Strata Property Decisions

Date Issued: August 6, 2021

File: ST-2020-009030

Type: Strata

Civil Resolution Tribunal

Indexed as: Niebuhr v. The Owners, Strata Plan BCS 679, 2021 BCCRT 863

Between:

DAVID NIEBUHR and IRENA NIEBUHR

ApplicantS

And:

The Owners, Strata Plan BCS 679

Respondent

And:

DAVID NIEBUHR and IRENA NIEBUHR

RespondentS BY COUNTERCLAIm

 

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

INTRODUCTION

1.      This is a summary decision of the Civil Resolution Tribunal (CRT).

2.      The dispute applicants, David Neibuhr and Irena Niebuhr, filed a dispute under the CRT’s strata property jurisdiction. The Niebuhrs own a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS 679 (strata). The strata also filed a counterclaim against the Niebuhrs, as I discuss further below.

3.      The strata requests a preliminary order that the Niebuhrs produce all relevant correspondence between them and their lawyers. The strata says the Niebuhrs waived privilege by uploading correspondence with their lawyer into the CRT’s evidence portal. The Niebuhrs oppose this request, and say they did not intend to waive privilege.

4.      Having reviewed the initiating documents, the parties’ submissions, and the strata’s broad request for documents, I asked the parties to provide submissions about whether the CRT should refuse to resolve this dispute under sections 11(1)(a)(i) and 11(1)(c) of the Civil Resolution Tribunal Act (CRTA). Section 11(1)(a)(i) says the CRT may refuse to resolve a dispute within its jurisdiction if it considers that it would be more appropriate for another legally binding process. Section 11(1)(c) says the CRT may refuse to resolve a dispute that it considers “impractical for the tribunal to case manage or resolve”.

5.      For the reasons set out below, I refuse to resolve this dispute.

ISSUES

6.      The preliminary issues in this dispute are:

a.    Should the CRT refuse to resolve this dispute under CRTA sections 11(1)(a)(i) and 11(1)(c) because it is impractical for the CRT to resolve and more appropriate for the BC Supreme Court?

b.    Should the CRT order the Niebuhrs to produce any correspondence with their lawyers as evidence in this dispute?

BACKGROUND

7.      In making this summary decision, I have reviewed submissions from the parties on the preliminary issues. I make no findings about the merits of the Niebuhrs’ claims or the strata’s counterclaims.

8.      I note that in their dispute application, the Niebuhrs refer to their strata lot as “SL64” (or unit 1106). The reference to SL64 appears to be incorrect, as the title document in evidence from the Land Title Office shows that their strata lot is number 78 in the strata. However, I find nothing turns on this for the purpose of this summary decision. In this decision, I refer to the Niebuhrs’ strata lot as unit 1106.

9.      In order to give some factual context to my summary decision, I have summarized the claims and counterclaims in this dispute below. However, I note that this summary is a broad overview. The Dispute Notices and Dispute Response Forms (pleadings) for this dispute are 44 pages in total, and while I have read that information, I have not summarized it all here.

10.   In their dispute application, the Niebuhrs say the strata breached its duties under the Strata Property Act (SPA) to investigate complaints, and to repair and maintain common property. Specifically, they say the strata failed to respond in a reasonable and timely way to their multiple complaints about a foul odour in and around their strata lot since November 2018. They say the odours are a nuisance and a hazard, which has affected their health. They say they were forced to rent alternate accommodation in January and February 2020 to escape the odours.

11.   The Niebuhrs also say the strata’s minutes and other records contain errors, inaccuracies, misrepresentations, and defamatory statements against them, relating to their odour complaints. They say these records and statements show that the strata has been uncooperative and untransparent. They also say the strata has breached the Personal Information Protection Act (PIPA), which is the subject of an investigation by the Office of the Information and Privacy Commissioner.

12.   The Niebuhrs request the following orders as remedies in this CRT dispute:

a.    The strata must fulfill its duty to investigate, repair and maintain common property, as it relates to nuisance odour in unit 1106, in a reasonable and timely manner.

b.    Reimbursement of $10,459.81 for alternate accommodation required due to odours in unit 1106.

c.    Reimbursement of $48,2016.75 in legal costs.

d.    Reimbursement of $5,010.28 in expenses for expert investigation of the odour problems.

e.    The strata must correct errors, inaccuracies, and defamatory statements in its minutes and records.

13.   The strata denies the Niebuhrs’ claims. It says it met its duties to repair and maintain common property, and to investigate alleged breaches of its nuisance bylaws. The strata makes numerous arguments, which I find unnecessary to detail here. In short, the strata says the Niebuhrs’ odour complaints have changed over time, and none of its investigations have independently confirmed any odour matching the Niebuhrs’ complaints, or meeting the test for nuisance. The strata says there is no evidence that the alleged odours are toxic or a health risk.

14.   The strata also denies the Niebuhrs’ claims about incorrect records and minutes. The strata says that the claim lacks particulars, and that the strata corrects its minutes when necessary. It also says it has no ability to correct reports provided by third parties.

15.   In its counterclaim, the strata says the Niebuhrs have repeatedly harassed, bullied, and unreasonably interfered with strata staff and residents, contrary to the strata’s nuisance bylaw and its “Workplace and Resident Bullying and Harassment” policy (WRBH policy). The strata says this conduct relates to the Niebuhrs’ odour complaints, as they have aggressively accused other residents of causing odours, and tried to direct the strata’s staff and contractors.

16.   As remedy for the counterclaim, the strata requests the following orders:

a.    Payment of $400 in bylaw fines.

b.    Ms. Niebuhr must comply with the WRBH policy.

c.    Ms. Niebuhr must not cause a nuisance or interfere with a person’s right to peaceful enjoyment of common property or a strata lot.

d.    The Niebuhrs must have no direct contact or communication with the tenants of unit 1107.

e.    The Niebuhrs must direct any complaint about the strata’s contractors or concierge staff to the strata property manager, and not to the contractor or staff member directly.

f.     The Niebuhrs must leave the concierge office or stop speaking with concierge staff immediately if requested by a concierge.

17.   The Niebuhrs deny the strata’s counterclaim. They say the allegations are unfounded, and are part of a “calculated smear campaign” against them which the strata undertook instead of reasonably addressing their odour complaints in a timely manner. They also say that Ms. Niebuhr did not breach any strata bylaws.

18.   As mentioned above, the strata has made a preliminary request for disclosure of all relevant documents from the files of the Niebuhrs’ lawyers. The strata says the Niebuhrs waived privilege over all of these documents when they uploaded some correspondence with their lawyer as evidence in this dispute. The Niebuhrs object to this disclosure request, and submit that they did not intend to waive legal privilege.

REASONS AND ANALYSIS

Should the CRT refuse to resolve this dispute under CRTA sections 11(1)(a)(i) and 11(1)(c) because it is impractical for the CRT to resolve and more appropriate for the BC Supreme Court?

19.   For reasons set out below, I find it is appropriate to refuse to resolve this dispute under CRTA sections 11(1)(c) and 11(1)(a)(i).

20.   In their submissions on the preliminary issues addressed in this summary decision, both the strata and the Niebuhrs say they wish the CRT to resolve this dispute.

21.   The Niebuhrs’ preliminary submissions include the following arguments:

a.    Their claims have merit and are important, and the evidence supports them. They require a CRT order to compel the strata to remedy the nuisance.

b.    The strata’s counterclaim is frivolous and vexatious, and was meant to undermine the Niebuhrs’ claims and complicate the CRT process.

c.    The strata has abused the CRT process, by “muddying the waters”, using “smoke and mirrors”, failing to meet deadlines, withholding evidence, and demanding a preliminary decision about document disclosure and privilege.

d.    The strata’s counterclaim is outside the CRT’s jurisdiction, and does not relate to the primary claims. The CRT should have refused to resolve it early in its process, which would have reduced the volume of material provided.

e.    Some of the strata’s evidence should be excluded, for various reasons.

f.     The odour problem is ongoing, and refusing to resolve this dispute will cause more delay and damage to the Niebuhrs.

22.   The strata’s preliminary submissions include the following arguments:

a.    The CRT is the most appropriate forum for this dispute. The issues and requested remedies in this dispute are within the CRT’s jurisdiction, and are not too complex for the CRT to resolve.

b.    A CRT resolution will avoid significant additional costs and delays for the parties.

c.    Previous published CRT decisions have not refused to resolve a dispute based on impracticality under CRTA section 11(1)(c).

d.    Refusing to resolve this dispute is inconsistent with the CRT’s mandate, and inconsistent with principles of access to justice.

e.    The dispute is not in an early stage, as the parties have already provided evidence and some submissions.

f.     The procedural history of this dispute is not complex, and the volume of evidence is manageable for the CRT.

g.    The claims are of the type regularly decided by the CRT.

h.    CRT rule 8.1 sets no limits on the amount of evidence that should be produced in a dispute.

23.   Although I note the parties’ shared preference that the CRT resolve the dispute, I find this mutual agreement is not determinative of whether the CRT should do so.

24.   As noted above, CRTA section 11(1)(a)(i) says the CRT may refuse to resolve a dispute within its jurisdiction if it considers that it would be more appropriate for another legally binding process. Section 11(1)(c) says the CRT may refuse to resolve a dispute that it considers “impractical for the tribunal to case manage or resolve”.

25.   The CRT’s mandate, as set out in CRTA section 2(2), is to provide dispute resolution services in relation to matters within its authority, in a manner that is accessible, speedy, economical, informal, and flexible.

26.   Based on this mandate, and the combination of factors explained below, I find that this dispute is more appropriate for the BC Supreme Court (BCSC), and would be impractical for the CRT to resolve.

27.   The first factor supporting this conclusion is the overall volume of evidence and other material involved in this dispute. Contrary to the strata’s assertion, the parties have not yet been invited to provide submissions on the merits of the dispute (although some merit submissions were included in the pleadings and the submissions on the preliminary issues). Even without that material, I find the overall volume of documents is unusually large for a CRT strata property dispute. As noted above, the pleadings for this dispute are 44 pages long. The parties uploaded over 400 evidence items, most of which are several pages long. This evidence includes 240 items from the Niebuhrs. The strata still seeks disclosure of significantly more evidence, in the form of the files from the Niebuhrs’ lawyers. The submissions on the document disclosure and privilege issues are 16 pages long.

28.   Also, much of the evidence is lengthy, and includes reports from expert witnesses and other detailed material. While I agree with the strata that the CRT’s rules do not set a limit on the volume or length of evidence, I find that the volume of material in this dispute is extraordinarily large, even before submissions on the merits have been provided (which has not yet occurred).

29.   I also find that this is not a case where only one party has provided a large volume of evidence. Rather, both sides have provided similarly large volumes of material, and the strata seeks to obtain even more evidence. The strata seeks “all relevant correspondence” between the Niebuhrs and their lawyers. Given that the Niebuhrs’ claimed legal fees are $48,2016.75, I find this disclosure is likely to include a large volume of documents, if disclosure were ordered.

30.   The CRT has authority to make orders about disclosure of evidence, including findings and orders about legal privilege. However, I find that this requested order, within the overall context of this already large dispute, is another factor that suggests the dispute does not fit within the CRT’s mandate. Complex arguments about legal privilege, and blanket requests for production orders for legal documents, are generally inconsistent with accessible, speedy, economical, informal, or flexible dispute resolution. I note that the majority of CRT disputes, in all jurisdictional streams, do not include requests for a lawyer’s file. Thus, I find the overall volume of documents, the strata’s requests for more documents, and the arguments about legal privilege, support the conclusion that this dispute is more appropriate for the BCSC, with its civil discovery process.

31.   I agree with the strata that the claims in this dispute are not, in themselves, particularly complex. However, I find that some of the remedies requested by both parties are outside the CRT’s jurisdiction to order.

32.   The Niebuhrs request orders about defamation. Several CRT decisions have said the CRT does not have jurisdiction over defamation claims. See for example NCAH BC Holdings Ltd. v. The Owners, Strata Plan EPS 1231, 2018 BCCRT 137; Pritchard v. The Owners, Strata Plan VIS3743, 2017 BCCRT 69; Napoleone v. The Owners, Strata Plan BCS 2460 et al, 2018 BCCRT 246. Although prior CRT decisions are not binding, I find them persuasive.

33.   The strata has also requested remedies that are likely outside the CRT’s authority to grant. The strata seeks orders that are effectively no contact or restraining orders. Prior CRT decisions have said the CRT does not have jurisdiction to make this type of order: see Knibbs v. Kuan et al, 2018 BCCRT 152; Lazare v. Tan, 2020 BCCRT 379. Also, these requested remedies arise from the strata’s allegations about bullying and harassment by the Niebuhrs. Prior CRT decisions have said the CRT does not have jurisdiction to decide bullying or harassment claims under its strata property jurisdiction: see Rishiraj v. The Owners, Strata Plan LMS 1647, 2020 BCCRT 593.

34.   I do not agree with the Niebuhrs that the strata’s entire counterclaim is outside the CRT’s jurisdiction, or is unrelated to their primary claims. Rather, I find the claim for payment of bylaw fines is within the CRT’s jurisdiction to resolve. I also find the bylaw fine claim is related to the subject matter of the primary claims, in that the alleged bylaw infraction is about the manner in which the Niebuhrs allegedly investigated or complained about the odours. However, I find the fact that there are jurisdictional issues arising in both the primary claim and the counterclaim is one factor, along with the other factors I highlight in decision, which supports the conclusion that this dispute is impractical for the CRT resolve.

35.   I disagree with the strata’s submission that it is too late in the dispute process to consider refusing to resolve this dispute. The parties have not yet been invited to provide submissions on the merits of their claims, and the dispute has not yet been assigned for final adjudication. The amount of time involved in adjudicating the claims would be significant, given the volume of materials already filed. Expending significant adjudicative resources on a single dispute impedes the CRT’s ability to resolve other disputes in a manner that is accessible, speedy and economical.

36.   The strata relies on the BCSC’s reasons in Downing v. Strata Plan VR2356, 2019 BCSC 1745 to support its argument that the CRT should resolve this dispute. I find the facts in Downing are different from those in this dispute, and can therefore be distinguished. In Downing, the petitioner (strata lot owner) applied for an order that the BCSC decide her claims, rather than the CRT. The respondent strata corporation objected to that request, and said the CRT should resolve the dispute. There was not yet any CRT dispute filed, and unlike in this summary decision, there was no consideration or application of CRTA section 11. CRTA section 11 clearly gives the CRT discretion to refuse to resolve claims or disputes for various reasons, such as where they are impractical for the CRT to resolve, or where they are more appropriate for the BCSC. CRTA section 11 was not at issue in Downing, or in the BCSC’s decision in Yas v. Pope, 2018 BCSC 282, which the strata also cites.

37.   The fact that the BCSC referred disputes to the CRT in Downing and Yas does not mean CRTA section 11 has no effect, or should not be applied. The application of section 11 will depend on the specific factors in each case. I find that the combined effect of the volume of evidence and materials in this dispute, the fact that each side contributed significantly to the volume, the fact that each side has requested remedies that are likely outside the CRT’s jurisdiction to grant, and the other factors discussed above, mean that this dispute is impractical for the CRT to resolve and is more appropriate for the BCSC.

38.   For these reasons, I refuse to resolve this dispute under CRT section 11(1)(a)(i) and 11(1)(c). I therefore make no findings about whether the Niebuhrs’ legal files are privileged and make no order for document production.

39.   Given that I have refused to resolve this dispute, the CRT proceeding is concluded. I direct that the CRT will reimburse all parties’ paid CRT fees, since the parties were not offered the opportunity to withdraw their claims before this summary decision.