Date Issued: February 1, 2020
File: ST-2020-004502 and
ST-2020-005152
Type: Strata
Civil Resolution Tribunal
Indexed as: The Owners, Strata Plan EPS 4743 v. Hoang, 2021 BCCRT 118
Between:
The Owners, Strata Plan EPS 4743
Applicant
And:
STEVEN HOANG and SHAYLA NGUYEN
RespondentS
And:
The Owners, Strata Plan EPS 4743
Respondent BY COUNTERCLAIM
|
REASONS FOR DECISION |
|
|
Tribunal Member: |
J. Garth Cambrey, Vice Chair |
|
|
|
INTRODUCTION
1. This is a strata property dispute mainly about short-term accommodation and illegal use of strata lots, and related bylaw fines. This decision is in respect of 2 linked disputes, which I find are sufficiently related to allow me to issue 1 decision for both disputes.
2. The applicant in dispute ST-2020-004502 (and respondent in the counterclaim) is a strata corporation, The Owners, Strata Plan EPS 4743 (strata). The respondents, Steven Hoang and Shayla Nguyen co-own strata lot 225 (SL225 or unit 3707) in the strata. Ms. Nguyen also owns strata lot 332 (SL332 or unit 4907) in the strata. Mr. Hoang is the sole applicant in the counterclaim.
3. The strata is represented by a strata council member. Mr. Hoang represents the respondents in the strata’s claim, and himself in the counterclaim. The counterclaim was filed as a separate dispute, ST-2020-005152.
4. The strata says the respondents allowed their strata lots to be used for short-term accommodation, and in the case of SL332 for illegal activity, contrary to the strata bylaws, and that it properly imposed fines as a result. The strata also says additional fines were imposed during this period for other bylaw contraventions.
5. In the Dispute Notice, the strata says the outstanding fines total $55,400 for SL225, and $57,900 for SL332. However, in submissions, the strata says the fine amounts total $49,400 and $57,850 respectively, which I address later in these reasons. The strata seeks declarations that the fines imposed against SL225 and SL332 are valid and enforceable. The strata also seeks orders that both Mr. Hoang and Ms. Nguyen stop breaching the strata’s bylaws, that they both pay the outstanding fines for SL225, and that Ms. Nguyen pay outstanding fines for SL332.
6. The respondents deny breaching any strata bylaws. I infer they ask that the strata’s claims be dismissed.
7. In his counterclaim, Mr. Hoang asks that the bylaw fines for SL225 be removed from his account. Neither Ms. Nguyen nor SL332 are involved in the counterclaim. The strata asks that the counterclaim be dismissed.
8. For the reasons that follow, I find the respondents must pay the strata $207.16 for bylaw fines and interest in relation to SL225.
JURISDICTION AND PROCEDURE
9. 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.
10. The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is in issue.
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.
13. The strata says the respondents have intentionally acted to deceive the strata and CRT by providing false and misleading information about their place of residence and knowledge of short-term accommodation of their respective strata lots. However, I have determined that this dispute is only about alleged bylaw infractions and fines. Given the strata does not request any direct remedies as a result of its allegations about false and misleading information, I will not address the strata’s assertion about deception further. My conclusions about the persuasiveness of the parties’ evidence relevant to this decision, and the weight I have placed on it, are explained below.
ISSUES
14. The issues in this dispute are:
a. Are the bylaw fines imposed against the respondents, as owners of SL225, valid and enforceable?
b. Are the bylaw fines imposed against Ms. Nguyen, as owner of SL332, valid and enforceable?
BACKGROUND, EVIDENCE AND ANALYSIS
15. In a civil proceeding such as this, the applicant strata must prove its claims, and Mr. Hoang must prove his counterclaim, on a balance of probabilities.
16. I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.
17. The strata was created in May 2018 under the Strata Property Act (SPA). It is an air space parcel located in Surrey, BC comprised of 348 strata lots in 38 levels of a high-rise building. The development in which the strata is located includes office space, a hotel, and 5 levels of parking, all of which are located below the strata’s air space parcel and are not part of the strata. The strata elevators are accessed through the hotel lobby.
18. The owner developer filed bylaws at the Land Title Office (LTO) under section 245(d) of the SPA that differed from the Schedule of Standard Bylaws on May 25, 2018, the same day the strata was created. Subsequent bylaw amendments are filed at the LTO. Of those amendments, I find only the amendments to bylaw 52 (New Bylaw 52) and the related maximum fine for breach of New Bylaw 52 filed December 11, 2019 are relevant here. I address applicable bylaws in my reasons below, as necessary.
19. The bylaw fines in this dispute were imposed between August 2018 and July 2020. The strata provided spreadsheets for fines imposed against each strata lot along with a large amount of evidence to support the strata’s claims (including at least 50 letters for SL225 and 65 letters for SL332). I will not explain every letter and whether it complies or does not comply with the SPA and bylaws. Rather, I have set out the applicable law, explained why some of the steps taken by the strata do not comply with the SPA or law, and summarized my findings about the claimed fines.
20. Based on the strata’s evidence, it is clear the hotel security staff have access to closed circuit television (CCTV) cameras located in the strata’s common property elevator cabs. The strata relies on incident reports and CCTV photographs provided by hotel security staff, claiming staff are independent third parties.
21. There is no evidence before me, such as an air space parcel agreement, to confirm the relationship between the hotel security staff and the strata. However, I find the security staff’s evidence credible regardless of whether the staff are employees of the strata or if the strata contributes to their wages and I accept it. I find it unlikely that the hotel staff would be untruthful in their reports, which included reports dealing with the Royal Canadian Mounted Police (RCMP).
22. On the other hand, the respondents did not provide any evidence they responded to the strata’s correspondence involving bylaw breaches and fines until June 2020. In a June 14, 2020 letter to the strata, Mr. Hoang asserts he has lived in SL225 since it was purchased and that he did not contravene any bylaws nor advertise or use SL225 for short-term accommodation. Mr. Hoang acknowledges receiving correspondence from the strata but states it is “all lies”. He maintains this position in his submissions for both SL225 and SL332.
The Law
23. Section 132 of the SPA permits the strata to set out in its bylaws, the maximum amount it may fine for a bylaw contravention, and the frequency at which fines may be imposed for continuing contraventions. The maximum amounts may be different for different bylaws provided they do not exceed the maximum amounts set out in section 7.1 of the Strata Property Regulation (regulation) as I discuss in greater detail below.
24. Bylaw 27.1 permits the strata to impose a fine every 7 days “if an activity or lack of activity that constitutes a bylaw contravention continues, without interruption”. I find bylaw 27.1 is consistent with section 7.1 of the regulation.
25. Section 135 of the SPA addresses how and when the strata can impose fines for bylaw violations. Section 135(1) of the SPA provides that the strata may not impose a bylaw fine unless it has received a complaint, given the owner written particulars of the complaint, and a reasonable opportunity to answer the complaint, including a hearing if requested. Section 135(2) provides the strata must also give written notice of its decision to impose a fine against the owner as soon as feasible. SPA section 135(3) provides that once the strata has complied with these procedural steps, the strata may impose fines or penalties for a continuing contravention without further compliance with section 135.
26. The requirements of section 135 must be strictly followed before a fine can be imposed, as set out in Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449, the leading case on this issue. In Terry, the BC Court of Appeal found if section 135 is not strictly followed, that is sufficient reason to set aside all fines that were imposed before the owner was given the particulars of the complaint and a reasonable opportunity to be heard, including a hearing.
28. The SPA and Terry do not address retroactive bylaw fines. I have found section 135 of the SPA does not permit retroactive bylaw fines because retroactive bylaw fines are the same as a strata corporation charging fines without notifying an owner of the particulars of the complaint: Shen v. The Owners, Strata Plan LMS 970, 2020 BCCRT 953 at paragraph 53.
29. The parties disagree on whether the respondents live in the strata. The strata says they do not, while the respondents say Mr. Hoang lives in SL225 and Ms. Nguyen lives in SL332 as I have mentioned. It is not necessary for me to determine where the respondents live, given I find the notice requirements of section 135 are governed by section 61 of the SPA, which provides in its entirety:
61(1) A notice or other record or document that the strata corporation is required or permitted to give to a person under [the SPA], the bylaws or the rules must be given to the person,
a. if the person has provided the strata corporation with an address outside the strata plan for receiving notices and other records or documents,
I. by leaving it with the person, or
II. by mailing it to the address provided, or
b. if the person has not provided the strata corporation with an address outside the strata plan for receiving notices and other records or documents,
i. by leaving it with the person,
ii. by leaving it with an adult occupant of the person's strata lot,
iii. by putting it under the door of the person's strata lot,
iv. by mailing it to the person at the address of the strata lot,
v. by putting it through a mail slot or in a mailbox used by the person for receiving mail,
vi. by faxing it to a fax number provided by the person, or
vii. by emailing it to an email address provided by the person for the purpose of receiving the notice, record or document.
(2) The notice, record or document may be addressed to the person by name, or to the person as owner or tenant.
(3) A notice or other record or document that is given to a person under subsection (1) (a) (ii) or (b) (ii) to (vii) is conclusively deemed to have been given 4 days after it is left with an adult occupant, put under the door, mailed, put through the mail slot or in the mailbox, faxed or emailed.
30. If the strata fails to give notice in a method set out in section 61 of the SPA, the strata has not given proper notice: The Owners, Strata Plan BCS 3372 v. Manji, 2015 BCSC 2503.
31. Based on the evidence before me, I find the strata has not proven either of the respondents provided it with a mailing address outside the strata, a fax number, or an email address for the purpose of receiving notices. As noted, the respondents claim they have always resided in the 2 strata lots. Therefore, in order for the strata to have complied with section 135, it must have provided notice to the respective respondents by a method listed under section 61(1)(b)(i) through (v) of the SPA. In most cases, the strata mailed correspondence about the bylaw infractions and fines to the strata lots, but in some cases, it mailed correspondence to the respondents’ addresses shown on LTO documents or another address.
32. Mr. Hoang’s June 14, 2020 letter to the strata implies he was aware of the numerous complaints made against him and Ms. Nguyen, yet the respondents chose not to respond to the strata’s individual bylaw infraction letters. The BC Supreme Court has found that an owner has an obligation to either rectify a bylaw contravention or challenge the bylaw violation notice. If an owner does not agree that the fines were properly levied, the proper course of action is for them to request a hearing with the strata or respond to the strata’s bylaw violation notices: The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 208.
33. Based on the foregoing, I find the strata is entitled to the bylaw fines it imposed only where it has proved the respondents breached a bylaw, and properly followed the procedural requirements of section 135 of the SPA relating to the bylaw infraction.
34. I provide a more detailed discussion on the specific bylaw fines imposed below.
Are the bylaw fines imposed against the respondents, as owners of SL225, valid and enforceable?
35. In submissions, the strata says the respondents allowed SL225 to be used contrary to the strata’s bylaws and that they are jointly responsible to pay fines totaling $49,600 imposed as follows:
a. $48,800 for bylaw 52 and New Bylaw 52 contraventions relating to use of SL225,
b. $200 for bylaw a 44.4 contravention for storing items in a parking stall,
c. $200 for a bylaw 4.1 contravention for noise (nuisance or unreasonable interference), and
d. $200 for a bylaw 4.3 contravention for damage to common property.
36. As mentioned, the respondents deny all of the alleged bylaw infractions and, in the counterclaim, Mr. Hoang asks that the fines be reversed. I acknowledge the alleged fines in the strata’s submissions total $49,400, which is $6,000 less than the $55,400 claimed in the Dispute Notice. The difference is not explained by the strata, but based on the spreadsheet the strata provided in evidence, I find the actual amount claimed by the strata is $55,400, including $54,800 for bylaw 52 and New Bylaw infractions.
37. I will address each of the alleged bylaw infractions in turn.
SL225 Short-term Accommodation - Bylaw 52 and New Bylaw 52
38. The short-term accommodation bylaw is bylaw 52. From the time the strata was created in May 2018 until December 11, 2019, when the bylaw was amended, the bylaw read as follows (reproduced as filed);
Residential Short-Term Rentals (STR)
a. For purposes of this Bylaw, a “short-term rental” is a strata lot, or a room in a strata lot, that is rented for less than 30 days at a time.
b. A resident must not use, or permit to be used, a strata lot except as a private residential dwelling home. Specifically, a strata lot is not to be used or occupied for transient, commercial or hotel purposes under a contract, licence arrangement or any other form of agreement for transient, short-term rentals or short-term occupancy or accommodation of any kind such as a hotel or hotel-like accommodation, a boarding house, house letting or house sitting, a bed and breakfast or for any other short term accommodations, including without limitation, short-term accommodation advertised under the names “VRBO”, “Airbnb”, “Home Away” or monikers advertising, by newspaper, Craigslist, internet or otherwise, short-term occupancy or accommodation of any kind, unless granted prior written approval by the council.
39. I find the bylaw is awkwardly worded such that it is unclear whether the bylaw applied only to short-term rentals as defined, or if it also applied to short-term accommodations such as licencing arrangements, also described in the bylaw as a restricted use of a strata lot.
40. In Strata Plan VIS4663 v. Little, 2001 BCCA 337, the BC Court of Appeal warned against highly technical and literal interpretations of strata bylaws. The Court stated that strata bylaws should be interpreted purposively, pragmatically and fairly with an eye to accomplishing their community’s goals.
41. In Semmler v. The Owners, Strata Plan NES3039, 2018 BCSC 2064, at paragraph 18, the BC Supreme Court found that the basic rules of statutory interpretation should be applied when interpreting strata bylaws. The court further held that “in determining the meaning of an individual bylaw, the bylaws must be read as a whole. An interpretation which allows the bylaws to work together harmoniously and coherently should be preferred”.
42. Based on Little and Semmler, I find bylaw 52 applies to both rentals (tenancies) and licence arrangements for less than 30 days, given both arrangements are prohibited for periods of less than 30 days, despite the definition of “short-term rentals” contained in the bylaw. I find if the strata had wanted the bylaw to apply only to short-term rentals, it would have amended the bylaw remove the licencing restrictions.
43. Based on the use of the phrase “…a strata lot is not to be used or occupied…”, I also find this bylaw applies only to the actual use of a strata lot and does not apply to advertising a strata lot for short-term or any use. That is, advertising a strata lot for a purpose contrary to the bylaw is not an infraction of the bylaw. This is an important consideration as it is for this reason that I dismiss the strata claims for fines imposed because SL225 may have been advertised for use through websites discussed in evidence.
44. The distinction between a tenancy and licence arrangement is well-explained in Semmler, and at paragraph 45 the court states:
a. A person may occupy a strata lot under a tenancy agreement or a license agreement.
b. A tenant is a person who rents all or part of a strata lot and who, through that arrangement, receives an interest in the property including exclusive possession of the premises.
c. An occupant is a person other than an owner or tenant who occupies a strata lot.
d. A licensee is an occupant but not a tenant.
e. Provisions of the Strata Property Act which relate to tenants and tenancies do not apply to licencees.
45. The main reason I note this distinction concerns the strata’s maximum bylaw fines.
46. Sections 7.1(1) and (2) of the regulation permit the strata to fine a maximum of $200 for each contravention of a bylaw, except for contraventions of a rental limitation bylaw where the maximum fine is $500.
47. At the time bylaw 52 was in force, strata bylaw 26.1 read, in part “The strata corporation may fine an owner… a maximum of… $500 for each contravention of bylaw 52”. Given section 7.1 of the regulation, I find a $500 fine imposed under bylaw 26.1 was only enforceable if such a fine was imposed for tenancy or rental contraventions of bylaw 52. Put another way, I find the strata is not entitled to $500 fines for bylaw 52 contraventions about licencing arrangements that may have existed prior to December 11, 2019, when the bylaw was amended. I discuss maximum fines available to the strata after December 11, 2019 below.
48. On December 11, 2019, the strata filed New Bylaw 52 that replaced the original bylaw 52. It reads (my emphasis):
No owner, tenant, or occupant will for any reason grant a licence to any person to occupy a strata lot under any of the following arrangements:
a. As vacation, travel, or temporary accommodations; or
b. As a motel, hotel, inn, hostel, or bed and breakfast, or other similar accommodations; or
c. As a boarding house, home stay, or student housing; or
d. through any website designed for booking short term accommodations, temporary accommodations or vacation rentals, including but not limited to www.Airbnb.com, www.vrbo.com and other similar website; or
e. Through any app designed for booking short term accommodations, temporary accommodations or vacation rentals; or
f. Through any other person, agency, or organization which makes arrangements for, or which itself reserves, short term accommodations, temporary accommodations, or vacation rentals; or
g. At a nightly or weekly rate.
49. I interpret New Bylaw 52 applies only to licence arrangements and not to tenancy arrangements. I say this based on a plain reading of the bylaw and that the words “tenancy” and “rental” are not used.
50. As with the original bylaw 52, I also find an owner must have granted a licence for use of their strata lot be found in contravention of New Bylaw 52. I find that advertising a strata lot for use under a licence arrangement, such as through Airbnb or VRBO, is not a breach of New Bylaw 52. It follows that all bylaw fines imposed under New Bylaw 52 for advertising SL 225 for use under a licencing arrangement are also invalid.
51. Also on December 11, 2019, the maximum fine for a breach of New Bylaw 52 was increased to $1,000 per day, which I find is consistent with section 7.1(1)(c) of the regulation. This regulation was brought into force November 30, 2018, but only applies if such a fine is set out in the strata’s bylaws, which , in this case, became effective December 11, 2019.
52. In summary, I find bylaw 52 and New Bylaw 52 fines imposed by the strata against SL225 are not valid if:
a. The strata failed to prove a bylaw breach occurred.
b. The strata did not send its correspondence consistent with sections 61(1)(b), 132, and 135 of the SPA, or
c. The fines were imposed retroactively, or
d. If the fines related to short-term licencing use of SL225 before December 11, 2019 and was for an amount greater than $200.
53. As for the respondents’ counterclaim, Mr. Hoang submitted many months of his and Ms. Nguyen’s bank statements suggesting they show the respondents did not receive funds from short-term accommodating of SL225. This, coupled with his assertion that the respondents did not breach any bylaws, is essentially the extent of his submissions.
54. I do not agree that bank statements prove SL225 was not used contrary to bylaw 52 or New Bylaw 52. It is possible the respondents could have bank accounts other than the ones provided, where income from short-term accommodation could have been deposited. Additionally, the respondents may have arrangements with other individuals to receive money for SL225 being used contrary to the bylaws, without the respondents receiving any money directly, as suggested by the strata.
55. I turn now to the specific fines imposed by the strata against SL225 for bylaw 52 and New Bylaw 52.
56. The strata wrote to the respondents on August 29, 2018 advising about a breach of bylaw 52 concerning use of SL225. I find the letter complies with section 135 of the SPA and advised the respondents of a potential $200 fine if no response was received. However, there is no evidence before me showing the respondents breached the bylaw, such as a complaint letter or incident report from the hotel security staff. Therefore, I find this fine to be invalid.
57. I find the weekly fines of $200 imposed by the strata between October 28 and December 2, 2018 (totalling $1,200) are invalid because the October 31, 2018 letter from the strata advising of the imposed fines is unclear about whether fines relate to the actual use of SL225 or advertising of SL225 for short-term use. Further, I find the fines were imposed without the respondents being given a reasonable opportunity to respond or be heard, contrary to section 135(1).
58. For the same reasons, I find the increased weekly fines of $500 imposed by the strata between December 9, 2018 and January 27, 2019 (totalling $4,000) as set out in the strata’s December 2, 2018 letter to the respondents is also invalid.
59. The strata wrote to the respondents about a number of bylaw violations of bylaw 52 between April and November 2019. I calculate the total bylaw fines claimed total $4,400. Again, however, the strata provided no evidence showing the respondents breached the bylaw, such as a complaint letter or incident report from the hotel staff. Therefore, I find these fines to be invalid.
60. I find the strata wrote to the respondents about fines at an address other than the strata lot on January 13 and 29, March 23, and May 13, 2020 contrary to section 61 of the SPA. Therefore, I find the fines imposed that relate to this correspondence, which total $45,000, are also invalid. I also note that the May 13, 2020 letter imposed $42,000 in fines retroactively (from March 23 to May 8, 2020), which is another reason I find these fines invalid.
61. In summary, I find the strata is not entitled to any fines imposed for respondents’ breach of bylaw 52 and New bylaw 52. I dismiss the strata claims for $54,800 in fines related to SL225 for the reasons stated above, and I order these fines to be reversed.
SL225 Parking stall storage - Bylaw 44.4
62. Bylaw 44.4 that says parking stalls are not to be used for storage.
63. On May 4, 2019, the strata wrote to the respondents advising that the parking stall assigned to SL225 was being used for storage contrary to bylaw 44.4 and asked that the item be removed. The letter contained a photograph of what appears to be metal pipes stored at the head of the parking stall. The respondents did not reply, and the spreadsheet shows a $200 fine was imposed on June 23, 2019. However, there is no letter in evidence the strata made the respondents aware of its decision to impose a fine for the respondents’ breach of bylaw 44.4, so I find the strata did not comply with section 135(2) of the SPA. Therefore, I find this $200 fine is invalid.
64. On August 29, 2019, the strata again wrote to the respondents for the same reason and included a similar photograph. The strata also issued a warning letter about the parking stall storage on September 13, 2019, but no other fines were imposed. Therefore, I dismiss the strata’s claims for payment of fines about storage in the parking area and order the fines reversed.
SL225 Nuisance, unreasonable interference - Bylaw 4.1
65. Bylaw 4.1 that says 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.
66. On July 9, 2019, the strata wrote to the respondents advising that a person “associated with” SL225 was reported to be asking other residents how to gain access to the parking garage, and that later, a person was seen on CCTV cameras “allowing access to the garage” using a FOB registered to SL225. Photographs were included with the letter, but they are not clear. The strata wrote that this activity was contrary to bylaw 41(a),(c) and (e), and imposed a $200 fine by way of an August 30, 2019 letter to the respondents.
67. I find the strata failed to prove a breach of bylaw 4.1 based on the reported activity. It is not clear from the evidence that the person allowing garage access with the SL225 FOB was causing a nuisance or hazard, interfering with the rights of others, or using any property contrary to a purpose for which it was intended.
68. For these reasons, I find the $200 fine imposed against SL225 for breach of bylaw 4.1 is invalid. Therefore, I dismiss the strata’s related claims and order them reversed.
SL225 Damage to common property - Bylaw 4.3
69. Bylaw 4.3 that says in part, that an owner, tenant, occupant or visitor must not cause damage, other than reasonable wear and tear, to the common property or common assets of the strata.
70. The strata says that individuals associated with SL225 damaged a door near the residential elevators. This is based on a June 30, 2019 incident report from the hotel security staff that one of the individuals was witnessed damaging the door and identified to hotel staff they were from SL225. The strata wrote to the respondents on July 31, 2019 advising of the door damage and that further action may be taken unless the respondents provided a response or requested a hearing within 2 weeks. On August 31, 2019, the strata advised the respondents a $200 fine had been imposed.
71. Details included in the security staff incident report include that the RCMP was called to investigate the incident and spoke with persons located within SL225. I accept that individuals associated with SL225 were involved in damaging the door based on the incident report. In submissions, Mr. Hoang admits his friends may have caused damage to the door, but that he didn’t see any damage when he viewed the door.
72. Based on the evidence before me, and Mr. Hoang’s apparent acknowledgement, I find the $200 fine for bylaw 4.3 about damage to a door is valid. Accordingly, I order the respondents to pay it.
73. In summary, I find the respondents owe the strata $200 for bylaw fines it imposed against SL225 for damage caused to a door for breach of bylaw 4.3.
Are the bylaw fines imposed against Ms. Nguyen, as owner of SL332, valid and enforceable?
74. The strata says that Ms. Nguyen allowed SL332 to be used contrary to the strata’s bylaws and that she is responsible to pay the following fines for SL332:
a. $55,200 for bylaw 52 and New Bylaw 52 contraventions relating to short-term use of SL332, and
b. $2,650 for bylaw 4.1 contraventions for illegal use of SL332, spilling liquids in common areas of the strata, and throwing items from SL332.
75. I note the total amount of fines is $57,850. The difference of $50 between the Dispute Notice and the strata’s submissions is explained as an ”accounting error”, which the strata says was corrected in October 2020. The SL332 ledger shows a reduction of $50 for a “use of property” bylaw fine, which I infer relates to bylaw 4.1. I accept the total amount claimed by the strata for SL332 is $57,850.
SL332 Short-term Use - Bylaw 52 and New Bylaw 52
76. As noted, the strata claims a total of $55,200 in fines. I find the same general analysis about bylaw 52 and New Bylaw 52 fines imposed against SL225 applies to this claim. Specifically, I find bylaw fines imposed by the strata against SL332 are not valid if:
a. The strata failed to prove a breach bylaw 52 or New Bylaw 52,
b. The strata did not send its correspondence consistent with sections 61(1)(b), 132, and 135 of the SPA, or
c. The fines were imposed retroactively, or
d. If a fine related to short-term licencing use of SL332 before December 11, 2019 and was for an amount greater than $200.
77. The strata’s allegations that Ms. Nguyen breached bylaws 52 and New Bylaw 52 are very similar to its allegations about SL225.
78. The strata wrote to Ms. Nguyen on August 29, 2018 advising about a breach of bylaw 52 concerning use of SL225. I find the letter complies with section 135 of the SPA and advised Ms. Nguyen of a potential $200 fine if no response was received. However, I find the strata has not proved the bylaw was breached. Specifically, there is no evidence Ms. Nguyen breached the bylaw, such as a complaint letter or incident report from the hotel staff. Therefore, I find this fine to be invalid and I dismiss the strata’s claim for this $200 fine.
79. I find the weekly fines of $200 imposed by the strata between October 28 and December 2, 2018 (totalling $1,200) are invalid because the October 31, 2018 letter from the strata advising of the imposed fines is unclear about whether fines relate to actual use of SL225 or advertising of SL225 for short-term accommodation. Further, I find the fines were imposed without Ms. Nguyen being given a reasonable opportunity to respond or be heard, contrary to section 135(1).
80. For the same reasons, I find the increased weekly fines of $500 imposed by the strata between December 9, 2018 and January 27, 2019 (totalling $4,000) as set out in the strata’s December 2, 2018 letter to Ms. Nguyen are also invalid.
81. As with SL225, the strata wrote to Ms. Nguyen about a number of bylaw 52 violations between May and November 2019. I calculate the bylaw fines claimed by the strata during this period total $5,200. Again, except for the August 15, 2019 incident noted below, there is no evidence establishing that Ms. Nguyen breached the bylaw. Although an incident report from hotel security staff was produced in relation to an August 15, 2019 couple using SL332 through an Airbnb listing, I find there was no bylaw infraction letter provided in evidence about this infraction. Therefore, I find these fines to be invalid.
82. I find the strata wrote to Ms. Nguyen about fines at an address other than the strata lot on January 13 and 29, March 23, and May 13, 2020 contrary to section 61. Therefore, I find the fines imposed that relate to this correspondence, which total $46,000, are also invalid. I also note that the May 13, 2020 letter also imposed $42,000 in fines retroactively (from March 23 to May 8, 2020), which is another reason I find these fines invalid.
83. In summary, I find the strata is not entitled to any fines imposed for Ms. Nguyen’s breach of bylaw 52 and New bylaw 52. I dismiss the strata claims for $55,200 in fines related to SL332 for the reasons stated above.
SL332 Illegal activity and other fines - Bylaw 4.1
84. As noted, bylaw 4.1 says in part, 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. unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot;
c. is illegal; or
d. 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.
85. The strata imposed a total of $2,650 in fines for breaches of bylaw 4.1. Based on my review of the evidence, I find this amount can be broken down as follows:
a. $200 for smoking,
b. $200 for nuisance,
c. $200 about a cell phone thrown from SL332 into the strata’s hot tub on the ground level,
d. $250 for failing to clean up a liquid spill ($50) and vomit ($200) from the elevator cab, and
e. $1,800 for illegal use of SL332.
86. As for the smoking fine, the strata says it was retracted so I find it is not valid. Accordingly, I dismiss the strata’s claim for the $200 smoking bylaw fine.
87. I am unable to determine the details that resulted in the $200 nuisance fine, nor is there evidence the strata advised Ms. Nguyen that the fine was imposed. Therefore, I dismiss the strata’s claim for the $200 nuisance fine.
88. The strata wrote to Ms. Nguyen on August 19, 2019 saying a cell phone was thrown into the hot tub from the balcony of SL332. An incident report from the hotel security staff was completed, that included a report on attendance by the RCMP. However, there is no evidence the strata wrote to Ms. Nguyen imposing a $200 fine as required by section 135(2) of the SPA, so I find this fine invalid, and I dismiss the strata’s claim for it.
89. As for the spilled liquid in the elevator, the strata advised Ms. Nguyen of the incident in a letter dated August 29, 2019 that included a photograph of a person in the elevator and was appears to be some debris on the elevator cab floor. There is no accompanying incident report or other evidence to support the person shown in the photograph was associated with SL332. Therefore, I find the strata has not proved its claim that bylaw 4.1(a) was breached and I dismiss the strata’s claim for $50 in fines.
90. While the strata properly advised Ms. Nguyen on October 11, 2019 about an incident involving vomit in the elevator, I find there is no evidence the strata notified her that a $200 fine had been imposed. Therefore, I find the $200 fine is invalid and I dismiss the strata’s claim for this fine.
91. Lastly, I turn to the strata’s claims that SL332 was illegally used, in essence for sex trade work.
92. The strata advised Ms. Nguyen that it had determined SL332 was being used illegally on October 7 and 22, 2019. A letter from the strata to Ms. Nguyen dated November 14, 2019 also alleged illegal activity occurred on October 18, 2019 but there is no letter about illegal activity on that date before me. Regardless, the November 14, 2019 letter imposing $600 in fines was not sent by a method set out in section 61 of the SPA, so I find the $600 fines are invalid.
93. The strata again wrote to Ms. Nguyen on December 16 and twice on December 20, 2019 about illegal activity occurring in SL332. The letters specifically referenced “multiple men” attended SL332 over a short period of time. The letters also made reference to hotel security staff incident reports on which the strata relied. I find there is nothing in the evidence to prove illegal activity occurred in SL332. For example, multiple individuals attending SL332 is not illegal, and there is no evidence of what activity actually occurred in SL332 on the dates alleged by the strata. I find the evidence here is speculative, and that the strata has not proven SL332 was used for illegal activity on the dates noted. Therefore, I dismiss the strata’s claims for $600 in bylaw fines imposed on these dates.
94. I find the same analysis applies to bylaw letters written by the strata to Ms. Nguyen advising of illegal activity on January 7 and 10, 2020 (twice), and the strata’s letter to Ms. Nguyen imposing $600 in fines on March 20, 2020. As such, I find these fines are also invalid and I dismiss the strata’s related claims.
95. In summary, I find all fines imposed against Ms. Nguyen and SL332 are invalid and I dismiss the strata’s claims against Ms. Nguyen.
CRT FEES AND EXPENSES
96. 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. I find the respondents are the successful parties in this dispute but paid no CRT fees. Nor did any party claim dispute-related expenses. Accordingly, I make no order for CRT fees or dispute-related expenses.
97. The Court Order Interest Act (COIA) applies the CRT. The strata is entitled to pre-judgement interest under the COIA from the date the bylaw fines were imposed, to the date of this decision. I calculate the pre-judgment interest for the $200 SL225 fine to be $7.16.
98. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the respondents.
ORDERS
99. Within 21 days of the date of this decision, I order the respondents to pay the strata $207.16 for bylaw fines imposed against SL225, and related interest, broken down as follows:
a. $200.00 for bylaw 4.3 about damage to common property, and
b. $7.16 for prejudgement interest under the COIA.
100. I dismiss the strata’s remaining claims.
101. I order all remaining bylaw fines issued against SL225 between August 2018 and July 2020 reversed.
102. I dismiss Mr. Hoang’s remaining counterclaims.
103. The strata is entitled to post-judgment interest under the COIA, as applicable.
104. 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.
|
|
|
J. Garth Cambrey, Vice Chair |