Date Issued: April 22, 2021

File: ST-2020-006982

Type: Strata

Civil Resolution Tribunal

Indexed as: Butterworth v. The Owners, Strata Plan KAS2046, 2021 BCCRT 416

Between:

WILLIAM BUTTERWORTH

Applicant

And:

The Owners, Strata Plan KAS2046

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      The applicant, William Butterworth, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan KAS2046 (strata).

2.      Mr. Butterworth disputes a strata council’s decision to temporarily close the strata’s swimming pool and shared washroom facilities in 2020. He seeks a declaratory order that the strata failed comply with the Strata Property Act (SPA) and the “Health Act (BC)”, which I infer is a reference to the repealed Health Act. The Health Act was replaced by the Public Health Act in 2009.

3.      Mr. Butterworth also claims the strata denied his request to inspect strata records, prevented owners from attending council meetings as observers, and delayed sending out council meeting minutes. He seeks orders that the strata allow him to inspect “all related and requested” strata records, permit owners to observe council meetings, and a declaration of “non-compliance”.

4.      The strata disputes Mr. Butterworth’s claims. It says the Civil Resolution Tribunal (CRT) does not have jurisdiction over BC’s repealed Health Act and has no authority to make declaratory orders. The strata also says there is no live issue over a temporary facility closure or the council meeting minute delay. It says the facilities have since opened and it has distributed its council meeting minutes. Further, the strata says it disclosed all requested records except those protected by solicitor-client privilege. The strata says it already permits owners to observe council meetings unless the meeting is held “in camera” as permitted under its bylaws. By “in camera” the strata means the meetings or portions of the meetings that were held in private, without observers.

5.      Mr. Butterworth is self-represented. The strata is represented by a council member.

JURISDICTION AND PROCEDURE

6.      These are the CRT’s formal written reasons. The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

7.      Section 39 of the CRTA says that the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. Here, I find I am properly able to assess and weigh the documentary evidence and submissions before me without an oral hearing. Further, bearing in mind the CRT’s mandate of proportional and speedy dispute resolution, I decided I can fairly hear this dispute through written submissions.

8.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

9.      Under section 123 of the CRTA and the CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

Evidence Disclosure

10.   The CRT’s rule 8.1 says a party must include all evidence in their possession that may prove or disprove an issue in the dispute, even if the evidence does not support the party’s position.

11.   During the CRT’s hearing preparation phase, Mr. Butterworth asserted that the strata failed to provide all relevant evidence. He says he believes the strata might have relevant documents that it did not disclose. The strata says Mr. Butterworth is asking for irrelevant or non-existent documents or documents protected by solicitor-client privilege. I have reviewed Mr. Butterworth’s list of requested documents and compared it to the submitted evidence. I am satisfied that the strata has complied with CRT rule 8.1. I also find some of Mr. Butterworth’s request are for the same records that are the subject of his claims in this dispute and I deal with those requests below.

12.   The strata objects to the CRT admitting some of Mr. Butterworth’s evidence on the basis that it is allegedly unrelated to the claims, misleading, or unnecessarily complicates the dispute. While I agree with the strata that some of Mr. Butterworth’s evidence is not relevant, I find nothing prejudicial in Mr. Butterworth’s evidence that would lead me to exclude it. I have therefore admitted Mr. Butterworth’s evidence.

ISSUES

13.   The issues in this dispute are:

a.    Did the strata act contrary to law in temporarily closing the facilities?

b.    Has the strata failed to comply with Mr. Butterworth’s records requests made under SPA section 36?

c.    Is the strata preventing owners from observing council meetings?

d.    Did the strata delay in sending out council meeting minutes?

e.    What, if anything, is the appropriate remedy?

EVIDENCE AND ANALYSIS

14.   In a civil proceeding like this one, Mr. Butterworth as the applicant must prove his claims on a balance of probabilities. I have read all the parties’ submissions and evidence but refer only to that which I find relevant to provide context for my decision.

Did the strata act contrary to law in temporarily closing the facilities?

15.   The strata complex has a common property swimming pool and hot tub, and related facilities such as washrooms. It is undisputed that the strata council temporarily closed the facilities in June and July 2020.

16.   Mr. Butterworth says the strata did not comply with the repealed Health Act in temporarily closing the facilities and seeks a declaratory order about it.

17.   The strata argues, in part, that the CRT does not have authority to make a decision over the repealed Health Act or to grant a purely declaratory order. However, I find the CRT does have authority to consider Mr. Butterworth’s claim as it is a claim about common property.

18.   As noted, the Health Act was repealed at the time of the temporary facilities closure and so, I find it is inapplicable. I also find that the Public Health Act and SPA do not prevent the strata from temporarily closing the facilities. I find the strata did not act contrary to law in closing the facilities. I decline to make the declaratory order and I dismiss Mr. Butterworth’s claim.

Has the strata failed to comply with Mr. Butterworth’s records requests made under SPA section 36?

19.   Mr. Butterworth claims the strata failed to allow him to inspect records he requested under the SPA section 36(1).

20.   SPA section 35 sets out records and documents that a strata corporation must prepare and retain. I find the relevant sections here are sections 35(2)(k) and (h). Section 35(2)(k) requires the strata to retain copies of correspondence sent or received by the strata corporation and council. SPA section 35(2)(h) requires the strata to retain copies of any legal opinions obtained by the strata corporation.

21.   SPA section 36(1) states that, upon receiving an owner’s request, a strata corporation must make records and documents referred to in section 35 available for inspection and provide copies of them to an owner. SPA section 36(3) requires the strata to comply with a request within 2 weeks unless the request is in respect of bylaws or rules, in which case the strata corporation must comply with the request within 1 week.

Written Complaints

22.   On July 16, 2020 Mr. Butterworth requested access to all records related to the complaints that led to the council’s decision to close the pool and related facilities. The strata did not disclose any complaints. In response to Mr. Butterworth’s claim here, the strata disclosed a July 14, 2020 email chain between strata council members and the strata property manager. I find July 14, 2020 email chain contained complaints from council members that led to the decision to close the facilities and was responsive to Mr. Butterworth’s request.

23.   I find the strata has now disclosed the July 14, 2020 email chain through this proceeding and Mr. Butterworth has had the opportunity to inspect it. The evidence does not suggest there were any other written complaints related to the facility closure decision. Therefore, I find Mr. Butterworth’s request is essentially satisfied and so making an order about it would serve no purpose. For this reason, I dismiss Mr. Butterworth’s claim over this request.

Legal Opinion

24.   As set out in the Dispute Notice, Mr. Butterworth claimed the strata failed to comply with SPA sections 35(2)(h) and 36(1)(a). Specifically, Mr. Butterworth claimed the strata did not provide him with access to inspect “legal advice” that he requested on July 29, 2020. Mr. Butterworth seeks a declaratory order that the strata failed to comply with the SPA and an order that he be allowed to “inspect all related and requested strata documents”.

25.   The strata says the requested legal opinion or advice is protected by solicitor-client privilege. Solicitor-client privilege covers legal advice and communications between a lawyer and client that are made in confidence, for the purpose of obtaining the legal advice: Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860.

26.   The strata relies on the BCSC decision in Azura Management (Kelowna) Corp. v. Strata Plan KAS 2428, 2009 BCSC 506 for the proposition that the document inspection provisions under SPA section 36 must be read in the context of common law solicitor-client privilege. I agree with the strata that Azura stands, in part, for this proposition.

27.   The strata says there is an ongoing dispute and it is not required to provide Mr. Butterworth with access to the requested advice because it is protected by solicitor-client privilege. It says it will provide Mr. Butterworth with access to the advice after the dispute is resolved.

28.   In his reply submissions, Mr. Butterworth says he never challenged that there may be solicitor-client privilege attached to the legal opinion. He says he just wanted the strata to provide the relevant case law and an explanation in denying his request. Mr. Butterworth says he accepts that Azura applies. He says the “legal opinion has now finally been addressed but the other requests have been ignored”. In making these statements, I find Mr. Butterworth accepts the strata’s position in not disclosing the legal opinion.

29.   Considering the parties agree the legal opinion is protected by solicitor-client privilege, I find the strata was not required to provide Mr. Butterworth with the legal opinion under section 36(1) and I dismiss this aspect of his claim.

30.   I acknowledge Mr. Butterworth’s assertion that “other requests have been ignored”. However, I find Mr. Butterworth did not bring specific claims about these other requests as they are not claimed in the Dispute Notice. I also find he has not clearly set out in argument exactly which record requests the strata allegedly ignored. I find it would be procedurally unfair to address the additional requests here because they are relatively vague and I find the strata did not have a fair opportunity to respond to them. So, I have not considered any additional records requests that Mr. Butterworth made under SPA section 36(1).

31.   For the reasons above, I dismiss Mr. Butterworth’s claims over access to records.

Is the strata preventing owners from observing council meetings?

32.   In 2020, the council required any owner who wanted to observe a council meeting to attend by Zoom videoconference due to the COVID-19 restrictions and the meeting room size. Mr. Butterworth asserts the strata excluded owners from observing its council meetings or portions of the meetings in 2020 for no valid reason. The strata disputes this claim. It says the only time it expressly excluded observers was when the meeting was held “in camera”. It says it might have unintentionally excluded observers due to technical issues with Zoom.

33.   I find the strata was entitled to hold the council meetings by Zoom. First, bylaw 21.1 states that if the council decides by majority vote, it may hold council meetings may by electronic means, so long as all council members and other participants can communicate with each other. Second, an April 17, 2020 Ministry of Public Safety and Solicitor General order permitted all strata corporations to hold electronic meetings due to the Covid-19 pandemic.

34.   The strata’s bylaw 21.2 allows owners to attend council meetings as observers. However, it says observers may not attend those portions of council meetings that deal with bylaw contravention hearings, rental restriction bylaw hearings, and any other matters if the presence of observers would, in the council’s opinion, unreasonably interfere with an individual’s privacy. The bylaws do not expressly require the strata to provide advance notice of a council meeting. However, I find owners likely knew about most council meetings because they were held on a regular monthly schedule.

35.   Mr. Butterworth relies on 2 specific examples to support his claim that the council allegedly excluded observers. In the first example, Mr. Butterworth says the council excluded him from an August 18, 2020 council meeting, which was not a regularly scheduled meeting. Mr. Butterworth knew about the meeting and says he verbally asked to attend it. Mr. Butterworth says no one gave him the location or Zoom link to allow him to attend. There is no dispute that Mr. Butterworth did not attend the August 18, 2020 meeting. However, I find Mr. Butterworth has not shown that the council expressly excluded him from attending as an observer. I find it is not clear on the evidence that the council received Mr. Butterworth’s verbal request or knew he wanted to attend this meeting.

36.   Mr. Butterworth’s second example relates to another owner’s request to attend a council meeting. The owner’s email request is before me. The owner asked to attend an August 26, 2020 council meeting as an observer. The meeting minutes show the owner did not attend the first portion of the August 26, 2020 meeting, which included Mr. Butterworth’s section 34.1 hearing. The council had voted to hold the section 34.1 hearing “in camera”. I note the other owner did not specifically ask to attend Mr. Butterworth’s hearing. The August 26, 2020 meeting was adjourned and reconvened on September 2, 2020. The minutes show the other owner attended the reconvened council meeting on September 2, 2020. I find this example shows the other owner attended the council meeting as an observer.

37.   On my review of the disclosed council meeting minutes, I find the council regularly permitted owners, including Mr. Butterworth, to attend council meetings as observers. The minutes identify the “guest” strata lot and when they joined or exited the meeting. While the minutes show the strata excluded observers from hearings, Mr. Butterworth has not proven that it did so improperly. I dismiss this claim.

Did the strata delay in sending out council meeting minutes?

38.   Mr. Butterworth stated in the Dispute Notice that the strata is sometimes late in sending out council meeting minutes. He stated that it did not sent out the May 27, June 24 and July 29 meeting minutes until after the 2-week deadline set out in bylaw 23.1. Mr. Butterworth did not request any specific remedy about it in the Dispute Notice but in argument he asks for a “declaration of non-compliance”.

39.   Despite not requesting a specific remedy in the Dispute Notice, I find the strata had sufficient notice of this discrete issue and a fair opportunity to respond to it. I find it is appropriate to resolve the claim here to provide the parties with finality.

40.   The strata admits there were some instances when its property manager sent minutes after the 2 week deadline. The property manager’s signed statement says they had an overly heavy workload at the time, they have since corrected this issue and delay is not longer an issue. It is undisputed that the property manager has since sent out the council meeting minutes.

41.   As there is no evidence that this is an ongoing issue and the strata is already required to comply with its bylaws, I find no need to make an order about it. I dismiss this claim.

CRT FEES AND EXPENSES

42.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. As I find Mr. Butterworth was the unsuccessful party overall, I dismiss his claims for CRT fees and expenses.

43.   The strata must comply with section 189.4 of the SPA by not charging dispute-related expenses against Mr. Butterworth.

ORDER

44.   I dismiss Mr. Butterworth’s claims and this dispute.