Date Issued: May 11, 2021

File: ST-2020-009001

Type: Strata

Civil Resolution Tribunal

Indexed as: Harvey v. The Owners, Strata Plan VR 390, 2021 BCCRT 500

Between:

WENDY HARVEY

Applicant

And:

The Owners, Strata Plan VR 390

Respondent

REASONS FOR SUMMARY DECISION
Tribunal Member:	Kate Campbell, Vice Chair

INTRODUCTION

1.      This is a summary decision about whether the Civil Resolution Tribunal (CRT) should refuse to resolve any or all of the claims in this dispute. This decision does not address the merits of the dispute.

2.      The applicant, Wendy Harvey, owns strata lot 13 (SL13) in the respondent strata corporation, The Owners, Strata Plan VR 390 (strata). As explained in prior CRT decision Harvey v. The Owners, Strata Plan VR 390, 2019 BCCRT 944 (August 2019 decision), SL13 is a 2-storey townhouse, and all the other strata lots in the strata are apartments in a high-rise tower building. The townhouse and the tower are attached.

3.      The history of litigation between these parties is set out in various decisions from the CRT and the BC Supreme Court (BCSC). I discuss relevant portions of that history in my reasons below.

4.      In this dispute, Ms. Harvey makes 7 claims against the strata. In summary, she says there are various common property deficiencies the strata must fix. These deficiencies include fencing, patio paver assemblies, west and north decks on SL13, in-fill wall stucco assemblies, and irrigation. Ms. Harvey also says the strata’s contractors removed an arbor, pergola, bench, and garden edging (rail ties), and the strata must replace them.

5.      The strata denies Ms. Harvey’s claims. It also says the CRT should refuse to resolve this dispute, because the claims are res judicata (already decided) and an abuse of process. Finally, the strata says some of the claims are barred under the Limitation Act (LA).

6.      Civil Resolution Tribunal Act (CRTA) section 11(1)(a)(ii) says the CRT may refuse to resolve a claim or dispute within its jurisdiction if it considers that it has been resolved though a legally binding process or other dispute resolution process. CRTA section 11(1)(b) says the CRT may refuse to resolve a claim or dispute if it considers that the request for resolution does not disclose a reasonable claim or is an abuse of process.

7.      For the reasons set out below, under the authority of CRTA section 11(1)(a)(ii), I refuse to resolve this dispute.

 

ISSUES

8.      The issues in this summary decision are:

a.    Should the CRT refuse to resolve any or all of the claims in this dispute under CRTA section 11(1) because they are already decided?

b.    Is this dispute, or any part of it, an abuse of process?

REASONS AND ANALYSIS

9.      In making this summary decision, I have reviewed submissions on the preliminary issues from both parties. I make no findings about the merits of Ms. Harvey’s claims in this summary decision.

10.   As noted above, the strata says the claims in this dispute have already been decided in previous CRT decisions. The strata submits this dispute is an abuse of process, because Ms. Harvey is revisiting claims she was previously unsuccessful on, and is using the CRT process as an attempt to force the strata to do what she wants.

11.   The strata also says some of Ms. Harvey’s claims are barred under the LA. However, I have not addressed that issue, as I refuse to resolve all the claims for other reasons.

12.   Ms. Harvey argues that the strata’s duty to repair and maintain common property is ongoing, under Strata Property Act (SPA) section 72, so the argument that the claims are already decided or are barred under the LA cannot succeed. She also says all the claims in this dispute are new.

13.   As explained by the CRT Chair in East Barriere Resort Limited et al v. The Owners, Strata Plan KAS1819, 2017 BCCRT 22, res judicata can arise in two ways. The first is cause of action estoppel, which stops someone from pursuing a matter that was or should have been the subject of a previous process. The second is issue estoppel, which stops someone from raising an issue that has already been decided in another process.

14.   The legal tests for these 2 types of estoppel are set out in various cases, including Cliffs Over Maple Bay (Re), 2011 BCCA 180. The test for cause of action estoppel has 4 required parts:

a.    There must be a final decision of a court of competent jurisdiction in the prior action;

b.    The parties to the subsequent litigation must have been parties to or in privity with the parties to the prior action;

c.    The cause of action and the prior action must not be separate and distinct; and

d.    The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties have exercised reasonable diligence.

15.   The test for issue estoppel has 3 required parts:

a.    The same question has been decided;

b.    The judicial deciding the question is final, and

c.    The parties or their privies were the same in the judicial decision and the subsequent proceeding.

16.   I have considered each claim in this current dispute separately, to determine if it is res judicata.

Fencing

17.   In the Dispute Notice, Ms. Harvey says there are deficiencies in the fencing surrounding SL13, which the strata must fix. Ms. Harvey submits that a “new status” of the wooden fencing was discovered in summer 2020, so the question of whether the strata must repair it cannot be res judicata. Specifically, Ms. Harvey says the strata did some fencing repairs and replaced portions of the fence in summer 2020, but when she inspected the work, she noticed deficiencies and that the west fencing was not replaced.

18.   The strata says Ms. Harvey’s claim is essentially that the fencing remains in disrepair, which it says was an issue already decided in prior CRT disputes ST-2018-004993 and ST-2019-002375. The strata submits that Ms. Harvey is not entitled to use the CRT to dispute the quality of each common property repair the strata performs.

19.   In dispute ST-2018-004993, a CRT vice chair dismissed Ms. Harvey’s claim about removing a fence or gate. I find that is not the same claim as the fencing claim in this dispute, as there is no allegation here that the strata removed a fence.

20.   In dispute ST-2019-002375, Ms. Harvey said the strata had failed to repair and maintain various parts of the common property, including specifically upgrading the gate and fencing assemblies. In a December 16, 2019 decision, I dismissed that claim, finding that Ms. Harvey had failed to prove it.

21.   I find that the fencing claim in this dispute is the same issue that was decided in my December 16, 2019 final decision. In ST-2019-002375, Ms. Harvey’s claim was that the strata had a duty under SPA section 72 and strata bylaw 8 to upgrade the fence. In this new claim, she relies on the same provisions to claim that the strata still needs to upgrade the fence. Although some parts of the fencing have changed, I find that Ms. Harvey is not, essentially, arguing that the fence’s overall condition has deteriorated. Rather, she says the work that was done is flawed and incomplete. In making this finding, I note the language in Ms. Harvey’s dispute application, which says the fencing assemblies “remain in disrepair”, and there “remain deficiencies”. I find this establishes that the claim is a continuation of Ms. Harvey’s earlier claim about fencing deficiencies, rather than a new claim.

22.   For these reasons, I find Ms. Harvey’s claim about fencing is barred under the principle of issue estoppel. I therefore refuse to resolve it under CRTA section 11(1)(a)(ii).

West and North Decks

23.   In this dispute, Ms. Harvey says the west and north decks attached to the second floor of SL13 “remain in disrepair”. She says that despite substantial repairs by the strata to the West deck, and some allegedly unsuccessful attempts to repair the membrane on the North deck, there “remain deficiencies” in both decks.

24.   In my decision in dispute ST-2019-002375, I dismissed a claim about the same decks as those at issue in this dispute. Ms. Harvey said the strata had failed to repair and maintain the decks, and requested an order that the strata repair and maintain the west and north decks attached to SL13 to City of Vancouver Code, including proper painting of the related parapets.

25.   In this dispute, I find Ms. Harvey requests essentially the same order, for the strata to complete remediation of the west and north decks to “City of Vancouver Code”.

26.   In her preliminary submissions, Ms. Harvey says the strata has “dithered for years” about the repair and maintenance of the north deck, and that it has not met City Code requirements for 13 years. Ms. Harvey also submits that there “remain” necessary repairs to the West deck, such as maintaining the waterproof painting on the parapet. I find that these are the same claims as set out and dismissed in ST-2019-002375. Again, as with the fencing, I find that Ms. Harvey is not alleging that the decks have substantially changed, thus changing the reasonableness of the strata’s repair and maintenance decisions. Rather, Ms. Harvey is contesting the same strata maintenance decisions as those considered in ST-2019-002375, and is contesting the quality of the work the strata has done since that decision.

27.   I therefore refuse to resolve Ms. Harvey’s claim about the west and north decks under CRTA section 11(1)(a)(ii), as I find it is already decided.

In-Fill Wall Stucco Assemblies

28.   In her dispute application, Ms. Harvey says the “stucco in-fill rain screen wall assemblies” in the exterior walls around SL13 “remain in disrepair”. She says there has been no repair or maintenance of these assemblies since they were installed around 2010, and that they are deteriorating and subject to possible water ingress. Ms. Harvey requests an order that the strata remediate these assemblies.

29.   Dispute ST-2019-002375 included claims that the strata had failed to repair and maintain exterior wall assemblies around SL13, including stucco, and all concrete pillars, walls, and parapets. I dismissed those claims, finding that Ms. Harvey had not proven that the strata had failed to meet its repair and maintenance obligations.

30.   Again, I find the claims about wall stucco assemblies in in dispute were already decided in ST-2019-002375. Ms. Harvey submits that the previous disputes did not include a specific claim about “in-fill walls”, so this is an entirely new claim. While I agree that Ms. Harvey’s claim in this dispute focuses on a different portion of the exterior walls than that considered in ST-2019-002375, the claims in that dispute included the repair and maintenance of the exterior walls, of which the in-fill assemblies are a part. So, I find the claim is res judicata on that basis.

31.   Also, I specifically find that the claim about the in-fill wall assemblies are barred due to cause of action estoppel. Under that doctrine, a subsequent claim between the same 2 parties is barred where the matter could have been argued in the prior action if the parties have exercised reasonable diligence. I find that is the case here. Ms. Harvey now says she has expert evidence about the condition of the in-fill wall assemblies. However, since there is no suggestion the wall assemblies have significantly changed, I find that similar evidence could have been obtained and provided during dispute ST-2019-002375, as Ms. Harvey had the opportunity to provide evidence about the entire condition of the walls as part of that dispute. The courts have confirmed that a party is required to raise all its arguments in the first proceeding: Dowling v. Bhander, 2009 BCSC 1812.

32.   For these reasons I refuse to resolve the claim about the in-fill wall assemblies under CRTA section 11(1)(a)(ii).

Irrigation

33.   In her dispute application, Ms. Harvey says the 2 irrigation locations in the LCP north garden area around SL13 “remain lacking and in disrepair”. She says that one of these 2 irrigation locations has been out of service for approximately 15 years. Ms. Harvey requests an order that the strata remediate these irrigation locations.

34.   I find this claim about irrigation was already decided in ST-2019-002375. In that dispute, Ms. Harvey argued that the strata failed to repair and maintain various parts of its CP, including the irrigation system. I dismissed that claim, finding it unproven.

35.   In this dispute, I find that the claim about irrigation in the LCP north garden locations was already decided in ST-2019-002375. As with the in-fill wall assemblies described above, I find Ms. Harvey could have presented evidence about these specific irrigation locations in the prior dispute, as part of her claim about the repair and maintenance of the overall irrigation system. This means the claim about irrigation in this dispute is now barred under the doctrine of cause of action estoppel, given that Ms. Harvey does not allege the irrigation system or its functionality has changed since the prior dispute was filed in March 2019.

36.   I therefore refuse to resolve Ms. Harvey’s claim about irrigation under CRTA section 11(1)(a)(ii).

Patio Pavers

37.   Ms. Harvey says the concrete pavers on the limited common property (LCP) patio surrounding SL13 are deficient. She says the strata replaced one section using new pavers, but replaced the other sections with “reused scrap pavers”. Ms. Harvey requests an order that the strata complete the remediation of the pavers around SL13.

38.   In dispute ST-2019-002375, Ms. Harvey submitted that the strata had failed in its duty to repair and maintain the pavers, among other things. She requested an order that the strata must upgrade the pavers. I dismissed that claim, finding that Ms. Harvey had not proven that the strata failed to reasonably repair and maintain CP, including the pavers.

39.   In dispute ST-2019-0005094, Ms. Harvey requested an order that the strata upgrade paver assemblies. The member found the paver issue had already been decided in ST-2019-002375, and refused to resolve the claim. She also noted that as in ST-2019-002375, Ms. Harvey had again raised the issue of whether the strata is obligated to consult with her about upgrades to CP. I find that is the central question raised by many of the claims in this dispute, and I find it has already been decided in my decision in ST-2019-002375 (see paragraphs 31 to 46).

40.   As Ms. Harvey does not contest this point, I find the pavers at issue in this dispute are in the same LCP area as the pavers in ST-2019-002375 and ST-2019-0005094. For the same reasons as for the fencing claim explained above, I find Ms. Harvey’s claim about the pavers was already decided in ST-2019-002375. This is supported by the fact that in her dispute application, Ms. Harvey said there “remain deficiencies” with the pavers, which “remain in disrepair”. Also, in paragraph 16 of her decision in ST-2019-005094, the CRT member noted that the new pavers had already been installed sometime before December 2019. Thus, I find that the member specifically considered the new pavers, and refused to resolve the claim about them.  

41.   As with the fence, I find the fact that Ms. Harvey is unsatisfied with recent work the strata did on the pavers does not make this a new claim. Rather, it is the same claim about the extent of the strata’s duty to repair and maintain the pavers that the CRT already refused to resolve in ST-2019-005094.

42.   For these reasons, I refuse to resolve Ms. Harvey’s claim about the pavers under CRTA section 11(1)(a)(ii).

Rail Tie Garden Edging

43.   Ms. Harvey says the north patio garden area surrounding SL13 had rail ties for garden edging and containment. She says the rail ties were removed by the strata’s building envelope contractor sometime before November 2019, and have not been replaced. Ms. Harvey says the rail ties are necessary to secure the patio pavers discussed above, and she requests an order that the strata must replace them.

44.   I find this claim is closely linked with the claim about the pavers. Essentially, Ms. Harvey argues that the lack of rail ties is another defect with the work the strata did on the pavers.

45.   The strata says this dispute is barred under the LA, since Ms. Harvey knew about the removed rail ties more than 2 years before she filed this dispute on November 23, 2020. I find the claim is not barred under the LA, due to the strata’s ongoing duty to maintain and repair CP, including the garden and patio areas at issue here. Ms. Harvey argues that the missing rail ties could lead the pavers to become a tripping hazard, through shifting. I find that, if proven, this would be an ongoing maintenance issue, not barred by the LA.

46.   However, I find that this claim is res judicata. In dispute ST-2019-002375, I dismissed Ms. Harvey’s claim to upgrade the rail ties. However, since the rail ties were likely not removed until after the final submissions had been provided in that dispute, I find that is not fully determinative. But, in dispute ST-2019-005094, Ms. Harvey requested orders that the strata upgrade the landscaping and paver assemblies around SL13. While the decision did not specifically mention rail ties, I find the landscaping and “paver assemblies” include the rail ties, since they were used to contain the pavers and garden. Final submissions in ST-2019-005094 were provided in June 2020. I find that Ms. Harvey knew that the rail ties had been removed by that time, and could have made submissions about them as part of her claims about pavers and landscaping, but did not.

47.   For these reasons, I find Ms. Harvey’s claim about the rail ties is barred due to cause of action estoppel. Therefore, I refuse to resolve Ms. Harvey’s rail tie claim under CRTA section 11(1)(a)(ii).

Pergola and Bench

48.   In her dispute application, Ms. Harvey says that while doing other work, the strata’s contractors removed a CP “arbor pergola” (pergola) and a bench from the SL13 south patio. She requests an order that the strata replace the pergola and bench.

49.   In submissions, Ms. Harvey says she agrees the claim about the bench has been decided, and that it was added to this dispute by mistake. I agree. The bench claim was already decided in ST-2019-002375, and in ST-2019-005094 the CRT member refused to resolve a claim about the bench because she found it had already been resolved in ST-2019-002375. Based on this, I refuse to resolve the bench claim.

50.   As for the pergola, in ST-2019-002375 Ms. Harvey argued that the strata had failed in its repair and maintenance obligations, in part by failing to upgrade the wooden arbor/trellis assembly. I find that this item is the same as the pergola contested in this dispute.

51.   As with the rail ties, I find the pergola claim could have been argued in ST-2019-005094, but was not. Again, in that dispute, the CRT member considered broadly-worded claims about whether the strata had failed to repair and maintain CP, including landscaping. I find that as part of this dispute, Ms. Harvey could have made arguments about the pergola. I find the pergola is part of the landscaping, or if not, part of the CP garden area at issue in that dispute. The pergola had been removed by the time of submissions in that dispute, so Ms. Harvey was aware of the facts and could have argued them but did not. Thus, for the same reasons as the rail tie claim, I find the pergola claim is barred under cause of action estoppel.

52.   I therefore refuse to resolve Ms. Harvey’s claim about the pergola under CRTA section 11(1)(a)(ii).

Abuse of Process

53.   The strata says that Ms. Harvey has repeatedly filed multiple disputes about repair and maintenance of the same CP areas, which it says is an abuse of process.

54.   The courts have said that the commencement by a plaintiff of more than one action against a defendant in relation to the same dispute or matter can be an abuse of process (Lacharity v. University of Victoria Students’ Society, 2012 BCSC 1819, at para. 24). In Lacharity, the court said the usual remedy for an abuse of process is a stay of proceedings.

55.   I have found that all 7 of the claims in this dispute are barred due to res judicata. Prior CRT decisions have also found that Ms. Harvey’s claims about CP repairs and maintenance are res judicata (see ST-2019-005094 and Harvey v. The Owners, Strata Plan VR 390, 2020 BCCRT 474). Given those prior decisions, I find Ms. Harvey’s claims in this dispute are an abuse of process.

56.   I order no specific remedy for abuse of process, since I have already refused to resolve her claims under CRTA section 11(1)(a)(ii). However, because of this finding, and the specific history of Ms. Harvey’s CRT claims against the strata, I direct that any future strata property dispute applications that Ms. Harvey files will be screened at the intake stage, before a Dispute Notice is issued. If the dispute application contains claims that are potentially res judicata, these claims will be escalated for a preliminary decision before the strata is served with a Dispute Notice. I make this direction under the authority of CRTA sections 6(1)(b) and 61. This will prevent the strata from having to respond to claims that are a potential abuse of process due to being res judicata.

CRT FEES AND EXPENSES

57.   The strata was the successful party in this dispute, but did not claim dispute-related fees or expenses. I therefore order none.

58.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to Ms. Harvey.

ORDER

59.   I refuse to resolve Ms. Harvey’s claims, and this dispute, under CRTA section 11(1)(a)(ii).