parkade repairs.

82.   These circumstances are unfortunate. However, I find these financial issues are likely to continue for many months and possibly years. The strata provided no evidence or submissions to the contrary.

83.   Given this, I find that delaying repairs until these concerns cease would likely exacerbate the situation. In 2015, RJC recommended repairs totaling $13,700,000 to take place over the next 6 years to the concrete and steel elements and waterproofing systems, for all 3 parkades. This figure excludes GST but includes contingencies, fees, permits, and testing. For the contemplated repairs, RJC has budgeted $20,500,000. There is nothing before me that indicates repair costs will decrease over time.

84.   There is no specific evidence before me as to whether the owners in the strata would find it difficult or impossible to pay the expected special levy. I place significant weight upon the results of the last 3 votes of the owners (62%, 74% and 66% in favour of passing a resolution to fund repairs). The votes show that the majority of the owners support the repairs and raising the funds necessary through a special levy, despite its costs.

85.   I note that the strata’s proposed resolution at the January and February 2020 meetings proposed different payment plans for the collection of the special assessment, to lessen the impact on owners. I find that the strata has some means to limit the financial impact of the levy on its owners, though I acknowledge that some hardship may result.

Conclusion

86.   For all the above reasons, I conclude that the strata has failed in its duty to repair and maintain its parkade.

Issue #2. What is the appropriate remedy?

87.   The question that remains is the appropriate remedy.

88.   I order the strata to perform its statutory obligation to repair and maintain the strata’s parkade. The method of repair will be based on “Plaza/Parkade Work” as defined and outlined in the February 26, 2020 AGM minutes, taking into account, as the strata sees fit, the recommendations of RJC.

89.   I find that a special levy order is appropriate. As noted above, the owners voted to amend the amount of the special levy at the February 2020 AGM from $7,882,310 to $6,500,000. This was after a discussion from a principal from Urban One.

90.   I find the evidence does not show why the lesser amount would be appropriate. I therefore order that, to finance the parkade work, the strata is authorized to impose a special levy on the owners, based on their respective unit entitlement, not exceeding $7,882,310 in total. The special levy is payable in the manner that the strata council decides.

CRT FEES AND EXPENSES

91.   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. I therefore order the strata to reimburse Mr. Weiler for CRT fees of $225. Mr. Weiler did not claim any dispute-related expenses, so I order none.

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

ORDERS

93.   I order that:

a.    The strata must perform its statutory obligation to repair and maintain the strata’s parkade.

b.    To finance the parkade work, the strata is authorized to impose a special levy on the owners in the strata, based on their respective unit entitlement, not exceeding $7,882,310 in total, and payable in the manner that the strata’s strata council decides.

c.    In carrying out its obligation, the method of repair will be based on “Plaza/Parkade Work” as defined and outlined in the February 26, 2020 AGM minutes, taking into account, as the strata sees fit, the recommendations of RJC.

d.    Within 14 days of this order, the strata must reimburse Mr. Weiler $225.00 for CRT fees.

94.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court 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.