Date Issued: January 8, 2021

File: ST-2020-004267

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Sanchez v. The Owners, Strata Plan BCS 4281, 2021 BCCRT 26

Between:

JUAN PABLO MIRANDA SANCHEZ

Applicant

And:

The Owners, Strata Plan BCS 4281

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell, Vice Chair

INTRODUCTION

1.      This dispute is about maintenance of common property and damage to a parking garage gate (gate) in a strata corporation.

2.      The applicant Juan Pablo Miranda Sanchez owns strata lot 37 (SL37) in the respondent strata corporation, The Owners, Strata Plan BCS 4281 (strata). Andrea Lee, an occupant of SL37, was originally an applicant in this dispute, but has now withdrawn.

3.      On January 13, 2020, either Mr. Sanchez or Ms. Lee was driving up the ramp out of the strata’s common property parkade, slid into the gate, and damaged it. As discussed below, there is limited evidence about the incident before me.

4.      Mr. Sanchez says the strata was negligent, as it failed to remove snow and ice from the ramp. He seeks reversal of $2,932.37 the strata charged him for gate repairs, and $300.00 for an insurance deductible.

5.      The strata denies Mr. Sanchez’s claims. The strata says it met its duty to maintain the common property, and was not negligent, or in the alternative, the driver involved in the incident was contributorily negligent as they did not take sufficient precautions based on the winter weather. The strata says it was entitled to charge back the gate repairs to SL37, and is not responsible for the insurance deductible.

6.      Mr. Sanchez is self-represented in this dispute. The strata is represented by a strata council member.

7.      For the reasons set out below, I allow Mr. Sanchez’s claim about the gate repair costs, and order the strata to reverse the $2,932.37 in chargebacks because I find the strata was not authorized to impose those charges. I dismiss Mr. Sanchez’s claim for the insurance deductible, as I find he has not proven that claim.

JURISDICTION AND PROCEDURE

8.      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 legal principles. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

9.      The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconference, 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.

10.   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.

11.   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

12.   The issues in this dispute are:

a.    Was the strata entitled to charge back $2,932.37 for gate repairs to Ms. Sanchez’s strata lot account?

b.    Is Ms. Lee entitled to file a CRT strata property claim against the strata?

c.    Is Mr. Sanchez entitled to reimbursement of his insurance deductible?

REASONS AND ANALYSIS

13.   I have read all the evidence and submissions provided but refer only to that which I find relevant to provide context for my decision. In a civil proceeding like this one, Mr. Sanchez, as applicant, must prove his claims on a balance of probabilities.

Gate Repair Chargebacks

14.   Documents in evidence show that in March 2020 the strata charged $422.37 to Mr. Sanchez’s strata lot account for initial gate repairs. In July 2020, the strata charged a further $2,635.50 to Mr. Sanchez’s strata lot account for further gate repairs. The invoices show that the garage door contractor initially made the gate operational, and later replaced the bottom section of the door.

15.   Mr. Sanchez does not contest the amount of the invoices, or that the work was necessary due to the January 13, 2020 incident. However, he says he should not have to pay for the repairs because the incident occurred due the strata’s failure to remove snow and ice from the ramp in a timely manner.

16.   I find the strata’s entitlement to charge back the gate repairs to Mr. Sanchez is governed by its bylaws.

17.   SPA section 120 says a strata corporation’s bylaws are the Standard Bylaws from the SPA, except to the extent that different bylaws are filed in the LTO. The LTO filings show that for this strata corporation, the bylaws are the Standard Bylaw, plus some amendments filed at the LTO in June 2015, May 2017, and December 2019. I find these amendments are not relevant to this dispute.

18.   Notice documents from the strata’s August 10, 2020 annual general meeting (AGM) show that part of the meeting agenda was a vote on a resolution to amend the strata’s bylaws. The resolution said that Standard Bylaw 3(4) (about pets) would be repealed, and a new bylaw, bylaw 40, would be added.

19.   According to the resolution, proposed bylaw 40(2) said, in part, that an owner is who responsible for any damage to a strata lot, common property, limited common property, or common assets must indemnify and save harmless the strata from the expense of any repair, maintenance, or replacement rendered necessary, to the extent that the cost is not covered by insurance.

20.   The evidence before me does not indicate whether the proposed amendment was actually voted on at the AGM, whether it received the necessary ¾ vote in support, or whether it was filed at the LTO. I find it is not necessary to obtain this information, because this proposed bylaw amendment could not have been voted on until after the January 13, 2020 incident, and after this dispute was filed on May 30, 2020. For these reasons, I find that the proposed amendment does not apply to this dispute in any event. Rather, the bylaws as they existed on January 13, 2020 apply. In other words, this means that this dispute is governed by the Standard Bylaws from the SPA.

21.    The Standard Bylaws do not include a provision that allows a strata corporation to charge back repair or maintenance costs to a strata lot owner. In Ward v. Strata Plan VIS #6115, 2011 BCCA 512, the BC Court of Appeal said that in the absence of a bylaw or rule giving it authority to do so, a strata corporation cannot charge an owner for costs it has incurred. In Ward, the charge in question was for legal fees. However, in Rintoul et al v. The Owners, Strata Plan KAS 2428, 2019 BCCRT 1007, a CRT vice chair applied the reasoning in Ward in a dispute where the strata had charged strata lot owners for a damaged hydroelectric line. The vice chair concluded that since the strata had no bylaw allowing it to charge back the repair costs, the owners were not obligated to pay. He found the reasoning in Ward applied to repair charges, and not just to legal fees. Although Rintoul is not a binding precedent, I find its reasoning persuasive and rely on it.

22.   Under SPA section 133(2), a strata corporation may charge an owner for the reasonable costs of remedying a bylaw contravention. However, in this case did not allege any bylaw contravention, and did not follow the mandatory process in SPA section 135 to impose charges under section 133(2).

23.   Following Ward, and since the strata had no bylaw allowing for chargebacks, I find the strata was not entitled to charge back gate repairs to Mr. Sanchez. It is unclear from the evidence whether Mr. Sanchez has paid the $2,932.37 in chargebacks. I order the strata to remove the chargebacks from Mr. Sanchez’s strata lot account. If Mr. Sanchez has paid the chargebacks, I order the strata to reimburse him.

Ms. Lee’s Standing

24.   Strata Property Act (SPA) section 189.1(1) says a strata corporation, owner, or tenant may request that the CRT resolve a dispute “concerning any strata property matter over which the civil resolution tribunal has jurisdiction.” This means that if someone is not a strata corporation, owner, or tenant, they are not entitled to file a CRT strata property dispute.

25.   Documents from the Land Title Office (LTO) confirm that Mr. Sanchez is the sole owner of SL37. The strata says Ms. Lee is not an owner or tenant in the strata, and Mr. Sanchez did not dispute this, or provide contrary evidence. I therefore find that Ms. Lee is not an owner or tenant, and has no standing to make a claim against the strata under the CRT’s strata property jurisdiction. This is relevant to my discussion below about the claimed insurance deductible.

Insurance Deductible

26.   Mr. Sanchez claims reimbursement of $300 he says he paid the Insurance Corporation of British Columbia (ICBC) for an insurance deductible. I deny this claim, for the following reasons.

27.   Most significantly, I find Mr. Sanchez has not provided evidence that he paid any ICBC deductible, or the amount he says he paid. He has not provided evidence that he filed an ICBC claim in relation to the January 13, 2020 incident. Also, there is no conclusive evidence before me about who was driving on January 13, 2020, or whose name the car was insured under.

28.   As explained above, Ms. Lee has no standing to make a claims against the strata in this dispute. There is very limited evidence before me about what actually happened during the January 13, 2020 incident. The building manager’s January 13, 2020 email says Mr. Sanchez was driving, but the strata’s Dispute Response Form says Ms. Lee was driving. Mr. Sanchez’s submissions and evidence do not say who was driving, or provide any description of the incident. There is also no evidence about what car was driven, or whose name was on the insurance. I find it is not necessary to obtain further information on this point. Mr. Sanchez, as applicant, bears the burden of proving his claim, and I find he has not proven he paid a $300 ICBC deductible.

29.   I therefore dismiss Mr. Sanchez’s claim for reimbursement of an ICBC deductible.

CRT FEES AND EXPENSES

30.   Mr. Sanchez was partially successful in this dispute. In accordance with the CRTA and the CRT’s rules, I find he is entitled to reimbursement of half his CRT fees, which equals $112.50. Neither party claimed dispute-related expenses, so none are ordered.

31.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to Mr. Sanchez.

ORDERS

32.   I order the strata to immediately remove the $2,932.37 in chargebacks from Mr. Sanchez’s strata lot account, if it has not done so already. If Mr. Sanchez has paid the chargebacks, I order the strata to reimburse him within 2 weeks of this decision.

33.   I order the strata to reimburse Mr. Sanchez $112.50 in CRT fees, within 2 weeks of this decision.

34.   I dismiss Mr. Sanchez’s claim for reimbursement of the $300 insurance deductible.

35.   Mr. Sanchez is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

 

36.   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.