Date Issued: October 8, 2020

File: ST-2020-002499

Type: Strata

Civil Resolution Tribunal

Indexed as: Tsang v. The Owners, Strata Plan BCS 4236, 2020 BCCRT 1141

Between:

THOMAS TSANG and PAMELA TSANG

ApplicantS

And:

The Owners, Strata Plan BCS 4236

Respondent

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.      This is a strata property dispute about special levy expenses, strata fees, and alleged harassment, humiliation, and defamation.

2.      The applicants, Thomas Tsang and Pamela Tsang, each own strata lots in the respondent strata corporation, The Owners, Strata Plan BCS 4236 (strata). The applicants are represented by Thomas Tsang. The strata is represented by a strata council member.

3.      The applicants say the strata improperly approved a special levy for repainting fences within the strata complex, that no painting was completed, and that the strata improperly approved an increase in strata fees by not holding a ¾ vote. They also say that Mr. Tsang was harassed, humiliated, and defamed as a result of briefly parking on the strata roadway. The applicants seek reimbursement of $748.34, the amount of the special levy payments they paid, and $99.96, the amount they paid in increased strata fees. The applicants also seek the following orders resulting from the alleged false parking accusations:

a.     $4,000 in damages,

b.    That the strata stop harassing them,

c.    That the strata make its financial records available to all owners, including a 12-month ledger of income and expenses,

d.    That no 1 family control the strata corporation to avoid conflicts of interest,

e.    That the current property management firm be “removed”, and 2 individuals employed by the property manager rewrite their licence exams, and

f.     That the strata council be more accessible to owners.

4.      The strata denies the applicants’ claims and says it acted in compliance with the Strata Property Act (SPA) and its bylaws at all times. The strata asks that the applicants’ claims be dismissed and seeks reimbursement of its legal fees for defending this dispute.

5.      For the reasons that follow, I refuse to resolve the applicants’ claim for harassment, humiliation, and defamation and dismiss the applicants’ remaining claims. I also dismiss the strata’s claim for legal fees.

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, email, 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 10(1) of the CRTA, the CRT must refuse to resolve a claim that it considers is not within its jurisdiction.

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

ISSUES

11.   The issues in this dispute are:

a.    Does the CRT have jurisdiction to decide the applicants’ claim of harassment, humiliation and defamation?

b.    Did the strata properly raise a special levy for fence painting, and did it properly complete the fence painting?

c.    Did the strata properly approve an increase in strata fees?

BACKGROUND, EVIDENCE AND ANALYSIS

12.   In a civil proceeding such as this, Thomas Tsang and Pamela Tsang, as applicants, must prove their claims on a balance of probabilities. I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.

13.   The strata was created in September 2011 under the Strata Property Act (SPA). It consists of 26 residential strata lots in 7 3-storey buildings located in Richmond, BC.

14.   In March 2013, the strata filed bylaw amendments with the Land Title Office (LTO). I find these amendments did not replace the Schedule of Standard Bylaws under the SPA. Therefore, I find the Standard Bylaws still apply, except to the extent other, conflicting bylaws are included in March 2013 amendments. I address relevant bylaws below as necessary, which I note do not include any Standard Bylaws.

Does the CRT have jurisdiction to decide the applicants’ claim of harassment, humiliation and defamation?

15.   The applicants’ claim about harassment, humiliation and defamation stems from an October 23, 2019 letter from the strata’s property manager to Mr. Tsang. In the letter, Mr. Tsang is notified of several bylaw violations when he was witnessed allegedly parking his car on the common roadway blocking a neighbour’s driveway. The strata’s letter was supported by an email from a neighbouring owner dated October 15, 2019 and 2 photographs. The strata’s letter notified Mr. Tsang a complaint had been received and cited several bylaws that Mr. Tsang had violated including bylaws 3(a) and (c), and bylaw 10. I summarize the relevant parts of those bylaws as follows:

Bylaw 3(a)(3) that states an owner must not use common property in a way that unreasonably interferes with the rights of a person to use and enjoy the common property or another strata lot.

Bylaw 3(c)(4) that states an owner must not obstruct common property driveways, or use them for any purpose other than accessing a strata lot.

Bylaw 10 essentially restricts vehicle parking only to allocated parking stalls and states that parking is not permitted on the “driveways of the strata plan property”. It also states offending vehicles will be removed without notice.

16.   I infer the driveways referenced in the letter are the common property roadways within the strata complex.

17.   Mr. Tsang objected to the letter and says he stopped briefly to wash something off his car’s windshield. He wrote to the strata on November 7, 2019 and his lawyer wrote to the strata on November 11, 2019 stating his objections and requesting an apology. I understand the strata did not respond.

18.   In submissions, the applicants say the strata council’s lack of response demonstrates the council was in breach of section 31 of the SPA. Section 31 address the standard of care required of council members. It states each council member must act honestly and in good faith with a view to the best interests of the strata corporation as well as exercise the care, diligence and skill of a reasonably prudent person. The applicants also say they are entitled to compensation from the strata under section 33(3)(b) of the SPA. Section 33(3)(b) says a person can be compensated for a loss if a council member has not acted honestly and in good faith.

19.   The strata says the CRT does not have jurisdiction to resolve the applicants’ claim about the council’s breach of section 31, citing several CRT decisions that have found that to be true. See for example, Heal v. Strata Plan VR 2540, 2020 BCCRT 584; Eastman v. Strata Plan PGS 217, 2019 BCCRT 655; Taylor et al v. Strata Plan 1801 et al, 2018 BCCRT 925.

20.   For the following reasons, I agree with the strata.

21.   In The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 267, the British Columbia Supreme Court (BCSC) found that the duties of strata council members under section 31 of the SPA are owed to the strata corporation, and not to individual strata lot owners. This means that a strata lot owner cannot be successful in a claim against a strata corporation for duties owed by its strata council members under section 31. The court’s decision in Sze Hang is a binding precedent, and the CRT must apply it.

22.   As for the applicants’ claim that they are entitled to compensation under section 33(3)(b) of the SPA, I note that remedies for breaches of section 33 are specifically excluded from the CRT’s jurisdiction as set out in section 122(1)(a) of the CRTA.

23.   For these reasons, I find the CRT does not have jurisdiction to decide the owner’s section 31 and 33 claims about harassment, humiliation and defamation set out above.

24.   Accordingly, under section 10(1) of the CRTA, I refuse to resolve the applicants’ claims of harassment, humiliation and defamation. If follows that I need not address the applicants’ numerous requested remedies for this claim, many of which I note appear unrelated to the claim.

Did the strata properly raise a special levy for fence painting, and did it properly complete the fence painting?

25.   The applicants say the strata assessed them a special levy for fence painting in August 2018 and allege the ¾ vote resolution was improperly passed, there was no contract for the painting, and that the painting was never completed. The applicants also say that section 116 of the SPA requires a ¾ vote to be passed. The strata denies the applicants’ allegations. For the following reasons, I agree with the strata.

The ¾ vote resolution

26.   First, I find the applicants’ SPA reference must be a mistake or misunderstanding as section 116 of the SPA addresses the strata’s ability to file a lien for an owner’s non-payment of certain fees and expenses. There is no reference to a ¾ vote contained in section 116. In any event, I find the ¾ vote was properly passed.

27.   The evidence shows the strata held an annual general meeting (AGM) on August 28, 2018. The AGM notice package includes an agenda and 1 of the agenda items is a proposed ¾ vote resolution for fence painting. The ¾ vote resolution specifies 2 payment options for the fence painting (A and B) and notes in the preamble that approval of option A “will concurrently defeat Option B”. Option A proposes a $10,377.15 payment from the contingency reserve fund (CRF). Option B proposes a special levy in the same amount due on approval and sets out the portion of the special levy attributable to each strata lot on an attached schedule. I find the proposed ¾ vote resolution meets the required criteria for a special levy under section 108 of the SPA.

28.   There is no question that the August 2018 meeting was called with appropriate notice. I also find the AGM notice otherwise met the SPA requirements, including that it contained the proposed wording of the ¾ vote required under section 45(3) of the SPA.

29.   The August 2018 AGM minutes show there were 11 votes represented at the AGM. It is undisputed that the applicants did not attend the AGM. The minutes also show that option A of the ¾ vote for fence painting (CRF expense) was unanimously defeated and that option B (special levy) was unanimously approved. Unanimous approval (100%) is greater than the 75% required threshold under section 108 of the SPA to impose a special levy.

30.   The applicants argue the minutes do not show which specific owners attended the meeting and that they cannot determine from the minutes who voted in favour of the ¾ vote resolution. The BCSC has found that the purpose of minutes is for the strata corporation to inform its owners of decisions made and money spent on their behalf. In Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610 at paragraph 8, the Court noted that the SPA “does not, beyond stating that the minutes include the results of any votes, set out any degree of detail that must be contained in those minutes. Minutes must contain records of decisions taken by council, but may or may not report in detail the discussions leading to those decisions.” (See also Yang v. Re/Max Commercial Realty Associates (482258 BC Ltd.), 2016 BCSC 2147, at paragraph 133.)

31.   While the Court’s focus in Kayne and Yang was about strata council minutes, I find the same applies to general meeting minutes. Following these binding decisions, I find detail included in the August 28, 2018 AGM minutes meets the test established by the BCSC. Specifically, I find the minutes show a vote was taken on the special levy and the results of that vote. I disagree with the applicants’ argument that additional information was required to be included in the AGM minutes.

32.   The applicants also assert that the outcome of the vote was somehow fraudulent, but provided no evidence to support their assertion. I note that the minutes of the August 2019 AGM show the August 2018 AGM minutes were approved. This leads me to conclude the owners present at the August 2019 AGM confirmed the outcome of the 2018 special levy vote was not fraudulent.

33.   The applicants also argue that the ¾ vote was considered after the painting was completed and that this was somehow improper. I agree the evidence shows the painting invoice was issued August 9, 2018, which indicates the painting was complete before the August 28, 2018 AGM was held. There is no evidence before me to show how the strata intended to pay for the painting work when it retained the painting contractor, but I agree with the strata that the SPA and bylaws do not require the strata to pass a special levy before incurring the expense.

34.   Thus, I find the ¾ vote for the painting special levy was properly passed at the August 28, 2018 AGM.

The painting contract

35.   As for the applicants’ argument that there was no contract in place for the painting, it is clear that strata accepted a May 8, 2018 proposal from Prostar painting and restoration Ltd. (Prostar) when its property manager signed the proposal on May 24, 2018. I accept the strata’s submission that its property manager, as agent for the strata, has the ability to bind the strata corporation. Based on the copy of signed proposal provided in evidence, I also find that the property manager’s authorized signature was agreement that the terms of the proposal were accepted, forming a contract between Prostar and the strata.

36.   The strata also provided copies of 2 other proposals confirming the strata sought other painting bids, contrary to the what the applicants say. To the extent the applicants argue the strata failed to obtain other bids, I disagree. I find the 2 other painting proposals are bids on the fence painting work. In any event, there is no requirement under the SPA or the bylaws for the strata to engage in a formal bidding process before it retains a contractor.

Completion of the painting

37.   Finally, I address the applicants’ argument that the painting was never completed. In support of this, the applicants provided photographs date stamped August 20, 2020. They say the photographs prove the painting was not completed. I disagree.

38.   First, the Prostar contract required only one side of the perimeter fences to be painted and it is unclear if the photographs before me were taken of the unpainted surface of an exterior fence. Second, The photographs were taken about 2 years after the painting was done. It is reasonable to expect that the paint would have deteriorated in the 2-year period.

39.   Therefore, I find the applicants have failed to prove the fences were not painted in 2018.

40.   For these reasons, I dismiss the applicants’ claim for reimbursement of $748.34 for their portion of the special levy assessed for the 2018 fence painting.

Did the strata properly approve an increase in strata fees?

41.   The strata held another AGM on August 21, 2019. The minutes of that meeting show a budget authorizing a 2% increase in strata fees was passed by majority vote. The August 2019 AGM notice package is not before me, but there is no dispute the proposed budget was contained in the notice package as required under sections 45(4) and 103 of the SPA.

42.   The applicants argue the increased budget required a ¾ vote to pass rather than a majority vote of the owners. Section 103(1) of the SPA clearly states that a proposed budget must be approved by a majority vote passed at an AGM.

43.   The parties agree that Mr. Tsang was about ½ hour late in attending the August 2019 AGM and that when he arrived the meeting had concluded. The applicants make similar arguments about the lack of information about owners present and the content of the minutes as they did for their earlier claim about the proper passing of the ¾ vote for the special levy. For the same reasons, I dismiss their arguments here.

44.   Therefore, I find the strata properly approved the increase in strata fees at its August 2019 AGM. I dismiss the applicants’ claim for reimbursement of $99.96 in strata fees.

45.   For all of these reasons, I dismiss the applicants’ claims and this dispute.

CRT FEES AND EXPENSES

46.   As noted, 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 to deviate from this general rule. The strata was the successful party in this dispute but did not pay CRT fees, so I order none.

47.   The strata claims reimbursement of its legal fees and no other dispute-related expenses. For strata property disputes, CRT rule 9.5(3) states the CRT will not award one party to pay another party’s legal fees except in extraordinary circumstances.

48.   The strata says the applicants’ casual accusations of fraud are baseless, malicious, unsupported by evidence, and deserving of rebuke. It says there is sufficient reason for the CRT to require the applicants to pay its legal costs to defend such allegations, citing 2 CRT decisions that address this argument; Napoleone v. BCS 2460, 2018 BCCRT 246 and Wang v. LMS 2970, 2018 BCCRT 473.

49.   However, I find I need not address the strata’s claim on it merits because the strata did not submit any evidence to support the amount of its claim for legal fees, such as copies of its lawyer’s invoices. Under section 48(2) of the CRTA, if a CRT order is for the payment of money, the order must set out the principal amount. Therefore, I dismiss the strata’s claim for legal fees.

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

ORDERS

51.   I refuse to resolve the applicants’ claim for harassment, humiliation and defamation under section 10(1) of the CRTA for lack of jurisdiction.

52.   I dismiss the applicants’ remaining claims.

53.   I dismiss the strata’s claim for legal fees.