Date Issued: November 6, 2020

File: ST-2020-004659

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Melnyk v. The Owners, Strata Plan EPS3047, 2020 BCCRT 1254

Between:

STEFAN MELNYK and PATRICIA CAROLINA ALVARADO-MONCHEZ

ApplicantS

And:

The Owners, Strata Plan EPS3047

Respondents

and:

STEFAN MELNYK and PATRICIA CAROLINA ALVARADO-MONCHEZ

rESPONDENTS BY COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about recreational use of the strata’s common property (CP) laneway and visitor’s parking area (CP area).

2.      The applicants Stefan Melnyk and Patricia Carolina Alvarado-Monchez say the respondent strata corporation The Owners, Strata Plan EPS3047 (strata) is failing to property enforce its bylaws about use of the CP area.

3.      Mr. Melnyk and Ms. Alvarado-Monchez say the CP area is intended primarily for vehicle use, but is being misused for a children’s play area, social and fitness activities, “potentially illegal” open air burning, and improper parking. They say alleged CP misuse has caused noise nuisance including during their child’s sleep times, safety hazards involving children in the roadway, interference with their ability to use and enjoy the CP, and other bylaw violations.

4.      Mr. Melnyk and Ms. Alvarado-Monchez seek an order requiring the strata to enforce Bylaw 3(1)(a)-(e), which governs the use of CP.

5.      The strata denies the claim that it failed to property enforce Bylaw 3. The strata counterclaims for $722.40, for a legal opinion it says it obtained to try to resolve the dispute informally.

6.      Mr. Melnyk, as primary applicant, represents himself and Ms. Alvarado-Monchez. The strata is represented by strata council member QP.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

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 whether the strata must:

a.    Enforce Bylaw 3(1) to regulate use of the CP area, and

b.    In the counterclaim, whether Mr. Melnyk and Ms. Alvarado-Monchez must pay the strata $722.40, for a legal opinion.

EVIDENCE AND ANALYSIS

12.   In this civil claim, Mr. Melnyk and Ms. Alvarado-Monchez bear the burden of proof on a balance of probabilities. Thes strata bears the burden in its counterclaim. I have reviewed the evidence and submissions but refer to them only as I find necessary to explain my decision.

Strata Plan

13.   The strata is made up of 15 townhome style strata lots in 4 three-storey residential buildings. The buildings are arranged in 2 groups of 2 buildings each, with each group facing the other. Between the groups is a CP area which I accept is used as a laneway, onto which the garages of each strata lot face. The laneway is subject to a statutory right of way to facilitate the municipality’s access to and through the CP, including for emergency vehicle access.

14.   It is uncontested that there is also an area between Buildings 3 and 4 used for visitor parking. On the strata plan, this appears only as CP without further description. I find that the laneway and the CP visitor parking, taken together, make up the CP area that is the subject of this dispute.

15.   Mr. Melnyk and Ms. Alvarado-Monchez are joint owners of strata lot 8 (SL8) in the strata, located on the end of Building 4 that is farthest from Building 3.

Bylaws

16.   The applicable bylaws are the Standard Bylaws under the Strata Property Act (SPA), plus bylaws 31-46 (Bylaws) added by the strata through a filing at the Land Title Office (LTO) on September 17, 2015, and a further amendment that is not relevant to this dispute.

17.   Bylaw 3 (1) reads as follows:

An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that

a.    causes a nuisance or hazard to another person,

b.    causes unreasonable noise,

c.    unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot,

d.    is illegal, or

e.    is contrary to a purpose for which the strata lot or common property is intended as shown expressly or by necessary implication on or by the strata plan.

Background Facts

18.   On May 19, 2020, Ms. Alvarado-Monchez wrote to the strata council to complain about alleged misuse of CP contrary to Bylaw 3(1). Her specific concerns were:

a.    Social gatherings impeding the free flow of vehicles through the CP area, and

b.    Use of the CP area as a children’s play area.

19.   On May 28, 2020, strata council held a hearing into the concerns raised by Mr. Melnyk and Ms. Alvarado-Monchez.

20.   On June 3, 2020, strata council wrote to Mr. Melnyk and Ms. Alvarado-Monchez to communicate its decision that the CP activities did not violate the Bylaws.

21.   The rationale for the strata council’s decision was set out at length in May 28, 2020 strata council meeting minutes, which included the following points:

a.    The CP area is CP for the use of all residents.

b.    There were no serious impediments to laneway use.

c.    Laneway use can include people standing, talking, riding bikes, and setting up lawn chairs so that people can speak.

d.    Portable, self-contained propane fires have been permitted since 2015, and have been approved by the Delta Fire Department.

e.    Strata owners held “May Days festival” laneway parties, attended by most owners, including the SL8 owners.

f.     Workouts in the laneway do not impede vehicles seeking to use the CP area.

g.    Parents should be with their children and regulate their play on any strata property in a safe and appropriate manner, and the strata believes they are doing so.

h.    Access to outdoor space within the strata is important for recreation generally and given COVID-19 restrictions where governments encourage people to minimize time away from their own properties.

22.   Strata council also discussed and decided against proposing a bylaw prohibiting children from “playing excessively” in the laneway.

23.   On June 4, 2020, Mr. Melnyk and Ms. Monchez-Alvarado wrote to the strata maintaining that a failure to enforce Bylaw 3(1) was allowing nuisance, hazards, noise, interference with their use and enjoyment of CP, and “illegal” propane fires.

24.   In June 2020, strata council distributed a copy of a legal opinion to all owners. The opinion indicates that the uses of the CP area that Mr. Melnyk and Ms. Monchez-Alvarado contested were permitted and not contrary to the intended uses. The opinion also noted that these CP uses were also not necessarily Bylaw violations, which is something that must be reviewed on a complaint-by-complaint basis.

25.   On June 25, 2020, the strata’s then counsel invoiced it $722.40 for reviewing a statutory right of way and drafting a letter about Bylaw 3(1)(e).

26.   On June 29, 2020, the strata wrote to Mr. Melnyk and Ms. Alvarado-Monchez to say that it had received complaints about a vehicle associated with SL8 driving through the complex at high speed, endangering others. The strata noted that such driving violated Bylaw 3(1) and provided an opportunity for them to respond or request a hearing.

27.   On July 2, 2020, Mr. Melnyk and Ms. Alvarado-Monchez wrote to the strata denying that a vehicle from their strata lot drove more than 20 km/hour in the laneway. In the same letter, Mr. Melnyk and Ms. Alvarado-Monchez again noted their concern that the strata was not properly enforcing Bylaw 3(1) to prevent recreational use of the CP area.

28.   In July 2020 the strata surveyed all owners about whether they felt the CP laneway was being used inappropriately for people standing, sitting, children playing or other activities. Every owner except Mr. Melnyk and Ms. Alvarado-Monchez answered that they agreed with using the CP laneway for these activities.

Have Mr. Melnyk and Ms. Alvarado-Monchez proven any breaches of Bylaw 3 that the strata must enforce?

29.   SPA section 3 provides that the strata corporation must manage and maintain the CP for the benefit of the owners. I find that the intended use of the CP area encompasses both vehicle and pedestrian access to and from the strata, and outdoor space for the owners’ use and enjoyment. I say this because the strata plan marks the area only as CP, the Bylaws do not restrict it to a particular set of activities, and the practice has been one of shared use. For the reasons given below I find that Mr. Melnyk and Ms. Alvarado-Monchez have not proven their claim.

30.   Bylaws govern the everyday life of those living in a strata community. Strata lot owners may amend bylaws to reflect their community’s uniqueness: see CLE-BC’s Strata Property Practice Manual, section 11.18. Consistent with the communal aspect of strata living, an individual owner may not impose a bylaw, such as to ban recreational activities in a CP area. Bylaw amendments require a 3⁄4 vote resolution of the owners: see SPA section 128(1). I find this analysis helpful here, where Mr. Melnyk and Ms. Alvarado-Monchez concede that their opinion about use of the CP area “may be singular given the current mix of unit owners…” When it comes to CP, strata living is not singular but communal in nature.

31.   It is undisputed that this strata does not have bylaws restricting occupancy to adults and has several owners with children. This strata also has no bylaw banning recreational use of the CP area or restricting its use for recreational activities. I find that the Bylaws do not restrict the use of the CP area to prohibit children playing, adults standing or sitting to socialize, or people exercising. The effect is that owners and their children may use the CP area for activities, if they comply with Bylaw 3.

32.   In the strata context, nuisance occurs in the strata context when there is a substantial, non-trivial interference with an owner’s use and enjoyment of their property, and that interference is unreasonable: see The Owners, Strata Plan LMS 1162 v. Triple P Enterprises Ltd., 2018 BCSC 1502 at paragraph 41. The test is an objective one, measured with reference to a reasonable person occupying the premises. In strata living, “...a certain amount of give and take is necessary among neighbours and between users, both of the strata lots and of the common property”: Sauve v. McKeage et al., 2006 BCSC 781 at paragraph 22.

33.   The Cambridge English Dictionary defines a hazard as something dangerous that is likely to cause damage.

34.   Mr. Melnyk and Ms. Alvarado-Monchez provided photographs that they say show CP misuse. I find that these photographs show

a.    children playing under close parental supervision,

b.    people using lawn chairs to sit outside,

c.    adults exercising,

d.    one off-leash dog,

e.    some service and delivery vehicles accessing the strata, and

f.     residents having a small portable propane fire while they socialize around it.

Children Playing, People Sitting Outside, Adults Exercising

35.   Mr. Melnyk and Ms. Alvarado-Monchez say that the noise of children playing in the CP area has disrupted their own child’s sleep. They also referred to the location of nearby municipal parks, an outdoor pool and waterpark, to suggest that children should have to play outside the strata property.

36.   Given the Bylaws, I find that children residing in this strata are permitted to use the CP area for activities with age-appropriate supervision. Children are not required to use municipal facilities for all recreation. As the strata points out, such a requirement may also be impractical given COVID-19.

37.   I also find that Mr. Melnyk and Ms. Alvarado-Monchez have not proven that children playing caused unreasonable noise or otherwise unreasonably interfered with the use and enjoyment of the CP or their strata lot. They did not provide noise readings of unreasonable noise during quiet hours, the dates and times when their child’s sleep was disrupted, or their child’s age. The photographs show only closely supervised children enjoying some time outside, during daytime hours.

38.   I also find that Mr. Melnyk and Ms. Alvarado-Monchez did not prove that children playing, under parental supervision and with the 20 km per hour speed limit, are causing a hazard. Both drivers and pedestrians must be cautious, to allow safe sharing of the CP area among all owners. This is part of the “give and take” the court described in Sauve. I find that Mr. Melnyk and Ms. Alvarado-Monchez have not proven any undue lack of caution by pedestrian users.

39.   I apply the same analysis to the people sitting in chairs or exercising in the CP area. There is evidence that such users move when a vehicle needs access. A mutual give and take is required to allow for the CP’s intended uses. I find these uses are not a Bylaw violation on the evidence before me.

Off-Leash Dog

40.     Mr. Melnyk and Ms. Alvarado-Monchez say they notified strata council of an off-leash dog in May 2020. Strata council elected to address this concern through a verbal discussion with the owner. Two photographs filed in evidence also show an off-leash dog, though I cannot tell if these are photographs of the May 2020 incident.

41.     Bylaw 3(3) says that an owner, tenant, occupant or visitor must ensure that all animals are leashed or otherwise secured when on CP.

42.   While strata council does not have discretion to choose not to enforce a bylaw, it may give a warning or time to comply before enforcing a bylaw: see SPA section 129(2). Here, I find no evidence proving that the strata acted unreasonably or significantly unfairly in using a verbal warning to address the off-leash dog issue.

Service, Delivery and Other Vehicles

43.     The photographs provided by Mr. Melnyk and Ms. Alvarado-Monchez do not show service or delivery vehicles in the same photographic frame as pedestrian users, except one where a window washer is working, and children are being supervised nearby, but not immediately underneath the work area.

44.     I find that the evidence does not prove any Bylaw violation associated with service and delivery vehicle access and pedestrian or recreational users.

45.     Mr. Melnyk and Ms. Alvarado-Monchez submit that having recreational use of the CP area makes it difficult for drivers trying to park or access their garages, or that other owners’ cars may temporarily block garages. However, I find that they did not prove that the recreational use or use by other drivers unreasonably interfered with their abilities to use their strata lot or the CP or otherwise breached the Bylaws. Instead, they provided some evidence that other owners were willing to move to allow them to drive in the CP area.

Portable, Propane Fire

46.   Mr. Melnyk and Ms. Alvarado-Monchez provided a photograph of one gathering where people are seated in the CP area around a portable, propane fire contained in a camp-style barbeque. Due to limits of distance and resolution, the photograph does not reveal whether those gathered are using the fire for cooking. People are gathered around the fire but I cannot tell if they have food in their hands.

47.   City of Delta Bylaw 5855 Section 5 Item 5.4 and 5.5 prohibit open air burning except for charcoal, natural gas or propane fires contained within barbeques or other approved appliances for the sole purpose of cooking food, subject to other exceptions that do not apply here.

48.   I find that Mr. Melnyk and Ms. Alvarado-Monchez have not proven that the propane fire in the CP area was “illegal”, contrary to the City of Delta Bylaws, or the strata Bylaws, on the evidence before me.

49.   I dismiss Mr. Melnyk and Ms. Alvarado-Monchez’ claim to require the strata to enforce Bylaw 3 for the use of the CP area.

Must Mr. Melnyk and Ms. Alvarado-Monchez pay the strata $722.40, for the legal opinion it obtained?

50.   The strata paid its lawyer $722.40 to review a statutory right of way and draft a letter that was distributed to all owners. I find that these legal expenses were not required for this dispute. Rather, I find they were aimed at assisting the strata to understand the statutory right of way, and to facilitate education of all owners regarding Bylaw 3 and permissible activities in the CP area. The strata could have responded to this dispute without expending these legal fees.

51.   Under CRT rule 9.5(3), the CRT will not pay another party’s legal fees in a strata property dispute unless extraordinary circumstances exist.

52.   In Parfitt et al v. The Owners, Strata Plan VR 416 et al, 2019 BCCRT 330, the CRT member, as she then was, set out a detailed review of what constitutes extraordinary circumstances. Although not binding on me, I find the reasoning in Parfitt persuasive and I accept it. Following the principles in Parfitt, I do not find extraordinary circumstances exist here. Therefore, I dismiss the strata’s counterclaim for reimbursement of legal fees.

CRT FEES and EXPENSES

53.   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. Because there was divided success, I order each party to bear its own CRT fees. There were no claims for dispute-related expenses, aside from the counterclaim for legal fees that I have dismissed above.

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

 

ORDER

55.   I dismiss the claim, counterclaim and this dispute.