Date Issued: January 26, 2021

File: ST-2020-003708

Type: Strata

Civil Resolution Tribunal

Indexed as: McRae v. The Owners, Strata Plan LMS 375, 2021 BCCRT 93

Between:

WILLIAM MCRAE

Applicant

And:

The Owners, Strata Plan LMS 375

Respondent

INTRODUCTION

1.      The applicant, William McRae, owns strata lot 118 in the respondent strata corporation, The Owners, Strata Plan LMS 375 (strata).

2.      The strata raised funds by special levy for some building repairs and other items in 2017 and 2018. Mr. McRae did not pay his portion of the special levies by their due dates. On June 7, 2019, the strata registered a lien against Mr. McRae’s strata lot for non-payment and charged him the lien-related costs, including legal fees. Mr. McRae did not pay anything towards the outstanding amounts. These facts are undisputed.

3.      On May 7, 2020, Mr. McRae submitted a dispute application to the Civil Resolution Tribunal (CRT). Mr. McRae wrote in the application that he had only recently been made aware that the $3,619.03 in special levies were unpaid. Mr. McRae stated: “I want to pay the levies, I will not pay the lien and other costs [related to] the lien or legal fees”. He did not state any legal basis for his claim. I infer Mr. McRae was seeking an order that the strata accept $3,619.03 as sufficient payment to release the lien it registered against his strata lot.

4.      The strata says Mr. McRae has since paid the special levies, lien-related costs and legal fees in full. The strata asks that I dismiss the claim.

5.      Mr. McRae is self-represented. The strata is represented by a strata council member.

6.      For the reasons that follow, I dismiss Mr. McRae’s claims.

JURISDICTION AND PROCEDURE

7.      These are the CRT’s formal written reasons. 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.

11.   As a preliminary matter, the strata stated in its Dispute Response that Mr. McRae had not requested a formal hearing prior to bringing this CRT dispute. Conversely, Mr. McRae said he had requested to meet with strata council prior to bringing his CRT dispute application and his requests were ignored.

12.   Section 189.1(2) of the SPA says that an owner must first request a council hearing under SPA section 34.1 before asking the CRT to resolve a strata dispute. The CRT may waive this requirement at the request of a party.

13.   The strata says Mr. McRae emailed its lawyer to discuss the legal action and to meet with the strata to discuss issues outstanding against him. It says Mr. McRae did not mention a “formal hearing” or specifically request a hearing before council.

14.   Although Mr. McRae did not technically request a formal hearing before council under SPA section 34.1, I find it implicit in his March 2, 2020 email that by “meet with strata to discuss” the issues he meant a “hearing” with council. In the circumstances, I find the SPA section 189.1 hearing requirement was substantially met.

ISSUES

15.   The issues in this dispute are:

a.    Is Mr. McRae’s claim moot?

b.    If not, what is the appropriate remedy?

EVIDENCE, ANALYSIS AND FINDINGS

16.   In a civil claim such as this, as the applicant Mr. McRae bears the burden of proof, on a balance of probabilities.

17.   The parties both submitted documentary evidence for this proceeding with comments attached to the evidence. However, Mr. McRae chose not to submit any argument though I find he had a reasonable opportunity to do so. In my reasons that follow, I have only referred to the evidence and submissions to the extent necessary to explain my decision.

Background

18.   The strata passed resolutions at its 2017 and 2018 Annual General Meetings to raise funds by special levies. There is no dispute that Mr. McRae’s portion of the special levies combined was $3,619.03. Mr. McRae’s strata lot account statements show that he did not pay the special levies by their due dates. The strata sent Mr. McRae multiple written demands for payment and warned him the strata intended to register a lien and he would be responsible for associated costs if he failed to pay.

19.   The strata records show that Mr. McRae did not pay within the given deadlines. The strata registered a lien on Mr. McRae’s strata lot on June 7, 2019 under SPA section 116. The strata notified Mr. McRae that if he failed to pay in full, the strata would apply to the BC Supreme Court under SPA 117 for a court ordered sale of his strata lot to collect the monies owing.

20.   In submissions, the strata states that it was then able to collect the outstanding amounts owing from Mr. McRae, which it says included the special levies, lien costs and legal fees. Given the strata’s assertion is against its interest and Mr. McRae had an opportunity to make reply submissions and did not, I accept as fact that Mr. McRae paid the outstanding amounts.

21.   I infer after receiving Mr. McRae’s payment that the strata released the lien. Mr. McRae does not say otherwise.

Is Mr. McRae’s claim moot?

22.   An issue is said to be moot where, after a dispute is started, events occur which affect the parties’ relationship so that no “present live controversy” exists affecting their rights (see Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, and Binnersley v. BCSPCA, 2016 BCCA 259 at paragraphs 22 and 23). In determining mootness, the courts have set out a 2-step analysis:

First, has the live issue disappeared, and any remaining issues theoretical or academic?

Second, if there is no live issue, should the court (or CRT) exercise its discretion to hear the case anyway?

23.   When Mr. McRae applied for dispute resolution the parties were disputing the amount Mr. McRae was required to pay to release the lien. Mr. McRae’s requested resolution was that he only pay the special levy and nothing else. I find the live issue disappeared when Mr. McRae paid the outstanding amounts to the strata’s satisfaction and it released the lien. Mr. McRae does not raise any issue concerning the amount he ended up paying the strata, which is also not before me. I find no present live controversy over the amount.

24.   The CRT does not have jurisdiction to make a purely declaratory order under CRTA section 123. I find there is no compelling reason to decide the amount Mr. McRae should have paid since I could make no effective order about it. So, I decline to exercise my discretion to hear the dispute anyway.

25.   For the above reasons, I dismiss Mr. McRae’s claim as moot.

26.   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. As the unsuccessful party, I dismiss Mr. McRae’s claim for CRT fees. The strata paid no CRT fees and neither party claimed dispute-related expenses.

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

ORDER

28.   I dismiss Mr. McRae’s claims and this dispute.