Date of Original Decision: November 9, 2020

Date of Amended Decision: November 12, 2020

File: ST-2019-011037

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan VIS 5086 v. Parkinson, 2020 BCCRT 1265

Between:

The Owners, Strata Plan VIS 5086

Applicant

And:

IAN PARKINSON and JOANNE PARKINSON

RespondentS

AND:

The Owners, Strata Plan VIS 5086

RESPONDENT BY COUNTERCLAIM

AMENDED REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

 

INTRODUCTION

1.      This dispute is about a fence built on common property (CP) and parking on a strata lot. Ian Parkinson is a current owner and Joanne Parkinson is a former owner of strata lot 9 in the strata corporation The Owners, Strata Plan VIS 5086 (strata). These parties were involved in a previous dispute about the fence installed on CP near the strata lot and parking stall built within its confines, which resulted in a decision from a CRT Vice Chair in Parkinson et al v. The Owners, Strata Plan VIS 5086, 2018 BCCRT 438 (2018 Decision).

2.      Unfortunately, the 2018 Decision did not resolve the parties’ issues. In this dispute, the strata seeks orders that the Parkinsons remove the fence from the CP and restore the area to its original state at their own expense. The strata also asks for an order that the Parkinsons pay $200 in fines for contravening the parking bylaw.

3.      Mr. Parkinson and Ms. Parkinson say that the strata gave them permission to install the fence on CP. They say that they paid to build the fence and it would not be fair to require them to pay to remove it. The Parkinsons say that they have complied with the 2018 Decision about parking and that the strata does not treat all owners equally when enforcing the bylaws.

4.      In a counterclaim, Mr. Parkinson asks for an order that his parking spot be recognized as a driveway and that he not be fined for parking in it so long as vehicle is completely off the roadway. He also asks for orders that the strata enforce its bylaws equally, amend the parking bylaw, and not enforce the bylaw about the number of vehicles that may be parked on a strata lot. Mr. Parkinson says that the strata council made inappropriate expenditures without permission of the owners and asks for an order that certain strata council members repay those amounts. He also asks for reimbursement of a portion of the expenses he says the strata made as a result of this dispute.

5.      The strata is represented by a member of the strata council. Mr. Parkinson and Ms. Parkinson are self-represented.

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.   The strata’s submissions address comments made by Mr. Parkinson that it says are defamatory. As set out in section 121(1) of the CRTA, the tribunal’s jurisdiction in strata matters covers certain types of claims under the SPA, and I find that claims for defamation are not included in the scope of this section. Although not binding upon me, my finding is consistent with previous tribunal decisions (see, for example, Adamson v. The Owners, Strata Plan NW 2582, 2019 BCCRT 377 and Taylor et al v. The Owners, Strata Plan 1801 et al, 2018 BCCRT 925). Accordingly, I will not address the strata’s submissions about allegedly defamatory comments.

ISSUES

11.   The issues in this dispute are:

a.    Whether Ms. Parkinson’s status as a former owner impacts her standing as a party to this dispute,

b.    Whether any of the parties’ claims are res judicata (already decided),

c.    Whether the Parkinsons must remove the fence from CP and return the area to its original state at their expense,

d.    Whether the Parkinsons must pay $200 in parking-related bylaw fines,

e.    Whether the parking spot within the boundaries of the strata lot should be recognized as a driveway such that Mr. Parkinson would not be fined so long as the vehicle is completely off the roadway,

f.     Whether the strata should be ordered to enforce its bylaws equally,

g.    Whether the strata must amend bylaw 6 to provide clarity about where parking is permitted,

h.    Whether the strata should not enforce a rule about the number of vehicles that may be parked on a strata lot,

i.      Whether the strata council made inappropriate expenditures without permission of the owners and, if so, whether the strata council members should repay the strata, and

j.      Whether the strata must reimburse Mr. Parkinson for a portion of the expenditures related to legal advice and a survey of his strata lot.

EVIDENCE AND ANALYSIS

12.   In a civil claim like this, an applicant (whether for a claim or counterclaim) bears the burden of proof on a balance of probabilities. The parties provided evidence and submissions in support of their respective positions. While I have considered all of this information, I will refer to only what is necessary to provide context to my decision.

13.   The strata is a bare land strata corporation comprised of 10 strata lots. The Parkinsons purchased strata lot 9 in 2009 as joint tenants. In January of 2020, Mr. Parkinson became the sole owner of the strata lot.

14.   The strata’s bylaw 6 addresses parking, and says that, with the exception of deliveries and pickups, there is no parking on the street or common driveways. It also says that all residents must park within the driveway or driveways associated with their residence. Bylaw 10 allows for a $50 fine for contraventions of the parking bylaw.

15.   A previous owner of strata lot 9 built a gravel parking stall within the boundaries of the strata lot. This additional parking stall was necessary to meet municipal zoning bylaw requirements for the secondary suite that was roughed-in at strata lot 9 and which the Parkinsons completed and tenanted. This parking stall is located on the west side of the strata lot and is roughly parallel to its boundary. On the other side of the boundary is a paved lane (which the parties refer to as a common driveway) leading to other strata lots.

16.   In 2011, the Parkinsons received permission from the strata council to build a fence along CP at the western boundary of the strata lot. They constructed a fence and a rock wall at their own cost. The rock wall involved excavation work to create a terraced area where there had previously been a slope. The Parkinsons installed the fence at the top of the slope near the common driveway.

17.   Several years later, the strata developed safety concerns about the use of the additional parking stall. The strata’s plan to install a chain link fence along the common driveway that would have blocked access to the parking stall created discord and did not proceed. In 2017, a survey of the property done in relation to the parking stall dispute showed that approximately 125 square feet of CP had been enclosed by the 2011 fence construction and that some of the rock wall was on CP. The parties were unable to agree about how to resolve the parking and CP issues and, in 2017, brought a claim and counterclaim to the CRT.

18.   In the 2018 Decision, the Vice Chair determined that the strata had given the Parkinsons permission to install the fence and rock wall. He determined that it would be prejudicial to other owners if the strata had repair and maintenance obligations over the CP area that was accessible only to the Parkinsons. However, he also decided that it would be prejudicial to the Parkinsons to require them to restore the CP given that they had done nothing wrong. The Vice Chair ordered the parties to consider various options to resolve the matter that would not interfere with the democratic rights of the strata owners.

19.   The Vice Chair also found that the strata must permit the Parkinsons to access the parking space. He limited the use of the space by ordering that only 1 passenger vehicle used by a resident of strata lot 9 (not visitors or guests) could occupy the space, and requiring that the Parkinsons ensure that the parked vehicle did not extend onto CP.

20.   In response to the Vice Chair’s order, the Parkinsons presented a ¾ vote resolution for consideration at an October 30, 2018 special general meeting (SGM) that would have had the enclosed CP area designated as limited common property (LCP). This resolution did not pass.

21.   In subsequent correspondence, the strata proposed options including the Parkinsons purchasing the enclosed area of CP, or the strata removing the fence and rock wall and restoring the CP slope at its own cost. For this option, the Parkinsons would be responsible for the cost of putting up a new fence on their property line if they wished. The Parkinsons did not accept these options. At the May 4, 2019 annual general meeting (AGM) the Parkinsons, through a proxy, presented an offer to have the strata move their fence to the property line at an estimated cost of $2,600. This offer was discussed but there was no associated resolution for the owners to consider and no vote took place.

22.   In the meantime, issues with the parking stall continued. The strata received complaints at various times that the there was more than 1 vehicle parked in the stall, that vehicles were parked on CP, and that vehicles were parked in the stall that did not belong to strata lot residents. The strata issued Notices of Complaint to the Parkinsons and later issued fines for breaches of bylaw 6.

23.   The strata says that the Parkinsons have not been reasonable in responding to its attempts to resolve the issues with CP and the fence. The strata also says that the Parkinsons have failed to pay $200 in parking-related fines.

24.   The Parkinsons say they had the strata’s permission to install their fence and that they should not have to pay anything to move or replace it. They also say that restoring the area would result in a steep slope that would require a fence at the top for safety reasons, and that it does not make sense to move the existing fence. The Parkinsons say they would agree to have the strata move the fence and restore the CP area if the strata pays all the costs and builds a new fence of similar design and quality to the current fence. The Parkinsons deny that they breached bylaw 6.

25.   In his counterclaim, Mr. Parkinson says that the strata is treating him differently from other strata lot owners and is not enforcing the bylaws equally. He also claims that the strata council spent money illegally and inappropriately charged costs related to the previous dispute to his strata lot.

26.   The parties made submissions about whether the Vice Chair’s findings and determinations in the 2018 Decision were correct. As neither party appealed the 2018 Decision, the Vice Chair’s order remains in effect and this dispute does not provide the parties with an opportunity to re-visit his decision. Below, I will address whether any of the parties’ current claims were decided in the 2018 Decision.

Ms. Parkinson as a Former Owner

27.   The strata named both Mr. Parkinson and Ms. Parkinson as respondents in its Dispute Notice. As noted above, Ms. Parkinson is no longer an owner of the strata lot. The strata’s Dispute Notice was issued by the CRT on December 30, 2019 and the change in ownership was entered at the Land Title Office on January 8, 2020. At the outset, I will consider whether this change affects Ms. Parkinson’s status as a respondent.

28.   Section 1 of the Strata Property Act (SPA) defines “owner” as including “a person shown in the register of a land title office as the owner of a freehold estate in a strata lot, whether entitled to it in the person’s own right or in a representative capacity”.

29.   Section 189 of the SPA restricts who can make a request for resolution of strata property disputes with the CRT. However, it does not restrict who may be named as a respondent. Further, the CRTA does not restrict a former owner from being a respondent in a strata property claim.

30.   Here, the fence was constructed and the parking fines assessed when Ms. Parkinson was still an owner of the strata lot. These issues are distinct from the issued raised by Mr. Parkinson in his counterclaim, to which Ms. Parkinson is not a party. Further, the strata’s Dispute Notice was filed before the change of ownership occurred.

31.   In Downing v. Strata Plan VR2356, 2019 BCSC 1745, the British Columbia Supreme Court stated that the fact that a current owner becomes a former owner would not, by itself, result in her no longer being an “owner” under the SPA or oust the tribunal’s jurisdiction to decide a dispute. The Court also noted the finding in The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32, that the SPA definition of “owner” includes former owners.

32.   In these circumstances, I find that I have jurisdiction to consider the strata’s claims against Ms. Parkinson as a former owner.

Are any of the Parties’ Claims Res Judicata?

33.   As the parties’ claims in this dispute concern the same subject matter as the 2018 Decision, I will consider whether any of the claims are res judicata. This legal principle prevents parties from bringing multiple legal proceedings about the same issues.

34.   Res judicata can arise in two ways. The first is called cause of action estoppel, which prevents someone from pursuing a matter that was or should have been the subject of a previous process. The second is called issue estoppel, which stops someone from raising an issue that has already been decided in another process (Erschbamer v. Wallster, 2013 BCCA 76). I find that the circumstances of the 2018 Decision and this dispute concern issue estoppel.

35.   The CRT’s chair discussed the test for issue estoppel in East Barriere Resort Limited et al v. The Owners, Strata Plan KAS1819, 2017 BCCRT 22, at paragraph 28, citing Tuokko v. Skulstad, 2016 BCSC 2200 at paragraph 45 and Angle v. M.N.R, 1974 CanLII 168 (SCC) at paragraph 254. The test considers whether:

a.    the same question has been decided,

b.    the judicial decision deciding the question is final, and

c.    the parties or their privies were the same in the judicial decision and the subsequent proceeding.

36.   The same parties were involved in the 2018 Decision as in this dispute. The Vice Chair’s decision was not identified as a preliminary one, and I am satisfied that the 2018 Decision was a final decision as contemplated by section 46(1) of the CRTA.

37.   Therefore, the key consideration here is whether the Vice Chair decided any of the questions in the current dispute in the 2018 decision. For the reasons set out below, I find that he did.

38.   The parties’ submissions in this dispute address whether the Parkinsons had permission to build the fence and wall, whether the Parkinsons intentionally enclosed CP, and whether they could be responsible for the entire cost of remediating the CP area. In the 2018 Decision, the Vice Chair decided that the Parkinsons had approval to build the rock wall and fence at their present locations (see paragraphs 46 to 50), and decided not to order that the Parkinsons pay to restore the CP as they had done nothing wrong (see paragraph 58). However, the Vice Chair also stated that the “situation must be corrected” (see paragraph 60), which I find indicative of a decision that the fence and rock wall could not be left as-is.

39.   I find that all of these issues were decided by the Vice Chair in the 2018 Decision and the operation of issue estoppel prevents me from issuing a fresh decision. Even if my decision about res judicata is incorrect, I would have come to the same conclusions on these questions based on the evidence before me.

40.   Although the Vice Chair decided that the situation could not be left as it was, he did not make a decision about how to proceed. In addition, although the Vice Chair decided that the Parkinsons are not responsible for the full cost of restoring the CP, he did not address who might be responsible for the cost of relocating the fence. I find that these issues have not yet been decided, and I will consider them below.

The Fence and Enclosed CP

41.   The evidence shows that the parties complied with the Vice Chair’s order and attempted to resolve the matter of the fence and enclosed CP. The strata says the Parkinsons have not responded as it had hoped to the various attempts to resolve the matter as suggested in the 2018 Decision, and have “refused all reasonable options” for a resolution. Although the Vice Chair discussed various possible options in the 2018 Decision, neither the Parkinsons nor the strata was required to accept any of them. The fact that the parties have been unable to come to a resolution does not necessarily lead to the conclusion that either side is being unreasonable.

42.   The Vice Chair specifically noted in the 2018 Decision that the British Columbia Supreme Court has found that the democratic government of a strata corporation should not be overridden by the court except where absolutely necessary (see Foley v. The Owners, Strata Plan VR 357, 2014 BCSC 1333 at paragraph 30, citing Lum v. Strata Plan VR 519 (Owners of), 2001 BCSC 493).

43.   The parties and the other strata lot owners considered several options to remedy the situation, but this did not result in a resolution. It is apparent that the Parkinsons did not wish to purchase the CP area or pay for any costs associated with the matter. It is also clear that the resolution to convert the enclosed CP area to LCP was not approved. The strata council asked the strata lot owners to provide suggestions about how to resolve the matter, but it does not appear that the owners provided any responses.

44.   The results of the votes taken by the strata lot owners suggest that they are more or less evenly divided about how to proceed. I find that it is unlikely that any ¾ vote resolution will receive the necessary support to pass. I am satisfied that, despite the efforts of the parties and the other strata lot owners, they are at an impasse.

45.   In these circumstances, I find that the strata lot owners have had the opportunity to properly consider the available options as discussed by the Vice Chair in paragraph 61 of the 2018 Decision. As they have been unable to resolve their differences, I find that it is necessary to make a decision about how the fence and enclosed CP should be addressed.

46.   As discussed, the Vice Chair decided that the Parkinsons were not responsible for restoring the CP. Therefore, I order that the strata take responsibility for the costs of removing the fence and rock wall, and returning the CP to the sloped condition it was in was prior to the 2011 work.

47.   The Parkinsons expressed interest in moving the fence. Given the Vice Chair’s determination that they had the strata’s permission to install the fence in its present location, I find that it would not be appropriate for them to have to pay additional money to relocate it. If the Parkinsons wish to move the fence, the strata must bear the reasonable costs of this work. Before the remedial work begins, the parties must discuss whether the fence will be relocated and, if so, determine its location on the boundary between CP and the strata lot and/or within the strata lot. The parties may also wish to discuss whether any of the existing fence materials can be re-used to reduce the cost of the relocation.

Parking Bylaw Contraventions

48.   The strata says the Parkinsons did not pay fines for parking infractions and asks for an order that they pay $200 in fines. The Parkinsons say the fines should be reversed.

49.   As discussed above, bylaw 6 prohibits residents from parking on common driveways. Bylaw 10 allows for a $50 fine for breaches of the parking bylaws.

50.   The strata provided photographs, Notices of Complaint and information about fines for only 3 incidents. The evidence does not contain information about a fourth incident for which the Parkinsons were fined $50 to account for the $200 claimed. The strata did not explain this discrepancy.

51.   According to the evidence before me, the strata issued Notices of Complaint to the Parkinsons on January 2, June 8 and June 9, 2019 for parking-related matters. These notices gave the Parkinsons the details of the alleged infractions and advised them that they could respond to the complaint. The strata later made decisions about fines associated with these incidents. I find that the strata complied with the requirements of section 135 of the SPA in this regard.

52.   The parties discussed whether the Parksinons failed to comply with the terms of the order in the 2018 Decision, which stated that they could park 1 resident vehicle in the secondary parking stall, ensuring that the vehicle did not extend onto CP. The strata included information about alleged breaches of the order in some of its Notices of Complaint. The June 9, 2019 Notice of Complaint does not describe a bylaw infraction, but rather concerns a visitor’s vehicle that is not permitted by the 2018 Decision. The 2018 Decision does not permit the strata to fine the Parkinsons for breaching the terms of its order and the bylaws only permit the strata to assess fines for bylaw contraventions. I find that there was no bylaw breach involved in the June 9, 2019 incident. Therefore, the associated fine is invalid and must be reversed.

53.   The January 2 and June 8, 2019 incidents do involve allegations of parking on the common driveway. Mr. Parkinson says that the vehicles in his parking stall park completely off the roadway but “slightly on” CP. He also says that the vehicles “parked slightly over the invisible common property boundary yet still completely off the common roadway”. These descriptions are consistent with the images submitted into evidence.

54.   The Parkinsons’ interpretation appears to be that, so long as their vehicles are not on the paved surface of the common driveway, they are not in contravention of the parking bylaw. I do not agree.

55.   The strata plan shows that the common driveway begins at the strata lot’s property line, not at the edge of the paved surface. According to a September 12, 2017 survey, the edge of the paved surface is 1.3 to 1.4 metres away from the boundary of the Parkinsons’ strata lot. Therefore, any vehicle parked within the area between the edge of the paved surface and the property line is parked on the common driveway and is in contravention of bylaw 6.

56.   Based on the evidence before me, I am satisfied that the Parkinsons breached bylaw 6 on January 2 and June 8, 2019. As the strata complied with the requirements of section 135 of the SPA, the $50 fines assessed for each of these incidents are valid. The Parkinsons must pay the $100.

Is the Parking Stall a Driveway?

57.   As noted, bylaw 6 requires that residents park within the driveways associated with their residences. Although it appears that more than 1 strata lot has additional gravel parking stalls, the bylaw does not specifically address these parking stalls.

58.   Mr. Parkinson asks for an order that his parking stall be recognized as a driveway so that he can park in it without being fined. The strata says the parking stall is separate from the driveway.

59.   As discussed above, Mr. Parkinson’s parking stall is required by the municipal bylaws for the secondary suite in the strata lot. The terminology used by the municipality is not determinative of the stall’s status. It appears that such parking stalls may be present on other strata lots. There is no dispute that the stall is intended for parking and is subject to bylaw 6.

60.   Each strata lot has a driveway at its front edge that leads to a garage area. A “driveway” is not a defined term in the bylaws or the SPA. The strata plan does not distinguish between driveways and other portions of a strata lot.

61.   As discussed above, the area between the paved edge of the common driveway and the boundary of the strata lot is CP, and parking is not permitted in this area. I find that labelling the parking stall a driveway would not alter the impact of the parking bylaw or the effect of the order contained in the 2018 Decision. Even if the change were made, Mr. Parkinson would still need to comply with the bylaw 6 requirement to not park on the common driveway, and with the Vice Chair’s order to park only 1 vehicle belonging to a resident of the strata lot in such a manner that it does not extend onto CP.

62.   Given that it is undisputed that Mr. Parkinson may park in his parking stall if he complies with the bylaws and 2018 Decision, I find that it is not necessary to recognize the parking stall as a driveway. I dismiss this portion of Mr. Parkinson’s claim.

Equal Enforcement of Bylaws

63.   Mr. Parkinson submits that the strata does not enforce its bylaws equally and discriminates against him by fining him for doing things that other residents do on a daily basis. The strata denies that it enforces its bylaw in an inequitable manner.

64.   Mr. Parkinson says that the strata is violating the Human Rights Code as he is being “singled out”. Mr. Parkinson does not say that the strata is discriminating against him because of a protected ground set out in the Human Rights Code (such as race, religion, marital status, physical or mental disability). Instead, he simply argues that he is not being treated the same as other residents. I find that Mr. Parkinson’s claim is not a human rights matter, and is more appropriately dealt with as a claim for significant unfairness.

65.   The Courts have interpreted “significantly unfair” to mean conduct that is oppressive or unfairly prejudicial. “Oppressive” conduct has been interpreted as conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith. “Prejudicial” conduct means conduct that is unjust and inequitable (Reid v. Strata Plan LMS 2503 2001 BCSC 1578, aff’d 2003 BCCA 126.

66.   The test for significant unfairness was summarized by a tribunal vice chair in A.P. v. The Owners, Strata Plan ABC, 2017 BCCRT 94, with reference to Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44: what is or was the expectation of the affected owner or tenant? Was that expectation on the part of the owner or tenant objectively reasonable? If so, was that expectation violated by an action that was significantly unfair?

67.   Recent case law has held that the consideration of an owner’s expectations is not necessary in all instances of possible significant unfairness. In Kunzler v. The Owners, Strata Plan EPS 1433, 2020 BCSC 576, the Court determined that the reasonable expectations portion of the test may not be appropriate in all circumstances, but that it may make sense when a strata council is exercising its discretionary authority. As this was the case here, I will consider the reasonableness of Mr. Parkinson’s expectations.

68.   Mr. Parkinson’s expectation is that the strata will treat all residents equally when enforcing its bylaws. I find that this expectation is reasonable.

69.   Mr. Parkinson provided photographs of vehicles parked in other strata lots. Although he says that these photographs demonstrate other residents’ bylaw breaches, it is not clear that each of these instances amounted to a breach of bylaw 6 or that the strata received complaints about possible infractions that it did not investigate or enforce.

70.   The evidence before me shows that parking is a particular concern in the strata as the common driveways are quite narrow and vehicles parked on them can create access difficulties for municipal and emergency vehicles. Strata council meeting minutes show that the strata has fined other strata lot owners for parking violations and, in one case, contacted the local police about removing a vehicle that was parked in the visitor’s parking area for an extended period of time.

71.   Although it appears that the relationship between Mr. Parkinson and some strata council members is strained, I no indication in the evidence that Mr. Parkinson is being treated in a different manner than other residents when it comes to bylaw enforcement. I find that Mr. Parkinson has not established that the strata has treated him in a significantly unfair manner and dismiss this portion of his claim.

Amendment of Bylaw 6 and Enforcement of Parking Rule

72.   Mr. Parkinson says that bylaw 6 is contradictory because it tells people to park on their driveways but “most driveways in our Strata have a large portion of common property as part of them”. He says that the bylaw should be amended to be clear about where parking is and is not permitted. The strata says that there is no contradiction in the bylaw and that, if he wishes, Mr. Parkinson is welcome to propose a bylaw amendment.

73.   As noted above, the strata plan does not show driveways on individual strata lots and does not distinguish driveway areas from the remainder of the strata lot. The front of each strata lot (where the driveways are located) is adjacent to a common driveway. There is no CP within the boundaries of the strata lots. I find that the requirement in bylaw 6 not to park on the common driveway does not contradict the requirement to park on a driveway. I find that the intent of bylaw 6 is clear in that residents are required to park within the boundaries of their respective strata lots. In my view, there is no contradiction to clarify.

74.   Even if I had found a contradiction, I would not order that the bylaw be amended. The procedure for amending a bylaw is found in sections 126 through 128 of the SPA. Any strata lot owner may propose an amendment to a bylaw for consideration by the strata at an SGM or AGM, provided they have the support of 20% of the strata corporation’s votes, under section 46 of the SPA or approval from the strata council. While I will not interfere with the owners’ democratic rights to determine the bylaws that govern their community, nothing in my decision would prevent Mr. Parkinson and/or other owners from proposing an amendment to this or any other bylaw.

75.   Mr. Parkinson also says that “new rules” should not be foisted on him and there should not be a limit about how many cars they can park on the strata lot. There is no bylaw or strata rule about the number of vehicles that may be parked on a strata lot. It is apparent that Mr. Parkinson views the Vice Chair’s parking order in the 2018 Decision as a “rule” that is in conflict with the parking bylaw. He says that the bylaw should prevail under section 125 of the SPA. I disagree.

76.   Section 125 refers to rules that a strata adopts with a majority vote. The Vice Chair’s decision is the result of the Parkinsons’ 2017 dispute and is not a strata rule. Although Mr. Parkinson may disagree with the limit of 1 vehicle, the Vice Chair’s order remains in force. I do not have the jurisdiction to change it.

77.    I dismiss Mr. Parkinson’s claims about parking bylaws and rules.

Did the Strata Council Make Unauthorized Expenditures?

78.   Mr. Parkinson says that the strata council spent $1,400 on a survey of his strata lot and $2,600 on legal fees without permission or a vote from the strata. He says that, at an SGM, a resolution to pay for the survey and legal fees from the contingency reserve fund was defeated. Mr. Parkinson’s position is that, as the strata council members did not follow the requirements of the SPA, they should have to repay the “illegal” expenses.

79.   The strata says it followed the SPA and there was no illegal spending. According to the strata, the funds were spent from the annual budget that was voted on and approved by the owners. The strata says this was not a matter of voting not to pay the invoice, just voting to not pay it from the CRF.

80.   The strata’s 2017-18 budget did not contain a line item for unapproved expenses or legal fees. A September 30, 2017 SGM included resolutions to pay up to $1,500 for a surveyor and up to $2,000 for legal fees from the contingency reserve fund under the SPA. These resolutions did not pass. It appears that the survey had been completed, and the invoice received, by the time the SGM occurred. The legal invoice was dated January 5, 2018 and it is not clear to what extent, if any, the strata had incurred legal fees prior to the SGM.

81.   The bylaws do not provide the strata council with the authority to make any unapproved expenditures. Therefore, the strata’s ability to pay the legal and survey expenses was governed by the SPA.

82.   Section 91 of the SPA says that the strata is responsible for its common expenses. Section 1 of the SPA defines “common expenses” as expenses relating to the CP and common assets or required to meet any purpose or obligation of the strata corporation. I find that enforcing the bylaws falls within the scope of the strata’s obligations.

83.   Section 92 of the SPA requires a strata to use an operating fund for expenses that usually occur either once a year or more often than once a year and a contingency reserve fund (CRF) for expenses that occur less often than once a year or that do not usually occur. According to section 96, a strata must not spend money from the CRF or operating fund unless the expenditure is consistent with the purposes of the fund or approved by a ¾ vote at an AGM or SGM.

84.   In this case, the expenditures in question were related to enforcing bylaws and protecting CP. There is no indication that these types of expenses occur frequently enough to have come from the operating budget. Therefore, it was appropriate for the strata to hold the SGM to have the owners vote on the resolutions to pay these expenses from the CRF.

85.   Although these resolutions failed, there is no indication that the strata actually spent money (either from the operating fund or the CRF) until the next budget was approved. The 2018-19 budget contained a new line item for legal and accounting fees, as well as a “one-time” expense for the survey. This budget received unanimous approval from the owners. Therefore, by the time the strata paid the legal and survey costs, they had been approved by the owners.

86.   While it may have been preferable for the strata to have acted in a different manner, I find that the legal and survey costs were not “illegal”. In any event, the individual strata council members are not parties to this dispute and I cannot make orders against non-parties. I dismiss Mr. Parkinson’s claim that the strata council members personally reimburse these expenses.

Entitlement to Reimbursement for a Portion of Legal and Survey Costs

87.   Mr. Parkinson says he should not have to pay for the survey and legal expenses as they were used in a dispute against him. The strata says these expenses were paid out of the annual budget in accordance with the SPA. The strata says the legal fees related to general advice on CP issues and clarification about the 2018 Decision, but not defending the dispute itself. The strata’s position is that there was no lawsuit and therefore no need to exclude Mr. Parkinson from a portion of the expense.

88.   Section 167 of the SPA says that an owner who is suing a strata corporation is not required to contribute to the expense of defending that suit. Section 169 of the SPA says that, if the strata sues an owner or if an owner sues the strata, that owner is not liable to contribute to legal costs that a court or arbitrator requires the strata to pay. Section 189.4 of the SPA provides that these sections apply to the CRT.

89.   The Vice Chair cited section 189.4 in his 2018 Decision and awarded the Parkinsons $225 as reimbursement for their CRT fees in that dispute. Strata council meeting minutes in evidence indicate that the Parkinsons were not required to contribute to these costs.

90.   I also note that the strata claimed the $4,000 in dispute-related expenses ($2,600 in legal fees and $1,400 for the survey) but, in the 2018 Decision, the Vice Chair declined to order reimbursement due to the divided success.

91.   Based on the evidence before me, I find that the survey was obtained to clarify the boundaries of strata lots and CP, and it was not obtained to defend the Parkinsons’ 2017 dispute. The January 5, 2018 lawyer’s invoice shows expenditures for general legal advice and advice about the effect of the 2018 Decision. I find that these legal fees were not incurred to the defend the dispute and, as noted, were not ordered to be reimbursed by the Vice Chair. I find that these legal expenses do not fall within the scope of sections 167 and 169 of the SPA, and therefore Mr. Parkinson is not excused from contributing his proportionate share. I find that Mr. Parkinson is not entitled to reimbursement for any portion of these expenses.

CRT FEES AND EXPENSES

92.   Under section 49 of the CRTA, and the CRT rules, the CRT generally will order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Given that they enjoyed divided success, I find that these are appropriate circumstances for the parties to bear their own expenses for their claim and counterclaim. Neither party claimed dispute-related expenses.

ORDERS

93.   I order that:

a.    the strata is responsible for the costs of removing the fence and rock wall, and returning the CP to the sloped condition it was in was prior to the 2011 work,

b.    if the fence is relocated, the strata must pay for the reasonable costs of this work,

c.    within 30 days of the date of this order, Mr. Parkinson and Ms. Parkinson pay the strata $100 in bylaw contravention fines.

94.   The remainder of the strata’s claims are dismissed.

95.   Mr. Parkinson’s counterclaims are dismissed.

96.   The strata is also entitled to post-judgment interest under the Court Order Interest Act.

 

97.   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.