Date Issued: April 19, 2021
File: ST-2020-005548
Type: Strata
Civil Resolution Tribunal
Indexed as: Howard v. The Owners, Strata Plan NW2494, 2021 BCCRT 401
Between:
SHELLY LYNN HOWARD
Applicant
And:
The Owners, Strata Plan NW2494
Respondent
And:
SHELLY LYNN HOWARD
Respondent by counterclaim
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REASONS FOR DECISION |
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Tribunal Member: |
Kristin Gardner |
INTRODUCTION
1. The applicant, Shelly Lynn Howard, owns strata lot 56 (SL56) in the respondent strata corporation, The Owners, Strata Plan NW2494 (strata). The strata is the applicant in the counterclaim. Ms. Howard is self-represented, and the strata is represented by the strata council president, CS.
2. Ms. Howard says that the strata approved her applications to alter SL56, but then later complained about her alterations, accessed her property without proper notice, harassed her, and improperly issued fines against her.
3. Ms. Howard says the strata’s alleged harassment and failure to comply with the Strata Property Act (SPA) and the strata’s bylaws has caused her to incur expenses. As a result, she asks for orders that the strata reimburse her for the following:
• awning installation costs due to its improper removal by the strata ($250),
• video surveillance installation costs incurred to monitor alleged trespass ($650),
• costs for damage the strata alleged Ms. Howard’s contractor caused and forced her to pay ($900),
• roof leak repairs required due to the strata’s failure to repair ($645.63),
• Freedom of Information (FOI) request fees ($105),
• costs for legal representation at a strata council meeting ($4,997.54),
• damage to plants when the strata turned off the water supply ($100),
• application costs due to the strata filing a complaint with the City ($6,000),
• uncovered medical expenses ($100), and
• time spent on this dispute ($5,408).
4. Ms. Howard also seeks $10,000 in damages for “intentional infliction of mental distress”, a further $10,000 in damages for loss of quiet enjoyment of her property resulting from the strata council president’s actions (of harassment), and $5,000 in punitive and exemplary damages to discourage the strata council’s bad behaviour.
5. Ms. Howard also requests orders for the following:
• the strata reverse $9,000 in imposed fines,
• the strata cease all action and stop imposing fines relating to SL56 alterations, pending direction from the City,
• the strata approve her application for an awning and high-wind termination cap,
• the strata perform various repairs to limited common property (LCP),
• the strata replace a skylight, a window, and 2 fire door closers and remove offensive labels on corridor doors,
• going forward, all strata council members follow the SPA provisions about notice required to enter a strata lot, properly and equally apply strata bylaws to all owners, and use licensed professional trades for all repairs and maintenance,
• the strata undertake an independent financial audit,
• the strata issue various apologies, and
• remove 3 council members and remove the strata council president and ban or restrict her from running for council for an unspecified period.
6. The strata denies that it has breached any bylaws or the SPA and says it is not responsible for any of Ms. Howard’s claimed expenses or damages.
7. In its counterclaim, the strata seeks an order that Ms. Howard provide a building permit for the alterations she made to SL56 within 30 days, or else remove the alterations. The strata also seeks an order for Ms. Howard to pay $8,400 in fines.
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 the law. 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, 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.
10. 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.
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.
PRELIMINARY ISSUES
Harassment and bullying
13. Ms. Howard’s dispute application contains allegations of bullying and harassment by the strata council, a strata council member’s spouse, and the strata’s property manager. Ms. Howard requests $10,000 for intentional infliction of mental distress, and a further $10,000 for loss of quiet enjoyment of her property, relating to her allegations of bullying and harassment, including ‘trolling’, yelling, gossip, peeping, emailing, and texting. For the following reasons, I find Ms. Howard’s claims of harassment and bullying are outside the CRT’s strata property claim jurisdiction.
14. First, section 121(1) of the CRTA says CRT has jurisdiction over a claim, in respect of the 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. Howard’s bullying and harassment claims do not fall within CRTA section 121(1). I therefore find that harassment and bullying claims do not fall within the CRT’s strata property jurisdiction.
15. Next, Ms. Howard did not name the specific strata council members, spouse, or the property manager she alleges harassed and bullied her, as respondents in this dispute. Therefore, I cannot make orders against them because they have not had the opportunity to respond to Ms. Howard’s allegations.
16. 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.
17. However, in The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 267, the B.C. Supreme Court (BCSC) found that the duties of strata council members under section 31 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.
18. The court decision in Sze Hang is a binding precedent. So, following Sze Hang, I find the CRT has no jurisdiction to decide Ms. Howard’s sections 31 claim, as set out above. For all these reasons, to the extent Ms. Howard alleges she was harassed or bullied by strata council members or the property manager, I dismiss those claims.
Future actions
19. As noted, Ms. Howard requests orders that, going forward, the strata follow the SPA provisions about notice required to enter a strata lot, properly and equally apply strata bylaws to all owners, and use licensed, professional trades for all repairs and maintenance. I find such orders are unnecessary. There are already SPA provisions and bylaws governing notice requirements to enter a strata lot and the standard of care of the strata council, which includes exercising its powers and duties in good faith and in the interest of and with the utmost loyalty to the owners (bylaw 23).
20. While there is no bylaw specifically requiring the strata to use licensed, professional trades for repairs and maintenance, the strata is required to properly maintain and keep common property in a state of good and serviceable repair (bylaw 8(1)(a)) and when maintaining or repairing a strata lot, it must carry out any work or repairs in a proper and competent manner (bylaw 8(4)). If an owner feels the strata has failed to comply with an applicable SPA provision or bylaw in the future, they may bring a claim at the relevant time. I decline to make these orders about future actions.
Late evidence
21. Ms. Howard filed late evidence in this dispute. While the strata objects to the late evidence being admitted, I find the strata had the opportunity to review and respond to it. I find the strata has not be prejudiced by the late evidence, so I allow it and I have considered it in my decision.
ISSUES
22. I find the remaining issues in this dispute are:
a. Whether the strata trespassed on Ms. Howard’s property and damaged her plant watering system,
b. Whether Ms. Howard breached the strata bylaws by installing a second awning without permission, failing to remove a gate on LCP, and failing to obtain a building permit for altering SL56, and if so, whether the strata properly charged bylaw fines for those breaches,
c. Whether Ms. Howard must remove her loft renovations if she does not provide a building permit within 30 days;
d. Whether the strata has improperly failed to undertake various repairs to common property (CP), LCP, and SL56,
e. Whether the strata must approve Ms. Howard’s applications for an awning and high-wind termination cap for her fireplace,
f. Whether the strata improperly charged Ms. Howard $900 for damage to CP,
g. Whether the strata must apologize to Ms. Howard,
h. Whether the strata must undertake an audit,
i. Whether to order the strata council president and other council members be removed,
j. Whether to order punitive and exemplary damages against the strata, and
k. Whether the strata must reimburse Ms. Howard for various expenses she says she has incurred.
BACKGROUND
23. I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision. In a civil proceeding like this one, the applicant Ms. Howard must prove her claims on a balance of probabilities. The strata must also prove its counterclaims on the balance of probabilities.
24. The strata consists of 60 strata lots in a low-rise building. The 4th level of the building is made up partly by strata lots and partly by roof decks that are designated as LCP for the use of the respective strata lots on the 4th level. The strata is managed by a property management company, HMR.
25. Ms. Howard moved into SL56 on August 1, 2018. Her strata lot has an LCP roof deck on the 4th floor that is designated for her exclusive use. When she moved in, SL56 had stairs inside the unit that went from the 4th floor, up to an open loft space. Some of the evidence in this dispute referred to the loft space as a “mezzanine”.
26. The evidence shows that Ms. Howard sent a September 15, 2018 email to HMR to advise that she intended to make several alterations to SL56. The planned alterations relevant to this dispute included renovations to enclose the loft space to make it a bedroom and installation of an outdoor awning.
27. HMR notified Ms. Howard on September 27, 2018 by separate letters that the strata council had approved the above requests to alter SL56. The strata’s approval for the loft renovation was conditional on Ms. Howard obtaining the appropriate permits and providing copies to HMR before starting the work.
28. Ms. Howard proceeded with the approved alterations. In late 2018, Ms. Howard made further alteration requests that were denied and she alleges strata council members entered SL56 without notice to view the loft renovations when Ms. Howard was not home. The evidence shows conflict between Ms. Howard and the strata council escalated after strata council members allegedly accessed roof deck designated for Ms. Howard’s use without proper notice in May 2019, which is discussed further below.
29. It is undisputed that on January 14, 2002, the strata filed a complete new set of bylaws at the Land Title Office (LTO) that repealed and replaced previously filed bylaws. There have been several amendments to the strata’s bylaws since then, most of which are not relevant to this dispute, other than amendments to bylaws 5(6) and 8(3) filed in the LTO on February 3, 2004, and an amendment to bylaw 8(1)(d) filed in the LTO on April 2, 2015.
30. I discuss the bylaws relevant to this dispute below, as necessary.
EVIDENCE AND ANALYSIS
Alleged trespass and damage to plants
31. I find that on May 8, 2019, while Ms. Howard was on vacation, CS advised Ms. Howard’s adult son, BH, that deck maintenance work was proceeding the next day. CS confirmed they needed to access Ms. Howard’s deck, and BH said “okay” and that he would not be home anyway.
32. It is undisputed that 2 strata council members accessed Ms. Howard’s deck from another owner’s deck on May 9, 2019, to coordinate the repairs. Ms. Howard alleges the strata council members turned off her plant drip watering system while on the deck, which caused her plants to die. The strata does not specifically deny this, but it says it is not responsible for replacing Ms. Howard’s dead plants.
33. Even if I found the strata improperly turned off Ms. Howard’s watering system, I find Ms. Howard has provided no evidence about her allegedly dead plants. For instance, there are no photographs, and she provided no submissions about the number or type of plants that died or needed replacement. Given I have no basis on which to estimate the value of the dead plants, I find Ms. Howard has failed to prove her damages. So, I dismiss her claim for replacing her plants.
34. Ms. Howard does not specifically claim damages for trespass related to this incident but many of her complaints about the strata stem from her allegation that the strata has accessed her roof deck without adequate notice or her permission.
35. Contrary to Ms. Howard’s submissions, I find the roof deck is not part of Ms. Howard’s strata lot. The roof decks are designated on the strata plan as LCP, which is a specific type of common property.
36. Section 77 of the SPA says an owner who has the right to use LCP must allow the strata corporation reasonable access to exercise its powers and perform its duties. There are no specific notice requirements in the SPA about the strata accessing LCP other than the owner must provide “reasonable access”. I find reasonable access does not mean the strata is entitled to enter Ms. Howard’s LCP without any notice. I find some advanced notice is likely required, but the particular circumstances will determine what is considered “reasonable access”.
37. In this instance, I find CS advised BH in advance that they would be on the deck and BH agreed to the strata accessing the deck. Therefore, I find the strata did not trespass or unreasonably access the deck.
Bylaw fines
38. After the deck work, HMR sent Ms. Howard a June 17, 2019 letter about bylaw contraventions. Specifically, the letter said Ms. Howard had a fridge on the deck, which it said contravened bylaw 5(6), and a cupboard type door with hinges (also referred to as a “gate” in this dispute) attached to the building, which it said contravened bylaw 6(1). The letter also said a second awning was installed without approval, and that Ms. Howard had not provided required permits for her loft renovations. The letter stated that if Ms. Howard did not remove the fridge, gate, and awning, or provide the permits by June 23, 2019, the strata would assess fines, as set out in bylaw 25, which provides that a maximum fine of $200 can be imposed for each bylaw contravention.
39. In response, Ms. Howard sent a June 21, 2019 letter to HMR requesting “invocation” of strata bylaw 31. Bylaw 31 says that a dispute between owners and the strata must be resolved in accordance with SPA sections 129 to 138, which deal with the strata’s ability to impose fines for bylaw contraventions. I find the reference to bylaw 31 in Ms. Howard’s letter was a request for a hearing about the proposed fines, as provided for in SPA section 135(1). HMR sent Ms. Howard a June 26, 2019 letter, advising that the strata council’s next scheduled meeting was July 23, 2019.
40. Ms. Howard sought legal advice about the alleged trespass and potential bylaw fines. Her lawyer, MP, sent a July 19, 2019 letter to HMR requesting a hearing to address the strata’s request to remove the items from the deck and submit permits, and to discuss Ms. Howard’s allegations about the strata accessing her strata lot without permission, among other issues. Ms. Howard was unavailable to attend the July 23, 2019 strata council meeting. So, HMR invited them to attend the next strata council meeting scheduled for September 24, 2019.
41. HMR advised Ms. Howard in a July 29, 2019 letter that because she had not removed the items from the deck, it would levy a $200 fine against her strata account. The letter noted that if a bylaw contravention continues for more than 7 days, bylaw 26 allows a fine to be imposed every 7 days. The letter directed Ms. Howard to remove the items by August 12, 2019 and provide the loft renovation permits.
42. In an August 14, 2019 letter, HMR advised Ms. Howard that because she had failed to remove the items or provide the permits, the strata council had directed a $200 fine be assessed to her strata account, and a further $200 fine would be imposed each week until the contraventions were corrected.
43. Ms. Howard and MP attended a hearing with the strata council on September 24, 2019 to address the bylaw fines and other issues. Ms. Howard had by then removed the fridge from the deck but argued she should be allowed to keep the second awning and the gate. She also said she did not believe she required permits for her loft renovations. In a September 25, 2019 letter, HMR confirmed the strata’s request to remove the unapproved second awning and gate and provide building permits for the loft renovations.
44. Ms. Howard requests that the bylaw fines charged to her strata account be reversed. The strata counterclaims for payment of $8,400 in assessed fines.
45. First, I will consider whether Ms. Howard breached the strata’s bylaws, as alleged. If so, I will consider whether the strata properly imposed fines for those breaches.
Second awning
46. Ms. Howard’s September 15, 2018 email to HMR stated she would like to “install a new motorized outdoor awning on the deck so the old awning would have to be removed”. HMR’s September 27, 2018 approval letter stated the strata council approved her request to “remove the current awning and install a motorized outdoor awning on the deck by attaching it to the large wood beam above the balcony”.
47. The strata says Ms. Howard not only replaced the existing awning, but also installed a second awning, attached to a pergola on the deck, which Ms. Howard does not deny. She argues that replacing an existing awning does not require the strata’s approval, so her initial request related to installing a second awning.
48. I find that the wording of Ms. Howard’s September 15, 2018 request can only be interpreted as a request to replace the existing awning with a new one. There is no mention of installing a second awning on her pergola and the strata’s response is clearly approval only to replace the existing awning.
49. The relevant part of bylaw 5(4) says that no awning or shade screen shall be hung from, be placed on, or attached to the exterior of the strata lot without prior written consent of the strata. Also, bylaw 6(1) says owners must have prior written approval from the strata before making an alteration to CP or LCP, including the attachment of sunscreens.
50. Here, the second awning was attached to a pergola on the LCP deck. It is unclear from the evidence who installed the pergola or whether it was part of the strata lot’s exterior, so that bylaw 5(4) would apply. However, I find bylaw 6(1) applies because the pergola was either CP, as part of the building’s exterior, or LCP, as part of the deck. I also find the awning was a “sunscreen” as contemplated in bylaw 6(1). So, I find that Ms. Howard breached bylaw 6(1) by installing the second awning without the strata’s prior approval. I will address the fines for this breach below.
Wooden Gate
51. It is undisputed that the wooden gate was already present on the deck when Ms. Howard purchased SL56. In fact, Ms. Howard filed a July 15, 2019 letter from the previous owner of SL56, JC, who stated the gate was installed before he purchased SL56 in 2008. JC also stated the strata council was aware of its presence.
52. The parties agree that the gate is a door hung from hinges that are attached to the exterior of the building. Ms. Howard does not particularly dispute that bylaw 6(1) applies, so I find that the gate is attached to CP or LCP. Based on HMR’s September 25, 2019 letter, I find the gate’s hinges are affixed with screws into stucco.
53. MP’s submissions for the September 24, 2019 hearing were filed in evidence. From his submissions, I infer it is Ms. Howard’s position that because the gate is not visible to other strata lots and the hinges do not affect the building’s structural integrity, the strata should retroactively approve it. The strata did not make any submissions specifically about how the gate breaches the bylaws or why it refused to approve it.
54. I note that an alteration referred to in bylaw 6(1) is considered one that changes the structure of the CP or LCP. Immaterial changes to CP (and LCP) are not considered alterations under bylaw 6(1) (see The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363 and Allwest International Equipment Sales Co. Ltd. v. The Owners, Strata Plan LMS 4591, 2018 BCCA 187). Based on the courts’ interpretation of an alteration under bylaw 6(1), I find that the gate represents an immaterial change. I find based on the evidence before me in this case that the screws affixed into stucco are not changes to the CP or LCP structure as they are easily removed and patched.
55. Therefore, I find Ms. Howard’s gate does not breach the strata’s bylaws, and she is entitled to keep the gate on the deck.
Building permits
56. As noted, Ms. Howard’s initial request to alter SL56 included a request to enclose the loft space in her strata lot to make it into a bedroom. She provided a detailed scope of work from her general contractor, AESR, with her request. The strata’s approval was conditional on Ms. Howard obtaining the appropriate municipal building permits, forwarding the permits to HMR before any work took place, and Ms. Howard taking full responsibility for the alterations and future maintenance.
57. The strata provided a text message chain between Ms. Howard and CS, which shows that CS advised Ms. Howard several times that a building permit was likely required for her loft renovations. In an October 10, 2018 text message, Ms. Howard informed CS that AESR spoke with the City and confirmed no permits were required.
58. Ms. Howard says she continued with the renovations and heard nothing further from the strata until HMR’s June 17, 2019 letter. I accept that Ms. Howard relied on AESR’s advice that a building permit was not required for the loft renovations.
59. The strata says that a municipal building permit was, in fact, required. It relies on a guideline document setting out the permit requirements for interior renovations and alterations, which states that building permits are required to remove, relocate, alter or construct interior walls (structural and non-structural). The guideline document also states that for any building with 5 or more units, an architect must be used for the renovations. It is undisputed that Ms. Howard’s renovations involved installing new studs, framing in several walls, and installing a door.
60. The evidence shows that HMR sent a January 29, 2020 email to a municipal building inspector requesting an investigation to ensure Ms. Howard had obtained the appropriate permits for her renovations and that the work complied with the Building Code. The City provided Ms. Howard with a February 26, 2020 notice requesting access to SL56 to inspect the renovation work. It is unclear whether an inspection took place.
61. The evidence shows Ms. Howard engaged an architect, VGA, in early 2020 to assist her with a building permit application for her completed loft renovation. A March 9, 2020 email from the City to VGA stated that by enclosing the loft, it may no longer comply as a “mezzanine”. The email stated this would increase the building height from 4 stories to 5 stories, which might trigger Building Code upgrades. The City’s email does not explicitly confirm that a building permit was required for the renovations, but I find it implies Ms. Howard should have applied for a permit to allow the City to assess the project and determine whether a permit was necessary.
62. Ms. Howard says that VGA is still in the process of determining what permits, if any, are required. She suggests the COVID-19 pandemic may be causing some delays. However, Ms. Howard did not provide any statement from VGA or the City about the status of the permit application process.
63. Bylaw 5(1) says an owner must obtain the prior written approval of the strata before making an alteration to a strata lot that involves the structure of the building. It is undisputed that building walls to enclose the loft and installing a door was an alteration to the building’s structure.
64. Bylaw 5(2) says the strata may require as a condition of its approval that the owner agree to provide satisfactory evidence that the alterations comply with all building codes and all necessary permits have been obtained, among other conditions. I find that a condition of the strata’s approval for the alterations was that Ms. Howard obtain the necessary permits. The strata says Ms. Howard’s failure to provide a building permit before starting the renovations is a breach of bylaw 5(1) because the conditions of the strata’s approval for the alterations have not been fulfilled.
65. However, I find the evidence does not establish that a building permit was in fact required. While it may have been preferable for AESR to apply for a building permit and have the City either document that a permit was not required, or advise that further application materials were required to make that determination, that was not done. It seems that the process of determining whether a permit is required, remains ongoing. I find it is possible that the City may conclude a permit was not required.
66. I find the strata has not shown Ms. Howard is in breach of bylaw 5(1). Therefore, I find the strata was not entitled to assess any bylaw fines against Ms. Howard’s account for failing to obtain a building permit.
67. As for the strata’s counterclaim seeking an order that Ms. Howard provide a building permit within 30 days, I find the evidence shows she is engaged in the permit application process, but she cannot control when it will be complete. At the same time, I find it is unreasonable to expect this process to remain ongoing indefinitely. Therefore, I order that if Ms. Howard does not provide a municipal building permit or confirmation that one is not required within 180 days, Ms. Howard must remove the loft enclosure alterations.
68. I turn to whether the strata properly imposed fines for Ms. Howard’s breach of bylaw 6(1) for installing an awing without prior approval.
Awning fines
69. Under section 135(1) of the SPA, before imposing bylaw fines, the strata must have received a complaint, given the owner written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if one is requested. Under section 135(2), the strata must give the owner written notice of its decision to impose fines “as soon as feasible”.
70. The BC Court of Appeal has found that strict compliance with section 135 of the SPA is required before a strata corporation can impose bylaw fines. The court also determined that bylaw fines may be found to be invalid if the procedural requirements set out in section 135 are not followed (see Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449).
71. Although HMR’s June 17, 2019 letter does not expressly state the strata received a complaint, I am satisfied it did. There is nothing in the SPA that restricts a council member from making a complaint. I find the council members who accessed the deck outside Ms. Howard’s strata lot on May 9, 2019, complained about the second awning.
72. I also find HMR’s June 17, 2109 letter provided Ms. Howard with proper notice of the awning complaint. The question is whether the strata provided Ms. Howard with a reasonable opportunity to answer the complaint before imposing the fines. As noted, Ms. Howard requested a hearing, which was held on September 24, 2019 because she was unavailable for the July 23, 2019 meeting. I find the evidence shows Ms. Howard’s lawyer requested an earlier hearing, but the strata declined to schedule anything sooner.
73. Ms. Howard’s May 27, 2020 strata account statement shows the strata charged the first $200 fine on August 14, 2019, and it charged a further $200 fine each week. As of February 26, 2020, the strata started accumulating the weekly fines as one monthly charge.
74. I find the strata was not entitled to start imposing fines for the awning breach until after the September 24, 2019 hearing. I find any fines imposed before that date are invalid. Therefore, I order the strata to remove the fines imposed on August 14, 21, 28, September 4, 11, and 18, 2019.
75. The first valid $200 fine was imposed on September 25, 2019. The evidence shows Ms. Howard removed the awning in May 2020 to accommodate roof and chimney repairs, as the awning was too close to the chimney cap. Given the strata was imposing the weekly fines only once per month, I find it was not entitled to impose the $800 charge on May 27, 2020, and I order that charge removed.
76. I find the final valid fine was imposed on April 29, 2020. So, I order Ms. Howard to pay the strata $6,400 for failing to obtain the strata’s approval for a second awning.
77. I note that Ms. Howard’s December 16, 2020 strata account statement shows the strata has also charged her $914.75 in legal fees and $436.28 for installing smoke detectors in SL56. While there was some evidence about these charges, I find that Ms. Howard and the strata made claims only about the bylaw fines charged to Ms. Howard’s strata account. Therefore, I find there are no claims properly before me about the charges for legal fees and smoke detectors, and I decline to make any orders about them.
Has the strata failed to repair and maintain CP, LCP, or SL56?
Fire doors
78. Ms. Howard says 2 fire doors in the CP hallway near SL56 slam when they close, and she is disrupted by the banging. She requests the doors be adjusted so they quietly and gently close. The strata says the doors close properly to reduce the fire risk, and no adjustments are required.
79. I find Ms. Howard has not established that the fire doors require repair or maintenance. She provided no evidence that they are malfunctioning, nor any evidence of their noise level. I find I have no evidence before me that the fire doors are a nuisance, or that they could be adjusted to be less disruptive while maintaining their fire protectiveness. Therefore, I dismiss this claim for repairing the fire doors.
80. In the Dispute Notice, Ms. Howard also asked for an order removing offensive labels on the hallway door closing mechanism. However, in her submissions, Ms. Howard says the labels were removed in January 2021. Therefore, I find an order to remove the labels is unnecessary and I decline to grant the requested remedy.
Patio door rollers
81. Ms. Howard says she advised HMR in a March 13, 2020 letter that her sliding door rollers need replacing, as the door is difficult to open and close. From the contents of her letter, I infer that replacing sliding door rollers was generally discussed at a strata council AGM, and she asked to be put on the “roller replacement list”. The strata did not specifically make any submissions about Ms. Howard’s door roller request, but it also did not deny that it is responsible for maintenance of patio doors.
82. Bylaw 2(1) says owners must repair and maintain their strata lots, including all windows and doors. Bylaw 8(1)(d), as it read in the bylaws filed in 2002, said the strata must maintain and repair the exterior of the buildings, excluding windows and doors that are included in a strata lot. However, bylaw 8(1)(d) was amended in 2015 to remove the windows and doors exclusion. I find the amendment intended to make the strata responsible for repairing and maintaining the building’s exterior, including windows and doors that are part of the exterior, even if they are part of a strata lot. Further, I note that bylaw 8(2)(b)(ii) says the strata must repair and maintain the exterior of the building that is part of a strata lot.
83. I find that the patio door is part of the exterior of the building, so the strata is required to maintain and repair it. I also accept that Ms. Howard’s patio door rollers need replacing. Therefore, within 60 days, I order the strata to arrange for Ms. Howard’s patio door rollers to be replaced if it has not already arranged to do so.
Stair railing wood
84. Ms. Howard says there is a stair railing on the LCP deck, which had been removed before she moved in and was being stored on the deck. She says the strata council members who accessed the deck on May 9, 2019, re-installed the railing onto rotting wooden fascia without her approval. Ms. Howard says the rotten wood makes the railing unsafe and the strata should replace the rotten fascia.
85. The strata did not make any submissions specifically addressing Ms. Howard’s complaint about the rotten wood, and it did not deny that it was responsible for its repair and maintenance. Ms. Howard provided a June 13, 2019 letter from JC, which stated the fascia was rotten even before he moved into SL56 in 2006, and the strata knew about it but did nothing. On balance, I find that the wood fascia is rotten.
86. Bylaw 8(2)(a) says the strata must repair and maintain LCP, including the building’s structure and exterior, balconies, decks, patios, and railings. I find that the stair railing and the wood fascia it is mounted onto are part of the LCP deck, and that the strata is responsible for their repair and maintenance. I order the strata to replace the rotten wooden fascia on the deck outside Ms. Howard’s strata lot within 60 days.
Membrane
87. Ms. Howard says the membrane under her 5th floor landing requires repair. The only submission she made about this claim was that the membrane patching caused an interior water leak. Based on MP’s submissions at the September 24, 2019 hearing, I find that Ms. Howard believes the incorrect material was used during previous work done to the membrane. It is unclear when that work was completed.
88. Ms. Howard did not provide any photographs of the issue or any statement from a professional or other witness to substantiate her claims. I find Ms. Howard has not proven that the deck membrane requires repair. I dismiss Ms. Howard’s claim for deck membrane repair.
Rotten deck boards
89. Ms. Howard provided photograph evidence of several rotten wooden boards on the roof deck outside her strata lot. She also provided evidence that she advised HMR of the rotten boards by letter dated March 19, 2020, and she followed up by email on June 12, 2020. I find the strata arranged to inspect the deck on July 3, 2020. The strata filed a July 7, 2020 invoice showing that some damaged deck boards were replaced, though the invoice does not indicate what strata lot it relates to.
90. Ms. Howard did not make any specific submissions about the rotten deck boards or explain what happened after they were inspected. Given the parties’ evidence and submissions, on balance I find the rotten deck boards have already been replaced, so I dismiss this claim.
Skylight
91. Ms. Howard says the strata should replace her skylight. I infer from Ms. Howard’s submissions that her living room skylight is leaking and causing mould growth. From MP’s submissions at the September 24, 2019 hearing, it appears the strata was in the process of replacing skylights in the strata building.
92. The strata does not specifically deny that it is responsible for the repair and maintenance of Ms. Howard’s skylight, or that it requires replacement. Neither party provided any additional information about whether Ms. Howard’s skylight is on a list for replacement. I find that there is insufficient evidence for me to determine whether Ms. Howard’s skylight is leaking and causing mould growth, or whether it requires replacement.
93. I note that after the September 24, 2019 hearing, the evidence shows Ms. Howard followed up with the strata in a December 12, 2019 letter about the potential leak and skylight issues. Consistent with my reasoning above about Ms. Howard’s patio door, I find that her skylight is also part of the building’s exterior, and that the strata is responsible for its repair and maintenance under bylaws 8(1)(d) and 8(2)(b)(ii). Therefore, I order that within 60 days, the strata arrange to inspect Ms. Howard’s living room skylight, on appropriate notice, to determine whether it requires replacement. If the inspection shows the skylight needs replacing, I order the strata to replace it within a reasonable time period.
Cloudy window
94. I note that Ms. Howard asks for an order that the strata replace a “cloudy” kitchen window in her strata lot. She did not make any submissions further explaining this requested remedy and did not file any evidence about it. Given the lack of any evidence or submissions on the issue, I dismiss Ms. Howard’s claim about her kitchen window.
Roof leak repairs
95. Ms. Howard says the strata should reimburse her for repairing drywall in her living room that she says was damaged from a roof leak that occurred before she moved into SL56. Ms. Howard provided emails between HMR and JC showing that the strata was aware of drywall damage in SL56 since at least March 2017, when JC requested the strata approve the repairs.
96. The evidence shows that the strata sent JC an April 5, 2018 letter confirming that it would undertake the requested wall repairs that spring. The strata told Ms. Howard that JC later offered to undertake the repairs on his own, so the strata considered the work complete in 2018. The strata did not provide any evidence of JC’s offer to do the repairs himself.
97. I find that Ms. Howard has not established that the strata is responsible for her drywall repairs. While the strata may have offered to do some painting in SL56 in 2018, I find that offer does not bind the strata to pay Ms. Howard’s repair expenses. I note that Ms. Howard’s own evidence shows the strata did not agree to reimburse JC if he did the work himself. In the absence of any evidence that the strata was negligent and caused the drywall damage, I find that under bylaw 2(1), Ms. Howard is responsible for the repair and maintenance of her strata lot. I dismiss her $645.63 claim for living room drywall repairs.
Awning and high-wind termination cap approval
98. Ms. Howard says the strata should approve and pay for installation of her second awning, as well as a high-wind termination cap for her fireplace. Ms. Howard argues that several other owners have more than one awning on their decks, so hers should also be approved. I infer that it is her position that the strata’s decision not to approve her second awning is significantly unfair.
99. Section 164 of the SPA sets out the authority of the British Columbia Supreme Court to remedy significantly unfair actions. Under section 123(2) of the CRTA, the CRT has jurisdiction to consider whether an action enumerated under s. 121(1) (e) to (g) of the CRTA is significantly unfair (see Time Share Section of The Owners, Strata Plan N 50 v. Residential Section of The Owners, Strata Plan N 50, 2021 BCSC 486). I find the strata’s decision to deny Ms. Howard’s request to install a second awning falls within CRTA section 121(1)(f), as it concerns a decision of the strata council in relation to an owner.
100. The courts have interpreted “significantly unfair” to mean conduct that is oppressive or unfairly prejudicial. “Oppressive” conduct has been interpreted as conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith. “Prejudicial” conduct means conduct that is unjust and inequitable (Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, affirmed 2003 BCCA 126).
101. The test for significant unfairness was summarized by a CRT Vice Chair in A.P. v. The Owners, Strata Plan ABC, 2017 BCCRT 94, with reference to Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44: what is or was the expectation of the affected owner or tenant? Was that expectation on the part of the owner or tenant objectively reasonable? If so, was that expectation violated by an action that was significantly unfair?
102. The British Columbia Court of Appeal recently confirmed that consideration of the reasonable expectations of a party is “simply one relevant factor to be taken into account” (see King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342 at paragraph 89).
103. The strata says the second awning was installed too close to the chimney caps and the added bracing on the pergola contacted the fireplace stacks. I find the strata’s concern about the awning’s location was born out when contractors required the second awning’s removal so they could complete chimney stack repair work.
104. I also find Ms. Howard’s expectation that the strata would approve her request for the second awning was not objectively reasonable. I find there is no bylaw that requires the strata to not unreasonably withhold approval of a request to install an awning under bylaw 6(1). I find the strata’s 4th floor LCP decks are not of uniform size or shape. While Ms. Howard says other owners have more than one awning, I find that fact is insufficient to expect all requests for additional awnings will be approved. I find the strata’s decision not to approve Ms. Howard’s second awning was not significantly unfair.
105. I turn to Ms. Howard’s request for a high-wind termination cap. I note that neither party made any submissions about this requested order. The evidence shows that on November 23, 2018, Ms. Howard requested approval to replace her fireplace insert. At the same time, Ms. Howard requested a high-wind termination cap.
106. The strata council approved Ms. Howard’s request to replace the existing fireplace vent and vent cap, but it did not approve the installation of a “roof anchor”. Ms. Howard did not file the supporting information and manuals for the requested fireplace and termination cap that her November 23, 2018 letter stated was enclosed for the council’s consideration. I find that I have insufficient evidence before me to determine that the strata denied Ms. Howard’s request for a high-wind termination cap, or if they did, whether that action was significantly unfair to Ms. Howard.
107. I dismiss Ms. Howard’s requests for orders that the strata approve her second awning and a high-wind termination cap for her fireplace.
Charge for wall damage by contractors
108. Ms. Howard says the strata improperly “forced” her to pay $900 for repairing wall damage the strata claimed AESR caused when transporting drywall through the stairwell during her loft renovation.
109. The evidence shows the strata received complaints about marks on the stairwell walls from drywall being carried up the stairs. On November 7, 2018, CS told Ms. Howard that no other drywall work was being done other than her loft renovations, so Ms. Howard was going to be held responsible for the wall repairs. On November 14, 2018, Ms. Howard told CS that her drywallers denied causing the damage. CS responded that the strata council would discuss it at their next meeting, but that Ms. Howard should expect a letter about repair costs after the meeting.
110. Ms. Howard responded by text message, stating that her contractors could do the repairs “no problem” and just needed the paint colour. There is no evidence before me that the matter was discussed further between Ms. Howard and CS or at any strata meeting. I find Ms. Howard has not proven that the strata “forced” her to pay for any repairs that she was otherwise not responsible for. I also note Ms. Howard provided no evidence to prove her cost for these repairs. I dismiss this claim.
Apologies
111. One of Ms. Howard’s requested remedies is for a “rule to ban non-council residents from strata council business”. It is unclear what this request relates to or what it is meant to achieve. Therefore, I decline to grant this remedy.
112. Within the same requested remedy, Ms. Howard also requests apologies for 3 incidents where she alleges the strata treated her unfairly and one for MS yelling at her. As MS is not a strata council member and he has not been named as a respondent, I find I do not have jurisdiction to order MS to do something.
113. In any event, Ms. Howard’s request for apologies is denied. The CRT generally does not order apologies because forced apologies are not productive or helpful, and I agree (see Wang v. Educare Systems Inc., 2019 BCCRT 527). I decline to order the strata to apologize to Ms. Howard.
Audit
114. Ms. Howard says the strata is not properly accounting for the use and payment for its 21 parking stalls that are designated as “rental” stalls. Specifically, she alleges a strata council member uses more than their one designated rental stall and she does not see in the council meeting minutes that the strata is being compensated for this.
115. Ms. Howard also says the strata council has made payments over 2 years totalling $13,596.33 to 4 council members, possibly one council member’s relative, and 2 owners. Ms. Howard says she cannot see in the strata council meeting minutes that these payments were approved. To remedy these allegedly unapproved financial transactions, Ms. Howard seeks written confirmation that the strata will undertake an independent financial audit.
116. I find the evidence before me does not establish that the strata has failed to comply with any SPA financial requirements. Ms. Howard did not provide any strata AGM minutes or any budgets to support her claim that an audit is required. I find that simply identifying payments that Ms. Howard cannot herself confirm have been properly approved is insufficient to warrant ordering an audit, which would be onerous, and costly to owners.
117. However, I also note that the strata did not make any submissions to contradict Ms. Howard’s allegations. In these circumstances, I find it is appropriate for the strata ownership to vote on whether to hold an audit at its next AGM or SGM. I order that to occur, as set out below.
Removal of strata council members
118. Ms. Howard seeks an order removing CS as strata council president and to ban or restrict her for running for council for an unspecified period. Ms. Howard also asks that 3 other council members be dismissed from the strata council for “collusion & favours bestowed on them” by CS. I dismiss this claim for the following reasons.
119. First, as noted, Ms. Howard has not named any strata council members as parties to this dispute. Second, as with Ms. Howard’s allegations of bullying and harassment discussed above, I find these claims against the strata council members and president arise under SPA section 31 and owners cannot successfully sue a strata council member for a breach of section 31.
120. Also, in Jiwan Dhillon & Co. Inc. v. Gosal, 2010 BCCA 324, the BC Supreme Court held in paragraphs 22 to 23 that it did not have authority to remove an entitlement set out in the SPA, such as the right to stand for election to the strata council. These paragraphs in Jiwan Dhillon deal specifically with SPA section 165, which applies only to the Supreme Court and not to the CRT. However, I find the court’s reasoning applies equally to the parallel powers of the CRT, as set out in CRTA section 123. It would be unreasonable to conclude that the CRT has a power not available to the Supreme Court, and there is nothing in the CRTA indicating otherwise.
121. For these reasons, I dismiss Ms. Howard’s request for an order removing strata council members from office and restricting their ability to run for council.
Punitive and exemplary damages
122. Ms. Howard says punitive and exemplary damages are required to discourage the strata council’s bad behaviour towards owners. She claims $5,000 for education of future council members about the SPA, sensitivity training, and learning about well being, quiet enjoyment of property, and treatment of owners. It is unclear whether Ms. Howard intends to use a punitive damages award towards these educational endeavours for the strata’s benefit.
123. The CRTA is silent with respect to punitive damages. However, as noted, the CRTA permits the CRT to order a party to pay money which I find includes punitive damages. Therefore, I find the ability of the CRT to order payment of punitive damages is within its jurisdiction.
124. In Vorvis v. Insurance Corporation of British Columbia [1989] 1 SCR 1085, the Supreme Court of Canada said that punitive damages may only be awarded in respect of conduct deserving of punishment because of its harsh, vindictive, reprehensible, and malicious nature.
125. As noted, Ms. Howard’s submissions contain allegations of bullying and harassing behaviour from strata council members and a member’s spouse. In fact, Ms. Howard submitted an expert report prepared by Ian Callaway, a “consulting analyst” in strata issues, in which he expressed his opinion that Ms. Howard experienced bullying and harassment by the strata. The strata objects to the report’s admissibility, in part because it argues Mr. Callaway is not qualified to provide this opinion.
126. Mr. Callaway’s stated educational background is in analytical methodologies. While the evidence shows Mr. Callaway has some experience with strata law and governance, he stated he has completed only one continuing education course on bullying. Overall, I am not satisfied that Mr. Callaway has the necessary education or experience to provide expert opinion evidence in this CRT dispute on allegations of bullying and harassment by the strata. Further, I find that Mr. Callaway’s opinion is about the ultimate issue in Ms. Howard’s claim that the strata bullied and harassed her, which is for the CRT alone to decide (see Brough v. Richmond, 2003 BCSC 512). Therefore, I decline to admit Mr. Callaway’s report into evidence, and I place no weight on it.
127. In any event, Ms. Howard alleges that the strata’s unfair treatment has affected her quiet enjoyment of her strata lot. One of Ms. Howard’s complaints is that she has observed CS and other council members on other owners’ LCP deck or stairs, or on the CP roof area, looking over to her LCP deck. While I acknowledge that Ms. Howard feels intruded upon when people are looking at the deck, I find such action does not constitute harsh, vindictive, reprehensible, or malicious conduct.
128. Overall, I find the strata has treated Ms. Howard fairly and provided her with appropriate due process to address both her complaints and the strata’s concerns, particularly with respect to the building permit issue. While Ms. Howard may be experiencing a high level of stress over these issues, I find the evidence shows both parties have escalated the conflict to some extent.
129. On balance, I find Ms. Howard has not proven the strata has exhibited conduct deserving of punishment as described in Vorvis. I dismiss Ms. Howard’s claim for punitive and exemplary damages.
Reimbursement of various expenses
130. Ms. Howard says the strata should reimburse her for various expenses she has incurred relating to some of the circumstances described above. I will address them each in turn.
Security camera
131. Ms. Howard seeks $650 to reimburse her costs for a video surveillance camera. The evidence shows Ms. Howard has indicated to HMR on several occasions since 2019 that she purchased cameras in response to alleged harassment and trespass. However, Ms. Howard did not provide any specific evidence in this dispute about the camera she purchased, where it is installed, or why the strata should be responsible for its cost. Given the lack of evidence, including no invoice proving the camera’s cost, I dismiss Ms. Howard’s claim for reimbursement of costs for a security camera.
FOI request
132. The evidence shows Ms. Howard made an April 24, 2020 FOI request for City records and documentation about any complaints the City had received of renovation work completed without proper permits in her building. Ms. Howard did not explain why she made the FOI request, though I infer it was to confirm who had complained about her loft renovations and to investigate whether the strata had made other complaints in the past. I find there is no bylaw or SPA provision prohibiting a strata from reporting suspected municipal permit violations. I find Ms. Howard has not established any legal basis for holding the strata responsible for the costs of her FOI request. I dismiss this claim.
Legal expenses
133. Ms. Howard claims $4,497.54 to reimburse her legal costs for hiring MP to represent her at the September 24, 2019 hearing. I find there is no SPA provision or bylaw that requires the strata to pay an owner’s legal costs should they choose to have legal representation for a hearing. Ms. Howard did not provide any legal basis or explain why she believes the strata should reimburse her for this cost. I dismiss Ms. Howard’s claim for reimbursement of her legal costs.
Costs resulting from complaint made to the City
134. Ms. Howard claims reimbursement of $6,000 in costs she has incurred to apply for a permit for her loft renovations after HMR contacted a City building inspector to request an investigation. Ms. Howard provided an October 31, 2020 invoice from VGA totalling $3,598.36 for this work. In her self-prepared December 15, 2020 summary of expenses (expense summary), Ms. Howard indicated she also paid other invoices to VGA, in all totalling $5,475.66, but the other invoices were not filed in evidence. She did not explain what other expenses she incurred to arrive at her claimed $6,000 total.
135. As noted, I find Ms. Howard likely should have applied for a building permit before she started her renovations. I find there is no legal basis to hold the strata responsible for costs Ms. Howard has incurred because her contractor may have given her bad advice. I find it was Ms. Howard’s obligation to ensure she applied for any necessary permits in the first instance, and these are her costs to bear. I dismiss Ms. Howard’s claim for reimbursement of her permit application costs.
Medical expenses
136. Ms. Howard says she should be reimbursed for “uncovered medical expenses to date”. In her Dispute Notice, she claimed $100 for these unspecified expenses. In her expense summary, Ms. Howard attributed $275.18 to uncovered medical expenses. She did not otherwise explain these claimed medical expenses, though I infer they relate to anxiety she says she has experienced from the strata’s treatment of her.
137. I find there are no bylaws or SPA provisions that would make the strata responsible for Ms. Howard’s out of pocket medical expenses. In any event, Ms. Howard did not provide any receipts for these expenses. Given this lack of evidence, I dismiss Ms. Howard’s claim for reimbursement of medical expenses.
Time spent
138. In the Dispute Notice, Ms. Howard claims $5,408 for meetings, conference calls, reviewing the strata’s bylaws, preparation of this CRT dispute, researching the historic strata documents, FOI, and police reports. I infer that this claim relates to Ms. Howard’s own time spent on these tasks, but she did not explain how much time she spent or how she arrived at the dollar figure she claimed. It appears that most or all these tasks relate to time spent on preparing this CRT dispute.
139. CRT rule 9.5(5) says that except in extraordinary circumstances, the CRT will not order compensation for time spent dealing with a CRT proceeding. I find the circumstances of this dispute are not extraordinary. Although there were many issues raised in this dispute, I do not find any of the issues was particularly complex.
140. For these reasons, and the lack of any evidence on this issue, I dismiss Ms. Howard’s claim to be compensated for her time spent.
CRT FEES, EXPENSES AND INTEREST
141. 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. In this case, I find the parties’ success was mixed. Therefore, I find it would be appropriate for the parties to each bear their own CRT fees and dispute-related expenses.
142. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. Howard.
143. Even though the SPA does not allow the strata to charge interest on fines, that is not the case under the Court Order Interest Act (COIA). I find Ms. Howard owes the strata pre-judgement interest on the fines imposed from the date the fine was imposed to the date of this decision. I calculate pre-judgement interest to be $79.71.
ORDERS
144. I order that:
a. Within 30 days of this decision, Ms. Howard must pay the strata a total of $6,479.71, which is broken down as $6,400 in fines related to her failure to remove an unapproved second awning and $79.71 in pre-judgement interest under the COIA.
b. The strata immediately remove the bylaw fines dated August 14, 21, 28, September 4, 11, and 18, 2019 and May 27, 2020 from Ms. Howard’s strata lot account.
c. If Ms. Howard does not provide a municipal building permit or confirmation that a permit is not required for her loft alterations within 180 days, she must remove the alterations.
d. Within 60 days, the strata must arrange for Ms. Howard’s patio door rollers to be replaced, if it has not already arranged to do so.
e. Within 60 days, the strata must replace the rotten wooden fascia into which the stair railing is mounted on the LCP deck outside Ms. Howard’s strata lot.
f. Within 60 days, the strata must arrange an inspection of the living room skylight in Ms. Howard’s strata lot, on appropriate notice, to determine whether the skylight requires replacement. If the inspection shows the skylight needs replacing, I order the strata to replace it within a reasonable period of time.
g. At its next AGM or SGM, the strata must present a resolution to the ownership for a majority vote on whether to hold an audit of past finances. The scope and nature of the audit must be set out in the resolution.
145. The strata is also entitled to post-judgment interest on the $6,400 bylaw fines under the Court Order Interest Act, as applicable.
146. Under sections 57 and 58 of the CRTA, a validated copy of the CRT’s order can be enforced through the Supreme Court of British Columbia. The order can also be enforced by the Provincial Court of British Columbia 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.
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Kristin Gardner, Tribunal Member |