Date Issued: June 30, 2021

File: ST-2020-006437

Type: Strata

Civil Resolution Tribunal

Indexed as: McNeilly v. The Owners, Strata Plan LMS 367, 2021 BCCRT 721

Between:

MARKUS MCNEILLY

Applicant

And:

The Owners, Strata Plan LMS 367

Respondent

And:

MARKUS MCNEILLY

Respondent BY COUNTERCLAIM

And:

DOLORES O’DONAGHEY

Respondent BY THIRD PARTY CLAIM

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.      This dispute is about bylaw fines.

2.      The applicant and respondent by counterclaim, Markus McNeilly, lives in strata lot 3 (SL 3) in the respondent strata corporation, The Owners, Strata Plan LMS 367 (strata). The respondent by third party claim, Dolores O’Donaghey, owns SL3.

3.      The strata says Mr. McNeilly left a bag of garbage in a common property hallway on January 15, 2020 and damaged a common property video camera in the strata’s lobby on April 13, 2020, which the strata says are breaches of its bylaws. The strata fined Mr. McNeilly a total of $300 and charged him $199.50 in camera repair costs.

4.      Mr. McNeilly says the strata’s use of video surveillance to enforce its bylaws contravenes the Protection of Information and Privacy Act (PIPA). He also disputes that the video camera was damaged and says the strata has not proven he breached any bylaws. He asks that the strata be ordered to reverse the $499.50 fines and repair costs levied against him. Mr. McNeilly also asks the strata reimburse him $1,270.63 in legal fees.

5.      The strata says it complied with PIPA in its use of video footage. It counterclaims for payment of the $100 fine for the January 15, 2020 incident and asks for an order that Mr. McNeilly stop violating the strata’s bylaws.

6.      The strata acknowledges that it did not comply with all the procedural requirements set out in section 135 of the Strata Property Act (SPA) before fining Mr. McNeilly for the April 13, 2020 incident. The strata says it has reversed the $200 fine and repair costs and perfected the SPA section 135 breach. It counterclaims for an order permitting the strata to make a decision respecting the April 13, 2020 incident.

7.      The strata says Ms. O’Donaghey is responsible for paying the January 15, 2020 bylaw infraction fine under section 133 of the SPA and claims $100 against her in its third party claim.

8.      Both Mr. McNeilly and Ms. O’Donaghey are self-represented. The strata is represented by a council member.

9.      As explained below, I find the strata has not proved Mr. McNeilly violated a bylaw on January 15, 2020 and so the strata must reverse the $100 fine. I refuse to resolve the strata’s counterclaim seeking permission to make a decision because I find the CRT has no jurisdiction to grant such declaratory relief. I dismiss the remainder of the strata’s counterclaim, and its third party claim against Ms. O’Donaghey.

JURISDICTION AND PROCEDURE

10.   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.

11.   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.

12.   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.

13.   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.

PRELIMINARY ISSUE

14.   Mr. McNeilly submitted a letter from the strata’s lawyer to his lawyer, as late evidence. As noted by the strata, it had already submitted the September 21, 2020 letter as evidence by the deadline. So, I find nothing turns on Mr. McNeilly’s late submission of the letter.

ISSUES

15.   Prior to this decision, the strata withdrew its third party claim asking for an order that Ms. O’Donaghey provide a completed Form K for Mr. McNeilly. So, I have not addressed that issue in this decision.

16.   The remaining issues in this dispute are:

a.    Does the CRT have jurisdiction to grant the strata permission to make a decision about the April 13, 2020 alleged bylaw infraction?

b.    May the strata use video surveillance footage to enforce its bylaws under PIPA?

c.    Did the strata comply with SPA section 135 procedures before imposing a fine or charging repair costs against Mr. McNeilly?

d.    Did Mr. McNeilly breach the strata’s bylaws on either January 15 or April 13, 2020?

e.    Was the strata’s decision to levy fines and repair costs against Mr. McNeilly significantly unfair?

f.     Must the strata reverse the fine or repair costs and, if not, who must pay the fine or repair costs?

EVIDENCE AND ANALYSIS

17.   In a civil claim such as this one the applicant, Mr. McNeilly, must prove his claim on a balance of probabilities. The strata has the same burden of proving its counterclaim against Mr. McNeilly and its third party claim against Ms. O’Donaghey. I have reviewed all the submissions and weighed all evidence provided, but only refer to that necessary to explain my decision. I note that Ms. O’Donaghey submitted no evidence, despite having been given the opportunity to do so.

18.   The strata was created in 1992 and consists of 60 residential strata lots in one building. SL 3 is also known as unit 019 and is located on the basement floor, along with 2 other strata lots, the lobby, the garbage and recycling room, and the parking lot.

19.   I find the applicable bylaws are the amended set of bylaws the strata filed with the Land Title Office on April 29, 2013. Although the strata filed further amendments to its bylaws in 2017, I find they are not relevant to this dispute.

20.   Bylaw 3 says that an owner, tenant, or occupant, must not use a strata lot or common property in a way that causes a nuisance or hazard to another person, unreasonably interferes with the rights of another person to use the common property, or is contrary to the purpose for which the common property is intended.

21.   It is undisputed that Mr. McNeilly lives in SL 3 with another resident, J.

22.   Based on correspondence between the strata’s lawyer, Ms. O’Donaghey, and Mr. McNeilly’s lawyer, I make the following findings of fact, all of which are undisputed:

•         In a March 17, 2020 letter the strata advised Ms. O’Donaghey about complaints against Mr. McNeilly and J. Among other things, the strata alleged Mr. McNeilly left bags of garbage or recycling on common property on both January 14, 2020 and January 15, 2020. Both incidents had been caught on the strata’s video surveillance camera located in the lobby.

•         On June 1, 2020 Mr. McNeilly’s lawyer told the strata that Mr. McNeilly was a tenant of SL 3, rather than an occupant.

•         In a June 29, 2020 letter the strata advised Mr. McNeilly’s lawyer about the January 14 and 15, 2020 bylaw complaints, as well as a complaint that Mr. McNeilly had vandalized the strata’s lobby video surveillance camera on April 13, 2020. The letter gave Mr. McNeilly the opportunity to respond to the complaints or request a hearing. The strata also sent copies of the video surveillance evidence.

•         On July 31, 2020 Mr. McNeilly’s lawyer provided written submissions about the bylaw complaints to the strata.

•         A strata council hearing was held on August 11, 2020 with Mr. McNeilly and his lawyer.

•         On August 17, 2020 the strata fined Mr. McNeilly $100 for violating bylaw 3 on January 15 and $200 for violating bylaw 3 on April 13, 2020. The strata also charged Mr. McNeilly $199.50 for the cost of repairing the video camera, under SPA section 133.

•         On September 19, 2020 the strata decided to reverse its August 17, 2020 decision. It is undisputed that the strata has not re-fined or re-charged repair costs against Mr. McNeilly for the April 13, 2020 incident.

•         On September 21, 2020 the strata advised both Ms. O’Donaghey and Mr. McNeilly’s lawyer that it was reinstituting bylaw proceedings for the April 13, 2020 incident and provided both parties with an opportunity to provide submissions or request a hearing.

Jurisdiction over the April 13, 2020 alleged bylaw infraction

23.   Mr. McNeilly asks the CRT to order the strata to reverse the $499.50 in fines and repair costs levied against him. Given the strata’s September 19, 2020 decision, I find the strata has already reversed $399.50 in fines and repair costs for the alleged April 13, 2020 bylaw infraction. So, I dismiss Mr. McNeilly’s claim relating to $399.50. I will address his claim to reverse the $100 fine for the January 15, 2020 incident below.

24.   Section 135 of the SPA says that a strata may not impose a bylaw contravention fine against a person unless it first received a complaint about the contravention, gave the person the particulars of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested. SPA section 135(1)(f) specifically requires the strata to give notice to an owner of a bylaw complaint against that owner’s tenant. I agree with the strata that it failed to comply with SPA section 135(1)(f) before it fined Mr. McNeilly for the April 13, 2020 incident, because it did not send Ms. O’Donaghey any notice of that particular complaint until after the fine and repair costs were imposed.

25.   The strata says it has now perfected its compliance with SPA section 135 in relation to the April 13, 2020 incident. I agree with the strata that it can cure its procedural defect by reversing the fine and repair costs levied, send notice to Ms. O’Donaghey in compliance with SPA section 135(1)(f), then re-register the fine and repair costs against Mr. McNeilly (see Cheung v. The Owners, Strata Plan VR1902, 2004 BCSC 1750). In this case, the strata has not re-charged Mr. McNeilly the $200 fine or $199.50 repair costs. Rather, it asks for an order that it be permitted to “make a decision with respect to the April 13 complaint”.

26.   For the following reasons, I refuse to resolve this counterclaim under section 10(1) of the CRTA, as I find it is outside the CRT’s jurisdiction.

27.   First, I find the strata is essentially seeking a finding on whether or not a prospective charge of repair costs and a fine against Mr. McNeilly would be valid under the SPA. The CRT does not generally grant prospective orders about things that have not yet happened (see the non-binding but persuasive reasoning in James v. B.A. Blacktop Ltd. et al, 2018 BCCRT 528, and Fisher v. The Owners, Strata Plan VR 1420, 2019 BCCRT 1379).

28.   Second, I find the strata’s requested remedy is a request for declaratory relief, which I find the CRT has no authority to make. Unlike the Supreme Court, the CRT has no inherent jurisdiction and so can only issue orders in a strata dispute that are set out in CRTA section 123. That includes ordering a party to do something, refrain from doing something, or pay money. The strata does not seek any of these orders relating to the April 13, 2020 incident.

29.   Like the CRT, the BC Provincial Court also has no inherent jurisdiction. The Provincial Court found it had no statutory jurisdiction to grant declaratory relief and also found no equitable jurisdiction, since it is not a court of equity (see Shantz, Gorman and Godfroid, 2012 BCPC 81 at paragraph 50).

30.   In Shantz, the Provincial Court relied on the reasoning in Kaiser Resources Ltd. v. Western Canada Beverage Corp. (1992), 71 B.C.L.R. (2d) 236, where the BC Supreme Court said a declaratory order’s legal existence is based upon a rule of Court, and without such a rule, there can be no declaratory order.

31.   In Dalla Rosa v. Town of Ladysmith, 2017 BCPC 178, the Provincial Court said it did not have the jurisdiction to provide declaratory relief, unless the order is incidental to a claim for relief in which the court has jurisdiction, such as specific performance. Based on the courts’ comments in Shantz, Gorman and Godfroid and Dalla Rosa, I find the scope for such incidental orders to be very narrow. I find the strata’s requested order for “permission” is not incidental to any claim for relief in which the CRT has jurisdiction under CRTA section 123.

32.   For completeness, I also find the strata’s requested remedy is not an order necessary to prevent or remedy a significantly unfair action, decision, or exercise of voting rights, which the CRT has authority to grant under section 123(2) of the CRTA. There is no argument, or indication, that the current situation of no fine or repair costs levied against Mr. McNeilly is significantly unfair to any party.

33.   For these reasons I find the CRT has no jurisdiction to give the strata permission to fine Mr. McNeilly or charge repair costs against him for the April 13, 2020 alleged bylaw infraction. I refuse to resolve this part of the strata’s counterclaim under CRTA section 10(1).

34.   Given this conclusion, I need not further consider the April 13, 2020 incident. I also find it unnecessary to consider whether the strata complied PIPA because I find the strata has failed to prove Mr. McNeilly breached bylaw 3 on January 15, 2020, even if the strata is authorized to use video surveillance to enforce its bylaws. For the same reason, I also find I need not consider whether the strata complied with SPA Section 135, or actedsignificantly unfairly in relation to the January 15, 2020 incident.

Did Mr. McNeilly breach bylaw 3 on January 15, 2020?

35.   The strata says Mr. McNeilly breached bylaw 3 by leaving a bag of garbage in the main floor common property hallway on January 15, 2020. The strata says it made its decision based on a resident complaint, a January 15, 2020 video clip, and the submissions of Mr. McNeilly’s lawyer at the August 11, 2020 hearing.

36.   The strata submitted a January 20, 2020 email from a strata resident (Ms. E) which, I infer is the complaint it relies on. Ms. E said she found a bag of old food and plastics on January 14, 2020 in the common property lobby which she believed had been left there by SL 3 residents. Ms. E said she placed the bag in front of SL 3’s door and the bag “appeared” at the stairwell door which, I find, is also common property. I find the behaviours Ms. E complains of happened on January 14, 2020, as Ms. E does not mention any other date, day, or use words like “the next day” when describing the incident.

37.   I find Ms. E’s complaint gave rise to the strata’s allegation that Mr. McNeilly breached bylaw 3 by leaving a bag of garbage on common property on January 14, 2020. The strata submitted no complaint for the January 15, 2020 incident.

38.   The strata submitted a January 15, 2020 video which undisputedly shows Mr. McNeilly walking through the main floor lobby with a plastic bag, out of view of the camera, then returning into the camera’s view approximately 5 seconds later without the bag. The video does not show where McNeilly left the bag.

39.   Mr. McNeilly says he put the bag in a garbage bin located just outside an exit door on the main floor of the strata. This is consistent with the arguments made by Mr. McNeilly’s lawyer at the August 11, 2020 hearing.

40.   Mr. McNeilly provided a video showing where he says the garbage can was, and says that the can had since been moved, without any notice to the owners. The strata says it has no obligation to advise owners when it moves garbage cans which, I find, suggests that the strata does, on occasion, change the location of the strata’s garbage cans.

41.   The strata says there is no garbage can at the end of the hallway. It says its former president said so at the August 11, 2020 council meeting. However, the council meeting minutes do not include any mention of a garbage can. The strata did not provide a statement from the former president, or any other supporting evidence about the garbage can situation. Further, the strata did not address Mr. McNeilly’s statement that there had been a garbage bin outside the door from the hallway, on January 15, 2020, that had since been moved.

42.   I give Mr. McNeilly’s direct statement that he put the garbage in the outside garbage can more weight than the strata’s second-hand statement about what the former council president said about the garbage can. Because I give Mr. McNeilly’s direct evidence more weight, I find it more likely that not that there was a garbage can outside the hallway door and that Mr. McNeilly deposited the garbage in that can.

43.   The strata also says that Mr. McNeilly did not have enough time to go down the hallway and put the garbage in the can, before coming back into view of the camera on January 15, 2020. Again, this was based on what the strata council’s former president said at the August 11, 2020 hearing. The strata did not explain how it reached that conclusion, or provide any evidence supporting such a conclusion, such as the results of timing someone else waking down the hallway. So, I place no weight on the strata’s unsubstantiated conclusion that Mr. McNeilly did not have time to dispose of the garbage in the way he described.

44.   On the evidence before me, I find it more likely than not that Mr. McNeilly threw out the bag of garbage, rather than left it in the common property hallway on January 15, 2020. So, I find Mr. McNeilly likely did not contravene bylaw 3 on January 15, 2020 and find the strata must reverse the $100 fine against Mr. McNeilly.

Remedy

45.   I order the strata to reverse the $100 fine for the January 13, 2020 incident.

46.   I will address Mr. McNeilly’s claim for legal fees below.

47.   I dismiss the strata’s counterclaim against Mr. McNeilly for payment of the $100 fine. As the fine is no longer owing, I also dismiss the strata’s third-party claim against Ms. O’Donaghey for payment of the fine.

48.   I decline to order Mr. McNeilly to stop violating the strata’s bylaws as Mr. McNeilly is already statutorily required to comply with the strata bylaws. So, I find an order imposing an existing obligation is unnecessary.

CRT FEES and EXPENSES

49.   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. However, as Mr. McNeilly was only partly successful in his claim, I order the strata to reimburse him $62.50 for half his CRT fees. As the strata was unsuccessful in its counterclaim and third-party claim, I find it is not entitled to reimbursement of any CRT fees.

50.   Mr. McNeilly seeks reimbursement of $1,270.63 in legal fees, which appear to have been incurred before he filed this dispute with the CRT and relate to defending himself against the strata’s allegations of bylaw contraventions. So, I find the legal fees are not truly dispute-related expenses. However, I find CRT rule 9.5(3) instructive in the circumstances. It says that, except in extraordinary circumstances, the CRT will not order one party to pay another party’s legal fees in a strata property dispute. I find the circumstances of this dispute are not extraordinary, but are a fairly typical bylaw fine dispute. As I would not order reimbursement of Mr. McNeilly’s legal fees as a dispute-related expense, I do not order reimbursement of the legal fees simply because Mr. McNeilly paid a lawyer to defend him from the strata’s allegations.

51.   In any event, Mr. McNeilly provided no evidence showing whether he paid legal fees, or how much he paid. So, I would have found that Mr. McNeilly had not proven his damages or dispute-related expenses and so would have ordered no reimbursement.  

52.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. O’Donaghey.

ORDERS

53.   Within 7 days of the date of this order I order the strata to:

a.    Pay Mr. McNeilly $62.50 as partial reimbursement of his CRT fees, and

b.    Reverse the $100 fine levied against Mr. McNeilly for the January 15, 2020 bylaw contravention allegation.

54.   Mr. McNeilly is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

55.   I refuse to resolve the strata’s counterclaim seeking permission to make a decision about the April 13, 2020 alleged bylaw violation.

56.   I dismiss the strata’s counterclaim for payment of the $100 fine. I also dismiss the strata’s third party claims against Ms. O’Donaghey.

 

57.   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.