Date Issued: November 30, 2020

File: ST-2019-010949

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Muller v. The Owners, Strata Plan NW 281, 2020 BCCRT 1354

Between:

BRITTANY MULLER

Applicant

And:

The Owners, Strata Plan NW 281

Respondent

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

INTRODUCTION

1.      This is a strata property dispute about disclosure of written complaints received by a strata corporation and related governance issues.

2.      The applicant, Brittany Muller, owns strata lot 43 (SL43 or Unit 43) in the respondent strata corporation, The Owners, Strata Plan NW 281 (strata). She resides in SL43 with Daniel Muller, whom she confirms is her husband. Daniel Muller is not a registered owner of SL 43 or a party to this dispute, but Ms. Muller contends both she and her husband are “equal owners” of SL43. Ms. Muller represents herself and a council member represents the strata.

3.      I note that during the facilitation stage of this dispute, the original Dispute Notice was amended, and a new Dispute Response was filed by the strata.

4.      Ms. Muller submits that the strata council solicited complaints (also described as testimonials) from other owners in the strata about her and her husband. She says the strata council told her at least 10 items of correspondence were received. Ms. Muller says she made a written request for copies of the correspondence, but her request was rejected by the strata. She says several months after she had a hearing with the strata council, the strata provided her with only 6 items of correspondence.

5.      Ms. Muller also says the strata council did not follow the standard of care set out in section 31 of the Strata Property Act (SPA) but does not request a remedy for this claim.

6.      Ms. Muller asks that the strata be ordered to:

a.    Stop soliciting complaints or testimonials about or against owners,

b.    Comply with sections 35 and 36 of the SPA by retaining copies of all correspondence sent or received by the strata or strata council and making them available for review by an owner. I infer Ms. Muller’s seeks copies of 4 items of correspondence she claims not to have received,

c.    Correctly assess and respond to complaints it receives, and

d.    Stop treating Ms. Muller and her husband in a significantly unfair manner.

7.      The strata denies it acted in the manner described by Ms. Muller and says that she has been provided with all complaints and testimonials it has on file about Ms. Muller and her husband. The strata says it does not know how prior strata council members acted, but that it does and will continue to follow SPA requirements in future. I infer the strata asks that Ms. Muller’s claims be dismissed.

8.      For the reasons that follow, I find the strata treated Ms. Muller in a significantly unfair manner and order it to reimburse her fees for this dispute.

JURISDICTION AND PROCEDURE

9.      These are the formal written reasons of the 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.

10.   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.

11.   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.

12.   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.

PRELIMINARY MATTERS

Preliminary Decision

13.   On March 18, 2020, a CRT vice chair issued a preliminary decision involving this dispute and a prior CRT dispute under file ST-2020-008169 (prior dispute). The issues before the vice chair were whether the claims in this dispute had already been settled in the prior dispute, and whether evidence relevant to this dispute was “sealed” or otherwise restricted from disclosure. The vice chair concluded that the claims in this dispute were not decided as part of the prior dispute, and that no documents or evidence was sealed. I accept the vice chair’s preliminary decision and rely on it.

14.   The vice chair also raised the issue of Ms. Muller’s SPA section 31 claim. However, she made no finding about Ms. Muller’s standing to make a claim under section 31 of the SPA because the parties had not had the opportunity to make submissions. I address Ms. Muller’s SPA section 31 claim here.

Strata council members’ standard of care

15.   As earlier noted, Ms. Muller submits the strata council did not follow the standard of care set out in section 31 of the SPA, but she does not request a remedy for this claim. Nor did she name any strata council members as a respondent in this dispute. Therefore, no council member has had the opportunity to respond to Ms. Muller’s allegations. I find it would not be in the interests of justice and fairness for me to make an order against a non-party and I decline to do so.

16.   However, even if a council member was a named respondent, I would dismiss Ms. Muller’s claim. I say this because I find allegations involving a strata council member’s standard of care clearly arise under section 31 of the SPA and the courts have found that an owner does not have standing to bring a claim against a strata council member.

17.   Section 31 sets out the standard that strata council members must meet in performing their duties. It says that each council member must act honestly and in good faith, with a view to the best interests of the strata, and exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances.

18.   In The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 267, the B.C. Supreme Court (BCSC) found that the duties of strata council members under section 31 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.

19.   The BCSC’s decision in Sze Hang is a binding precedent, and the CRT must apply it. Following, Sze Hang I would find the CRT has no jurisdiction to decide Ms. Muller’s claim that strata council members acted contrary to their standard of care under section 31 of the SPA. In other words, Ms. Muller does not have standing to bring a claim under section 31 of the SPA.

20.   For these reasons, I dismiss Ms. Muller’s claim that the strata council members did not follow the standard of care set out in section 31 of the SPA.

Daniel Muller’s ownership status

21.   I find I do not need to determine whether Daniel Muller is an owner in order to decide this dispute.

ISSUES

22.   The remaining issues in this dispute are:

a.    Did the strata act contrary to the SPA or its bylaws?

b.    Did the strata treat Ms. Muller in a significantly unfair manner?

c.    What remedy, if any, is appropriate?

BACKGROUND, EVIDENCE AND ANALYSIS

23.   In a civil proceeding such as this, the applicant, Ms. Muller, must prove her 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.

24.   The strata consists of 30 townhouse-style, residential strata lots in 12 2-storey buildings located in Chilliwack, B.C.

25.   The strata filed a new consolidated set of bylaws at the Land Title Office (LTO) on March 3, 2015. The March 3, 2015 bylaws replaced all previously filed bylaws and I find they are applicable to this dispute. I infer the Schedule of Standard Bylaws under the SPA does not apply. I also find the bylaw amendment filed January 25, 2019 is not relevant to this dispute.

26.   The prior dispute mentioned above was about the strata towing a vehicle that belonged to Ms. Muller and her husband in August 2019. The prior dispute settled in facilitation in December 2019.

27.   Ms. Muller provided 6 pieces of correspondence in evidence. I find they are the 6 letters obtained by the strata that form the basis for this dispute. One letter, dated August 2019 around the time the vehicle was towed, complained about the Muller’s parked vehicle. Of the remaining 5 letters, 2 are dated in November 2019 and 3 are undated. Based on the overall evidence, I find the 3 undated letters were written in about November 2019. All 5 letters relate to the actions of Daniel Muller at various times before and during the Mullers’ ownership of SL43.

Did the strata act contrary to the SPA or its bylaws?

28.   Section 3 of the SPA requires the strata to manage its common property and common assets for the benefit of all owners.

29.   Section 4 of the SPA makes the strata council responsible for exercising the powers and performing the duties of the strata, unless the SPA, Strata Property Regulation (regulations), or bylaws provide otherwise.

30.   As noted, Ms. Muller’s claims involve the strata’s ability to solicit complaints or testimonials about or against owners, the disclosure of documents, and the strata’s requirement to correctly assess and respond to complaints it receives. I find there is nothing in the March 2018 bylaws that addresses these things, so I find the strata has not acted contrary to its bylaws. I now turn to Ms. Muller’s claims in relation to the SPA and regulations.

Soliciting complaints or testimonials about or against owners

31.   The SPA and regulations are silent about a strata corporation’s ability to solicit complaints or testimonials about or against owners. However, the courts have found that a strata corporation must act reasonably with “fair regard for the interests of all concerned" as set out in Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74 at para 61. Therefore, provided the strata’s collection of the correspondence was reasonable, I find the strata had discretion to obtain it.

32.   There is no evidence to support Ms. Muller’s assertion that the strata was soliciting complaints from other owners as described by Ms. Muller. In the context of this dispute, a more appropriate and very plausible characterization might be that the correspondence was collected during the strata’s investigation into the prior dispute about towing. I say this because in November 2019, when the strata was gathering this correspondence, the prior dispute was a live issue. While the reason why, and the manner in which the strata collected the correspondence is unclear, I find there is nothing before me to suggest the strata’s actions were unreasonable.

33.   For these reasons, I find the strata did not act contrary to the SPA or regulations when it obtained correspondence from owners about the Mullers.

Requirement to assess and respond to complaints

34.   The SPA and regulations are also silent about a strata corporation’s obligation to respond to complaints or correspondence it receives. I note section 27 of the SPA does not allow the strata to give direction to a strata council about whether a person has contravened a bylaw or rule, or whether that person should be fined, but that is not what Ms. Muller is requesting here. Fines are not the subject of this claim and it is only about whether the strata is obligated to assess and respond to correspondence. I find it is not for the same reasons I stated above about the strata’s ability to solicit complaints or testimonials about or against owners. That is, the SPA and regulations do not require the strata to respond to all correspondence.

35.   Accordingly, I find the strata did not act contrary to the SPA or regulations by not assessing and responding to the correspondence it received about unit 43.

Document disclosure

36.   Ms. Muller correctly notes sections 35 and 36 of the SPA relate to document disclosure. I would add the sections 4.1 and 4.2 of the regulations also relate to document disclosure. Put broadly, section 35 of the SPA and section 4.1 of the regulations set out what documents and records the strata must prepare and retain, and the length of time the strata must retain them. Section 36 of the SPA and section 4.2 of the regulations address what documents can requested, who can request them, and how much a strata corporation may charge to provide copies.

37.   Section 35(2)(k) of the SPA expressly requires the strata to retain copies of correspondence sent or received by the strata or strata council. Section 4.1(5) of the regulations requires the strata to keep the correspondence for a period of 2 years. Section 36 of the SPA requires the strata corporation to make the correspondence available for inspection, or provide copies of it, within 2 weeks of any written request. Section 4.2 of the regulations says the strata corporation can charge a maximum of $0.25 per page for copies.

38.   Therefore, according the SPA and regulations, Ms. Muller was entitled to receive access to or copies of the requested correspondence within 2 weeks of the date of her written request.

39.   Ms. Muller’s written request for the correspondence relating to this dispute was made on December 3, 2019. It is undisputed that the strata rejected Ms. Muller’s request, so Ms. Muller requested a hearing, which apparently took place on December 16, 2019. On December 22, 2019, the strata wrote to Ms. Muller advising the correspondence she requested was confidential because it was referenced in the prior dispute. The same day, Ms. Muller applied to the CRT for this dispute. I find the 2-week period for the strata to disclose the requested correspondence was suspended when the Dispute Notice was issued for this dispute. This is because disclosure of the correspondence is 1 of the issues forming part of this dispute and a decision from the CRT on the disclosure issue was necessary before the matter could proceed.

40.   Ms. Muller’s submission is that the preliminary decision issues discussed earlier were first raised in the facilitation stage of the CRT’s process about February 25, 2020. I accept that it likely took until then for Ms. Muller’s dispute to reach facilitation. As I have stated, the vice chair’s preliminary decision was issued March 18, 2020 finding there was no restriction to disclose the correspondence to Ms. Muller. I find March 18, 2020 is the date the issue of the correspondence disclosure was resolved, and the date the 2-week period under section 36 of the SPA re-started.

41.   Based on the above, I find the strata was required to provide the subject correspondence, including the undated correspondence, to Ms. Muller about 2 weeks after the vice chair’s preliminary decision, or by April 2, 2020.

42.   Ms. Muller acknowledges she received the 6 items of correspondence on June 6, 2020, which the strata does not dispute. This is about 10 weeks after the preliminary decision. Setting aside the issue of the 4 items of “missing “ correspondence, I find the strata’s actions were contrary to section 36(3) of the SPA, because the strata did not provide the correspondence to Ms. Muller within 2 weeks.

43.   As for the 4 pieces of missing correspondence, Ms. Muller’s allegations are based on verbal discussions with previous council members. She did not provide any evidence to support there are 4 items that have not been given to her, such as a written statement from one of the previous council members. This fact, coupled with the strata’s submission that it has reviewed its file and has provided all correspondence it has on file about Unit 43, leads me to conclude it is more likely than not there are only 6 items of correspondence and all have been provided to Ms. Muller. As a result, I dismiss Ms. Muller’s claim that the strata provide her the 4 ”missing” items of correspondence.

Did the strata treat Ms. Muller in a significantly unfair manner?

44.   Ms. Muller says the strata treated her significantly unfairly by not providing her with access to the complaint letters within the required time period. The strata disagrees and says it was not the strata’s intent to have Ms. Muller feel singled out.

45.   For the following reasons, I find the strata treated Ms. Muller significantly unfairly.

46.   The CRT has authority to issue orders necessary to prevent or remedy a significantly unfair action. See section 123(2) of the CRTA (formerly section 48.1(2) and The Owners, Strata Plan LMS 1721 v. Watson, 2018 BCSC 164 at paragraph 119.

47.   The courts and the CRT have considered the meaning of “significantly unfair” in a number of contexts, equating it to oppressive or unfairly prejudicial conduct. In Reid v. Strata Plan LMS 2503, 2003 BCCA 128, the British Columbia Court of Appeal (BCCA) interpreted a significantly unfair action as one that is more than “mere prejudice” or “trifling unfairness” and one that must be burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith and/or unjust or inequitable.

48.   The BCCA has also considered the language of section 164 of the SPA in Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. The test established in Dollan was restated in The Owners, Strata Plan BCS 1721 v. Watson, 2017 BCSC 763 at paragraph 28:

The test under s. 164 of the Strata Property Act also involves objective assessment. [Dollan] requires several questions to be answered in that regard:

                              i.    What is or was the expectation of the affected owner or tenant?

                            ii.    Was that expectation on the part of the owner or tenant objectively reasonable?

                           iii.    If so, was that expectation violated by an action that was significantly unfair?

49.   Recent case law has held that consideration of an owner’s expectations is not necessary in all instances of possible significant unfairness. In Radcliffe v. The Owners, Strata Plan KAS1436, 2015 BCCA 448, the BCCA found that that the test set out in Dollan, about whether the disputed action was significantly unfair based on the owner’s expectations may not apply and that only a determination of significant unfairness such as defined in Reid, is necessary.

50.   In Kunzler v. The Owners, Strata Plan EPS 1433, 2020 BCSC 576, the BCSC 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 Ms. Muller’s expectations.

51.   I find Ms. Muller’s expectation was that the strata would release correspondence to her that it was required to release under the SPA and regulations.

52.   I find Ms. Muller’s expectation was objectively reasonable because the strata is required to act in accordance with the SPA and regulations.

53.   I also find the strata’s actions meet the definition of significantly unfair as defined in Reid. This is because there was no restriction for the strata to release correspondence, as the vice chair found in her preliminary decision, and the strata exceeded the 2-week period set out in section 36 of the SPA to provide Ms. Muller with copies of the requested correspondence.

54.   I note the strata’s statement that its actions were carried out by previous strata council members that were different from the current strata council members. I do not accept this is a valid argument given the strata functions through its strata council. Unless there is evidence the strata council decisions were invalid, which is not the case here, it makes no practical sense for a strata to claim the decisions of a previous strata council can relieve it from its statutory duties and obligations.

55.   For these reasons, I find the actions of the strata to deny Ms. Muller copies of the correspondence was significantly unfair.

56.   Given the significant unfair actions are not ongoing, I decline to order the strata to stop treating Ms. Muller in a significantly unfair manner. Further, in her submissions, Ms. Muller states she does not know what remedy to request to “make things right”.

57.   In the circumstances of this dispute, I find Ms. Muller would likely not have commenced this dispute, had the strata treated her fairly and provided her copies of the correspondence she requested. Therefore, I find it appropriate to order the strata to reimburse Ms. Muller for her CRT fees as I discuss below.

 

CRT FEES AND EXPENSES

58.   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. However, I have found it appropriate to order the strata to reimburse Ms. Muller $225 for her CRT fees. The strata agreed to reimburse Ms. Muller for dispute-related expenses but none were claimed so I make no order about dispute-related expenses.

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

ORDERS

60.   I order the strata, within 14 days of this decision, to pay Ms. Muller $225 for CRT fees.

61.   Ms. Muller is entitled to post-judgement interest for her CRT fees under the Court Order Interest Act, as applicable.

62.   I dismiss Ms. Muller’s remaining claims.

63.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the Supreme Court of British Columbia. Under section 58 of the CRTA, the order can also be enforced by the Provincial Court of British Columbia 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.