Date Issued: September 29, 2020

File: ST-2019-010706

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan NW 2395 v. Nikkel, 2020 BCCRT 1095

Between:

The Owners, Strata Plan NW 2395

Applicant

And:

DARLENE NIKKEL and PETER JACKSON

Respondents

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      The respondents, Darlene Nikkel and Peter Jackson (owners), own a strata lot in the applicant strata corporation, The Owners, Strata Plan NW 2395 (strata). The strata says the owners have breached bylaws restricting dog height and prohibiting off-leash dogs on common property. The strata seeks an order that the owners comply with the strata’s pet bylaws and pay $4,200 in fines for bylaw breaches.

2.      The owners disagree that they are liable. They says the strata impermissibly started this proceeding in breach of section 171 of the Strata Property Act (SPA) and section 15(1) of the Civil Resolution Tribunal Act (CRTA). They also say the BC Human Rights Tribunal (BCHRT) should be allowed to decide whether the strata must reasonably accommodate Ms. Nikkel’s disability by allowing the owners to keep their dog, Molly. The owners also raise other defences discussed below.

3.      A strata council member represents the strata. A friend, RH, represents the owners.

4.      This dispute is connected to another Civil Resolution Tribunal (CRT) dispute, The Owners, Strata Plan XX 1234 v. D.N. et al, 2019 BCCRT 284 (D.N. et al). It involves the same parties and similar issues. In the previous decision the CRT member anonymized the parties’ names because this dispute concerns sensitive information about Ms. Nikkel’s medical issues. However, the parties did not request anonymization in this dispute. I have also cited 2 published decisions below that do not anonymize the parties’ names. Those decisions are largely about the same facts and parties. In these circumstances, I have decided to follow the general practice of naming the parties.

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. Some of the evidence in this dispute amounts to a “we said, they said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is in issue.

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 April 9, 2020 Preliminary Decision

9.      The CRT issued an April 9, 2020 preliminary decision on 1) whether the strata had to comply with SPA section 171(2) in order to file this dispute and 2) whether the CRT should refuse to resolve this dispute under CRTA section 11(1)(a)(i). I will consider these issues below after providing the background to this dispute.

ISSUES

10.   The issues in this dispute are:

a.    Did the strata require authorization by a 3/4 vote of its ownership, under SPA section 171(2), in order to file this dispute?

b.    Should the CRT should refuse to resolve this dispute under CRTA section 11(1)(a)(i)?

c.    Should I refuse to resolve this dispute because of an ongoing CRT or court proceeding?

d.    Must the owners pay the height bylaw fines?

e.    Must the owners pay leash bylaw fines?

f.     Should I order the owners to comply with the strata’s pet bylaws?

BACKGROUND, EVIDENCE AND ANALYSIS

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

12.   As set out below, I find the CRT is able to resolve this dispute. I find the owners breached the height and leash bylaws as set out below. However, I am not satisfied that the strata complied with the requirements of SPA section 135 before imposing the bylaw fines at issue. I must therefore dismiss the strata’s claims. My reasons follow.

13.   This dispute has a somewhat complex history. The strata consists of 100 different strata lots located in several low-rise buildings. The owners own and live in one of these strata lots. Their dog Molly lives with them.

14.   The strata’s bylaws are registered in the Land Title Office. Bylaw 7(2) says that dogs at maturity must not exceed 14 inches in height from the shoulder to the ground (height bylaw). Bylaw 7(3) says pet owners must ensure all pets are leashed or otherwise secured when on common property (leash bylaw).

15.   The strata previously filed an application for dispute resolution. It claimed that Molly’s height exceeded the allowable limits of the height bylaw. The strata sought an order for Molly to be removed from the owners’ strata lot. It also sought payment from the owners of $3,150 in bylaw fines for breaches of the height and leash bylaws.

16.   The owners said the strata should cancel the fines and allow Molly to remain. They submitted that Ms. Nikkel required Molly to manage a psychiatric disability.

17.   On March 8, 2019, in D.N. et al, a CRT member accepted that Ms. Nikkel had a disability that required reasonable accommodation under the Human Rights Code (Code). As part of that accommodation, he decided the strata had to give the owners a reasonable opportunity to complete Molly’s certification as a service dog under the Guide Dog and Service Dog Act (GDSDA). This would require Molly to pass a BC Guide Dog and Service Dog Assessment (Assessment) and submit the results (an Assessment Certificate) to the Certification Unit for the GDSDA at the Ministry of Public Safety and Solicitor General (Ministry). The Ministry would then decide on Molly’s certification.

18.   The CRT member’s order included the following terms (the owners are referred to as the “respondents”):

a.    The respondents will have 120 days from the date of this decision to provide the strata with evidence that the dog has passed the Assessment and that the respondents have submitted the Assessment Certificate to the Certification Unit for the GDSDA at the Ministry.

b.    If the dog has not passed the Assessment and the respondents have not submitted the Assessment Certificate to the Certification Unit for the GDSDA at the Ministry after 120 days from the date of this decision, the respondents will immediately remove the dog from the strata lot.

c.    If the Ministry rejects an application that the dog be certified despite the dog passing the Assessment, the respondents will remove the dog from the strata lot within 30 days of receiving notice of the Ministry’s rejection.

d.    The respondents are exempt from the height bylaw insofar as it applies to the dog for 120 days after the date of this decision or, if the dog passes the Assessment, until the Ministry renders its decision about whether the dog will be certified, whichever is later.

19.   The CRT member also found the strata had not complied with the procedural requirements of SPA section 135 before imposing the fines, so ordered them cancelled. The ledger evidence in this dispute shows that the strata complied with this order by reversing the owners’ fines for breaching the height and leash bylaws.

20.   On October 23, 2019, the strata applied in the BC Supreme Court (BCSC) for an order for the owners to be found in contempt of the March 8, 2019 order. It sought an order to remove Molly from the owners’ strata lot and restrain the owners from bringing the dog onto strata property. The court issued its decision on March 2, 2020, indexed as The Owners, Strata Plan NW 2395 v. Nikkel, 2020 BCSC 282.

21.   As noted in that decision, the strata argued the owners were in contempt because they had failed to remove Molly from their strata lot. The owners largely offered “no defence” except their belief that the CRT should have considered Ms. Nikkel’s need for a comfort dog (paragraph 15).

22.   The BCSC found that in order to succeed, the strata had to prove beyond a reasonable doubt that Molly had 1) not passed the Assessment and 2) that the owners failed to submit an Assessment Certificate to the Ministry. The BCSC found there was no evidence confirming that Molly had either passed for failed the Assessment or that the owners had not submitted the Assessment Certificate to the Ministry. The BCSC therefore dismissed the strata’s application.

23.   I note that there is nothing in the evidence or submissions before me that shows whether Molly passed, failed, or took the Assessment, or whether the owners submitted an Assessment Certificate to the Ministry. Given the absence of evidence and submissions on the matter, I find it likely Molly never took the Assessment and has never been a service dog under the GDSDA.

24.   On October 18, 2019, Ms. Nikkel filed a complaint with the BCHRT alleging that the strata had discriminated against her on the basis of disability contrary to section 8 of the Code. In Nikkel by Harrison v. Strata Plan No. NW 2395, 2020 BCHRT 84, the BCHRT dismissed Ms. Nikkel’s complaint under section 27(1)(f) of the Code. The BCHRT found that the substance of Ms. Nikkel’s complaint had already been decided in the CRT March 8, 2019 decision.

25.   This brings us to the dispute before me. The strata now seeks payment of new fines for leash and height bylaw infractions, as set out below.

26.   The owners admit Molly is “a few inches over” the height maximum specified by the height bylaw. However, they argue that the strata has a “good faith” obligation to further accommodate Ms. Nikkel’s disability. They dispute breaching the leash bylaw. The owners also raised multiple arguments that the strata inappropriately filed this application for dispute resolution. I consider these below.

Issue #1. Did the strata require authorization by a 3/4 vote of its ownership, under SPA section 171(2), in order to file this dispute?

27.   This is the first of 2 issues considered in the April 9, 2020 preliminary decision. The owners say the strata failed to seek authorization to file this dispute under SPA section 171(4). In the preliminary decision, a CRT Vice Chair decided this provision did not apply, and decided the CRT should resolve the issues in this dispute. For the following reasons, I agree with the Vice Chair’s decision.

28.   As noted by the Vice Chair, SPA sections 171(4) must be read in connection with SPA sections 171(1) and (2). SPA section 171(1) says a strata corporation “may sue as representative of all owners” about any matter affecting the strata corporation. These matters include the interpretation of bylaws and money owing (including fines).

29.   Section 171(2) says that before a strata corporation can sue under section 171(1), the suit must be authorized by a resolution passed by a 3/4 vote at an annual or special general meeting.

30.   Section 171(4) says that the authorization described in section 171(2) is not required for a proceeding under the Small Claims Act to collect money owing to the strata corporation, if the strata corporation has met the terms of a bylaw dispensing with the need for authorization.

31.   The Vice Chair determined that section 171(4) did not apply because this dispute was not a proceeding under the Small Claims Act. I agree, as the CRT adjudicates claims under the CRTA.

32.   The Vice Chair also found that section 171(2) did not apply to this dispute or any CRT dispute. I agree with this as well. SPA section 1(1) defines “sue” as the act of bringing any kind of “court proceeding”. The CRT is not a court and a CRT dispute is not a court proceeding. Consistent with this, section 1(1) of the CRTA defines a court to mean the Supreme Court or Provincial Court. My conclusion is consistent with the Vice Chair’s determinations and her reasoning in the previous non-binding decision of The Owners, Strata Plan NW 177 v. Martin, 2020 BCCRT 285.

33.   In summary, the strata did not require authorization by its ownership under SPA section 171 to file this dispute.

Issue #2. Should the CRT refuse to resolve this dispute under CRTA section 11(1)(a)(i)?

34.   This is the second and last issue considered by the Vice Chair in the April 9, 2020 preliminary decision. Under CRTA section 11(1)(a)(i) the CRT may also refuse to resolve a dispute if it would be more appropriate for another legally binding process.

35.   The owners say that the BCHRT should be “provided capacity to approve a reasonable accommodation exemption” for the owners.

36.   The Vice Chair decided that this dispute is about bylaw enforcement and the CRT is the proper forum to decide the dispute. I agree. The dispute is within the CRT’s strata property jurisdiction under CRTA section 121(1). The CRT often adjudicates disputes about bylaw enforcement. In substance, the BCHRT also rejected the owners’ argument when it dismissed Ms. Nikkel’s complaint on March 31, 2020. I see nothing to suggest the BCHRT should hear her complaint again about whether the owners should keep Molly.

37.   The owners also argued there were further proceedings or applications before the BCSC. The owners also provided additional submissions on re-reopening a BCSC judgment. The Vice Chair noted in her decision that there was no evidence of ongoing matters in the BCSC. Since then, the parties have not provided any evidence to refute the Vice Chair’s conclusions. There is no indication that the March 8, 2019 CRT decision is under judicial review. I therefore decline to refuse to resolve the dispute on this issue.

Issue #3. Should I refuse to resolve this dispute because of an ongoing CRT or court proceeding?

38.   The owners argue that this proceeding was commenced prematurely. They rely on CRTA section 15(1), which says the following:

15 (1) Subject to this Division, once a tribunal proceeding is started,

(a) a party to the tribunal proceeding may not commence, against another party to the tribunal proceeding, a court proceeding or other legally binding process in relation to an issue or claim that is to be resolved in the tribunal proceeding, and

(b) if a party has already commenced a process referred to in paragraph (a) against another party to the tribunal proceeding, the parties must adjourn or suspend the process while the tribunal proceeding is continuing.

39.   CRTA section 15(1) generally prohibits a party to a CRT proceeding from commencing a court (or other) proceeding about a claim that is still to be resolved in the original CRT proceeding.

40.   The owners argue that the original CRT proceeding that resulted in the March 8, 2019 decision is ongoing. They say this is because the BCSC determined the March 8, 2019 order is “unenforceable”. I disagree. The BCSC only pointed out that the CRT did not order Molly to be removed from the owners’ strata lot if the owners failed to provide the strata with evidence about the Assessment Certificate (paragraph 29). The March 8, 2019 is a final decision on the merits of the dispute. As noted earlier, there is also nothing before me to indicate any related BCSC proceeding is ongoing. I decline to refuse to resolve this dispute on this issue.

Issue #4. Must the owners pay the height bylaw fines?

41.   As noted above, the height bylaw says that dogs at maturity must not exceed 14 inches in height from the shoulder to the ground. I am satisfied that Molly exceeds this limit. The CRT found this to be case in its March 8, 2019 decision. The owners also admit Molly exceeds the height limit in their submissions.

42.   The owners say the strata should do more to accommodate Ms. Nikkel’s disability. However, the CRT already decided the extent to which the strata had to reasonably accommodate Ms. Nikkel’s disability in its March 8, 2019 decision. There is no evidence before me that Ms. Nikkel’s condition has changed since then.

43.   Bylaw 30(2) says that the strata may fine an owner up to $200 per bylaw contravention.

44.   Under bylaw 31, a fine may be imposed every 7 days for a contravention that continues without interruption for more than 7 days.

45.   SPA section 135(1) says a strata corporation cannot impose a fine against a person for a bylaw contravention unless it has:

a.    Received a complaint about the contravention,

b.    Given the owner the particulars of the complaint in writing, and

c.    Given the owner a reasonable opportunity to respond to the complaint (including a hearing if requested).

46.   SPA section 135(2) says the strata corporation must given notice in writing of a decision to fine a person for a bylaw contravention, as soon as feasible.

47.   SPA section 135(3) says once the strata corporation has complied with section 135 requirements, it may impose a fine for a continuing contravention of that bylaw without further compliance with this section.

48.   The strata must strictly follow the SPA section 135 requirements before fines can be imposed: Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449.

49.   The strata’s ledgers show it began applying fines weekly, starting on July 7, 2019 for the height bylaw. Under the terms of the CRT’s March 8, 2019 order, the owners were exempt from the height bylaw as it applied to Molly for up to 120 days. The exemption would be potentially shortened if the dog passed the Assessment, but I have found this never happened. The owners were therefore exempt from the height bylaw until July 6, 2019.

50.   As stated above, in the March 8, 2019 decision, the CRT member ordered the previous fines cancelled. I conclude that the strata had to fulfill the requirements of SPA section 135(1) anew, for the fines in this dispute.

51.   I find that the strata failed to provide particulars of the complaint in writing. In Terry at paragraph 28, the court wrote that particulars must be sufficient to call to the attention of the owner the contravention at issue.

52.   In a July 16, 2019 letter, the strata wrote that the exemption period expired. The strata stated that the owners were in breach the height bylaw, which it quoted for reference. The strata also warned that it would begin levying fines on August 4, 2019 at $200 per week. However, as stated above, the strata began to apply fines earlier, on July 7, 2019. I find that providing a start date nearly a month after July 7, 2019 falls short of the standard described in Terry.

53.   If I am wrong, I would still find the strata failed to provide notice in writing of its decision to fine the owners as soon as feasible under section 135(2). In The Owners, Strata Plan NW3075 v. Stevens, 2018 BCPC 2 (Stevens) at paragraph 48, the court held that a strata corporation is “not allowed to fine anyone” until is has given written notice to the person “informing him or her of the outcome and whether or not it has decided to impose a fine, and if so, what the amount of that fine is.” See also the non-binding decision of Twardy v. The Owners, Strata Plan 1581, 2020 BCCRT 400 at paragraph 55, in which a CRT member concluded that the strata corporation had to send a letter to comply with SPA section 135(2) before it could impose a fine. I agree with the reasoning in Twardy as I find it consistent with the reasoning in Stevens, which is binding.

54.   I asked the parties to provide submissions on whether the strata complied with SPA section 135(2). The strata did not provide any evidence or submissions showing that it notified the owners of any decision to fine the owners for the height bylaws before it began charging fines on July 7, 2019.

55.   I note that the strata sent the owners an August 20, 2019 letter demanding payment for “strata fees and fines”, which attached the above ledger. I do not consider the August 20, 2019 letter to be notice under SPA section 135(2) because it demands payment generally for outstanding amounts. It also says the owners could request a hearing under SPA section 135(1) about the outstanding amounts. I find this to be inconsistent with characterizing the letter as notice under SPA section 135(2).

56.   In summary, I find the strata failed to strictly comply with the SPA section 135 requirements by failing to meet the requirements of subsections 135(1) and 135(2). As such, the strata could not impose fines on July 7, 2019, nor could it impose fines for a continuing contravention of the height bylaws under SPA section 135(3).

57.   For all these reasons, I must dismiss the strata’s claim for height bylaw fines.

Issue #5. Must the owners pay the leash bylaw fines?

58.   As stated earlier, under the leash bylaw pet owners must ensure all pets are leashed or otherwise secured when on common property. The strata sent 4 letters to the owners about 7 incidents:

a.    In the August 19, 2019 letter, the strata wrote that owners’ dog was reported as unleashed on the strata’s common property on July 25, twice on August 6, and again on the evening of August 15, 2019.

b.    In an August 27, 2019 letter, the strata wrote to the owners that their dog was reported unleashed on common property on August 26, 2019 at 6:08 p.m.

c.    In a second August 27, 2019 letter, the strata wrote to the owners that their dog was reported unleashed on common property on August 26, 2019 at 7:45 a.m.

d.    In a third August 27, 2019 letter, the strata wrote to the owners that their dog was reported unleashed on common property on August 27, 2019 at 12:26 p.m.

59.   I am satisfied that the owners breached the leash bylaw as set out in the letters. I find the strata received complaints as the letters indicate they were written in response to a person’s reports. The exact times provided in some of the letters suggest the complaints were authentic. The owners generally denied breaching the bylaws but provided no details. For example, they did not say they were absent from the strata’s property on those dates. Each letter also said the owners had 2 weeks to respond in writing or to request a hearing. The owners did neither.

60.   I also find that the strata satisfied the requirements of SPA section 135(1) for the incident described in the above-mentioned letters. I find the strata received complaints as noted above and provided the owners a reasonable opportunity to respond. The letters provided details and quoted the leash bylaw.

61.   As before, however, I find the strata did not satisfy the requirements of SPA section 135(2). A ledger shows the strata fined the owners $200 on August 27 (twice) and August 28, for a total of $600. There is no indication the strata sent a decision letter before it applied these fines. The strata did send a September 23, 2019 letter demanding payment generally for “strata fees and fines”, but this is not notice under SPA section 135(2).

62.   It is also unclear from the strata’s ledgers which of the 7 incidents the 3 fines are for. Presumably, the strata would have advised the owners which incidents it had determined were bylaw breaches if it had sent the owners notice under SPA section 135(2). There is no such letter in evidence.

63.   In summary, I conclude that the strata charged the owners’ strata lot account for leash bylaw fines without fulfilling the requirements of SPA section 135(2). I must dismiss the strata’s claim for leash bylaw fines.

Issue #6. Should I order the owners to comply with the strata’s pet bylaws?

64.   The strata did not request an order for the owners to remove Molly. Instead, it asked for an order that the owners comply with the strata’s bylaws or face fines.

65.   I find there would be no useful purpose in making such an order. Under the SPA and the strata’s bylaws, the owners must already comply with the strata’s bylaws or face fines. There is nothing my decision that prevents the strata from bringing another application for dispute resolution to the CRT if the owners continue to breach the height or leash bylaw. I dismiss this claim.

CRT FEES AND EXPENSES

66.   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.

67.   I find the owners are the successful party. As they did not pay any CRT fees or claim any dispute-related expenses, I order none.

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

ORDERS

69.   I dismiss the strata’s claims and this dispute.