Date of Original Decision: April 21, 2021

Date of Amended Decision: April 22, 2021

File: ST-2020-005401

Type: Strata

Civil Resolution Tribunal

Indexed as: Garry v. The Owners, Strata Plan EPS2501, 2021 BCCRT 409

Between:

YASUMIKO GARRY and JAMES GARRY

Applicants

And:

The Owners, Strata Plan EPS2501

Respondent

And:

YASUMIKO GARRY and JAMES GARRY

Respondents by counterclaim

AMENDED REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The respondent, and applicant by counterclaim, The Owners, Strata Plan EPS2501 (strata) is a strata corporation comprised of 5 strata lots. The applicants, and respondents by counterclaim, Yasumiko Garry and James Garry, own strata lot 1 (SL1). SL1 is a standalone building (SL1 building). The other 4 strata lots share 2 buildings.

2.      The Garrys ask for orders that:

•         the strata refund the Garrys $404.81 in additional waste disposal charges from March 2017 to July 2020,

•         the strata refund $1,200 in strata fees because the strata’s waste disposal contractor never provided services to SL1, and for the Garrys’s time and inconvenience dealing with waste management issues,

•         the strata spend $2,000 to repair the common property garden and yard around SL1 (SL1 yard),

•         the strata spend $1,200 to repair and clean the exterior of the SL1 building and SL1’s limited common property (LCP) stairs and balcony,

•         the strata join the Condominium Home Owners Association of BC (CHOA) at a cost of $100,

•         the strata follow the Strata Property Act (SPA) and bylaws in the future,

•         the treasurer stop referring to the Garrys’s letters as “harassment”,

•         the president stop “using inappropriate comments to stir up other owners” and “demanding” that the Garrys be “silent”,

•         the strata’s finances from 2015 to the present be audited,

•         an administrator be appointed to run the strata,

•         the strata council make decisions in the strata’s best interests and not just to keep strata fees low,

•         the strata council stop “using the owners’ voting scheme to shirk their responsibilities” and “cutting cost to the extreme by not providing essential services”,

•         the strata stop storing waste bins on SL1’s LCP parking spot,

•         the treasurer produce a “realistic” budget that includes appropriate amounts for maintenance, with CHOA assistance, and that the strata council review the budget before approving it,

•         the strata council collect strata fee arrears from all owners from the 2019-2020 fiscal year,

•         the strata hold strata council members accountable “when their decisions deliberately underfund the strata and knowingly misrepresent strata information” to prospective purchasers,

•         there be an “independent review” of the 2019-2020 budget,

•         the strata council stop a mice infestation by cleaning the strata, washing building exteriors, and clearing vegetation,

•         the president and treasurer stop accusing the Garrys of not cleaning common property,

•         an “independent administrator” review the strata’s insurance policy to make sure that it adequately covers the SL1 building, and

•         the strata pay the Garrys $3,500 for legal fees related to this dispute.

3.      In its counterclaim, the strata asks for orders that the Garrys:

•         be restricted to putting out only 1 organics bin every week,

•         pay a $200 fine for performing unauthorized work related to a roof drainage project,

•         pay a $200 fine for performing unauthorized landscaping work in the SL1 yard,

•         restore the SL1 yard to its original state,

•         be advised that the strata will not reimburse the Garrys $432.05 that they spent on unauthorized landscaping work in the SL1 yard,

•         pay $1,200 to the other owners for the time and money they spent maintaining the SL1 yard,

•         pay a $200 fine for performing unauthorized work by washing the exterior of the SL1 building,

•         be advised that the strata will not reimburse the Garrys $483 that they spent washing the exterior of the SL1 building,

•         pay $200 fines for failing to pay strata fees for each of August and September 2020, for a total of $400,

•         pay $549.56 in outstanding strata fees for August and September 2020, including interest and Land Title Office (LTO) filing fees,

•         pay a $200 fine for having an illegal secondary suite,

•         conduct their own investigation about the strata’s insurance and report their findings to strata council, and

•         pay the strata $2,500 for the time spent on this dispute.

4.      The Garrys are self-represented. For the most part, they made joint submissions and provided evidence jointly although they filed separate Dispute Responses to the strata’s counterclaims. Their positions are essentially the same so for clarity I will refer to them collectively in these reasons. A strata council member represents the strata.

JURISDICTION AND PROCEDURE

5.      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.

6.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

7.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction.

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 questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Under section 123 of the CRTA and the CRT rules, in resolving this dispute the tribunal 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.

Additional and Amended Claims

10.   In addition to the orders in the Dispute Notice set out above, the Garrys ask for several orders in their Dispute Responses, in documents they submitted as evidence, and in their submissions. The strata objects to the Garrys amending their claims or adding new claims in this way.

11.   The CRT rules and the CRTA allow a party to request to amend the Dispute Notice, such as to add new claims or remedies. The Garrys did not ask to amend the Dispute Notice to add new claims or change existing claims. The purpose of the Dispute Notice is to define the issues so that respondents have fair notice of the claims against them. CRT Rule 1.17 says that the Dispute Notice will only be amended during the CRT decision process in exceptional circumstances.

12.   Subject to 3 requested orders discussed below, I find that there are no exceptional circumstances to justify amending the Dispute Notice at this late stage, either by amending existing claims or adding new ones. I find that the strata did not receive sufficient notice of any of these new or amended requested orders. Also, the Garrys say in their submissions that they expect to file another CRT dispute. This weighs against amending the Dispute Notice.

13.   Despite the above comments, I find that it is appropriate to amend the 2 requested orders about the cost of repairing and maintaining common property: that the strata spend $2,000 to repair and maintain the SL1 yard and $1,200 to clean and repair the exterior of the SL1 building and SL1’s LCP balcony and stairs. When the Garrys started this CRT dispute, this work had not been done. The Garrys wanted the strata to do the work, and the monetary values for the claims were estimates. Since then, as set out below, the Garrys have completed the work themselves and asked the strata to reimburse them. The strata has refused.

14.   The strata raised 2 of these expenses, $483 for exterior cleaning and $432.05 for landscaping expenses, in its counterclaim, which the strata filed on September 7, 2020. After that date, the Garrys spent more on landscaping and common property repairs. In submissions, the Garrys ask that the strata reimburse them $3,299.12, generally broken down as follows:

•         $856.22 for landscaping the SL1 yard,

•         $702.09 for washing and painting parts of the SL1 building’s exterior, and

•         $1,740.81 for repairing the SL1 building’s stairs and balcony.

15.   I note that the total amount that the Garrys ended up spending is less than $100 more than they initially claimed. I also find that if I did not amend the claims, the Garrys’s requested orders would be moot since the Garrys have already done the work. I find that the strata expected the CRT to determine whether the strata must reimburse these amounts based on its evidence and submissions. So, I find that the strata is not prejudiced by the amendment. I therefore exercise my discretion to amend the 2 claims to reflect the actual amount that the Garrys spent.

16.   I also find that it is appropriate to amend the Garrys’s claim for reimbursement of strata fee overpayments. This claim relates to an additional $8.41 that the strata charged the Garrys for an additional organics waste bin starting in March 2017. The Garrys filed the Dispute Notice on August 3, 2020, but only claimed strata fee overpayments up to July 2020. The strata stopped charging this additional fee starting in September 2020. This means that the Garrys’s claim, as framed, does not include August 2020’s $8.41 charge.

17.   To provide finality to the parties and considering that the CRT’s mandate includes proportionality, I exercise my discretion to amend this claim to add the $8.41 that the strata charged for August 2020. This means that the Garrys’s total claim for strata fee overpayments is $413.22.

18.   I address the merits of these claims below.

Evidence Issues

19.   The Garrys put several documents in evidence, such as meeting minutes, with annotations typed onto the documents. The strata objects to the CRT considering this as “evidence”. I find that these annotations are a combination of evidence and submissions because they set out what the Garrys say happened at these meetings and why it supports their claims. The strata had the opportunity to respond to the points that the Garrys’s raised in this way, so I find that the strata is not prejudiced by their inclusion. I have accepted and considered these annotations.

20.   The parties also both submitted evidence past the deadline. Both parties had the opportunity to view and make submissions about the other party’s late evidence. In addition, the strata failed to upload a document that it referred to in its evidence list, presumably through inadvertence. At my request, the strata provided the CRT with this document, and both parties made submissions about it. So, I find that there was no procedural unfairness about any of the late or additional evidence.

OTHER PRELIMINARY MATTERS

Claims against Owners and Strata Council

21.   The Garrys initially claimed against 2 individual strata council members but agreed to withdraw those claims during facilitation. So, I find that those claims are not before me.

22.   Some of the Garrys’s requested orders are still directed at individual owners or the strata council. Both parties, at times, use the terms strata and strata council interchangeably. I have interpreted these orders as being directed at the strata itself and have considered them on that basis where I reasonably can do so.

23.   However, I find that some of the orders cannot reasonably be interpreted in this way. I cannot make orders against non-parties, such as individual owners. The strata is the only respondent in this dispute. Also, the strata council is not a legal entity that can be sued. For these reasons, I dismiss the following claims:

•         that the treasurer stop referring to the Garrys’s letters as “harassment”,

•         that the president stop “using inappropriate comments to stir up other owners” and “demanding” that the Garrys be “silent”,

•         that the strata council make decisions in the strata’s best interests and not just to keep strata fees low, and

•         that the strata council stop “using the owners’ voting scheme to shirk their responsibilities” and “cutting cost to the extreme by not providing essential services”.

24.   I note that even if strata council members were parties to this dispute, I would have dismissed the claims against them.

25.   This is because the above claims are based on section 31 of the SPA, even though the Garrys do not explicitly refer to that provision. Section 31 of the SPA says that strata council members must act honestly and in good faith with a view to the best interests of the strata. Only the strata can enforce section 31 of the SPA against strata council members. See The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32. This means that individual owners cannot bring claims against strata council members for breaching section 31 of the SPA.

Vague or Subjective Injunctive Orders

26.   As mentioned above, the CRT has jurisdiction to order parties to do something or stop doing something. Orders of this nature are known as injunctions. Several of the Garrys’s requested orders are injunctions.

27.   In Nova Scotia v. Doucet-Boudreau, 2003 SCC 62, the Supreme Court of Canada said that an injunction must give the parties proper notice of the obligations imposed on them and clearly define the standard of compliance expected of them. This is because an injunction is a legal order that can be enforced by the court.

28.   I find that the following 2 requested orders fail to meet this standard:

•         that the treasurer produce a “realistic” budget, which includes appropriate amounts for maintenance, and that the strata council review the budget before approving it, and

•         that the strata hold the strata council members accountable “when their decisions deliberately underfund the strata and knowingly misrepresent strata information” to prospective purchasers.

29.   I find that both of the above orders include vague and subjective elements that would make it impossible for the strata to know what exactly is expected of it. Whether a budget is “realistic” and whether the strata is “underfunded” is something that reasonable people can disagree on. In addition, what the strata must do to hold strata council members accountable is something that could mean different things to different people. So, I find that these orders do not have the required precision, and I refuse to grant them on that basis.

Other

30.   The strata requests 2 orders that the Garrys “be advised” that the strata does not intend to reimburse the Garrys for certain expenses. I find that these orders would serve no purpose because the Garrys are aware of the strata’s position. I dismiss these 2 claims on that basis.

31.   Section 174 of the SPA gives the BC Supreme Court the power to appoint an administrator, who can exercise the powers and perform the duties of a strata corporation. Under section 122(1)(i) of the CRTA, the CRT does not have jurisdiction to do so. So, I refuse to resolve the Garrys’s claim that an administrator be appointed to run the strata.

32.   I find that the Garrys’s requested order that the strata follow the SPA and bylaws too general to be helpful or enforceable. The strata must follow the SPA and bylaws whether I order it to or not. So, this order would serve no purpose. I dismiss this claim.

33.   Finally, I find that the Garrys’s requested order that there be an “independent review” of the strata’s 2019-2020 budget is unclear. The Garrys do not say who should review this budget or to what end. I find that the requested order is too vague to be enforceable. I dismiss this claim.

ISSUES

34.   The remaining issues in this dispute are:

a.    Was the strata entitled to charge the Garrys extra for an additional organics bin? If not, how much must the strata reimburse them?

b.    Should I order that SL1 can only have 1 organics bin picked up per week?

c.    Can the strata store waste bins in SL1’s parking area?

d.    Did the strata fail to maintain the common property yard and garden around SL1 (SL1 yard)?

e.    Did the Garrys breach bylaws 5 or 6 when they changed the SL1 yard’s landscaping?

f.     Did the strata fail to maintain the exterior of the SL1 building and SL1’s LCP?

g.    Did the Garrys breach bylaws 5 or 6 when they washed the exterior of the SL1 building?

h.    Did the Garrys breach bylaw 3(1)(d) by renting out 2 separate suites in SL1?

i.      Did the strata breach the SPA when it deferred raising strata fees in July 2020?

j.      Should the strata’s finances from 2015 to the present be audited?

k.    What remedy is appropriate for the Garrys’s failure to pay August and September 2020 strata fees on time?

l.      Should I make any orders about the strata’s insurance?

m.  Should I order the strata to join CHOA?

EVIDENCE AND ANALYSIS

35.   In a civil claim such as this, the Garrys as the applicants must prove their claims on a balance of probabilities. The strata must prove its counterclaims to the same standard. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

36.   As mentioned above, the strata consists of 5 strata lots. It was created in 2015. The SL1 building is a heritage building, which the owner developer restored as part of the development of the strata. SL1 is comprised of 2 separate suites, 1 in the basement and 1 occupying the main and upper floors. The other 2 buildings were both built in 2015 and have 2 strata lots in each.

37.   The Garrys bought SL1 from the owner developer on October 31, 2015. They have rented out both suites and have never lived in SL1.

38.   On May 5, 2015, the strata filed a bylaw amendment in the LTO that removed the pet restrictions in the Standard Bylaws under the SPA. The strata filed a complete new set of bylaws (new bylaws) in the LTO after this dispute started, on September 11, 2020. Section 120 of the SPA says that bylaw amendments take effect when they are filed in the LTO. Section 120 also says that the Standard Bylaws apply except to the extent that the strata has filed different bylaws in the LTO. So, I find that other than the filed pet bylaw amendment, the Standard Bylaws apply before September 11, 2020. The new bylaws apply after September 11, 2020.

39.   As mentioned above, the strata asks for orders about several fines it imposed on the Garrys for breaching the bylaws. The claimed fines are $200 each. All of the alleged bylaw breaches happened before September 11, 2020. Under bylaw 23 of the Standard Bylaws, the maximum fine is $50. So, subject to my other findings about the validity of the fines, below, I find that the maximum amount the strata could fine the Garrys was $50 for each bylaw infraction before September 11, 2020.

Was the strata entitled to charge the Garrys extra for an additional organics bin? If not, how much must the strata reimburse them?

40.   In June 2015, the owner developer signed a contract with a waste disposal company for 5 sets of recycling, garbage, and organics bins. In July 2015, the strata arranged with the contractor to have only 4 of the 5 sets of bins picked up because only 4 of the 5 strata lots were occupied at that time. SL1 was vacant until the Garrys bought it that fall.

41.   The strata held an annual general meeting (AGM) on November 28, 2015. The strata agreed to contact the waste disposal contractor to check on the price increase of having all 5 sets of bins picked up, “if needed”. It does not appear that the strata ever did this. Instead, according to the strata, the residents would make sure that they collectively only put 4 of each bin type out on collection days, even though each strata lot had its own set of bins. The strata says that each bin was so large, they did not need to all go out weekly.

42.   At the November 27, 2016 annual general meeting, the Garrys requested another organics bin so that each of SL1’s 2 suites would have its own. The strata agreed to get a quote.

43.   In February 2017, the waste disposal contractor said that an additional organics bin would cost $8.41 per month. The Garrys agreed to add this cost to their strata fees effective March 1, 2017. The Garrys also paid $60 to have the bin delivered. So, after March 2017 there were 6 organics bins on the property but only 5 were being picked up weekly. The strata was paying to have 4 of them and the Garrys were paying for the fifth.

44.   In August 2018, the waste disposal contractor removed 1 set of bins from the strata. It is unclear why, but I find that it does not matter. The strata says that after this, the other 4 owners consolidated their organics into 3 bins, leaving 2 bins for SL1’s tenants. The Garrys say that they do not have the use of 2 organics bins. Given my conclusions, below, I find that I do not need to decide this point.

45.   In a November 1, 2019 letter, the Garrys requested that the strata reimburse them for the $8.41 per month they had been paying for the additional organics bin. The strata refused.

46.   On August 31, 2020, the strata informed the Garrys that the strata believed that the Garrys’s second suite was “illegal”. So, the strata was no longer “allowing” the Garrys to have 2 organics bins. I address the issue of the legality of the second suite below. In any event, the strata says that it has stopped charging SL1 for the additional organics bin on this basis as of September 1, 2020, which is supported by the strata’s 2020-2021 budget. The strata’s fiscal year runs from September to August.

47.   The Garrys argue that the strata “changed” the waste disposal contract from 5 bins to 4 bins. They say that the strata should have paid for 5 organics bins all along. So, they say that they should not have to pay for the “extra” bin because it was the fifth bin, not the sixth bin. Much of the Garrys’s arguments also focus on whether the strata lied or misled the Garrys about the bins. I find that I do not need to address these arguments because it does not matter why the strata decided not to have the waste disposal contractor pick up a set of waste bins from each strata lot every week.

48.   The strata says that the Garrys agreed to pay for the extra organics bin, and the other residents managed to consolidate their waste into the other organics bins. The strata says that after March 2017, the Garrys’s tenants used 2 organics bins. Therefore, they say that the Garrys got what they paid for. The strata says that it is “fair” for the Garrys to pay for extra services if they use extra services.

49.   The parties did not explicitly argue whether waste collection is a “common expense” as defined in section 1(1) of the SPA. However, I find that their submissions implicitly address this issue. Specifically, the parties’ arguments raise whether Garrys should have to pay for “additional” waste disposal services, or whether the cost of this bin should be borne by all owners.

50.   I find that the strata’s waste collection is a common expense. Section 1(1) defines “common expenses” as expenses that either relate to the strata’s common property or common assets, or that are necessary for the strata to meet any other purpose or obligation of the strata. The strata, not the individual owners, entered into the waste disposal contract. Paying for waste collection is therefore the strata’s obligation. I also find that arranging for waste disposal is 1 of the strata’s purposes.

51.   Section 91 of the SPA says that the strata is responsible for the common expenses of the strata. Under section 92(a)(i) of the SPA, the strata must collect strata fees from the owners to pay for common expenses. Section 99 says that owners must contribute to strata fees based on unit entitlement. There are some exceptions to this, but I find none apply.

52.   In other words, I find that the strata had no legal authority to require the Garrys to pay extra for waste disposal based on usage. Even though the Garrys initially agreed to pay the additional cost of an additional organics bin, I find that this does not change the fact that the strata had the legal obligation to pay for waste collection. Based on the photos in evidence, I find that the organics bins were quite small compared to the garbage and recycling bins. So, I find that it was reasonable for SL1 to ask for a second organics bins since it had more residents than the other strata lots.

53.   As for the strata’s arguments about fairness, I note that SL1 pays the highest strata fees in the strata because it is the largest strata lot. In this way, the SPA’s default formula where owners pay based on unit entitlement accounts for the reality that larger strata lots will generally use more resources than smaller strata lots.

54.   Therefore, subject to my findings about the Limitation Act below, I find that the Garrys are entitled to a refund of the additional waste disposal charges they paid for the organics bin.

55.   The strata says that the Garrys’s claim is barred by the Limitation Act. The Limitation Act provides for a 2-year limitation period for most claims, which I find includes the Garrys’s claim for a refund of the additional charges. A limitation period is a specific period of time within which a person must pursue a legal claim, such as a CRT claim. If the limitation period expires, the right to bring the claim disappears.

56.   According to section 6 of the Limitation Act, the limitation period starts to run on the day the Garrys “discovered” the claim. According to section 8 of the Limitation Act, this is when they knew or reasonably should have known that they had suffered a loss, that the strata had caused the loss, and that a court or CRT proceeding would be an appropriate way to remedy the loss.

57.   The strata says that the Garrys discovered the claim on February 20, 2017, when the waste disposal contractor told that them that it would cost extra for an additional organics bin. The Garrys say that they did not realize that the strata was not paying for 5 bins until after August 2018 when the waste disposal contractor removed a set of bins.

58.   Because my decision is based on the finding that the strata was never entitled to charge the Garrys extra for waste disposal, I find that the Garrys reasonably should have known that the strata was overcharging them on March 1, 2017.

59.   That said, I find that each month that the strata charged the Garrys was a new claim, so only the part of their claim that arose before August 3, 2018, which is 2 years before the Garrys started this dispute, is barred by the Limitation Act. I therefore find that the Garrys are entitled to a refund of 24 months of the $8.41 overcharge, which equals $201.84. I order the strata to pay the Garrys this amount.

60.   The Garrys also claim $1,200 in compensation for the “loss of over 4 years of services”. This is based on the developer’s initial budget that set aside $1,800 annually for waste disposal, or $360 per strata lot. They say that because the strata only paid for 4 bins to be removed, not 5, the Garrys should receive $240 per year for being “inadequately serviced”. They also say that the strata should compensate them for the time spent dealing with the waste disposal contractor.

61.   The strata says that the Garrys received proper waste management throughout their ownership of SL1.

62.   I agree with the strata on this point. The strata’s method of waste collection, which required the owners to coordinate whose bins would go to the curb each week, was unorthodox. However, the only evidence that suggests it was inadequate is that the Garrys say that their tenants sometimes did not have enough room in their organics bins for all of their waste. However, the Garrys did not provide a statement from any tenants, so I find that they have not proven that service was inadequate. In any I find that there is no basis to compensate the Garrys for their tenant’s inconvenience of having insufficient bin space. I dismiss this claim.

Should I order that SL1 can only have 1 organics bin picked up per week?

63.   The strata says that SL1 should only be allowed to put 1 organics bin to the curb every week because there is only 1 legal suite. The strata says that the Garrys are getting “special treatment” because there are 2 households in SL1.

64.   As discussed above, waste collection is a common expense because the strata contracted to provide waste disposal services. I find that the strata has no basis for restricting how much waste the residents of SL1 can dispose of regardless of whether 1 of the suites is illegal. This is because the legality of the second suite is unconnected to the number of residents who can live in SL1. In other words, the Garrys could rent out the entire strata lot to 1 set of tenants. I find that the residents of SL1, regardless of whether they are in 1 household or 2, are entitled to have their waste collected.

65.   Therefore, I find that the strata must provide reasonable waste disposal collection for the residents of SL1. I make no order about how many bins of each type the strata must provide each strata lot to achieve this. It is up to the strata to make sure that the residents have enough bin space to collect their household waste each week. I dismiss this claim.

Can the strata store waste bins in SL1’s parking area?

66.   The area between the SL1 building and the adjacent building is shown as an LCP parking area for SL1 on the strata plan (SL1 parking space). The Garrys provided photos showing that the strata stores 2 recycling bins and 2 garbage bins in this space. They want the bins removed.

67.   The strata says that the SL1 parking space is common property so it is “only fair” that other owners can put bins there. The strata says that even with the bins, the Garrys’s tenants have plenty of room to park. The strata also says that it is “unclear” where the boundary between the SL1 parking space and the adjacent common property is.

68.   Under section 1(1) of the SPA, LCP is common property that is designated for the exclusive use of an owner. So, the Garrys have the exclusive right to use the SL1 parking space. It follows that the strata has no right to store anything there without the Garrys’s permission.

69.   I also disagree that there is any ambiguity about the boundary between the SL1 parking space and the adjacent common property. The strata plan shows that the boundary is flush with the back of strata lot 2’s garage. I therefore find that the parties could easily tell whether bins are on common property.

70.   I order the strata not to store any waste bins on the SL1 parking space unless it has permission from SL1’s owners.

Did the strata fail to maintain the SL1 yard?

71.   In front of the SL1 building is a small, fenced garden area. On the other side of the fence is another small strip of garden that fronts the municipal sidewalk. These areas, which I collectively refer to as the SL1 yard, are common property, not LCP, based on the strata plan. While each of the other strata lots have an LCP patio, most of the strata’s landscaped areas are undesignated common property.

72.   At the 2016 AGM, the 4 other owners agreed that each owner would be responsible for maintaining the “gardens/green areas” around their respective strata lots. The Garrys were not present. After this, the strata occasionally hired a landscaper for discrete jobs, such as removing dead trees, but the strata mostly expected the individual owners to keep the area around their strata lots tidy. It is undisputed after the 2016 AGM, the yard around SL1 became overgrown and unsightly. The Garrys say that this led to a pest problem, but there is no evidence to support this assertion. The Garrys blamed the strata for failing to maintain common property. The other owners blamed the Garrys for failing to contribute to the strata’s upkeep.

73.   At the AGM held on October 21, 2019 (2019 AGM), the Garrys proposed 2 resolutions about landscaping. The first was for the strata to spend $550 to landscape the SL1 yard and adjacent alleyway. This resolution failed. The second was that in future years the strata would hire a landscaper to maintain the “green” common property areas. This resolution passed.

74.   After the 2019 AGM, the Garrys wrote to the strata that the bylaws required the strata to maintain all common property. After seeking advice from a CHOA representative, who agreed with the Garrys, the strata held an SGM on November 2, 2019, in part to address this issue. The owners voted unanimously to hire a landscaper maintain all grounds. However, a resolution that the strata immediately pay a landscaper to maintain the SL1 yard failed. The strata decided to wait until spring to get quotes for landscaping.

75.   On June 18, 2020, Ms. Garry sent 3 landscaper quotes for the strata to consider. However, by this time, several owners had already cleaned up the SL1 yard by pulling weeds, trimming the grass, and planting flowers. So, Ms. Garry agreed with a quote that included mowing twice per month and cleaning up once a month. The strata hired the landscaper on June 22, 2020.

76.   The Garrys say that the landscaper attended in July 2020 but did not clean or tidy the SL1 yard. Mr. Garry says that he watched the landscaper, who did not remove any weeds or trim any boughs in the SL1 yard. It is unclear whether Mr. Garry watched the landscaper the entire time the landscaper was working. There is no objective evidence about what work the landscaper did, such as photos or a statement from the landscaper. There is no evidence that the strata directed the landscaper to avoid the SL1 yard. Whether the landscaper did any work on the SL1 yard or not, I accept that the strata hired the landscaper to tidy the SL1 yard.

77.   In August and September 2020, the Garrys removed the lawn and existing plants in the SL1 yard and replaced it with a “xeriscaped” garden, which I take to mean a garden that requires little to no maintenance, consisting of ornamental shrubs, pebbles and rocks.

78.   The Garrys say that the strata breached the SPA by requiring owners to maintain common property after the 2016 AGM. I agree. Section 72(1) says that the strata must repair and maintain common property unless it passes a bylaw making an owner responsible for the common property. Section 72(2)(a) says that the owners may pass a bylaw making an owner responsible for repairing that owner’s LCP, but the SL1 yard is not LCP. Section 72(2)(b) says that the owners may pass a bylaw making owners responsible for common property that is not LCP only if the Strata Property Regulation (SPR) specifically permits it. There are currently no regulations to this effect. So, section 72 requires the strata to repair and maintain the SL1 yard and the owners cannot pass a valid bylaw or otherwise agree to impose that obligation on individual owners. The strata effectively admitted this point at the 2019 SGM, when the owners unanimously agreed to hire a landscaper starting in 2020.

79.   As mentioned above, the Garrys claim $856.22 in landscaping costs as a remedy for the strata’s failure to repair and maintain the SL1 yard. The Garrys say that their situation was similar to that in The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363. In that case, the court ordered a strata corporation to reimburse an owner for the cost of replacing common property windows. The owner had replaced the windows because it was necessary to prevent further damage to their strata lot, and the strata corporation had refused to do so. The court found that the owner was justified in doing the work themselves when the strata corporation had refused.

80.   The situation in Hall represents an exception to the general rule that an owner cannot unilaterally spend money to repair or maintain common property and then expect the strata to reimburse them. This is because an owner cannot direct how a strata corporation fulfills its repair and maintenance obligations. See, for example, Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241. In fulfilling its responsibilities, the strata must prioritize different projects, determine the scope of work, and operate within a budget that the owners can afford. See Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784. Unilateral owner action undermines the strata’s ability to do so.

81.   With that, I find that the Garrys’s decision to change the landscaping in the SL1 yard is different than replacing windows to prevent damage like in Hall. The landscaping at issue is aesthetic. I find that the strata had taken responsibility for the SL1 yard, both by doing work itself and hiring a landscaper, in the summer of 2020. In other words, when the Garrys carried out the landscaping work, the strata was no longer breaching section 72 of the SPA. I therefore find that the Garrys are not entitled to be reimbursed for the amounts they spent on landscaping the SL1 yard. I dismiss this claim.

82.   For its part, the strata claimed $1,200 to compensate owners for the work they did maintaining the SL1 yard. I dismiss this claim. Those owners are not parties and I cannot make an order for the benefit of a non-party.

Did the Garrys breach bylaws 5 or 6 when they changed the SL1 yard’s landscaping?

83.   The strata says that the Garrys breached bylaws 5 and 6 by altering the SL1 yard without strata approval. Bylaw 5 is about alterations to strata lots. There is no evidence that any of the landscaping work was in SL1, so I find that bylaw 5 does not apply. Bylaw 6 says that an owner cannot alter common property without written strata approval. It is undisputed that the strata did not approve the landscaping changes. I note that the parties disagree about whether the Garrys informed the strata in advance about the work they intended to do, but this is beside the point. Bylaw 6 requires written approval, not advance notice.

84.   The strata sent the Garrys a notice of bylaw violation on October 5, 2020. This letter included several alleged bylaw infractions, including for altering the SL1 yard. The strata gave the Garrys an opportunity to respond to the complaints. At the Garrys’s request, the strata held a hearing on November 4, 2020. The strata then provided a written decision on November 9, 2020. In that decision letter, the strata imposed 2 separate $200 fines about the landscaping changes, the first for removing the lawn and other plants in August 2020 and the second for laying down rock and planting new plants in September 2020.

85.   The Garrys say that the strata did not comply with the SPA before imposing the fines, a submission they do not explain. Section 135 of the SPA sets out the procedural requirements that a strata corporation must follow before imposing a fine. I find that the strata complied with these requirements. I note that the strata followed the same process for each bylaw infraction at issue in this dispute, so my finding applies to these other fines.

86.   In its counterclaim, the strata claims a single $200 fine for performing unauthorized gardening work. The strata later decided to impose 2 fines for the same work. I find that both fines are properly before me. The strata also wants the Garrys to restore the SL1 yard to its original state.

87.   Was the landscaping change an “alteration” of common property? In Hall, the court found defined alteration as something that changes the “structure” of common property. In Allwest International Equipment Sale Co. Ltd. v. The Owners, Strata Plan LMS4591, 2018 BCCA 187, the court said that “immaterial changes” to common property are not “alterations” for the purposes of bylaw 6. Both of theses cases involved changes to structures, so the definitions are not particularly helpful when considering landscaping. I find that in the context of landscaping, replacing lawn with gravel or pebbles was an alteration that required strata council approval. I make this finding because purpose of landscaping is primarily aesthetic and replacing grass with pebbles significantly changes how the SL1 yard looks. Also, the change was permanent. So, I find that the Garrys breached bylaw 6 when they unilaterally replaced the lawn. As for the plants, I find that there is not enough evidence before me about what types of plants the Garrys removed and whether the new plants are different enough to be an “alteration”.

88.   What remedy is appropriate? Section 129 of the SPA says that the strata can enforce its bylaws by doing “one or more” of imposing a fine or remedying the bylaw contravention by charging the cost of doing so to the owner.

89.   The Garrys say that it makes no sense to return the common property to its “original” state, because the state before they did their work was a mess that was not being maintained. I find that this is an unreasonable interpretation of what the strata asks for, and in any event, there are no photos of how the SL1 yard looked immediately before the Garrys did the landscaping work. I find that replacing the pebbles with grass reasonably remedies the bylaw contravention by restoring the lawn. So, I order the Garrys do this within 60 days of this order.

90.   As for fines, I find that the Garrys landscaping change was 1, not 2, bylaw contraventions. I find that it was a single project that the Garrys completed over time. I therefore disagree with the strata’s decision to impose 2 fines for 2 separate bylaw contraventions. I therefore order the Garrys to pay a $50 fine for altering the landscaping without strata approval.

Did the strata fail to maintain the exterior of the SL1 building and SL1’s LCP?

91.   SL1 includes an LCP porch and stairs that lead from its front door to the SL1 yard. SL1 also includes an LCP balcony on the top floor. As mentioned above, the Garrys spent $702.09 washing and painting parts of the SL1 building’s exterior and $1,740.81 repairing the SL1 building’s stairs and balcony. They ask to be reimbursed for these amounts.

92.   On July 4, 2020, the Garrys sent the strata a letter outlining their concerns about the SL1 building’s condition, which included photos showing peeling paint, cracked sealant along the side of the entry staircase, and green staining on some outdoor white paint. The Garrys said that there had been no maintenance or upkeep on these wood features since 2015, which is undisputed. The Garrys proposed to do the work themselves in the summer of 2020 and requested that the strata reimburse them for their out-of-pocket expenses. The strata did not agree.

93.   On July 23, 2020, the Garrys sent another letter, this time about the LCP balcony. The photos in the letter show a loose deck board, and underneath the Garrys said that there was vegetation debris, rusty nails, and failed glue. The deck boards also had peeling paint. Again, the Garrys said that there had been no upkeep of the LCP balcony since 2015. This is also undisputed.

94.   On August 10, 2020, the Garrys hired a contractor to clean the exterior of the SL1 building without strata approval.

95.   On August 16, 2020, Ms. Garry sent a letter to the rest of the owners, advising the strata that the Garrys would be performing “recovery” and “repair” work on both LCP and common property. The strata denies receiving this letter, but I find that it does not impact the outcome of this dispute.

96.   On August 27, 2020, the Garrys sent a letter to the strata that they went ahead with some repair and maintenance work because the strata had done nothing to address their concerns.

97.   At the 2020 AGM on August 29, 2020, owners from all 5 strata lots were present. The Garrys presented a summary of repairs of common property and LCP, which the minutes indicate was “received for information”. According to the minutes, the strata agreed that the wood structures of the SL1 building’s siding, stairs, patio, balcony, and porch required an inspection. The strata also accepted that it needed a long-term maintenance plan for the SL1 building.

98.   On August 31, 2020, another owner sent an email to the Garrys that the strata had received 2 quotes to repair the stairs, fence, and patio of SL1, both for between $3,000 and $4,000. Ms. Garry responded that she had a quote for $2,000. When pressed on this, Ms. Garry said that she was the “GC”, which I take to mean the general contractor, and that she would hire contractors as needed. The owner said that this would “not work” and asked Ms. Garry to hold off on any repairs.

99.   The strata says that on September 10, 2020, the Garrys refused to allow its contractor to enter SL1 to inspect the balcony.

100.   On September 22 and 23, 2020, the Garrys’s contractor did some repairs to the balcony. The Garrys say that they offered to have the strata attend on September 19, 2020, to inspect the balcony with their contractor, but no one came. The Garrys arranged for further repairs later that fall.

101.   On November 9, 2020, the strata wrote to the Garrys informing them that had imposed 3 separate $200 fines for unauthorized work in breach of bylaws 5 and 6, for washing the siding and porch on August 10, 2020, for refusing access to SL1 on September 10, 2020, and repairing the LCP porch on September 22, 2020. Only the first of these 3 fines is before me.

102.   I find that until 2020, the strata did not reasonably maintain the SL1 building because it took no steps to inspect it for potential issues. While the other 4 strata lots are relatively new, the SL1 building is a heritage building. The strata reasonably should have known that it would require regular inspection and maintenance. The Garrys provided a maintenance plan from 2011, which I infer was created as part of the SL1 building’s restoration, that sets out an inspection schedule for various components of the SL1 building. There is no evidence that the strata did anything to adhere to the maintenance plan.

103.   That said, the Garrys did not raise an issue with the SL1 building until July 2020. I find that after this, the strata acted reasonably in attempting to repair and maintain the SL1 building. This is clear from the minutes of the 2020 AGM, where the strata began the process of assessing the SL1 building’s needs to develop a long-term maintenance plan. Shortly after this, the strata attempted to hire a contractor to do a significant amount of repair and maintenance work, but the Garrys went ahead with their own repairs anyway.

104.   There is no evidence other than the Garrys’s own opinion that the any of the repair or maintenance work was urgent, such as from the contractor who did the balcony work or another expert. The strata says it would be unfair for it to reimburse the Garrys for the repair expenses when it did not give approval in advance, because the Garrys controlled the scope, timing, and cost of the repairs. I agree. I find that the Garrys were not justified in rushing the balcony work when the strata appeared willing to hire a contractor to do it at roughly the same time. Therefore, I dismiss the Garrys’s claim for repair and maintenance expenses.

Did the Garrys breach bylaws 5 and 6 when they washed the exterior of the SL1 building?

105.   The strata imposed a $200 fine because the Garrys hired someone to wash the SL1 building’s exterior without approval. The strata says that the Garrys breached bylaws 5 and 6, which again prohibit the Garrys from altering their strata lot or common property without strata council approval. It is undisputed that the strata did not approve this work. Based on the strata plan and definition of common property in section 1(1) of the SPA, I find that the SL1 building exterior is common property, so bylaw 6 applies, not bylaw 5.

106.   However, there is no suggestion that this work damaged or changed the SL1 building’s exterior. Based on the definition of “alteration” from Hall and Allwest set out above, I find that the Garrys did not alter common property or SL1 by washing it. So, I find that they did not require strata approval and breached no bylaws. I dismiss the strata’s claim that the Garrys pay a fine for washing the exterior of the building.

107.   The strata also claimed for payment of a $200 fine related to drain repairs. The strata did not refer to the drain repairs in its November 9, 2020 letter. There is no other evidence that the strata has imposed a fine for this alleged bylaw contravention. I therefore find that there is no need to assess the merits of this issue because there is no fine to enforce. I dismiss this claim.

Did the Garrys breach bylaw 3(1)(d) by renting out 2 separate suites in SL1?

108.   The strata says that the Garrys are in breach of bylaw 3(1)(d), which prohibits the Garrys from using the strata lot in a way that is illegal. It is undisputed that the Garrys rent out 2 separate suites in SL1, a basement suite and an upper suite. The strata says that the 2 suites are separated by a locked door. The Garrys do not dispute this, and it is implicit in their submissions that there is a barrier between the 2 suites. I therefore accept the strata’s evidence that there is a locked door separating the 2 suites. There is no evidence that the Garrys added the door, and it is implicit in their submissions that they bought SL1 as it is.

109.   The strata’s claim is mostly based on correspondence an owner had with the City of Coquitlam in the summer of 2020. A Coquitlam employee provided the owner with a copy of the approved building permit. The building permit included floor plans with annotations. Where an internal staircase connected the SL1 basement to the main floor, there was an annotation that said, “open access to basement required (doors not permitted)”. So, while the building permit allowed SL1 to have 2 separate kitchens, it did not allow a barrier between the basement and main floor. The occupancy permit for SL1 said that Article 28.1 of Coquitlam Bylaw 3598 prohibits the use or occupation of the SL1 building other than as approved in the occupancy permit. The occupancy permit referred to the approved building permit.

110.   The Garrys question what the word “illegal” in the bylaw means because the bylaws do not define it. Strata bylaws must be interpreted based on their plain and ordinary meaning. See The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32, at paragraph 179. I find that the plain and ordinary meaning of the word “illegal” is something that is contrary to a law. In other words, I do not agree that the lack of a definition is ambiguous. Previous CRT decisions have found that using a strata lot in a way that breaches a municipal bylaw is “illegal” within the meaning of this bylaw. See, for example, The Owners, Strata Plan LMS 4498 v. Mac Phee-Manning et al, 2019 BCCRT 463.

111.   Based on the information in the occupancy permit, it appears to be a breach of Coquitlam’s bylaws to separate SL1’s basement from the upper floors with a locked door or other barrier. However, the strata imposed a $200 fine for renting an “illegal secondary suite”, not for maintaining a locked door between the suites. Although the October 5, 2020 notice of the bylaw violation referred to the Coquitlam employee’s advice that the internal staircase must remain open, I find that, in substance, the complaint was about renting SL1 as 2 separate suites. The Garrys’s response suggests that this is how they understood the complaint as well. I find that the strata can only impose a fine if it proves the alleged bylaw violation as set out in the October 5, 2020 notice. See Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449, at paragraph 28.

112.   Based on the materials before me, I cannot conclude that it is illegal for the Garrys to rent the basement suite separately from the rest of the house. It is possible that Coquitlam’s bylaws would permit this as long as there was no barrier between the suites.

113.   Therefore, I find that the strata did not prove that renting SL1 as 2 separate suites was illegal within the meaning of bylaw 3(1)(d). I dismiss the strata’s claim for this fine.

Did the strata breach the SPA when it deferred raising strata fees in July 2020?

114.   The strata’s fiscal year runs from September to August. The parties agree that the owners did not approve a budget at either the 2019 AGM or 2019 SGM, which as mentioned above were both in the fall of 2019. This is because, as discussed above, the owners agreed to start paying for landscaping of common property starting in the spring of 2020. The other 4 owners voted to delay approving a budget until the spring when they would get landscaping quotes. Between September 2019 and July 2020, the strata collected strata fees based on the previous budget.

115.   The strata did not approve a 2019-2020 budget until July 4, 2020, with the 4 other owners voting in favour. The approved 2019-2020 budget provided for $12,845.76 in total strata fees compared to $8,977.56 the previous year. Despite this, the 4 other owners voted to defer the strata fee increase until September 2020, the next fiscal year.

116.   After this meeting, the Garrys wrote to the strata challenging these decisions, pointing out that these 2 votes were inconsistent. I agree. The other 4 owners approved a budget and immediately voted not to follow it. Section 99 of the SPA says that the owners must contribute strata fees to cover the strata’s budgeted expenses. There is nothing in the SPA that would permit owners to decide to underfund an approved budget.

117.   The strata does not explain why it proceeded in this way. I find that by approving the 2019-2020 budget, the strata was compelled to collect strata fees in accordance with that budget and based on the formula in section 99(2) of the SPA. Based on the strata’s actual expenditures for the year, there likely would been a surplus for the 2019-2020 fiscal. Section 105 of the SPA sets out what the strata could have done with any such surplus.

118.   I note that the Garrys also argued that the approved budget miscalculated strata fees. I agree that the strata fees set out in the approved 2019-2020 budget were divided between the strata lots incorrectly. It is not clear why, but I have calculated each strata lot’s share based solely on unit entitlement. I also note that the budget provided for collecting more strata fees ($12,845.76) than budgeted operating expenses and CRF contribution ($12,192.08). Based on section 99 of the SPA, I find that the strata should have collected the following strata fees for the 2019-2020 fiscal year:

•         Strata Lot 1: $2,877.33

•         Strata Lot 2: $2,621.30

•         Strata Lot 3: $2,499.38

•         Strata Lot 4: $2,194.57

•         Strata Lot 5: $1,999.50

119.   The above figures do not account for the amount that each strata lot paid in strata fees during the 2019-2020 fiscal year.

120.   The Garrys want an order that the strata collect the strata fee arrears. I decline to make that order. First, in effect, the order would require non-parties to pay money. Second, I find that the owners should decide how to correct the error. I therefore order the strata to hold an SGM within 90 days of the date of this decision to determine how to address the shortfall in strata fees collected in the 2019-2020 fiscal year. I note that because each owner in the strata holds 20% of the strata’s votes, section 46(2) of the SPA says that any of them may propose a resolution about how to address the shortfall.

Should the strata’s finances from 2015 to the present be audited?

121.   The Garrys say that the strata has no financial transparency. They say that they asked for financial disclosure in 2018 and 2019 but were told to just read the strata’s bank statements. The Garrys say that the strata is heading for bankruptcy. They say that the CRF is “seriously low”. They say that the other owners’ only goal is to keep strata fees low at the expense of the financial health of the strata and proper repair and maintenance.

122.   The strata admits that it did not prepare any financial statements until 2020, when it provided retroactive financial statements dating back to the strata’s creation. Section 103 of the SPA says that the strata must prepare financial statements annually and provide them to the owners before each AGM. Section 6.7 of the SPR sets out the specific requirements for the financial statements. So, the strata breached the SPA by failing to provide financial statements until 2020.

123.   The Garrys identify several issues with the financial statements, mainly to do with the contingency reserve fund (CRF). While the financial statements each include a line item for contributions to the CRF, the amounts listed as the savings account’s balance and the CRF’s balance do not match. It appears that the strata has not consistently put all of the money allocated to the CRF into the separate savings account. However, while section 95 of the SPA requires the strata to account for the CRF separately from the operating fund, it does not require it to be in a separate bank account. So, while this practice has caused confusion, I find that it is not a breach of the SPA.

124.   The Garrys say that the strata has used the CRF to pay for operating expenses, essentially using it as an overdraft. There is no direct evidence of this. The financial statements from the creation of the strata through the end of the 2019-2020 fiscal year show total contributions to the CRF, including the owner developer’s initial contribution, of $9,710.17. At the end of the 2019-2020 fiscal year, the CRF’s balance was only $4,914.77. I find that the difference between these amounts is the $4,795.40 payment that the owner developer made as a contribution to the CRF under section 12(3) of the SPA. The strata appears to have treated it as a contribution to the operating fund and used it to reduce strata fees and operate at a deficit. This practice was contrary to the SPA.

125.   However, I am not satisfied that the strata’s failure to properly manage the operating fund and CRF has led to the CRF currently being underfunded. Section 6.1 of the SPR requires the strata to contribute 10% of its annual budget to the CRF only if the CRF is less than 25% of the total amount budgeted for the operating fund for the fiscal year that just finished. The CRF balance as of August 31, 2020, was more than 25% of the operating budget for the 2021-2022 fiscal year. Section 6.1 of the SPR says that if the CRF reaches this 25% threshold, further contributions are discretionary. I note that the strata indicated in submissions that it expected the owners to get the strata’s first depreciation report during the 2021-2022 fiscal year, which would guide further contributions to the CRF.

126.   The strata says that when it retroactively created the financial statements, it was able to track every transaction except 1, which was for $664.75 in 2016. They listed this as “MISC”. The strata says that this single transaction is not evidence of any unethical behaviour. I agree. I find that the strata did its best to recreate financial statements after it became aware of the requirement that it do so. I note that the treasurer from 2016 is no longer an owner, which would have complicated the strata’s ability to determine what the $664.75 was for.

127.   So, despite the strata’s shortcomings, I am not satisfied that an audit is necessary. I find that the general purpose of an audit is to ensure that the financial statements are accurate. Given that the strata’s bank statements are available to the Garrys, I find that an audit would not provide much benefit.

128.   I note that the Garrys made arguments about the 2020-2021 budget. I decline to address those arguments since there are no orders sought about this budget.

What remedy is appropriate for the Garrys’s failure to pay August and September 2020 strata fees on time?

129.   It is undisputed that the Garrys did not pay August and September 2020 strata fees on time. When the strata filed its counterclaim, the Garrys still had not paid. This is why the strata asked for an order that the Garrys pay the strata fees, plus interest and filing fees. It is undisputed that the Garrys paid the strata fees and claimed interest later in September 2020.

130.   It is unclear whether the Garrys also paid LTSA filing fees. I find that I do not need to determine this point, because I find that the strata has not proven that it incurred this expense. Rather, the strata says that it filed a lien on October 26, 2020, because the Garrys had not paid October 2020 strata fees. This suggests that it did not file a lien because the Garrys did not pay August and September 2020 strata fees on time, and therefore did not incur any filing fees related to that claim.

131.   As for the fines, the Garrys say that they did not pay strata fees for these months because the strata had not calculated them correctly. They also say that refusing to pay strata fees was the last “lever” they had to get the strata to pay attention to their many concerns.

132.   Section 99 of the SPA and bylaw 1 both require owners to pay strata fees monthly. There is nothing in the SPA or the bylaws that allowed the Garrys to refuse to pay strata fees because they disagree with how they were calculated or to get the strata’s attention. See Strata Plan VR386 (The Owners) v. Luttrell, 2009 BCSC 1680, at paragraphs 27 and 28.

133.   As noted previously, I find that the strata gave proper notice of these bylaw fines. I therefore order the Garrys to pay a total of $100 in fines, which is $50 for each of August and September 2020.

134.   I note that the strata alleges that the Garrys have not paid strata fees for October 2020 through January 2021, when the strata made its submissions. The strata has imposed further fines on that basis. According to the Garrys, the strata has also filed a lien and started a BC Supreme Court petition about unpaid strata fees since October 2020. With that, I find that it would be inappropriate for me to comment on any strata fee arrears that may have accumulated after September 2020, or any associated fines.

Should I make any orders about the strata’s insurance?

135.   Section 149 of the SPA requires the strata to insure the SL1 building on a “full replacement” basis. The Garrys say that the SL1 building is underinsured. The Garrys provided a “Heritage Clause” from the strata’s current policy, which says that the policy does not cover any increased cost to “preserve the heritage nature of the building” or “any increased cost for skilled labour and/or authentic materials necessary to restore architectural features of heritage nature to provide an identical building”. Neither party provided the strata’s full current insurance policy.

136.   The Garrys did not point to any municipal bylaw or other legal requirement that would force the strata to rebuild or restore the SL1 building with “authentic materials” or to ensure that the building maintained its “heritage nature”. The agreement between the municipality and owner developer about the restoration of the SL1 building does not mention any reconstruction or restoration requirements in the event of a loss. I find that the Garrys have not proven that the strata’s insurance is inadequate.

137.   That said, the Garrys do not ask me to order the strata to get more or different insurance. Rather, they want an “independent administrator” to review the strata’s insurance. The Garrys are unclear about who they mean. I infer from their submissions that they mean some sort of insurance professional, presumably a broker. The strata already has an insurance broker advising it on insurance matters. The evidence suggests that the strata and its broker are currently working to make sure that the SL1 building is adequately covered. I therefore see no purpose in ordering the strata to conduct any further investigation into the adequacy of its insurance.

138.   Along the same lines, I see no reason to order the Garrys to do their own investigation into the strata’s insurance, as the strata requests. They are free to do so if they wish, but the strata has identified no legal reason why they should be forced to do so.

139.   I dismiss the parties’ claims about the strata’s insurance.

Should I order the strata to join CHOA?

140.   As outlined in the introduction, the Garrys asked for several orders that were about the Garrys dissatisfaction with how the strata is run. I dismissed all but 1 of those requested because they were directed at non-parties, unenforceable, or unhelpful. The remaining issue to consider is whether I should order the strata to join CHOA. CHOA is an organization that provides education and advice about strata matters.

141.   The Garrys say that after 5 years of self-management, the strata has shown itself unable to operate in accordance with the SPA. Since 2019, the Garrys have repeatedly suggested that the strata join CHOA. The strata has refused.

142.   The Garrys raised several examples where say the strata failed to follow the SPA. I find it unnecessary to outline this evidence in detail. The strata admits in its submission that its knowledge of the SPA is “limited”. The strata also admits that it would benefit from professional advice but says that it intends to hire a property manager. The strata says that the Garrys refusal to pay strata fees has delayed this decision.

143.   Suffice to say, and as the strata admits, the strata’s compliance with the SPA has been imperfect. I discuss some examples about the repair and maintenance of common property and financial reporting above. Overall, I find that the strata has made good faith efforts since late 2019 to bring its practices into SPA compliance, but this process is ongoing. I do not agree with the Garrys that the strata’s behaviour suggests that it intentionally ignores the SPA or bylaws.

144.   I decline to order the strata to join CHOA. I find that joining CHOA would do nothing to improve strata governance. CHOA would give the strata access to educational materials and practical advice but would not force the strata to rely on them.

TRIBUNAL FEES, EXPENSES, AND INTEREST

145.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. The parties were both partially successful. I find that the appropriate result is that neither party reimburses the other’s CRT fees.

146.   The Garrys claimed $3,500 in legal fees and the strata claimed $2,500 for the time it spent on this dispute. CRT Rule 9-5(3) governs when the CRT will order a party to reimburse another party’s legal fees. CRT Rule 9-5(5) governs when the CRT will order a party to reimburse another party for time spent on a dispute. They both say that the CRT will not make such an order absent extraordinary circumstances. Under CRT Rule 9-5(4), the CRT may consider the complexity of a dispute when deciding whether to order reimbursement of legal fees. I find that the same applies for ordering compensation for time spent.

147.   While none of the issues on its own was particularly complex, I find that due to the sheer number of issues this was an unusually complex dispute. If 1 party had been substantially successful, I likely would have ordered reimbursement of legal fees or compensation for time spent. However, the parties had mixed success. In the circumstances, I find it appropriate not to award either party any compensation for legal fees or time spent. I dismiss these claims.

148.   Neither party claimed any other dispute-related expenses.

149.   The Court Order Interest Act (COIA) applies to the CRT. The Garrys are entitled to pre-judgement interest on the waste disposal overpayments from the date of each overpayment to the date of this decision. This equals $4.49.

150.   The strata is entitled to pre-judgment interest on the 3 fines from November 9, 2020, the date that they were imposed, to the date of this decision. This equals $0.30.

151.   In sum, I have found that the strata owes the Garrys $206.33 and the Garrys owe the strata $150.30. The net result of these findings is that the strata must pay the Garrys $56.03.

152.   The strata must comply with the provisions in section 189.4 of the SPA by not charging dispute-related expenses against the Garrys.

ORDERS

153.   Within 30 days of the date of this order, I order the strata to pay the Garrys $56.03, broken down as follows:

a.    $201.84 for overcharging waste disposal fees, and

b.    $4.49 in pre-judgment interest under the COIA, less

c.    $150.30 that the Garrys owe the strata, broken down as follows:

i.      a $50 fine for altering the SL1 yard without strata approval,

ii.    2 $50 fines for failing to pay strata fees on time in August and September 2020, and

iii.   $0.30 in pre-judgment interest under the COIA.

154.   Within 60 days of the date of this order, I order the Garrys to remove the pebbles and replant grass in the formerly grassed areas of the SL1 yard.

155.   Within 90 days of the date of this order, I order the strata to hold an SGM to determine how to address the shortfall in strata fees collected in the 2019-2020 fiscal year.

156.   I order the strata not to store any waste bins on SL1’s LCP except with the consent of SL1’s owners.

157.   Under section 10 of the CRTA, I refuse to resolve the Garrys’s claim that an administrator be appointed to run the strata.

158.   I dismiss the parties’ remaining claims.

159.   The strata is entitled to post-judgment interest, as applicable.

160.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.[i]