Date Issued: July 15, 2021
File: ST-2020-007626
Type: Strata
Civil Resolution Tribunal
Indexed as: The Owners, Strata Plan V.R.61 v. Winkler, 2021 BCCRT 774
Between:
The Owners, Strata Plan V.R.61
Applicant
And:
THOMAS WINKLER
Respondent
AnD:
The Owners, Strata Plan V.R.61
RESPONDENT BY COUNTERCLAIM
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REASONS FOR DECISION |
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Tribunal Member: |
Julie K. Gibson |
INTRODUCTION
1. The respondent Thomas Winkler owns a strata lot (SL53, unit 410) in the applicant strata corporation The Owners, Strata Plan VR61 (strata).
2. The strata seeks an order requiring Mr. Winkler to remove an additional layer of pavers that he added to unit 410’s deck. The strata also wants Mr. Winkler to remove the deck to facilitate building re-roofing, when that time comes, and then to reconstruct it at his own cost. The strata says Mr. Winkler is responsible to do this under the bylaws, a May 26, 2006 liability agreement and City of Vancouver Building Permit BU35985.
3. The strata also seeks an order that Mr. Winkler pay $7,325 in fines it imposed on him for placing the pavers on the unit 410 deck.
4. Mr. Winkler says the strata did not comply with the Strata Property Act (SPA) in imposing the fines, and that there was no building permit applicable to his deck. He says the additional pavers do not create a structural problem. Mr. Winkler asks me to dismiss the strata’s claims.
5. Mr. Winkler also counterclaims saying that the strata wrongly
a. refused to provide him an additional fob for unit 410 in September 2019,
b. paid funds to repair water damage in a dispute between two owners in the strata,
c. installed a bleeding valve in a fire-rated wall,
d. proceeded with a public roof deck on the building’s roof without a building permit,
e. failed to heat unit 410 when it replaced a valve in the mechanical room in summer 2018,
f. allowed a dog from another unit (unit 317) to bark constantly, without sufficient investigation, or bylaw enforcement,
g. did incomplete work on the building’s windows and deck in June/July 2019,
h. failed to retain certain key documents, including an engineering report, that Mr. Winkler says it is required to keep under the Strata Property Act (SPA), and
i. erected a fence at the unit 101 patio.
6. The strata says it complied with all SPA obligations. The strata asks me to dismiss Mr. Winkler’s counterclaim.
7. The strata is represented by a strata council member. Mr. Winkler represents himself.
8. For the reasons given below, I allow the strata’s claim to have Mr. Winkler remove the pavers from the unit 410 limited common property (LCP) deck. I also find that Mr. Winkler must pay $4,200 in fines for his bylaw violation in placing the pavers there without permission. I dismiss Mr. Winkler’s counterclaims.
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 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.
10. 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.
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.
Late Evidence
13. Mr. Winkler submitted some evidence and submissions after the CRT’s deadline. However, I find that the strata had an opportunity to respond to this evidence. Since neither party is prejudiced by this late material, I have considered it in making my decision below.
ISSUES
14. The issues in this dispute are:
a. Must Mr. Winkler remove the extra pavers he added to the unit 410 deck?
b. Must Mr. Winkler acknowledge that when the building needs to be re-roofed, he must remove the deck for re-roofing and then re-construct it according to the terms of the Agreement and building permit?
c. Must Mr. Winkler pay the strata $7,325 in bylaw fines for placing the pavers on the unit 410 deck?
d. Is Mr. Winkler entitled to any relief in his counterclaims, listed at paragraph 5 above?
EVIDENCE AND ANALYSIS
15. In a civil proceeding like this one, as the applicant the strata must prove its claims on a balance of probabilities. Mr. Winkler bears this same burden in his counterclaims. I have read all the evidence and submissions before me, but refer only to what I find relevant to provide context for my decision.
16. The strata filed the applicable bylaws at the Land Title Office (LTO) on October 25, 2004. I find the subsequent amendments are not relevant, except an amendment to bylaw 8 filed May 16, 2007 which I find applies to this dispute. I will discuss the specific bylaws as they apply to this dispute below.
17. SL53 is on the top (4th) floor of the strata building. According to the strata plan, I find that a roof-level deck, also called a deck in some of the parties’ correspondence, forms part of SL53. A portion of it then extends over the common property (CP) roof. This extension has been designated as limited common property (LCP) for the use of SL53. In this decision, I use the term deck to refer to this LCP area, which is the contested area in this dispute.
Must Mr. Winkler remove the pavers from the SL53 LCP deck, at his own expense?
18. In 2006, the strata replaced the building’s roof. Prior to re-roofing, some strata lot owners on the 4th floor had extended their decks onto the lower roof, which is CP. They were required to remove their deck extensions at their own expense to facilitate roof replacement. After the re-roofing was complete, several owners of 4th floor units sought to re-build roof deck extensions even though this meant they would extend onto CP roofing.
19. On May 26, 2006, the strata and then owner of unit 410, EP, reached a roof deck assumption of liability agreement (Agreement) to allow an extension of the deck encroaching on the CP roof, which had existed prior to re-roofing, to be rebuilt at the EP’s expense. EP agreed to complete the deck extension reconstruction only “in strict accordance with designs or plans approved by” strata council.
20. As part of that Agreement, EP agreed to comply with City of Vancouver Building Permit BU35985, which allowed 5/4 x 4 cedar decking or 5/4 x 6 composite decking over 2 x 4 composite sleepers on polystyrene pads on torch-on roof members. The Agreement provides that it binds EP’s successors, which I find include Mr. Winkler.
21. At an October 30, 2007 annual general meeting the owners passed a ¾ vote resolution to designate the 4th floor deck extensions as limited common property (LCP) for the benefit of each 4th floor owner, pursuant to section 74 of the SPA.
22. On March 8, 2011, the strata filed an LCP designation at the LTO for the LCP deck extension for SL53.
23. For consistency, the same contractor was used to re-build all roof decks under the Agreement.
24. In 2009, Mr. Winkler bought unit 410. As part of that purchase, the strata’s property manager provided a September 1, 2009 SPA Form B Information Certificate specifying that there was an agreement under which the strata lot owner took responsibility for expenses for alterations to the strata lot, CP or common assets.
25. At some point later, the strata became aware that Mr. Winkler had altered the decking of the roof deck without the strata’s permission by adding 24 inch by 24 inch square ceramic tiles on top of the existing deck material.
26. On August 14, 2019, the strata provided Mr. Winkler with notice of a complaint about the installation of floor tiles on the LCP part of the SL53 deck. The strata noted that installation of these tiles appeared contrary to bylaw 8.2 which requires an owner to obtain strata council’s written approval before making an alteration, addition or doing a renovation or other work that involves CP. The strata gave Mr. Winkler an opportunity to respond to the complaint including a hearing if he wished.
27. On August 30, 2019, Mr. Winkler responded saying that he would like a hearing if the strata decided against him.
28. On November 14, 2019, strata council met. During that meeting, they considered that ceramic tiles had been laid as an additional layer of flooring on the unit 410 deck. Strata council recorded that this constituted a significant change to the deck and added substantial extra weight on the roof structure. Strata council noted that the work was carried out without consent, on an LCP area, outside the parameters of the Agreement.
29. Strata council decided that the addition of ceramic pavers was in breach of the Agreement and bylaw 8.2.
30. On January 22, 2020, the strata wrote to Mr. Winkler explaining that the additional layer on the wood deck might affect air flow underneath, and the lifespan of the wood deck and roof below. The strata wrote that the additional of the ceramic tiles on the roof deck violated bylaw 8.2, and was in breach of the Agreement. The strata explained that it had decided to levy a $25 fine, payable by February 16, 2020. The strata also asked that Mr. Winkler remove the tiles immediately or another fine of $100 would be levied after 7 days, and a further $200 weekly fine would then apply until the infraction was corrected.
31. On April 17, 2020, London Mah and Associates Ltd., a firm of consulting structural engineers, provided a report at Mr. Winkler’s request. London Mah provided an opinion that a “live loading of 40 psf is appropriate for Part 9 (residential) deck that is not used as a passageway, and the addition of the deck pavers (i.e. gravity loads only).”
32. Initially, Mr. Winkler requested a strata council hearing only if the strata decided against him about the pavers. He then requested a hearing in November 2019 but indicated he was unable to attend a hearing in December 2019. In April 2020, he reiterated his request for a hearing.
33. On May 12, 2020, strata council held a hearing, via Zoom audio, at which Mr. Winkler presented his submissions. On June 8, 2020, Mr. Winker wrote to the strata to say that he found the hearing was confusing because no one was introduced before they spoke and that he felt rushed and that his concerns were not heard. Although I acknowledge Mr. Winkler’s concerns about the Zoom audio format, I find he was given a reasonable opportunity to make the strata aware of his submissions about the pavers.
34. In a May 25, 2019 letter to Mr. Winkler, the strata council decided that the pavers must be removed, as they were an unauthorized alteration or installation to LCP that would cause difficulty when trying to re-roof the building in future.
35. The strata asked Mr. Winkler to remove the pavers by December 31, 2019, and confirmed its decision to fine him if he failed to do so.
36. Bylaw 8.2 says that an owner shall obtain strata council’s written approval before “making an alteration or addition or doing a renovation or other work on or to the premises that involves common property, common assets or limited common property.” Here, I find that Mr. Winkler added pavers to the LCP deck, without obtaining strata council’s written approval. By doing so, I find he breached bylaw 8.2.
37. It is undisputed that Mr. Winkler did not remove the pavers from the LCP deck.
38. Although I have considered Mr. Winkler’s submission that the pavers are not an alteration, I find this does not matter because bylaw 8.2 covers additions or any sort of renovation or other work. I find the paver installation is an addition or renovation, even if it is not an alteration.
39. Mr. Winkler’s submission that the pavers do not create a structural issue for the building is also not an answer to this bylaw violation. Under SPA section 133, the strata may do what is reasonably necessary to remedy a bylaw contravention, including removing objects from CP and requiring the reasonable costs of remedying a contravention to be paid by the person who may be fined for the contravention.
40. I have also considered Mr. Winkler’s submission that the pavers were safer than the existing wood decking. However, I find that Mr. Winkler has not proven a safety issue with the existing wood decking that would not have been addressed by proper maintenance, for which he was responsible.
41. I find the strata was empowered to require Mr. Winkler to remove the pavers to remedy the contravention of bylaw 8.2. For these reasons I order that Mr. Winkler remove the additional pavers on the LCP deck of unit 410, within 60 days of this decision, at his own cost.
42. The strata also requests an order requiring Mr. Winkler to be responsible for removing the deck and replacing it at his own cost when the roof needs to be re-done. As these parameters are already imposed by the Agreement, I find it unnecessary to make a further order about those future events.
Must Mr. Winkler pay the strata the $7,325.00 in fines for failing to remove the pavers?
43. The strata is obligated to enforce its bylaws under SPA section 26. However, it must do so in accordance with the SPA. SPA section 135 provides for how and when the strata can impose fines.
44. SPA section 135(1) states that a strata corporation may not impose a bylaw fine unless it has received a complaint, given the owner or tenant written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if requested. SPA section 135(2) says the strata must also give notice in writing of its decision to impose the fine to the owner as soon as feasible. SPA section 135(3) says that once the strata has complied with these procedural steps, the strata may impose fines or penalties for a continuing contravention without further compliance with the steps.
45. The BC Court of Appeal has found that strict compliance with section 135 of the SPA is required before a strata corporation can impose fines. The court also determined that bylaw fines will be found to be invalid if the section 135 procedural requirements are not followed: Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449.
46. Based on the strata’s correspondence above, I find that the strata complied with SPA section 135 in providing Mr. Winkler an opportunity to respond and for a hearing if requested. However, I find that Mr. Winkler requested a hearing in August 2019. While I appreciate that the hearing request appeared to be conditional upon the strata deciding against Mr. Winkler, I find this does not excuse the strata from providing a hearing before making a decision to fine him. No hearing was held before the strata’s initial decision to fine Mr. Winkler, communicated in its January 22, 2020 letter.
47. If a strata does not meet SPA section 135 requirements in assessing an initial fine, it cannot impose continuing fines until the procedural breach is cured: see Dimitrov v. Summit Square Strata Corp., 2006 BCSC 967 at para. 33.
48. Here, I find the procedural breach is the strata's failure to provide a hearing when it was first requested. In Cheung v. The Owners, Strata Plan VR1902, 2004 BCSC 1750, the court discussed how a procedural breach can be rectified. I find that in providing the hearing on May 12, 2020, the strata cured the defect by giving Mr. Winkler the opportunity to respond through the hearing. It also considered his written response to the issues and then decided it would impose fines.
49. I therefore find that the strata only complied with section 135 as of May 12, 2020, when the hearing was conducted. For this reason, I find Mr. Winkler must pay the fines levied starting May 12, 2020 only. I find the fines imposed for the bylaw 8.2 violation prior to May 12, 2020 invalid and order that the strata reverse them.
50. Based on my review of the strata lot account ledger, Mr. Winkler must pay the strata a total of $4,200 in fines for the bylaw 8.2 violation.
Counterclaims
Additional Fob
51. Mr. Winkler claims that the strata must issue him an additional fob. However, based on the documents in evidence, I find that the current rules restrict owners to a single fob. Should the rules change, Mr. Winkler may make a further request for an additional fob.
Funds to Repair Water Damage in Dispute between 2 other owners
52. Mr. Winkler also counterclaims about funds that the strata expended to repair water damage in a dispute between two other owners. A strata is often obliged to pay for water damage repairs, particularly given its obligations to repair and maintain CP under SPA section 72. Here, the evidence as inconclusive as to the cause of the water leak, so the strata took responsibility to pay for the repairs. I find that Mr. Winkler has not proven any wrongdoing by the strata in those payments.
Erected a Fence at unit 101 Patio
53. Mr. Winkler also counterclaims about the strata erecting a fence at unit 101’s patio. He submits that it belongs to a member of strata council, and that other owners have been prohibited from installing fences. Mr. Winkler notes that other ground floor units do not have fenced patio areas.
54. The strata says that it installed a drainage system which leads to the main sump adjacent to unit 101. The hedge around unit 101 was removed to accommodate the drainage system. Strata council, without the unit 101 owner voting, recommended the fence to avoid additional plantings on top of the new drain. The fence was installed based on that decision. The height of the fence lines up with the existing fence currently adjacent to the back of Unit 101. I accept the strata’s evidence because it is consistent with the strata council meeting minutes and a Horizon Engineering Inc. sewage drainage report
55. I find that Mr. Winkler has not proven any wrongdoing by the strata in fencing a ground level patio.
Install Bleeding Valve in Fire-Rated Wall
56. Mr. Winkler counterclaims that the strata improperly installed a bleeding valve in a fire-rated wall. However, he did not provide expert evidence that the strata was negligent in the installation.
57. As well, based on the strata council’s August 12, 2019 meeting minutes, I find that the automatic bleeding valve was installed on CP, meaning that Mr. Winkler’s consent was not required for it. For these reasons, I dismiss Mr. Winkler’s counterclaim about the bleeding valve.
Building Public Roof Deck without Permit
58. I find Mr. Winkler has not proven that the strata wrongly installed a public roof deck without a permit.
59. The strata building and CP roof deck was constituted in around 1972. The strata says the deck was compliant with applicable building regulations at the time. Mr. Winkler has not proven otherwise through expert evidence.
60. I note that Mr. Winkler raised concern about some benches that were attached to the CP deck, and the strata removed those benches.
61. I dismiss Mr. Winkler’s counterclaim about the roof deck.
Failed to Heat Unit 410 in Summer 2018
62. I dismiss Mr. Winkler’s counterclaim about failure to heat his unit in summer 2018. Based on the evidence, I find that the strata had to do some CP repairs, and Mr. Winkler was without heat for a short period to facilitate those repairs, during summer.
Dog Barking Constantly
63. Mr. Winkler says that a dog from another strata lot was allowed to “bark constantly” without the strata sufficiently enforcing its bylaws. However, Mr. Winkler provided only a single audio recording of a barking dog to support his counterclaim. Under SPA section 129(2), I find that the strata was entitled not to fine the other strata lot owner for a single episode of barking, but to use a warning. Mr. Winkler’s evidence does not prove that the dog was creating a noise nuisance. I dismiss Mr. Winkler’s counterclaim about the barking. If Mr. Winkler has additional concerns, he remains able to report them to the strata for consideration of bylaw enforcement.
Incomplete Work on Windows and Deck in Summer 2019
64. Having reviewed the correspondence, I find the strata was responsive to concerns about incomplete work and had defects remedied during the window and deck maintenance in the summer of 2019.
65. Specifically, the strata arranged for painting and other deficiencies to be addressed when Mr. Winkler raised them as issues.
66. Mr. Winkler also says that the strata’s contractor used an insufficient material on the wall, which he later voluntarily replaced with drywall. Based on the documents, I have no expert opinion that the contractor’s MDF was insufficient. Therefore, I dismiss this aspect of Mr. Winkler’s counterclaim.
67. Mr. Winkler says there is only one remaining deficiency with a window sill. The strata refers to page 20 of a BC Building Science window condition assessment report which shows the intended appearance of the finished product after the window work. Mr. Winkler’s photographs appear to show some areas where mill work was incomplete, but Mr. Winkler has not proven that these photographs show the project after deficiencies were addressed. They appear to show the project before it was completed based on the debris in the photographs. As well, he has not provided an expert opinion about whether there are deficiencies and what they are.
68. Given that the onus of proof is on Mr. Winkler, I dismiss his counterclaim.
Document Production
69. Mr. Winkler says he requested documents from the strata and that it failed to produce them to him. He then says he will provide his requests “later”, so it is unclear in submissions precisely what documents he says were overlooked. Based on the evidence provided, I find that the strata responded to his requests and disclosed the records it is required to provide under SPA sections 35 and 36.
70. Among the documents Mr. Winkler requested are 2 reports from 2005/2006 which he says are central to his document production counterclaim. It is uncontested that the strata has not produced these reports. The strata responded to say it no longer had these documents in its possession. Because section 36 of the SPA only requires the strata to retain such documents for 6 years, I dismiss Mr. Winkler's counterclaim about these reports.
71. I find the strata has responded to Mr. Winkler’s various document requests appropriately and as required by the SPA. I dismiss his counterclaim in this regard.
CRT FEES, EXPENSES AND INTEREST
72. 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. Because success was divided here with both the counterclaims and aspects of the claims being dismissed, I make no order for CRT fees or dispute-related expenses.
73. The Court Order Interest Act (COIA) applies to the CRT. The strata is entitled to pre-judgement interest on the $4,200 from October 18, 2020, the date that the last fine was imposed, to the date of this decision. This equals $13.99.
74. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the owner.
ORDERS
75. I order that, within 60 days of the date of this decision Mr. Winkler remove the additional pavers on the LCP deck of unit 410, at his own cost.
76. I further order that Mr. Winkler pay the strata a total of $4,213.99, within 30 days, broken down as:
a. $4,200 for the violation of bylaw 8.2, and
b. $13.99 in pre-judgement interest under the COIA.
77. The strata is also entitled to post-judgement interest under the COIA.
78. I dismiss Mr. Winkler’s counterclaims.
79. 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.
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Julie K. Gibson, Tribunal Member |