Date Issued: May 14, 2021

File: ST-2020-007871

Type: Strata

Civil Resolution Tribunal

Indexed as: Yee v. Chui, 2021 BCCRT 514

Between:

PUI-LING YEE

Applicant

And:

LIN TERESA CHUI

Respondent

INTRODUCTION

1.      This is a dispute between neighbours about smoking and fragrance or aromatherapy scents (scents).

2.      The parties are or were part of a strata corporation, The Owners, Strata Plan EPS3863 (strata). The applicant, Pui-Ling Yee, owns strata lot 30 in the strata (SL30). The respondent, Lin Teresa Chui, owned an adjacent strata lot 29 in the strata (SL29). The strata is not a party to this dispute.

3.      Ms. Yee says second-hand smoke and scents were entering SL30 from SL29. Ms. Yee seeks $4,862.38 in damages from Ms. Chui for the loss and use of enjoyment of SL30 from August 8, 2019 to February 3, 2020.

4.      Ms. Chui denies that she caused smoke and scents to enter SL30 from August 8, 2019 to February 3, 2020. She further says that she did not unreasonably interfere with Ms. Yee’s use and enjoyment of SL30.

5.      Ms. Yee is self-represented. Ms. Chui is represented by her lawyer, Erica Chow.

6.      This dispute is 1 of 2 related disputes involving largely the same facts. The related dispute ST-2020-001738, for which another tribunal member issued a separate decision, is indexed as Yee v The Owners, Strata Plan EPS3863, 2021 BCCRT 45. In the related dispute, Ms. Yee also claimed $2,141.34 compensation from the strata for loss of use of SL30. Ms. Yee was partially successful and was awarded damages against the strata for significant unfairness, under section 123(2) of the Civil Resolution Tribunal Act (CRTA).

7.      In the non-binding preliminary decision to this dispute, the Vice Chair decided whether the CRT should refuse to resolve this dispute because of the overlapping related dispute. The Vice Chair considered whether estoppel applied to this dispute. Estoppel means that a party is stopped from pursuing a claim because it was already decided in another proceeding (issue estoppel) or because it was, or should have been, the subject of a previous proceeding (cause of action estoppel). The Vice Chair found that Ms. Yee was not stopped from pursuing this dispute. The Vice Chair also considered whether this dispute was an abuse of process and frivolous given the overlapping related dispute. The Vice Chair found that it was not. The Vice Chair concluded that for these reasons it was not appropriate to refuse to resolve this dispute at the preliminary stage of the CRT process.

8.      However, I have found, for different reasons, that it is appropriate in this circumstance to refuse to resolve the Ms. Yee’s claim. My reasons to follow.

JURISDICTION AND PROCEDURE

9.      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 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.

10.   The CRT has the discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

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

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

13.   Under section 11(1)(a)(i) of the CRTA, the CRT may refuse to resolve a claim or dispute within its jurisdiction if it would be more appropriate for another legally binding process or dispute resolution process.

ISSUE

14.   The issue is whether I should refuse to resolve this dispute.

EVIDENCE AND ANALYSIS

15.   I have read all the parties’ evidence and submissions, including case law, but only refer to them as necessary to explain my decision.

16.   This dispute is about the alleged nuisance from second-hand smoke and scents coming from Ms. Chui’s SL29. The general principle for the law of nuisance is that people are entitled to use and enjoy their land, here SL30, without unreasonable interference.

17.   Ms. Yee filed her dispute against Ms. Chui under the CRT’s strata property jurisdiction set out in the CRTA section 121. However, just because the dispute involves strata property does not mean it is a strata property dispute under the CRTA. Section 121 gives the CRT jurisdiction over a claim “in respect of the [SPA]” and sets out the scope of the CRT’s strata property jurisdiction. Under CRTA section 121(c), the CRT is given jurisdiction to decide a claim “in respect of the SPA” over the use or enjoyment of a strata lot.

18.   By contrast, CRTA section 118 gives the CRT jurisdiction to resolve a claim for damages based in tort (an act or omission that gives rise to an injury or harm to another under civil law) that is not “in respect of” the SPA (my bold emphasis added). A claim for damages nuisance is a tort claim. While the strata has a bylaw against nuisance, an owner cannot enforce that bylaw against another owner. Neither can an owner claim damages against another owner based on the strata’s nuisance bylaw. At my request, CRT staff contacted Ms. Yee and asked if she would agree to move the dispute to the CRT’s small claim’s jurisdiction. Ms. Yee did not agree.

19.   In the non-binding but persuasive CRT decision Alameer v Zhang, 2021 BCCRT 435, the Vice Chair stated that a strata lot owner may simultaneously have an obligation to a strata corporation under the bylaws and may also be liable to another owner in tort based on the same conduct. Yet, the Vice Chair said that a tort claim is not “in respect of” the SPA simply because the owner has a parallel duty under the bylaws. I agree with the Vice Chair.

20.   Under CRTA section 1(2), if the CRT may validly categorize a claim as either small claims or strata property, the claim must be decided under the strata property jurisdiction. In other words, the CRT may decide a claim involving just 2 strata lot owners under its small claims jurisdiction only if the CRT determines that the claim is outside of its strata property jurisdiction. I find that this claim is outside the CRT’s strata property jurisdiction for the following reasons.

21.   The interpretation of the CRT’s jurisdiction under CRTA section 121 is of key importance. The Supreme Court of Canada has found the phrase “in respect of” is one with the widest possible scope. However, it is not a phrase of infinite reach, and when interpreting the phrase, consideration must be given to the context in which the words are found: Sarvanis v. Canada, 2002 SCC 28 at paragraphs 22 and 24. The words here are found in the context of the SPA and CRTA. Like the Vice Chair in Alameer, after applying Sarvanis, my review of the CRTA and SPA leads me to conclude that a dispute “in respect of” the SPA is one that could only proceed by relying on the SPA. A harmonious reading of the SPA supports the conclusion that the CRT’s jurisdiction over claims for use and enjoyment of a strata unit must involve the strata in some way, whether directly or indirectly. Claims involving 2 strata lot owners such as this one, seldom depend on the SPA because they have an independent basis in tort, here nuisance. While strata corporation bylaws apply to strata lot owners, they are often not relevant unless the dispute involves the strata corporation. As I have mentioned, the strata is not a party to this dispute. Put another way, because this dispute does not involve the strata or a strata matter, the SPA is not triggered. So, I find that I do not have jurisdiction to decide this dispute as a claim arising under the SPA.

22.   In summary, I find that this dispute is properly within the CRT’s small claims jurisdiction under CRTA section 118. I find this because the dispute is not “in respect of” the SPA giving me no jurisdiction to decide this dispute. For these reasons, I refuse to resolve this dispute under CRTA section 11(1)(a)(i).

23.   I also note that it remains open for Ms. Yee to make a further request under the CRT’s small claims jurisdiction for a resolution, subject to any limitation period.

CRT FEES AND EXPENSES

24.   In the circumstances, I find it is appropriate for the CRT to refund the $225 she paid in tribunal fees.

25.   Ms. Chui did not pay CRT fees or claimed any dispute-related expenses, I order none.

CONCLUSION

26.   I refuse to resolve this dispute.