Date Issued: March 25, 2021

Date Amended: March 29, 2021¹

File: ST-2020-005055

Type: Strata

Civil Resolution Tribunal

Indexed as: Tomlinson v. The Owners, Strata Plan EPS 938, 2021 BCCRT 331

Between:

BONNIE TOMLINSON

Applicant

And:

The Owners, Strata Plan EPS 938

Respondent

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

INTRODUCTION

1.      This is a strata property dispute about governance issues.

2.      The applicant, Bonnie Tomlinson, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan EPS 938 (strata). She also served on the strata council as vice president.

3.      Ms. Tomlinson says the strata, or people owning more than 50% of the strata lots, took unfair action against her about alleged outstanding strata fees. She also says the strata is enforcing bylaws unfairly or not at all, and the strata is not enforcing a rule about children playing on a common property sidewalk area. She also says there are “irregularities” in strata meetings. As remedy, Ms. Tomlinson seeks $5,000 for “emotional damages” and $1,020 for the expense of securing her strata lot.

4.      The strata disagrees with all of Ms. Tomlinson’s allegations, stating her claims and this dispute are invalid. I infer the strata seeks dismissal of Ms. Tomlinson’s claims.

5.      Ms. Tomlinson represents herself and a strata council member represents the strata.

6.      For the reasons that follow, I refuse to resolve Ms. Tomlinson’s allegations or claims for harassment, and I dismiss Ms. Tomlinson’s remaining claims.

JURISDICTION AND PROCEDURE

7.      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.

8.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to a “she said, they said” scenario as to how the strata has conducted its affairs. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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 the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized the CRT’s process and that oral hearings are not necessarily required where credibility is in issue.

9.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

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.

Preliminary Issue – Harassment

12.   Ms. Tomlinson’s submissions contain allegations of harassment, but she does not expressly claim harassment occurred. The allegations appear to form part of her submissions and relate to her requested remedy for “emotional damage”. To the extent she is making claims of harassment, I find such claims are outside the CRT’s strata property claim jurisdiction. My reasons follow.

13.   First, section 121(1) of the CRTA says CRT has jurisdiction over a claim, in respect of the Strata Property Act (SPA), concerning one or more listed areas including the interpretation or application of the SPA, or a regulation, bylaw or rule under the SPA, common property, use or enjoyment of a strata lot, money owing, and actions or decisions by a strata against an owner. Absent a bylaw about harassment, as is the case here, I find Ms. Tomlinson’s harassment claims are not listed in CRTA section 121(1). I therefore find that harassment claims do not fall within the CRT’s strata property jurisdiction.

14.   Second, I find Ms. Tomlinson’s harassment allegations are more than likely against other owners or strata council members. Since she did not name any individuals as respondents in this dispute, I cannot make orders against them because they have not had the opportunity to respond to Ms. Tomlinson’s allegations.

15.   Further, 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. I find a strata council member’s standard of care would capture claims of harassment .

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

17.   Further, in Wong v. AA Property Management Ltd., 2013 BCSC 1551, the BCSC considered a claim brought by an owner against the property management company, individual council members, and the strata corporation. The owner alleged that the defendants had acted improperly in the management of the strata’s affairs. The court concluded that the only time a strata lot owner can sue an individual strata council member is for a breach of the conflict of interest disclosure requirement under section 32 of the SPA (at paragraph 36). Remedies for breaches of SPA section 32 are specifically excluded from the CRT’s jurisdiction, as set out in section 122(1)(a) of the CRTA. Thus, the CRT does not have jurisdiction over any claims brought by an owner against an individual strata council member, including harassment.

18.   The court decisions in Wong and Sze Hang are binding precedents, and the CRT must apply them. Following, Wong and Sze Hang I find the CRT has no jurisdiction to decide Ms. Tomlinson’s section 31 and 32 allegations, as set out above

19.   For all of these reasons, to the extent Ms. Tomlinson alleges she was harassed by other owners I dismiss those claims. I also refuse to resolve any harassment claims or allegations against strata council members under section 10(1) of the CRTA.

ISSUES

20.   The issues in this dispute are:

a.    Did the strata take unfair action against Ms. Tomlinson about alleged outstanding strata fees?

b.    Has the strata properly followed and enforced its bylaws and rules?

c.    Has the strata properly conducted its meetings?

d.    If the strata has acted unfairly or improperly, what remedy is appropriate, if any?

BACKGROUND, EVIDENCE AND ANALYSIS

21.   In a civil proceeding such as this, Ms. Tomlinson as applicant, 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.

22.   The strata is a 16-unit strata corporation created in July 2013 under the Strata Property Act (SPA). The 16 units are located in a single 3-storey building.

23.   Section 120 of the SPA states the strata’s bylaws are the Standard Bylaws under the SPA unless different bylaws are filed in the Land Title Office (LTO). LTO documents show amendments to bylaws 1 and 8, about payment of strata fees and fines respectively, were filed March 23, 2020. I find the Standard Bylaws as amended March 23, 2020 are applicable to this dispute. I refer to bylaws relevant to this dispute below, as necessary.

24.   LTO records show Ms. Tomlinson purchased her strata lot in May 2016. It is undisputed that the majority of the strata lots were held by a bank or receiver until about January 2019, when then were sold to individual owners. In January 2019, the strata retained a new property management firm.

Did the strata take unfair action against Ms. Tomlinson about alleged outstanding strata fees?

25.   Email evidence shows the strata believed Ms. Tomlinson owed strata fees of about $1,768 at December 31, 2018. This appears to be based on records kept by the previous strata manager. In the Dispute Notice, Ms. Tomlinson says the strata’s 2019 budget was passed at a January general meeting with no accounts owing. She says if there were accounts owing, they should have been addressed at the general meeting. In support of her argument, Ms. Tomlinson provided a copy of the proposed 2019 budget with accompanying 2018 actual and budget figures. I find the 2019 budget and 2018 actual figures are not helpful to Ms. Tomlinson because they reflect revenue and expenses, and not assets and liabilities, such as accounts receivable from strata owners.

26.   Ms. Tomlinson says that on November 7, 2019, the strata again suggested she owed the same amount of strata fees. An email exchange between the strata’s new property manager and Ms. Tomlinson that occurred in November 2019 was provided in evidence. In her emails, Ms. Tomlinson claimed she did not owe strata fees and said she was very upset about the allegation. The strata admitted the accounting of its previous property manager was unclear. In an email dated November 18, 2019, the strata confirmed that, as of that date, Ms. Tomlinson’s account with the strata was “up to date and paid.”

27.   Aside from the budget and email exchange, Ms. Tomlinson provided no other evidence to support her claim that the strata’s action against her was unfair. Based on the overall evidence and submissions, I find the strata was unable to prove Ms. Tomlinson owed it strata fees and conceded its claim for 2018 outstanding strata fees. There is no[1] evidence the strata took any other collection action against Ms. Tomlinson, such as charging her interest. Based on the information before me, which only includes the strata writing to Ms. Tomlinson about alleged outstanding strata fees, I find Ms. Tomlinson has not proved the strata acted unfairly. As a result, I dismiss her claim.

Has the strata properly followed and enforced its bylaws and rules?

28.   It is undisputed that in about April 2020, 2 members resigned from the strata council. One of the strata council members was the council president. Ms. Tomlinson was the council vice president at that time and says this was when the strata stopped following or enforcing its bylaws. The strata disagrees and says it follows and enforces its bylaws and rules to the best of its ability.

29.   Ms. Tomlinson makes several assertions about how the strata has failed to follow or enforce its bylaws and rules. Many are unclear. However, from her submissions, I find her substantial allegations are that the strata:

a.    Failed to enforce a rule prohibiting children from riding bicycles and using skateboards on a portion of a common property sidewalk,

b.    Failed to allow her to act as president under bylaw under bylaw 13(3)(b),

c.    Failed to enforce bylaw 3(3) that requires pets to be leashed while on common property, and

d.    Failed to enforce bylaw 3(4)(d) that restricts owners to 1 cat or 1 dog, among other allowable pets.

30.   As for the strata’s rule about use of a common property sidewalk, the strata says it is not a rule, but rather a policy of the strata. I agree. Ms. Tomlinson provided a photograph of part of a document with a heading of “policies and information” that was last updated in 2019. Item 3 of that document relates to the use of the “back sidewalk” and expressly states it is not for riding bicycles or for skateboarding. The strata provided a similar document consisting of 2 pages with the identical heading and wording in item 3. The strata also provided another document with a heading “Rules – Approved and Enforceable”. The only rule that appears on that document is about smoking.

31.   Based on the documentary evidence provided, I find Ms. Tomlinson has misinterpreted the policy about the sidewalk use as a rule. Neither the SPA nor the strata’s bylaws address policies, so I find the strata has no obligation or ability to enforce a policy.

32.   The parties agree that Ms. Tomlinson served as the strata council vice president in 2020 and that the president resigned from the council in April 2020. The strata provided strata council meeting minutes for April 23 and June 9, 2020. The April 23, 2020 minutes show 5 strata council members in attendance, including Ms. Tomlinson. The June 9, 2020 minutes show 3 strata council members in attendance, including Ms. Tomlinson, and that 2 members resigned. The parties agree the council president was 1 of the 2 members who did resign. The June 9, 2020 minutes also ask owners to notify the property manager if they are interested in filling the 2 vacant positions on the strata council.

33.   Under bylaw 13(3)(b), there is no approval required for Ms. Tomlinson, as vice present, to act in the president’s position. Rather, the bylaw states “the vice present has the powers and duties of the president...for the remainder of the president’s term if the president ceases to hold office.” On a plain reading of bylaw 13(3)(b), I find that Ms. Tomlinson was deemed to have the powers and duties of the council president when the president resigned from the strata council. That there were no express statements to this effect contained in the June 9, 2020 minutes does not mean the strata council denied Ms. Tomlinson from acting as president as she claims.

34.   Based on the evidence and submissions, I find Ms Tomlinson has not provided any evidence to support she was denied the president’s powers and duties. Therefore, I find she has not proved the strata, through its council, denied her the ability to act as council president when the former president resigned.

35.   It appears that Ms. Tomlinson may misunderstand the powers and duties of the strata council president. In the Dispute Notice, she says that because she was denied these powers and duties, she could not, as president, enforce the strata’s bylaws. However, the SPA does not permit a strata council president to enforce bylaws (or rules). Rather, as I discuss below, decisions of the strata council are made by majority vote of the strata council members and not by the president alone.

36.   As for not enforcing the pet bylaws, I find Ms. Tomlinson has not proved her claim. Aside from her assertions the strata council is not enforcing these bylaws she has not provided any evidence to support her claim. On the contrary, Ms. Tomlinson and the strata both provided “Bylaw Report and Tracking” listings for different period during 2020. The listings show the date, the bylaw being contravened, and the action taken by the strata council, including writing warning letters, among other things. While the listings show no bylaw fines were imposed, they do show there were complaints about pets being off leash, contrary to bylaw 3.

37.   Section 26 of the SPA requires the strata council to enforce the strata’s bylaws and rules. It is unclear what action Ms. Tomlinson expected the strata to take, but I note section 129 of the SPA includes providing a warning letter to the person who is contravening the bylaw or rule. Thus, the action the strata council may take to enforce a bylaw or rules is discretionary and need not include a fine.

38.   Given my findings above, I dismiss Ms. Tomlinson’s claim the strata failed to follow or enforce its bylaws and rules.

Has the strata properly conducted its meetings?

39.   Ms. Tomlinson makes several observations about the apparent inability of the strata council to properly conduct its meetings. However, I find there is only 1 item of substance raised by Ms. Tomlinson that is supported by any evidence. That is, whether the appointment of a strata council member to replace a member who resigned was made contrary to bylaw 12(1).

40.   Ms. Tomlinson cites bylaw 12(1) that reads: “If a council member resigns...the remaining members of the council may appoint a replacement council member for the remainder of the term.”

41.   She says the vote to approve replacement council members was put to the strata ownership rather than to the strata council. I find the evidence before me does not support that conclusion. The strata provided evidence that the vote to appoint strata council members was conducted by email in July 2020 with 1 of 2 owners being appointed by the majority of the strata council. The email shows the second owner did not receive a majority vote and was therefore not appointed to the strata council. Ms. Tomlinson did not provide any evidence on this issue.

42.   Bylaw 17 permits the strata council to conduct its meetings electronically and bylaw 18 requires strata council decisions to be made by a majority vote. In light of Ms. Tomlinson’s allegation that the appointment of the replacement council members was conducted improperly, I have considered the ability of the strata council to conduct votes by email. The courts have addressed a strata council’s authority under the SPA to conduct business outside a strata council meeting.

43.   In Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610, the BC Supreme Court considered an application from an owner regarding the production of documents under sections 35 and 36 of the SPA. When considering those sections of the SPA, the court considered arguments about council meetings where no minutes were kept. I find paragraphs 8 and 23 of Kayne particularly helpful here. I reproduce them below.

[8] The purpose of the [SPA] is to ensure that members of the strata corporation are informed of the decisions taken and the money spent on their behalf. It mandates no particular form in which these documents are to be kept and no particular level of detail. For example, although it requires minutes, it does not, beyond stating that the minutes include the results of any votes, set out any degree of detail that must be contained in those minutes. Minutes must contain records of decisions taken by council, but may or may not report in detail the discussions leading to those decisions.

[23] In any organization, there will be occasions when people who are members of a council or an executive will meet informally to discuss matters of relevance to the organization. Those are not meetings of the council and it would be unrealistic to expect minutes be kept of such meetings. Of course no decision that may be taken at any such meeting has any validity unless and until it is taken or ratified by a properly constituted and minuted meeting of the council. [my emphasis]

44.   In Yang v. Re/Max Commercial Realty Associates (482248 BC Ltd.), 2016 BCSC 2147, the Supreme Court agreed with the statements made in Kayne as noted above. The court then addressed an owner’s concern about strata council decisions made between regular council meetings, particularly by email, that were not included in the minutes, stating at paragraph 134:

[134] With respect to meetings held by email the Strata Property Act does not specifically prevent such meetings although minutes must be provided for them. That said this Court has upheld decisions taken at email meetings that have not been noted in the minutes: Azura Management (Kelowna) Corp. v. The Owners, Strata Plan KAS 2428, 2009 BCSC 506 at paras. 31-32. However, the Court stated at para. 34 that it could not “conclude that the failure to produce minutes was significantly unfair to Azura or to any other Owner. I conclude that this failure only establishes an isolated instance of easily rectifiable procedural irregularity. In the future, the Council should produce minutes forthwith after all annual general meetings, special general meetings, and Council meetings are held.” [Emphasis in original.]

45.   Although the court in Yang upheld council decisions made at email meetings, it did so because it determined they were isolated instances. Equally important to this dispute, the court in Yang also found an unminuted council decision to include certain items in a general meeting notice was an isolated instance (at paragraph 155). I find this would apply to an email vote where no meeting was conducted.

46.   It is unclear from the email evidence whether the strata council’s votes for replacement strata council members under bylaw 12(1) were conducted during an electronic meeting or simply by way of an email vote. I suspect it was the latter. However, I find I do not need to consider this distinction as Ms. Tomlinson does not claim email decisions of the strata council occur frequently. There is also no evidence of this.

47.   Either way, I find the electronic procedure used by the strata council to vote on replacement strata council members did not prejudice Ms. Tomlinson or any other owner. I find the strata’s votes for replacement council members by email in July 2020 was an ”isolated instance of easily rectifiable procedural regularity” as discussed in Yang. It is unclear if the outcome of the vote has been recorded in the strata council meeting minutes as only 4 sets of minutes are before me. If the outcome of the vote has not been recorded in the strata council’s meeting minutes, that should be done at the next opportunity.

48.   As a result of my findings above, I dismiss Ms. Tomlinson’s claim that the strata has not properly conducted its meetings.

49.   Given I have dismissed all of Ms. Tomlinson’s claims, I also dismiss this dispute.

50.   Therefore, I find I do not need to address Ms. Tomlinson’s requested remedies. I would add that even if I found the strata had acted inappropriately, I would not have granted the remedies Ms. Tomlinson requested. This is because, after refusing to resolve her harassment claims, I find Ms. Tomlinson’s requested remedies of $5,000 damages for “emotional distress” and $1,020 for the expense of securing her strata lot, are insufficiently linked to her remaining stated claims.

CRT FEES AND EXPENSES

51.   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. I see no reason to deviate from this general rule. The strata was the successful party in this dispute but did not pay CRT fees or claim dispute-related fees, so I order none.

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

ORDERS

53.   I refuse to resolve Ms. Tomlinson’s harassment claims against strata council members under section 10(1) of the CRTA.

54.   I order Ms. Tomlinson’s remaining claims dismissed.