Date Issued: May 17, 2021

File: ST-2020-004859

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Tomin v. Sales, 2021 BCCRT 525

Between:

LAURIE TOMIN

Applicant

And:

ROBIN SALES and The Owners, Strata Plan 1016

Respondents

and:

LAURIE TOMIN

respondent by counterclaim

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about issues arising in a strata duplex that was not following the Strata Property Act (SPA).

2.      The respondent Robin Sales is the former owner of strata lot 1 (SL1) in the respondent strata corporation The Owners, Strata Plan 1016 (strata). He sold SL1 after the Dispute Notice was issued. The applicant Laurie Tomin owns strata lot 2 (SL2) in the strata.

3.      In her Dispute Notice, Ms. Tomin made claims for repairs to a car port, shed and water pump house on common property (CP), and to have the strata conduct water testing and treatment. Ms. Tomin also claimed payment for Mr. Sales’ alleged share of hydro expenses for the buildings on CP and sought an order that the strata comply with the SPA. However, after Mr. Sales sold SL1, Ms. Tomin withdrew those claims.

4.      Ms. Tomin’s remaining claim is for $20,158.00 for damage to her personal effects due to Mr. Sales’ alleged actions. After I asked the parties for submissions about whether this claim fell under the Civil Resolution Tribunal (CRT)’s strata property jurisdiction, Ms. Tomin abandoned the amount over $5,000 and asked that it be decided as a CRT small claims dispute. Accordingly, I directed that Ms. Tomin’s $5,000 claim for damages to personal effects be moved to small claims, where I will decide it separately.

5.      Ms. Tomin’s only claim left in this strata dispute is for $225 in CRT fees and $73.85 in dispute-related expenses.

6.      Originally, Mr. Sales counterclaimed against Ms. Tomin for a special levy to be imposed for repairs to some buildings and amenities on CP. After he sold SL1, Mr. Sales indicated that his counterclaim requiring specific actions regarding strata property was no longer a live issue. Accordingly, I find the claim to impose a special levy for repairs is moot and no longer before me.

7.      Mr. Sales also counterclaims against Ms. Tomin for “breaching the trust, authority and responsibility conveyed onto her” by section 31 of the Strata Property Act (SPA) and “the common law” and for alleged breaches of the SPA section 32 conflict of interest provision. Mr. Sales says these breaches resulted in many different items of damage. Mr. Sales did not bring a counterclaim against the strata.

8.      Through his representative, Mr. Sales submits that his counterclaims fall within the CRT’s strata jurisdiction because Ms. Tomin was acting as a strata council member at the material times. As I explain below, to the extent that Mr. Sales’ counterclaims are claims under SPA section 31, I dismiss them because Ms. Tomin is not the proper respondent. For Mr. Sales’ section 32 SPA claims, I refuse to resolve them because they are outside the CRT’s jurisdiction.

9.      Mr. Sales also counterclaims for damages for what he describes as an inability to use CP areas for parking because Ms. Tomin used them for storage. I dismiss these claims about use of CP because he did not name the strata as a respondent.

10.   Mr. Sales also says he suffered over $60,000 in damages due to Ms. Tomin’s alleged negligent or nuisance interference with the sale of SL1 and for misappropriating his property. For the reasons given below, I find that Mr. Sales’ counterclaims are not within the CRT’s strata jurisdiction because they are tort claims between owners. I refuse to resolve them.

11.   Ms. Tomin represents herself. Mr. Sales is represented by his separated spouse ML. While ML provided submissions on behalf of the strata, I have treated the dispute as though the strata did not appear. I say this because Mr. Sales is no longer an owner, and the strata is made up of only 2 owners, who disagree.

JURISDICTION AND PROCEDURE

12.   These are the formal written reasons of the 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.

13.   The CRT has 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.

14.   Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

15.   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.

16.   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.

17.   Under section 61 of the CRTA, the CRT may make any order or give any direction in relation to a CRT proceeding it thinks necessary to achieve the objects of the CRT in accordance with its mandate. The CRT may make such an order on its own initiative, on request by a party, or on recommendation by a case manager.

Late Evidence

18.   Mr. Sales provided late evidence, after submissions were exchanged. However, I find this evidence related to details of the SL1 sale, which were uncontested. I admit this late evidence as I find that Ms. Tomin is not prejudiced by me doing so.

Jurisdiction Issue

19.   A jurisdiction issue arises about whether Ms. Tomin’s remaining claim and Mr. Sales’ remaining counterclaims fall within the CRT’s strata property jurisdiction.

20.   After SL1 sold, Ms. Tomin withdrew her claims except for a claim of damages to her personal effects.

21.   Based on his counterclaim Dispute Notice, Mr. Sales remaining counterclaims against Ms. Tomin for negligent or nuisance interference with the sale of SL1, unjust enrichment, misappropriation of benefits derived from CP assets, misappropriation of his belongings, misuse of CP areas that should be reserved for parking, and damages relating to those claims.  Specifically, Mr. Sales counterclaims for:

a.    $37,000 for damage for negligent or nuisance interference in the sale of property causing loss,

b.    $3,500 for “loss of marketing value” of SL1,

c.    $5,460.00 for Ms. Tomin misappropriating his belongings,

d.    $920 in expenses to re-establish adequate parking after Ms. Tomin’s belongings were left there,

e.    $3,600 as restitution for “unjust enrichment” received by Ms. Tomin,

f.     $4,200 in carrying costs and future early payment penalty resulting from Ms. Tomin’s interference with the sale of SL1,

g.    $500 for reimbursement of fees paid to landscape architect to assess parking,

h.    $600 for the full cost of a secondary assessment of parking related items,

i.      $4,470 in fees for the substitute decision maker to manage these matters,

j.      $2,400 in lost revenue while attempting to mitigate losses,

k.    $2,800 for lost earnings on investments,

l.      $491.00 for “wrongly collected hydro fees and return of misappropriated benefits derived from common property assets”,

m.  $900 in damages for loss of adequate parking when Ms. Tomin stored her personal belongings in Mr. Sales’ space and did not pay for personal storage,

n.    $25,000 in punitive or aggravated damages,

o.    CRT fees of $125, and

p.    $8,777.81 in dispute-related expenses.

22.   After the parties filed evidence and submissions, I requested that CRT staff contact them to ask them to provide submissions about whether Ms. Tomin’s claim for damages to her personal effects and any of Mr. Sales’ counterclaims fell within the CRT’s strata jurisdiction or small claims jurisdiction.

23.   If the claims potentially fell within the CRT’s small claims jurisdiction, I asked each party to indicate whether they would agree to abandon the amount of the individual claims that exceeded $5,000, and whether they would agree to have those claims moved over to small claims jurisdiction and decided in separate reasons. I also asked Mr. Sales to address whether his counterclaims were properly brought against Ms. Tomin named personally or whether the strata ought to be a respondent.

24.   As noted above, Ms. Tomin agreed that her claim for damages to personal effects could be decided under the CRT’s small claims jurisdiction and to limit her the monetary claim to $5,000. Based on Ms. Tomin’s agreement, I directed that her claim be moved to the small claims jurisdiction. The CRT dispute documents were internally changed to reflect a new small claims dispute number. I am issuing a separate decision in that claim.

25.   Mr. Sales submitted that his remaining counterclaims fell within the CRT’s strata property jurisdiction. I infer that he declined to transfer them to the CRT’s small claims jurisdiction. He framed them as claims against Ms. Tomin in her role as a member of strata council, since all owners in a strata duplex are council members under bylaw 9(2). He did not name the strata as a respondent. Mr. Sales did not agree to abandon the amounts of those claims over $5,000

ISSUES

26.   The parties reached an agreement on certain issues before this adjudication. I have not addressed those issues in this decision.

27.   The remaining issues in this dispute are:

a.    Are some or all of Mr. Sales’ counterclaims within the CRT’s jurisdiction?

b.    If so, has Mr. Sales proven those claims, on a balance of probabilities?

c.    Is either party entitled to have the other pay their CRT fees or dispute-related expenses?

BACKGROUND and EVIDENCE

28.   In a civil claim such as this, Mr. Sales bears the burden of proving his counterclaims on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.

29.   The strata is made up of one duplex containing SL1 and SL2. According to the strata plan, SL1 and SL2 are side by side, and have identical square footage. There is a CP area to the north of the strata building. To the east and south of SL1 is an LCP area designated for SL1’s exclusive use. To the east, west and south of SL2 is an area designated for SL2’s exclusive use.

30.   The strata does not have any bylaws filed at the Land Title Office (LTO). I find that the standard bylaws under the SPA apply, based on SPA section 120(1).

31.   Bylaw 9(2) provides that if a strata corporation has fewer than 4 owners, all owners are on the strata council.

32.   The strata has a water pump house, a shed and two carports on CP. After Ms. Tomin bought SL2 in December 2019, the parties developed ongoing conflict about what repairs were needed to the structures on CP, and how those structures were being used, including whose belongings could be stored in them.

33.   As I explain below, I refuse to resolve or dismiss Mr. Sales’ remaining counterclaims. Therefore, I find it unnecessary to discuss the extensive evidence provided by both parties. I will now consider whether Mr. Sales’ counterclaims fall within CRT jurisdiction and if so, whether Mr. Sales has proven them.

ANALYSIS

Orders Against Ms. Tomin as a Strata Council Member

34.   In submissions, Mr. Sales frames his counterclaims as arising from Ms. Tomin’s alleged failures to exercise her duties in an honest and good faith manner, as required by SPA section 31 or 32.

35.   I find that Mr. Sales’ counterclaims for unjust enrichment for $3,600 for using more than her share of the CP areas, and $460 in alleged misappropriated benefits derived from CP assets are claims against Ms. Tomin as a strata council member under SPA section 31 and 32, based on how Mr. Sales described them in submissions.

36.   SPA section 31 sets out the standard of care for strata council members. It says that in exercising the powers and performing the duties of the strata corporation, each council member must act honestly and in good faith with a view to the best interests of the strata corporation, and must exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances.

37.   In The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32, the BC Supreme Court said that the duties of strata council members under SPA section 31 are owed to the strata corporation, and not to individual strata lot owners (see paragraph 267). This means that a strata lot owner cannot sue a strata council member for a breach of section 31. I find this is so even in a duplex, because the strata remains a legal entity distinct from either owner.

38.   SPA section 32 requires a strata council member to disclose the nature and extent of any conflicts of interest arising in the strata’s business, and to abstain from voting on any matters in which the council member has a direct or indirect interest.

39.    In Wong v. AA Property Management Ltd, 2013 BCSC 1551, the BC Supreme Court considered a claim brought by an owner that the strata council members had acted improperly in the management of the strata’s affairs. The court concluded that the only time a strata lot owner can sue an individual strata council member is for a breach of the conflict of interest disclosure requirement under SPA section 32 (see paragraph 36). Remedies for breaches of SPA section 32 are specifically excluded from the tribunal’s jurisdiction by SPA section 33(3) and as set out in CRTA section 122(1)(a): see Dockside Brewing Co. Ltd. v. Strata Plan LMS 3837, 2007 BCCA 183 at paragraph 59.

40.   Following Wong and Sze Hang, I dismiss Mr. Sales’ claims against Ms. Tomin for breaches of section 31 because Mr. Sales did not name the strata as a counterclaim respondent. To the extent that Mr. Sales’ counterclaims are SPA section 32 claims, I refuse to resolve them because remedies for such claims are outside the CRT’s jurisdiction, following Wong and Dockside.

Owner-Owner Tort Claims versus Claims “in respect of” the SPA

41.   For the remaining counterclaims, the question is whether they fall under the CRT’s strata property jurisdiction rather than its small claims jurisdiction. Even if they fall within small claims jurisdiction, I must refuse to resolve them if they exceed the $5,000 limit for CRT small claims.

42.   Mr. Sales filed his counterclaims against Ms. Tomin under the CRT’s strata property jurisdiction set out in CRTA section 121. Section 121 gives the CRT jurisdiction over a claim “in respect of the Strata Property Act [SPA]” and sets out the scope of the CRT’s strata property jurisdiction.

43.   By contrast, CRTA section 118 gives the CRT jurisdiction to resolve a claim for damages based in tort, meaning an act or omission that gives rise to an injury or harm to another under civil law, such as negligence. Claims under section 118 must also have a value of $5,000 or less: Tribunal Small Claims Regulation, section 3.

44.   Under CRTA section 1(2), if the CRT may validly categorize a claim as either small claims or strata property, the claim must be adjudicated under the strata property jurisdiction. In other words, the CRT may adjudicate 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.

45.   The distinction between these 2 CRT jurisdictions is important because the scope of each area is different, along with the remedies available, the applicable monetary limit, and the court processes that may follow a CRT decision. For strata property disputes there is no monetary limit and a party may request the B.C. Supreme Court judicially review the CRT decision. For small claims disputes, there is a $5,000 monetary limit and a party may file a Notice of Objection, which effectively nullifies the CRT decision. Once a Notice of Objection is filed, an applicant’s option is to have the matter heard afresh by the Provincial Court: Alameer v. Zhang, 2021 BCCRT 435 at paragraph 17.

46.   Based on Mr. Sales’ Amended Dispute Notice, I find that his central claim is for negligent or nuisance interference “in the sale of property causing loss and duress”. He explains that various alleged actions and inactions by Ms. Tomin, including interfering with CP repair and maintenance, access to parking areas and otherwise reducing the “perception of value in the purchasers mind” caused a $37,000 loss.

47.   Mr. Sales included many additional “claims” in the Amended Dispute Notice. I find these describe damages for the negligent/nuisance interference claim rather than being distinct claims. Specifically, I find that the following items are alleged damages in Mr. Sales’ negligence/nuisance claim:

a.    $3,500 for “loss of marketing value” for SL1,

b.    $4,200 in carrying costs and future early payment penalty resulting from Ms. Tomin’s interference with the sale of SL1,

c.    $4,470 in fees for the substitute decision maker to manage these matters,

d.    $2,400 in lost revenue while attempting to mitigate losses,

e.    $2,800 for lost earnings on investments, and

f.     $25,000 in punitive or aggravated damages.

48.   I find these claims are outside the CRT’s strata property jurisdiction because they are not “in respect of” the SPA. As framed, the claims are also for over $5,000, so I find they are outside the CRT’s small claims jurisdiction.

49.   Mr. Sales also counterclaims against Mr. Tomin for $5,460.00 for allegedly misappropriating his belongings. I find that this is also a tort claim against Ms. Tomin personally and not a claim under the SPA.

50.   In Alameer, the vice chair reviewed the SPA and the decision in Sarvanis v. Canada, 2002 SCC 28 which interprets “in respect of” as a phrase of wide scope that must be considered in its context. The vice chair concluded that the CRT cannot decide owner-owner claims based solely in tort under its strata property jurisdiction. Rather, a claim “in respect of” the SPA is one that could only proceed by relying on the SPA.

51.   Following the vice chair’s persuasive but non-binding analysis in Alameer, I find that the nuisance, negligence and misappropriation of belongings counterclaims between 2 strata lot owners here do not depend on the SPA. Rather, the counterclaims are based in tort, using the language of nuisance and negligence.

52.   Therefore, I find these claims are outside the CRT’s strata property jurisdiction under section 121 of the CRTA.

53.   Mr. Sales did not agree to abandon the amount of his claims over $5,000, if I found they were outside the strata property jurisdiction. As a result, I find that the CRT cannot decide them as small claims, because the damages per claim exceed $5,000. For these reasons, I refuse to resolve these claims under CRTA section 10(1), as I find they are outside the CRT’s jurisdiction.

Parking Area Claims

54.   This leaves several counterclaims about Mr. Sales’ submission that the carport and some CP should have been used exclusively for parking, but Ms. Tomin’s storage of belongings precluded parking use. Specifically, Mr. Sales counterclaims for:

a.    $500 for reimbursement of fees paid to landscape architect to assess parking,

b.    $920 in expenses to re-establish adequate parking after Ms. Tomin’s belongings were left there,

c.    $600 for the full cost of a secondary assessment of parking related items, and

d.    $900 in damages for loss of adequate parking when Ms. Tomin stored her personal belongings in Mr. Sales’ space and did not pay for personal storage.

55.   In his submissions about the parking claims Mr. Sales takes the position that Ms. Tomin breached her SPA section 31 obligations by failing to agree to repair and maintain certain CP so that the carport and other areas could be used for parking. To the extent that Mr. Sales pursues the parking claims as section 31 SPA breaches, I dismiss them because he failed to name the strata as a respondent.

56.   However, Mr. Sales also explains his parking claims against Ms. Tomin as being about the use of CP. SPA section 3 makes the strata responsible for managing and maintaining CP. SPA section 71 says that a strata corporation must not make a significant change to the use or appearance of CP unless the change is approved by a ¾ vote at an annual or special general meeting. Here, the evidence does not prove that the strata passed a resolution to convert the carport or any parts of CP to an exclusive parking use area, rather than an area for mixed use by the owners, or vice versa. Based on the SPA language, I find that Mr. Sales’ parking claims should properly be brought against the strata corporation. Because Mr. Sales did not name the strata corporation as a respondent, I dismiss his parking area claims.

CRT FEES and EXPENSES

57.   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.

58.   I find that neither party was particularly successful here. Ms. Tomin withdrew her claims, but at a late stage, aside from one that was moved to small claims. I defer the issue of Ms. Tomin’s claim to CRT fees and dispute-related expenses to be decided in the related small claims dispute. I refused to resolve most of Mr. Sales’ claims, except those that I dismissed. Given that he was unsuccessful, I dismiss Mr. Sales’ claims for CRT fees and dispute-related expenses.

ORDER

59.   I refuse to resolve Mr. Sales’ claims for negligent or nuisance interference with the sale of SL1, misappropriation of his personal property, and breaches of SPA section 32 by Ms. Tomin, because these claims are outside the CRT’s jurisdiction.

60.   I dismiss Mr. Sales’ claims against Ms. Tomin under the SPA section 31 and for parking damages relating to CP use under the SPA, because such claims can only be established against the strata corporation.