Date Issued: September 23, 2020

File: ST-2020-003070

Type: Strata

Civil Resolution Tribunal

Indexed as: Byl v. The Owners, Strata Plan KAS 3635, 2020 BCCRT 1072

Between:

John Byl

Applicant

And:

The Owners, Strata Plan KAS 3635

Respondent

And:

John Byl

Respondent by counterclaim

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

 

INTRODUCTION

1.      This is a dispute about the replacement of a fallen Austrian Pine on a strata lot.

2.      John Byl owns strata lot 55 (SL55) in the strata corporation, The Owners, Strata Plan KAS 3635 (strata). On February 1, 2020, a windstorm blew over a 6 year old Austrian Pine tree on SL55. Mr. Byl says that the strata is responsible to replace the fallen tree at the strata’s expense. He seeks an order that the strata replace the tree with another Austrian Pine, a Dwarf Blue Scotch Pine, or Tri-Colour Dappled Willow.

3.      Mr. Byl also seeks declaratory orders that the words “maintained and repaired” in the strata’s bylaw 7(1) be interpreted to include the word “replace” and to include the phrase, “the replacement of a dead tree or dead shrub on a strata lot of KAS 3635 at the expense of the strata corporation”.

4.      The strata says that Mr. Byl is not entitled to have the Austrian Pine replaced at the strata’s expense. In its counterclaim, the strata seeks an order that “the Austrian Pine cannot be replanted”. The strata asks that Mr. Byl’s claims be dismissed.

5.      Mr. Byl is self-represented. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

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

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

8.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

9.      Under section 123 of the CRTA and the CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

10.   In its counterclaim, the strata says Mr. Byl failed to disclose his strata council position to the CRT in his dispute application. It says disclosure was required under CRT rule 8.1. However, CRT rule 8.1 is about evidence. It says that a party must include all evidence in their possession that may prove or disprove an issue in a dispute, even if the evidence does not support the party’s position. The parties also agree Mr. Byl was a council member and part of the council’s past decisions about landscaping strata lots. The issue is not in dispute. I find Mr. Byl was not required to disclose his position in the dispute application. I also find that neither the Strata Property Act (SPA) nor the CRTA prevent Mr. Byl from bringing this claim against the strata because of his position on the council.

ISSUES

11.   The issues in this dispute are:

a.    Is the strata required under its bylaws to replace the Austrian Pine on SL55?

b.    Should I order that “the Austrian Pine not be replanted”?

EVIDENCE AND ANALYSIS

12.   In this civil claim, Mr. Byl, as the applicant, bears the burden of proving his claims on a balance of probabilities. The strata bears the same burden on the counterclaim.

13.   I have reviewed and considered all the parties’ submissions in this dispute. However, I only refer to the parties’ evidence and arguments as I find necessary to provide context for my decision.

Background

14.   The strata plan filed in the Land Title Office (LTO) shows that the strata is a phased bare land development created in 2009 under the SPA. It is comprised of 163 individual strata lots. Mr. Byl owns a detached single-family home on SL55.

15.   The strata lots, including SL55, are subject to a registered Statutory Building Scheme (Building Scheme). The Building Scheme has restrictions on site requirements, building and landscape design, and construction on strata lots.

16.   The strata’s owner developer planted trees on strata lots and common property according to the Building Scheme’s Landscape Plan. The owner developer had planted an Austrian Pine in the backyard of SL55 as part of this Landscape Plan. The owner developer’s warranty to replace the Austrian Pine has expired. These facts are not disputed.

17.   I find the relevant strata bylaws are the bylaw amendments registered in the LTO on August 1, 2013 as follows:

a.    4(1) An owner must repair and maintain the owner’s strata lot except for repair and maintenance that is the responsibility of the strata corporation under these bylaws.

b.    5(24) Each strata lot owner shall observe the terms and conditions of the Building Scheme.

c.    7(1) All landscaping on strata lots as approved and installed pursuant to the Building Scheme (the “Landscape Plan”) including but not limited to the plantings on the strata lots bordering the walkways and emergency access roads and the perimeter fencing and plantings on those strata lots which are on the perimeter of the strata development shall be maintained and repaired by a common landscaper (the “Landscaper”) contracted for by the Strata Corporation.

d.    7(2) Each owner whose landscaping has been completed pursuant to the Landscape Plan shall pay his or her pro rata share of such landscaping repair and maintenance costs and snow removal costs (the “Landscaping Fee”) monthly on or before the first day of each month concurrent with the payment of his or her strata fees. Landscape Fees shall be deemed strata fees for the purpose of the collection and enforcement rules set out in these bylaws for overdue payments and/or dishonored cheques.

e.    7(4) No owner may alter the landscaping on their strata lot or the common property nor place garden ornaments or sports equipment or like paraphernalia on their strata lot or on the common property.

f.     13 The strata corporation must repair and maintain all of the following:         a) common assets of the strata corporation; and b) common property.

18.   I find the strata entered into a 2020-2022 landscape contract under bylaw 7(1) (landscape contract). The landscape contract in evidence shows it is fixed price contract. It does not include tree replacements on strata lots.

19.   I find the strata’s Summer 2018, Cadence Landscaping and Gardening document sent to owners explains the strata’s position on strata lot landscaping. The 2018 document states that owners monitor and maintain their strata lot landscaping in addition to the landscape contract and at their own expense. It also states that individual strata lot owners are responsible to replace dead lawn, trees, shrubs and plants. I find on the 2018 document and strata’s witness statements in evidence that the strata’s general practice is not to pay to replace dead trees on strata lots.

20.   On about February 10, 2020, Mr. Byl notified the strata that a windstorm took down the Austrian Pine in his back yard. He asked the strata to replace the fallen tree as part of the landscape contract under bylaw 7(1).

21.   The strata held a hearing on April 1, 2020 to consider Mr. Byl’s request. Following the hearing, the strata refused to replace the tree. In its April 8, 2020 hearing response, the strata stated that it took no responsibility to replace “dead shrubs etc” under its bylaw. It stated that replacement is a homeowner’s responsibility and it cannot apply its rules inconsistently by agreeing to Mr. Byl’s request (as paraphrased).

Is the strata required under its bylaws to replace the Austrian Pine on SL55?

22.   Mr. Byl argues that an owner is responsible under bylaw 4(1) for strata lot repair and maintenance except for its landscaping. Mr. Byl says that bylaw 7(1) requires the strata to repair and maintain the landscaping of strata lots. He also argues that the words “repair and maintain” must be read to include “replacement”. He says the strata must replace the Austrian Pine to comply with the Building Scheme and to keep the development’s overall character and appearance.

23.   The strata argues that replacing dead trees or plants on strata lots would be a financial burden. It denies that it must replace the Austrian Pine at its expense.

24.   The SPA section 72(1) and bylaw 13 say that a strata corporation must repair and maintain the strata’s common property and common assets. The SPA does not require the strata to repair or maintain a strata lot. However, the strata may, by bylaw, take responsibility for the repair and maintenance of specified portions of a strata lot under SPA section 72(3). I find that the strata’s section SPA 72 duties could include replacement when and where reasonable (Allard v. The Owners, Strata Plan VIS 962, 2017 BCCRT 111 at paragraph 83, which is persuasive, though not binding on me).

25.   Mr. Byl’s position is that the strata took on the landscaping portion of SL55 under SPA section 72(3) when it passed bylaw 7(1). The strata disagrees.

26.   When interpreting the strata’s bylaws, I find that I must apply the plain meaning rule of statutory interpretation. The rule requires me to reasonably interpret the plain and ordinary meaning of the words in an individual bylaw within the context of the entire bylaws. If the bylaw is ambiguous or vague, I may resort to rules and techniques of statutory interpretation. The BC Supreme Court in Semmler v. The Owners, Strata Plan NES3039, 2018 BCSC 2064 at paragraph 18, held that “An interpretation which allows the Bylaws to work together harmoniously and coherently should be preferred”.

27.   Following the guidance in Semmler, I find the strata’s strata lot responsibility under bylaw 7(1) is limited to contracting a common landscaper for multiple strata lots. If the strata intended to assume full strata lot landscape responsibility, it had the option to state this in its bylaws and it did not. Bylaw 13 does not state that the strata must repair and maintain the landscape portion of a strata lot. It only states that the strata must repair and maintain common property and common assets. I also note that the bylaws do not prevent an owner from landscaping their strata lot so long as they comply with the bylaws and Building Scheme. I find strata lot repair and maintenance is still an owner’s general responsibility under bylaw 4(1).

28.   As for the cost, I find that bylaw 7(2) does not require the strata ownership to pay for strata lot landscaping fees. Instead, bylaw 7(2) requires a subset of owners to pay on a pro rata (proportionate) basis. I find the bylaws when read plainly and as a whole, do not require the strata to replace the Austrian Pine on SL55 at the strata’s expense.

29.   As an aside, the SPA and Strata Property Regulation restrict the manner in which a strata corporation can apportion common expenses. The SPA defines a common expense as relating to the strata’s common property and common assets or required to meet any other purpose or obligation of the strata corporation. I have not commented on whether bylaw 7(2) complies with the SPA apportionment rules if landscape fees were a common expense. Considering my conclusions below, I find I do not need to address the issue in my decision here.

30.   I turn now to the strata’s responsibility to contract under bylaw 7(1). I find the strata has discretion to determine the landscape contract’s scope and whether to include tree replacement. In applying its discretion, I find the strata must act reasonably and balance the interests of affected owners within a budget that they can afford.

31.   Landscape is not a rigid element of a strata lot. The landscape will inevitably change over time, in part due to plant growth and life cycle. I find the Building Scheme and bylaws do not require the landscape to remain exactly as installed by the owner developer. I am also not satisfied that an Austrian Pine is required on SL55 to maintain the overall character of the strata development. In my view, the evidence does not establish that the Austrian Pine or a similar tree is a necessity on SL55.

32.   I find that tree replacement is likely an infrequent occurrence. There is no evidence to suggest otherwise. I find it was reasonable for the strata to exclude the tree replacement from the bylaw 7(1) landscape contract. I also find the strata’s decision not to replace SL55’s tree is consistent with its practice not to replace dead trees or plants. I see no reason that this tree should be dealt with differently or that the expense should be distributed amongst a subset of owners under bylaw 7(2).

33.   Overall, I find that Mr. Byl has not established on a balance of probabilities that the strata must replace the Austrian Pine under bylaw 7(1) or at all. I dismiss Mr. Byl’s claim that the strata replace the Austrian Pine on SL55 at the strata’s expense.

34.   The CRT has jurisdiction to consider the interpretation of the bylaws under CRTA section 121(1)(a) and I have provided my findings interpreting the bylaws above. Based on my interpretation, I have dismissed Mr. Byl’s claim. However, Mr. Byl also seeks discrete orders declaring the interpretation of the strata’s bylaws as a separate claim.

35.   A CRT Vice Chair in Fisher v. The Owners, Strata Plan VR 1420, 2019 BCCRT 1379, considered the CRTA’s jurisdiction to grant declaratory orders. After canvasing court decisions on declaratory relief, she held that the CRT may be able to make a declaratory order if such an order is incidental to a claim of relief in which the CRT has jurisdiction. Though not binding on me, I agree with the Vice Chair’s conclusion. I find the CRT likely has no authority to provide declaratory relief, save in the narrow circumstances where it is incidental to another claim for relief.

36.   Although the bylaw interpretation issue was relevant in deciding Mr. Byl’s claim over the Austrian Pine, Mr. Byl brought a separate claim for declarations inferring certain words into the bylaws. I find his claim for declaratory orders is the actual claim for relief itself and not incidental to a claim within the CRT’s jurisdiction. Under CRTA section 10(1), I refuse to resolve Mr. Byl’s requests for orders declaring the interpretation of bylaw 7(1) as I find it is outside the CRT’s jurisdiction.

Should I order that “the Austrian Pine not be replanted”?

37.   As mentioned, the strata requests an order that “the Austrian Pine not be replanted”.

38.   There is some evidence that an Austrian Pine should not be planted in the original location. However, the evidence does not establish that an Austrian Pine cannot be planted anywhere on SL55. Given my conclusions above, I find it is not appropriate for the CRT to interfere with any future plantings on SL55 or within the strata development. I dismiss the strata’s claim on this issue.

CRT FEES and EXPENSES

39.   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. The strata requested dismissal of Mr. Byl’s claims in its counterclaim. I find this was unnecessary, had no impact on the outcome of the dispute, and does not justify fee reimbursement. Considering neither party was successful on their respective claims, I find that each party will bear their own CRT fees and expenses.

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

ORDERS

41.   I dismiss Mr. Byl’s claims, the strata’s counterclaims and this dispute.