Date Issued: September 4, 2020

File: ST-2020-000478

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan VR 2266 v. 228 Chateau Boulevard Ltd., 2020 BCCRT 998

Between:

The Owners, Strata Plan VR 2266

Applicant

And:

228 CHATEAU BOULEVARD LTD.

Respondent

And:

The Owners, Strata Plan VR 2266

Respondent BY COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.      This dispute is about the costs of repairing water damage in a mixed-use strata complex.

2.      The applicant and respondent by counterclaim, The Owners, Strata Plan VR 2266 (strata) is a strata corporation. The respondent 228 Chateau Blvd. Ltd. (Chateau) is the registered owner of residential strata lot 34 (SL 34) in the mixed-use strata complex.

3.      In May 2016 the hot water tank in SL 34 ruptured, resulting in water damage to SL 34, the hallway, and the commercial strata lot below. The strata says Chateau is responsible for the water damage and therefore breached strata bylaw 3(2).

4.      This is the third dispute between these parties regarding the repair costs. In a 2018 Civil Resolution Tribunal (CRT) decision (2018 decision) a tribunal member found Chateau liable for the repair costs but dismissed the strata’s claim because it failed to comply with the procedures required by section 135 of the Strata Property Act (SPA) (The Owners, Strata Plan VR2266 v. 228 Chateau Boulevard Ltd., 2018 BCCRT 198). In a 2019 CRT decision (2019 decision) a different tribunal member dismissed the strata’s claims because it failed to comply with the procedures required by section 112 of the SPA (The Owners, Strata Plan VR2266 v. 228 CHATEAU BOULEVARD LTD., 2019 BCCRT 1262).

5.      The strata says it cured those procedural defects and perfected its compliance with SPA sections 112 and 135. It claims $24,667.60 in repair costs from Chateau.

6.      Chateau denies responsibility for the water damage, or the repair costs. It says the strata brought its dispute outside the limitation period, failed to comply with SPA sections 112 and 135 and acted in a significantly unfair manner in pursuing the repair costs against it. Chateau asks that the strata’s claims be dismissed.

7.      In its counterclaim Chateau says this matter is res judicata (already decided) or an abuse of process and asks that the CRT refuse to resolve the dispute. Alternatively, Chateau says the strata’s repeated violations of SPA section 135, and its repeated pursuit of the repair costs, is significantly unfair. Chateau seeks an order that the strata not pursue the repair costs. Chateau claims $10,000 in damages for the strata’s significant unfairness, an order that the strata pay Chateau its proportionate share of the strata’s legal fees for this dispute and that the strata pay Chateau’s legal fees.

8.      The strata says it filed its claim within the statutory limitation period and that the matter is not res judicata. It says that its compliance with SPA procedural requirements was already decided in the 2018 and 2019 decisions. The strata denies that its actions are significantly unfair as the 2018 and 2019 decisions left it open for the strata to perfect the procedural defects and recover its repair costs.

9.      The strata says it will refund Chateau’s portion of the strata’s legal fees in this dispute. The strata denies responsibility for Chateau’s legal fees, and asks that Chateau reimburse the strata for its legal fees related to the counterclaim.

10.   The strata corporation is represented by Shawnee Monchalin, a lawyer. Chateau is represented by its director, Ben Killerby, who is also a lawyer.

JURISDICTION AND PROCEDURE

11.   These are the CRT’s formal written reasons. 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.

12.   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.

13.   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.

14.   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 ISSUES

 

15.   The preliminary issues before me in this dispute are:

a.    Is the strata’s dispute filed out of time under the Limitation Act (LA)?

b.    Is the strata’s claim for repair costs res judicata or an abuse of process?

16.   These matters were considered by a CRT vice-chair in her May 1, 2020 preliminary decision. The vice-chair made a preliminary decision that the the strata was not out of time to file its dispute, and its claim was not res judicata or an abuse of process. As noted below, the vice-chair’s decision was not final, and is not binding on me. So, I will consider these preliminary issues before considering the merits of each claim.

Background and Dispute History

17.   On May 15, 2016 the hot water tank in SL 34 ruptured and leaked water into that unit, the hallway, and commercial strata lot 103 (SL 103), which is located directly below SL 34. The strata owns SL 103. The strata spent a total of $30,489.22 on repairing the water damage to SL 34, SL 103, and the hallway. The strata charged the various repair costs, totalling $30,489.22, to Chateau’s strata lot between June 14, 2016 and July 21, 2016. None of this is disputed.

18.   The strata’s bylaws consist of the SPA’s Schedule of Standard Bylaws as well as amendments made by the strata and filed in the Land Title office from time to time. The following bylaws are relevant to this dispute:

a.    Bylaw 3(1)(a) states that an owner must not use their strata lot in a way that causes a nuisance or hazard to another person.

b.    Bylaw 3(2) states that an owner must not cause damage, other than reasonable wear and tear, to common property, common assets, or the parts of a strata lot that the strata is responsible for repairing and maintain.

19.   Based on emails between Chateau and the strata’s property manager, I find Chateau denied causing any water damage, denied breaching any bylaws and asked the strata to remove the chargebacks from its ledger 4 times between August and November 2016. I further find the strata invited Chateau to meet in October 2016 and again in November 2016. It is undisputed that the strata declined to remove the charges from Chateau’s ledger.

20.   On January 30, 2017 the strata sent Chateau a demand letter for the outstanding repair costs and advised that it would place a lien on SL 34, if the “fees” were not paid by February 20, 2017.

21.   Through counsel, Chateau requested a hearing to discuss the charges. The strata council held a hearing on May 11, 2017. In a June 5, 2017 letter the strata informed Chateau of its decision that Chateau had breached bylaw 3(2), caused damage to common property and another strata lot, and was therefore responsible for the remediation costs. On September 6, 2017 Chateau’s insurer paid the strata $6,719.66 under Chateau’s insurance policy for the May 17, 2016 loss. None of this is disputed.

22.   The strata filed a CRT dispute against Chateau for reimbursement of the remaining $24,667.60 in repair costs. The CRT issued the Dispute Notice on July 17, 2017. This dispute resulted in the 2018 decision in which the tribunal member found Chateau breached bylaws 3(1) and 3(2), was responsible for the ruptured water tank and resulting water damage and was thus liable for the strata’s repair costs.

23.   However, the tribunal member dismissed the dispute because the strata failed to comply with SPA section 135. Specifically, the strata charged the repair costs to Chateau’s strata ledger before holding a hearing and giving Chateau an opportunity to respond to the bylaw breach allegation.

24.   Based on the ledger for SL 34, I find the strata removed the repair costs from Chateau’s ledger on June 27, 2018 and charged them back to the ledger on June 28, 2018. In a March 29, 2019 letter to Chateau, the strata demanded Chateau pay the remaining $24,667.60 repair costs by April 5, 2019.

25.   Chateau did not pay and the strata filed a second CRT dispute on April 23, 2019. In the 2019 decision a different CRT member found that the strata failed to comply with SPA section 112 by failing to provide the 14 days required for Chateau to comply with the strata’s demand to pay. The CRT dismissed the strata’s claim and ordered it to remove the repair costs charged against Chateau’s strata lot for the May 15, 2016 water leak.

26.   Based on the owner ledger submitted in evidence by Chateau, I find the strata credited $24,667.60 to Chateau’s ledger on December 3, 2019. It is undisputed that the strata has not charged the $24,667.60 back to Chateau’s strata ledger since December 3, 2019.

27.   In a December 18, 2019 letter to Chateau the strata demanded payment of the outstanding $24, 667.60 in repair costs by January 13, 2020.

28.   The strata filed this third CRT dispute against Chateau on January 17, 2020.

29.   In her May 1, 2020 preliminary decision, the vice-chair specifically wrote that her findings were not binding on the tribunal member who later decides the merits of the dispute. Although not binding, prior CRT decisions can be persuasive, and promote consistency in decision making across the tribunal. In this dispute, however, I find my analysis leads me to a different conclusion than the vice-chair in her preliminary decision about the application of the limitation period. My reasons are set out below.

30.   In reaching my conclusion I have considered the preliminary submissions from both parties. Despite the vice-chair’s declaration that her findings were not binding on the final decision maker, the parties did not provide further submissions on these issues.

Limitation Period

31.   The CRTA section 13 states the LA applies to CRT claims.

32.   The LA section 6 states a claim may not be commenced more than 2 years after the date on which the claim is first discovered. The LA section 8 states a claim is discovered on the first day the person knew, or reasonably ought to have known, all of the following:

a.    that injury, loss or damage had occurred;

b.    that the injury, loss or damage was caused by or contributed to by an act or omission;

c.    that the act or omission was that of the person against whom the claim is or may be made;

d.    that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

33.   Chateau says the discovery date is May 15, 2016, the date of the water leak itself. The strata disagrees. It says that it did not know the full extent of the water damage or that Chateau would refuse to reimburse the strata for the repair costs so it could not have discovered its claim on May 15, 2016.

34.   It is undisputed that the strata became aware of the water leak and resulting water damage the day it occurred, on May 15, 2016. It is also undisputed that the water leaked from Chateau’s ruptured hot water tank. I find the strata knew, or ought to have known, that Chateau caused or contributed to the water damage as soon as the strata discovered the water leak on May 15, 2016.

35.   I find the nature of the damage was discovered on May 15, 2016 when water damage to various areas was discovered. I find it is not necessary to be informed of the full extent or total repair costs to discover the claim. If that were the case, many limitation periods would not start to run for years after the actual damage, loss or injury, which would be contrary to the intent of the LA.

36.   I disagree with the strata’s argument that the claim was discovered on May 11, 2017, when Chateau told the strata it would have to file a lawsuit to recover the repair costs. Our courts have found that the limitation period begins to run, even if the parties are engaged in negotiations to settle the claim (see Arbutus Environmental Services Ltd. v. South Island Aggregates Ltd., 2017 BCSC 1). In Larmer v. The Owners, Strata Plan NW2969, 2019 BCCRT 758 another tribunal member found the same principle applies to negotiations between a strata and an owner regarding payment of repair costs. In that dispute the tribunal member found that there is no requirement in section 8 of the LA that the person who caused a loss must deny liability before the limitation period begins to run. I accept and adopt the tribunal member’s reasoning in Larmer. I find the strata’s claim was not discovered on May 11, 2017.

37.   On balance, I agree with the vice-chair’s preliminary finding that the strata’s claim was discovered on May 15, 2016, the date of the water leak and resulting damage. So, I find the 2-year limitation period began to run on May 15, 2016.

38.   The strata says the limitation period started anew on September 6, 2017, when Chateau’s insurer paid $6,719.66 to the strata and thus acknowledged the debt owed to the strata. The strata relies on Fournier v. Evanow, 1995 CanLII 213 (BC CA), which states that partial payment of a claim resets the applicable limitation period, regardless of the intention of the party making the payment. I find Fournier is distinguishable from this dispute. The court in Fournier considered the application of the former LA which, I find, has different wording than our current LA.

39.   Section 5 of the former LA states that partial payment “in respect of a cause of action, right or title of another” confirms that “cause of action” and starts the applicable limitation period running anew. It does not limit the type of “cause of action” that may be acknowledged by partial payment. By contrast, section 24(7) of the current LA states that partial payment “of a claim for payment of a liquidated sum” is an acknowledgement of liability, which starts the limitation period anew.

40.   The partial payment must be made by the person whom the claim is against, or that person’s agent. I find that, in making the September 6, 2017 payment to the strata, Chateau’s insurer was acting as Chateau’s agent. However, I do not find the September 6, 2017 payment constitutes an admission of liability under LA section 24(7) as I find the strata’s claim against Chateau is not a claim for payment of a liquidated sum.

41.   A liquidated sum is one which is already determined, or capable of being determined as a “matter of arithmetic” (see Sawry v. Rohsanagh, 2006 BCSC 470). If the amount requires investigation beyond mere calculation, then the sum is not a debt or a liquidated demand, but is damages (see Gowling, Lafleur Henderson LLP v. Cardero Resource Corp., 2014 BCSC 892). Simply because invoices were rendered does not make the claim a liquidated one (see Gowling).

42.   I find the strata’s claim is not a debt claim. Rather, the strata’s claim is for damages arising from alleged bylaw contraventions founded in negligence or nuisance.

43.   Should the strata succeed in its claim for repair costs, it must show that the claimed repair costs resulted from the water damage. The amounts on the invoices themselves are not determinative of the amount of the strata’s damages. Further, SPA section 133(2) says the strata can require an owner to pay the reasonable costs of remedying a bylaw contravention. So, the strata would also have to show that the claimed costs were reasonable. In other words, further investigation beyond mere calculation is necessary to determine the strata’s damages, if it succeeds in its claim.

44.   On balance, I find the strata’s claim is not a liquidated one and so I find the partial payment made by Chateau’s insurer on September 6, 2017 does not start the 2-year limitation period anew.

45.   I will now turn to consider the suspension of the running of the limitation period under the CRTA.

46.   In the May 1, 2020 preliminary decision, the vice-chair determined that the running of the 2-year limitation period was suspended when the CRT issued the first Dispute Notice on July 17, 2017, under section 14(1) of the version of the CRTA that was in effective at that time (former CRTA). She found the limitation period started running again on May 22, 2018, when the 2018 decision was issued, pursuant to section 14(1) of the former CRTA. I agree with, and adopt, the vice-chair’s analysis and findings on these points.

47.   The vice-chair went on to determine that, as of May 22, 2018, the limitation period began to run again, after 310 days had elapsed, leaving 420 days remaining in the 2-year limitation period. I find it likely that the vice-chair miscalculated and so do not agree with her findings on this point. I find that, as of July 17, 2017, 427 days had elapsed since the claim’s May 15, 2016 discovery date, leaving 303 days remaining in the 2-year limitation period.

48.   I find that 336 days elapsed between when the 2018 decision was issued on May 22, 2018 and when the strata filed its second Dispute Notice on April 23, 2019. So, in total, I find 763 days of the 2-year (730 day) limitation period elapsed between May 15, 2016 and April 23, 2019. So, I find the strata’s claim for repair costs was out of time when the strata filed its second dispute on April 23, 2019. It follows that the strata’s claim was also out of time when it filed this third dispute on January 17, 2020.

49.   I dismiss the strata’s claim for $24,667.60 in repair costs as it was filed out of time under the LA.

50.   I find I need not consider Chateau’s argument that the strata’s claim is res judicata or an abuse of process. Neither do I need to address the merits of the strata’s claim for the repair costs. I will address Chateau’s counterclaim that the strata’s actions are significantly unfair below.

ISSUES

51.   The remaining issues before me in this dispute are:

a.    Are the strata’s actions significantly unfair and, if so, what is the appropriate remedy?

b.    Did Chateau contribute to the strata’s legal expenses in this dispute and, if so, what is the appropriate remedy?

EVIDENCE and ANALYSIS

Issue 1 - Significant Unfairness

52.   The strata says the CRT already determined the strata’s actions were not significantly unfair in the May 1, 2020 preliminary decision and so Chateau’s argument must fail. As noted above, the vice-chair specifically wrote that her preliminary decision was not binding. So, I find I have the jurisdiction to consider whether the strata’s actions are significantly unfair.

53.   It is undisputed that this is the strata’s third attempt to recover the repair costs from Chateau through the CRT. Chateau says the strata knowingly failed to comply with SPA section 135 during all three of its recovery attempts. Chateau says the strata’s violations of the SPA’s procedural requirements are significantly unfair. Chateau also says the strata’s decision to pursue Chateau for the repair costs after the CRT dismissed its claim, twice, is significantly unfair.

54.   The strata says the CRT already decided on the strata’s compliance, and non-compliance with SPA section 135 in the 2018 and 2019 decisions. The strata says those findings are not open to re-litigation in this dispute and therefore Chateau’s argument must fail. Although the strata did not specifically plead it, I find it is relying on the legal doctrine of res judicata.

55.   The doctrine of res judicata includes issue estoppel and cause of action estoppel. Issue estoppel prevents a party from raising an issue that was already decided in a previous proceeding. Cause of action estoppel prevents a party from pursuing a matter that was, or should have been, the subject of a previous proceeding (see Erschbamer v. Wallster, 2013 BCCA 76).

56.   Issue estoppel occurs where the same question was previously decided in a final judicial, or tribunal, decision, and the parties in both decisions were the same (see Tuokko v. Skulstad, 2016 BCSC 2200).

57.   Cause of action estoppel occurs where there is a previous and final judicial, or tribunal, decision between the same parties on the same cause of action. The cause of action in both proceedings must not be separate and distinct and the basis for the cause of action must have been argued, or could have been argued, in the first proceeding (see Erschbammer). No separate cause of action exists where a party changes the name of the wrong and the remedy sought and claims separate legal bases, but the factual situation that would entitle someone to a remedy is the same in both proceedings. In other words, a party cannot relitigate issues simply by arguing different legal bases around the same factual situation (see Tuokko).

58.   I agree with Chateau that the issue of significant unfairness was not raised by either party, or the tribunal member, in the 2018 decision. However, the courts have confirmed that a party is required to raise all arguments in the first proceeding and cannot raise additional arguments in the second proceeding that could have been raised earlier with due diligence (see Tuokko).

59.   In this dispute I find Chateau’s counterclaim for significant unfairness, as it relates to the 2016 and 2017 events, is not a separate and distinct cause of action from the strata’s initial claim for recovery of the repair costs. The parties are the same and the facts relied upon in both proceedings are the same. The tribunal member in the 2018 decision considered, and decided on, whether the strata’s actions in pursuing the repair costs in 2016 and 2017 complied with section 135 of the SPA. I find that, if Chateau believed the strata’s actions were significantly unfair, Chateau should have raised that issue in the first dispute, either in response to the strata’s claim or by filing a counterclaim. I find Chateau is now estopped from arguing that the strata’s actions in 2016 and 2017 were significantly unfair.

60.   In contrast, I find there has been no previous final decision about the strata’s actions and decisions following the 2018 decision, other than about the strata’s non-compliance with SPA section 112, which Chateau does not raise in its counterclaim. I agree with Chateau that, although it raised the issue of significant unfairness in the 2019 decision, the tribunal member declined to consider the issue. As those facts were not previously litigated and no final decision was made on the strata’s actions following the 2018 decision, I find Chateau is not estopped from arguing those issues in this dispute.

61.   I now turn to consider whether the strata’s actions following the 2018 decision were significantly unfair.

62.   Section 123(2) of the CRTA gives the CRT the power to make an order directed at the strata, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights. This is similar to the powers given to the Supreme Court under SPA section 164.

63.   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 The Owners, Strata Plan LMS 1721 v. Watson, 2018 BCSC 164 at paragraph 28:

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

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

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

64.   To be significantly unfair, the strata’s conduct must be more than “mere prejudice” or “trifling unfairness” (see Dollan at paragraph 27). “Significantly unfair” means conduct that is oppressive or unfairly prejudicial. “Oppressive” is conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith while “prejudicial” means conduct that is just and inequitable (see Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, affirmed in 2003 BCCA 126).

65.   It is important to note that a strata is obligated to work toward the greatest good for the greater number of owners (see Gentis v. Strata Plan VR 368, 2003 BCSC 120). If a strata’s decision is made on good faith and on reasonable grounds, it will generally not be significantly unfair just because the decision adversely affects some owners to the benefit of others (see Peace v. Strata Plan VIS 2165, 2009 BCSC 1791).

66.   It is reasonable for an owner to expect a strata to follow the required procedures set out in SPA section 135 (see Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449). Section 135 sets out the steps a strata must take before requiring an owner to pay the costs of remedying a bylaw contravention. The strata must give the owner written particulars about the alleged bylaw contravention and a reasonable opportunity to be heard in response, including a hearing if requested. (see Terry). The strata must also give notice in writing of a decision on the alleged contravention before requiring payment under SPA section 133.

67.   I disagree with Chateau that the strata’s decision to pursue the repair costs following the dismissal of its CRT dispute in 2018 was significantly unfair. At paragraph 72 of the 2018 decision the tribunal member wrote:

“Nothing in this decision prevents the strata from reversing the charges registered in June and July 2016 relating to the water leak and re-registering them on or after May 26, 2017.”

68.   Given that, I find Chateau’s expectation that the strata would not pursue recovery of the repair costs is not objectively reasonable. I further find that the strata did not act oppressively or unfairly toward Chateau in taking steps which it reasonably believed remained open to it to recover the repair costs on behalf of the other strata owners.

69.   Chateau says the strata acted in a significantly unfair manner by not complying with SPA section 135 in its second recovery attempt. Chateau says that the strata should have taken all the steps set out in SPA section 135, including holding another hearing, prior to re-registering the chargebacks after the 2018 decision. It has provided no authority for its position.

70.   I find Chateau’s argument is inconsistent with SPA section 135(3), which allows a strata to impose fines or penalties for continuing contraventions of a bylaw, once the strata has complied with the section 135 procedures for the initial bylaw contravention. It would be inconsistent with SPA section 135(3) to require a to take the same steps anew to cure a procedural defect for one original bylaw contravention, if those steps are not required for continued contraventions.

71.   In Cheung v. The Owners, Strata Plan VR1902, 2004 BCSC 1750, the court held that the strata could cure a procedural defect by reversing fines, complying with the requirement for a hearing, then re-registering fines against an owner. The court did not require the strata to start the section 135 procedures anew.

72.   On balance, I find the strata was not required to start anew with the SPA section 135 procedures prior to imposing the repair costs on Chateau following the 2018 decision. Nor do I find it objectively reasonable for Chateau to expect the strata to do so. So, applying the Dollan test, I find the strata’s actions in not holding another hearing following the 2018 decision is not significantly unfair.

73.   Chateau says the strata acted in bad faith and unjustly by taking steps to recover its repair costs after the 2019 decision, and in contravention of a Supreme Court order. Chateau refers to the 2019 decision and the resulting order I find Chateau filed in the B.C. Supreme Court.

74.   At paragraph 31 of the 2019 decision the tribunal member wrote “it remains open to the strata to make another demand, properly serve notice and start another claim.” Given these comments, I find Chateau’s expectation that the strata would not pursue recovery of the repair costs a third time is not objectively reasonable.

75.   I find the strata did not defy the 2019 decision and resulting order. The CRT ordered the strata to remove the repair costs from Chateau’s ledger and I find it did so on December 3, 2019.

76.   I disagree with Chateau that the 2019 order intended the strata to proceed with all the SPA section 135 steps anew before pursuing recovery of the repair costs again. Given that the 2019 decision only considered the strata’s non-compliance with SPA section 112, and considered no other issues, I find the resulting order cannot be read to refer to anything other than compliance with SPA section 112. Further, as noted above, I find the strata did not violate SPA section 135 by going back and taking all the required steps anew before pursuing recovery of the repair costs following the 2019 decision.

77.   In summary, I find the strata actions and decisions after the 2018 decision were not significantly unfair. I dismiss Chateau’s counterclaim for $10,000.

78.   Chateau also asks the CRT to order the strata not to pursue Chateau for the repair costs any longer. Given that I have found the strata is statute-barred from filing any further actions for the repair costs, I find such an order unnecessary and decline to make it.

Issue 2 – The Strata’s Legal Expenses

79.   Under SPA section 171, a strata may sue as a representative of all strata lot owners and all owners must contribute to the expense of the lawsuit, excluding the owner(s) being sued. SPA section 189.4 says this also applies to CRT claims.

80.   Chateau says the strata breached SPA section 189.4 because it did not raise a special levy that Chateau does not have to contribute to, to fund this CRT dispute.

81.   In its Dispute Response the strata says “per standard practice” the strata will refund Chateau’s proportionate share of the strata’s legal expenses for this dispute, once the dispute is resolved. I infer the strata acknowledges it has required Chateau to contribute to the legal expenses of this dispute, contrary to sections 171 and 189.4 of the SPA. I find Chateau is entitled to reimbursement of its proportionate share of the strata’s legal expenses for this dispute. I order the strata to reimburse Chateau its proportionate share of the strata’s legal expenses in this dispute.

82.   Neither party provided any submissions or evidence about how much the strata has spent on legal expenses, or what Chateau’s proportion of those expenses is. So, I cannot calculate how much money the strata must reimburse Chateau. For the same reason, I cannot determine how much pre-judgment interest, if any, Chateau’s share of the strata’s legal expenses might attract. For these reasons I find Chateau is not entitled to any pre-judgment interest on its share of the strata’s legal expenses.

83.   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 find each party was equally unsuccessful in this dispute, despite my order about Chateau’s proportionate share of the strata’s legal expenses. On balance, I find neither party is entitled to any reimbursement.

84.   Even if I had found one of the parties was entitled to reimbursement of dispute-related expenses, I would not have ordered reimbursement of any party’s legal fees. CRT rule 9.5(3) says the CRT will only order payment of legal fees in strata disputes in extraordinary circumstances. I found the strata’s actions were not significantly unfair and I do not find the strata’s conduct is deserving of rebuke. I further find Chateau was within its rights to file a counterclaim in this dispute and find its conduct was not worthy of rebuke either.

ORDERS

85.   I order the strata to calculate and reimburse Chateau its proportionate share of the strata’s legal expenses in this dispute, within 14 days of the date of this order.

86.   Chateau is entitled to post judgment interest under the Court Order Interest Act.

87.   The remainder of Chateau’s counterclaims are dismissed.

88.   The strata’s claims are dismissed.

 

89.   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.