Date Issued: May 10, 2021

File: ST-2020-007414

Type: Strata

Civil Resolution Tribunal

Indexed as: Varzari v. The Owners, Strata Plan VR 2673, 2021 BCCRT 494

Between:

ELI VARZARI

Applicant

And:

The Owners, Strata Plan VR 2673

Respondent

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      The applicant, Eli Varzari is a tenant residing in a strata lot at the respondent strata corporation, The Owners, Strata Plan VR 2673.

2.      Mr. Varzari says that the strata has improperly assessed bylaw fines against him totalling $1,200 for bringing his bicycle into the strata lot, allegedly making noise and disturbing other residents. Mr. Varzari does not dispute bringing his bicycle into the strata lot. However, he says this was necessary because the strata’s bicycle storage areas are not secure. Mr. Varzari asks for an order cancelling the bylaw fines.

3.      The strata says it properly assessed the bylaw fines against Mr. Varzari.

4.      Mr. Varzari is self-represented. The strata is represented by the strata council president, KC.

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, or a combination of these. Though I found that some aspects of the parties’ submissions called each other’s credibility into question, I find I am properly able to assess and weigh the documentary evidence and submissions before me without an oral hearing. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always necessary when credibility is in issue. 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.

 

Late Evidence

7.      The strata provided late evidence consisting of the August 19, 2019 strata council minutes. Mr. Varzari did not object and had the opportunity to review the late evidence and provide submissions and evidence in response. Consistent with the CRT’s mandate that includes flexibility, I find the late evidence does not prejudice Mr. Varzari and I allow it.

Strata’s objection to Mr. Varzari’s evidence

8.      The strata objects to some of Mr. Varzari’s documents because they contain handwritten comments which the strata says are improper arguments. I find that there are handwritten comments on the strata’s correspondence and the minutes of the May 21, 2020 strata council meeting provided by Mr. Varzari. I consider these comments to be submissions. Consistent with the CRT’s mandate that includes flexibility, I find that the strata has not been prejudiced by the manner of these submissions since the strata had an opportunity to review and respond to them. So, I deny this objection and I have considered Mr. Varzari’s annotated documents in making my decision.

Allegations about building security, permission to bring bicycles into the strata lot and harassment

9.      Mr. Varzari alleges that the strata did not provide adequate security, that he should have been granted permission to bring his bicycle into the strata lot and that strata employees and council members harassed him. However, Mr. Varzari has not made claims for relief relating to these allegations in his application for dispute resolution and he did not request a remedy for these claims. So, I find that these allegations are not properly before me and do not form part of this dispute.

 ISSUE

10.   The issue in this dispute is whether the strata must cancel $1,200 of bylaw fines assessed against Mr. Varzari.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding such as this, the applicant Mr. Varzari must prove his claims on a balance of probabilities. I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.

12.   The strata was created in 1990 and consists of apartment-style strata lots.

13.   On March 12, 2020, the strata amended its bylaws by filing an entire new set of bylaws at the Land Title Office. The bylaws relevant to the dispute are the following:

a.    Bylaw 4.1 says an owner must not use the common property (CP) in a way that unreasonably interferes with another persons’ right to use and enjoy the CP. This bylaw was also in effect since February 20, 2003 under previous bylaw amendments.

b.    Bylaw 29 says the strata can fine an owner $200 for each bylaw violation. This bylaw was also in effect as bylaw 27.1 since February 20, 2003 under previous bylaw amendments.

c.    Bylaw 44.3 says that bicycles cannot be transported to strata lots without written strata council permission. This bylaw was also in effect as bylaw 39.4 since February 7, 2008 under previous bylaw amendments.

14.   It is undisputed that Mr. Varzari has rented the strata lot since 2012, with the strata’s knowledge.

Bylaw fines

15.   Although Mr. Varzari disputes bylaw fines totalling $1,200, he has not identified the specific bylaw fines he is disputing. Based on both parties’ submissions, I infer that Mr. Varzari is disputing bylaw fines that have been assessed against the owner’s strata lot since Mr. Varzari has occupied the strata lot at all material times. The owner’s strata lot account shows the following bylaw fines assessed against it since 2019:

a.    3 fines of $200 for bylaw violations for noise on June 14, 2019 and July 23, 2020.

b.    6 fines of $200 for bylaw violations for improper use of the common area on August 23, 2019, November 6, 2019, May 28, 2020, August 27, 2020.

c.    3 fines of $200 for bylaw violations for ‘other’ on November 6, 2019, August 27, 2020, and July 23, 2020.

d.    2 fines of $200 for bylaw violations related to security on October 13, 2020.

16.   It is undisputed that Mr. Varzari, and not the owner, allegedly performed the actions that led to the bylaw fines at issue here since Mr. Varzari had rented the strata lot at all material times. So, I find that only Mr. Varzari, and not the owner, could have violated the bylaws.

17.   Under Strata Property Act (SPA) section 130, a strata corporation can only fine a tenant, not the owner, for a tenant’s bylaw violations. SPA section 131 says that if a strata corporation fines a tenant, the strata corporation may collect the tenant’s fine from the owner, and then the tenant owes the owner the amount paid (see, Clark v. The Owners, Strata Plan BCS 2785, 2017 BCCRT 49 and Wong et al v. The Owners, Strata Plan LMS 1178, 2019 BCCRT 1088, which are non-binding but I find are persuasive). So, the strata can only fine Mr. Varzari for his alleged bylaw breaches. However, the strata can collect these bylaw fines from the owner.

18.   In this dispute, both parties say that the strata fined Mr. Varzari multiple times for bylaw violations. However, neither party provided any documents showing bylaw fines assessed against Mr. Varzari. Each of the strata’s bylaw fine notices provided show strata bylaw fines assessed against the owner only, not against Mr. Varzari. Based on the strata bylaw fine notices provided, I find that the strata has assessed bylaw fines against the owner rather than Mr. Varzari, as required under SPA section 130.

19.   Further, I find that the strata has not followed the required procedure to issue bylaw fines against Mr. Varzari. SPA section 135(1) says that the strata cannot fine someone for breaching a bylaw unless the strata has given that person written particulars of the bylaw breach and a reasonable opportunity to answer the complaint, including a hearing if requested. In addition, if the person to be fined is a tenant, notice of the complaint must be given to the tenant and the owner. Further, under SPA section 135(2), the strata must also give written notice of a decision to fine a tenant to the tenant and owner. The strata must strictly follow these procedural requirements before assessing a fine (see Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449).

20.   In this dispute, the strata sent Mr. Varzari and the owner essentially identical bylaw violation letters for each alleged incident. However, none of these notices warned Mr. Varzari that the strata intended to fine him for the alleged bylaw violations. Rather, each of the strata’s notices said that it might fine the owner for bylaw violations. In The Owners, Strata Plan NW3075 v. Stevens, 2018 BCPC 2 at paragraph 48, the court said that the persons who may be subject to a bylaw fine must be given a reasonable opportunity to answer the complaint. In this case, I find this person is Mr. Varzari, the tenant. However, I find that the strata’s bylaw violation letters did not provide Mr. Varzari a reasonable opportunity to respond to the bylaw violation notices as required under SPA section 135(1) because the notices did not say that bylaw fines could be imposed against Mr. Varzari. Further, the strata did not send Mr. Varzari written notice of decisions to fine him as required under SPA section 135(2). Rather, as stated above, the strata’s bylaw fine notice letters each said that the bylaw fines were issued against the owner, not against Mr. Varzari. Also, there is no evidence before me that the strata took any steps to properly re-issue or correct any of the notices sent to Mr. Varzari in accordance with SPA section 135.

21.    For the above reasons, I find that the strata has not properly issued bylaw fines against Mr. Varzari as required by SPA section 135. So, I find that any bylaw fines that the strata claims against Mr. Varzari are not valid.

 

FEES AND EXPENSES

22.   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. Since Mr. Varzari was successful, I find it appropriate to order the strata to reimburse Mr. Varzari’s CRT fees, being $225.

23.   Mr. Varzari has requested reimbursement of unspecified amounts for dispute-related expenses for the cost of strata management expenses, photocopying expenses and legal fees. However, Mr. Varzari has not provide the amounts of these alleged dispute-related expenses, an explanation of how these alleged expenses ae related to the dispute or show that extraordinary circumstances existed to justify the award reimbursement of legal fees under CRT Rule 9.5. So, I dismiss Mr. Varzari’s request for dispute-related expenses. The strata did not request reimbursement of dispute-related expenses.

ORDERS

24.   Within 30 days, I order the strata to pay Mr. Varzari $225 in reimbursement of CRT fees.

25.   Mr. Varzari is also entitled to post-judgement interest under the Court Order Interest Act.

26.   I order that the strata cancel all bylaw fines, up to the amount of $1,200, issued against Mr. Varzari before the Dispute Notice was issued on October 15, 2020.

27.   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.