Date Issued: March 8, 2021

File: ST-2020-002761

Type: Strata

Civil Resolution Tribunal

Indexed as: Janciova v. The Owners, Strata Plan BCS 183, 2021 BCCRT 255

Between:

ZUZANA JANCIOVA

Applicant

And:                                    

The Owners, Strata Plan BCS 183 and Diana Wong

Respondents

INTRODUCTION

1.      This dispute is about bylaw fines for short-term rentals in a strata corporation. The applicant, Zuzana Janciova, was previously a tenant in a strata lot located in the respondent strata corporation, The Owners, Strata Plan BCS 183 (strata). The owner of the strata lot, KVL, is not a party to this dispute. I note that Ms. Janciova disputes KVL’s status and I will discuss it further below. The respondent Diana Wong is KVL’s rental property agent.

2.      The strata fined KVL $1,700 for bylaw and rule breaches. After Ms. Janciova’s tenancy ended, KVL obtained an order from the Residential Tenancy Branch (RTB) for recovery of these fines from Ms. Janciova. Ms. Janciova now seeks an order for the strata to cancel the fines against KVL and reimburse her $1,820 in legal fees. In submissions Ms. Janciova also requested that I find or declare that Ms. Janciova did not run a short-term rental and is not liable to anyone for the fines.

3.      The strata says Ms. Janciova has no standing in this dispute because it fined the owner and not Ms. Janciova. The strata says that even if Ms. Janciova has standing, it properly levied the fines and so this dispute should be dismissed. Ms. Wong also disagrees with Ms. Janciova’s claims. She says KVL does not want to be involved in this dispute.

4.      A strata council represents the strata. Ms. Janciova and Ms. Wong are self-represented.

5.      As discussed below, I find that Ms. Janciova lacks standing to make the claims in this dispute. I must therefore dismiss her claims and this dispute.

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.

The CRT’s Jurisdiction under Section 189.1 of the Strata Property Act

10.   As noted above, Ms. Janciova is a former tenant who used to live in a strata lot in the strata. An RTB decision dated July 9, 2020 shows that she moved out on March 1, 2020. Ms. Janciova filed her CRT application for dispute resolution on March 30, 2020 and amended it on July 23, 2020 to include Ms. Wong as a respondent.

11.   Strata Property Act (SPA) section 189.1(1) says that an owner or tenant may request the CRT to resolve a dispute over any strata property matter over which the CRT has jurisdiction. In previous decisions the CRT has considered whether it has jurisdiction over disputes from former tenants who moved out before filing their disputes. In Gill v. The Owners, Strata Plan EPS 4403, 2020 BCCRT 228, the CRT Vice Chair decided that the word “tenant” in SPA section 189.1(1) includes former tenants.

12.   The parties did not object to the CRT’s jurisdiction over this dispute. In any event, I find the reasoning in the non-binding decision of Gill persuasive and applicable. I find that the CRT has jurisdiction over this dispute, even though Ms. Janciova moved out before filing her dispute.

ISSUES

13.   The issues in this dispute are as follows:

a.    Does Ms. Janciova have standing to make her claims against the respondents?

b.    If so, did Ms. Janciova or KVL breach any bylaws, and if not, what remedies are appropriate?

EVIDENCE AND ANALYSIS

14.   In a civil claim like this one, the applicant Ms. Janciova must prove her claims on a balance of probabilities. I have reviewed all the parties’ evidence and submissions, including case law, but only address them to the extent necessary to explain my decision.

15.   I will begin with the undisputed background facts. The strata consists of a high-rise building that provides apartment-style residential housing. KVL owns a strata lot in the strata and Ms. Wong acted as KVL’s rental agent. Ms. Janciova rented KVL’s strata lot as a residential tenant starting from 2016.

16.   In July and August 2019, the strata sent several written notices of bylaw infractions addressed to KVL, care of Ms. Wong. The strata sent Ms. Janciova copies as well. In the notices the strata wrote that other residents had complained that KVL’s strata lot was being used for short-term rentals in contravention of the bylaws. The strata also said there were complaints about unauthorized fob use and key copying that contravened bylaws and rules about security.

17.   SPA section 26 requires the strata council to exercise the powers and perform the duties of the strata, which includes enforcing bylaws and rules. The strata’s bylaws are registered in the Land Title Office. In March 2013, the owners in the strata voted to repeal and replace all existing bylaws. The strata passed amendments, some of which are relevant. The strata cited the following bylaws in its notices. I have summarized them below, with the applicable amendments.

18.   Bylaw 1.4.2(e) prohibited strata lot owners and tenants from permitting a strata lot to be used for rentals of less than 6 months, or for hotel or commercial purposes, such as VRBO or Airbnb.

19.   Bylaw 7.5.3 prohibited strata lot owners and tenants from making duplicate keys to locks on the common property without strata council’s permission.

20.   The strata’s notices also cited rules 41, 43, and 44. According to the notices, rule 41 said that fobs for the amenities room would only be issued to the strata lot resident. Rule 43 said a maximum of 2 fobs would be issued per strata lot. Finally, rule 44 said that fobs were not transferable and could not be used by any person other than the strata lot resident.

21.   In 2 decision letters dated September 19 and a third dated October 18, 2019, the strata fined KVL a total of $1,500 for contraventions of bylaw 1.4.2(e). In another September 19, 2019 decision letter, the strata fined KVL $200 for contraventions of bylaw 7.5.3 and rules 41, 43, and 44. The strata addressed KVL in these letters and sent copies to Ms. Janciova.

22.   As noted above, Ms. Janciova moved out on March 1, 2020. A statement of account shows KVL paid the fines to the strata in June 2020. KVL subsequently filed a claim against Ms. Janciova with the RTB seeking $1,700 for recovery of the fines, plus damages for Ms. Janciova cancelling her tenancy agreement early. In a July 9, 2020 decision, the RTB awarded KVL $1,700 for the fines plus $3,200 for one month’s rent. The RTB offset these amounts by a security deposit and increased rent from subsequent tenants, resulting in a total amount payable of $700.

23.   In its decision, the RTB noted that its jurisdiction was limited to matters arising under the Residential Tenancy Act (RTA). The RTB wrote that it did not have jurisdiction or authority to determine the legitimacy of the bylaw fines levied against KVL. However, it held that it could still order Ms. Janciova to compensate KVL for the fines under section 67 of the RTA.

Does Ms. Janciova have standing to make her claims against the respondents?

24.   As noted above, the strata challenges Ms. Janciova’s standing in this dispute. I find the law of standing applies. It concerns who can bring a case to court or a tribunal for a decision.

25.   A person may have standing based on private or public interest grounds. I find Ms. Janciova asserts private interest standing, as she claims various relief about whether KVL or herself should be liable for any fines. To have such standing, Ms. Janciova must show she “is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest”: M.K. v. British Columba (Attorney General), 2020 BCCA 261 at paragraph 43.

26.   I have also considered the non-binding decision of Gill v. The Owners, Strata Plan EPS4403, 2020 BCCRT 725, which I find persuasive. The facts in that dispute share many similarities with this one. In Gill, 2 tenants disputed bylaw fines imposed against the owner of the strata lot. The owner paid the fines, and the tenants said that they were obligated to reimburse the owner for the fines due to an RTB order.

27.   The CRT member found that the tenants did not have a sufficient interest in the alleged bylaw infractions to dispute the bylaw fine. He dismissed the tenants’ claim and the dispute. The CRT member also found that the tenancy dispute was not within the CRT’s strata property jurisdiction and refused to make any findings on it.

28.   I find the reasoning in Gill applicable and reach similar conclusions. In the case before me, the strata levied fines against the owner KVL and not Ms. Janciova. The fines were levied under the SPA. They relate to the interests of KVL and not Ms. Janciova. Ms. Janciova expressly asked that I find or order that she is not liable for the fines. However, the evidence clearly shows the strata never fined her. As such, I find that Ms. Janciova does not have standing to make the claims in this dispute.

29.   I acknowledge that, as in Gill, the RTB ordered Ms. Janciova to compensate KVL for the strata’s fines. However, under CRTA section 189.1, Ms. Janciova may only bring a claim about strata property matters that the CRT has jurisdiction over. I find any claims about the RTB order are outside the CRT’s jurisdiction, as outlined under CRTA section 121. This would include, for example, a claim for a declaration that Ms. Janciova does not need to compensate KVL for the fines under the RTA. In applying the test for private interest standing, I do not find that Ms. Janciova is “is likely to gain some advantage” in this proceeding, as I am unable to affect the RTB order.

30.   Ms. Janciova also refers to Africh v. The Owners, Strata Plan EPS3495, 2020 BCCRT 415, which was decided by the same CRT member who decided Gill. In Africh, the CRT member noted that the CRT had previously held that a party does not have standing to make a claim relating to the interests of a non-party. Ms. Janciova submits that KVL is a party to this dispute, and as such, she has standing to advance a claim relating to KVL’s interests.

31.   I disagree that KVL is a party to this dispute. Ms. Janciova did not name him as a respondent in her application for dispute resolution or amend the Dispute Notice to include him. I acknowledge that Ms. Janciova says KVL is, in effect, a party because Ms. Janciova named and served Ms. Wong. Respectfully, I find this to be an extraordinary claim that is not based in fact or law. KVL and Ms. Wong are different people, even though Ms. Wong may have acted as KVL’s rental agent.

32.   In any event, I find that even if KVL had been included as a party, this would not change the fact that the strata fined KVL and not Ms. Janciova. I find that it would still be KVL’s claim to challenge the strata’s fines and not Ms. Janciova’s. For those reasons, I find Ms. Janciova does not have standing to dispute the bylaw and rule fines imposed against KVL. I dismiss this dispute. Further, I do not make any findings about the RTB dispute.

33.   Given the above, I do not find it necessary to analyze whether Ms. Janciova breached the strata’s bylaws or rules and whether the strata properly imposed fines for them.

CRT FEES AND EXPENSES

34.   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.

35.   Ms. Janciova claims $1,820 in legal fees. I decline to order any respondents to reimburse her for this amount for 2 reasons. First, Ms. Janciova is the unsuccessful party. I choose to follow the general rule set out in CRT rule 9.5(1) that she is not entitled to reimbursement.

36.   Second, Ms. Janciova says she is entitled to reimbursement of legal fees because the strata acted reprehensibly. CRT rule 9.5(3), as it read when Ms. Janciova filed her application for dispute resolution, says that except in extraordinary circumstances, the CRT will not order one party to pay another party’s legal fees in a strata property dispute. In previous decisions the CRT has held that reprehensible conduct could be one such extraordinary circumstance. See, for example, Parfitt et al v. The Owners, Strata Plan VR 416 et al, 2019 BCCRT 330.

37.   Ms. Janciova says the strata conducted itself reprehensibly during a hearing it held on February 11, 2020, between herself and the strata council, when it decided not to reverse the fines. I disagree as her submissions show her main complaint is with how the strata weighed evidence and reached its findings. I do not find anything reprehensible or extraordinary about this.

38.   Ms. Janciova also says the strata acted reprehensibly by failing to disclose an August 6, 2019 email before this CRT proceeding started. Ms. Janciova says the strata should have produced it when requested to by her lawyer in a January 27, 2020 letter. Having read the letter, I find that her lawyer requested the strata to provide reasons for its decision and a hearing, which it granted in February 2020. I disagree that the strata refused any specific request for the August 2019 email or otherwise acted reprehensibly.

39.   The strata and Ms. Wong did not pay any CRT fees or claim for any dispute-related expenses. I therefore do not order any reimbursement.

ORDER

40.   I dismiss Ms. Janciova’s claims and this dispute.