Date Issued: September 13, 2021

File: ST-2021-000391

Type: Strata

Civil Resolution Tribunal

Indexed as: Walsh v. The Owners, Strata Plan EPS5285, 2021 BCCRT 989

Between:

BRIAN WALSH

Applicant

And:

The Owners, Strata Plan EPS5285

Respondent

INTRODUCTION

1.      This dispute is about use of an electrical outlet in a strata corporation’s parking area.

2.      The applicant, Brian Walsh, co-owns a strata lot in the respondent strata corporation, The Owners, Strata Plan EPS5285 (strata). Mr. Walsh says the strata “capped off” the common property (CP) electrical outlet near his 2 assigned parking stalls, and has refused to unblock it. He says he wishes to use the outlet to vacuum his car, and to charge the 12 volt battery in his Tesla electric car while away for extended periods.

3.      As remedy in this dispute, Mr. Walsh requests an order that the strata repair and reinstall the outlet.

4.      The strata says the outlet was capped by the owner developer (OD), which is the parkade tenant under a 999 year lease. The strata also says its rules prohibit vehicle charging using CP outlets, and that there are other nearby outlets Mr. Walsh could use to vacuum his car.

5.      Mr. Walsh is self-represented in this dispute. The strata is represented by a strata council member.

6.      For the reasons set out below, I find the strata is not required to uncap the outlet, and I dismiss Mr. Walsh’s claim.

JURISDICTION AND PROCEDURE

7.      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). CRTA section 2 says the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

8.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice and fairness.

9.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, even where the information would not be admissible in court. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Under CRTA section 123, 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.

11.   In his dispute application, Mr. Walsh included 3 other claims about allowing “trickle charging” for cars, changing CP without an ownership vote, and strata governance. Mr. Walsh withdrew these claims during the CRT’s facilitation phase. I therefore make no findings or decisions about these claims.

ISSUE

12.   Must the strata uncap the electrical outlet closest to Mr. Walsh’s parking stalls?

REASONS AND ANALYSIS

13.   In a civil claim like this one, Mr. Walsh, as applicant, must prove his claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

14.   The strata was created in October 2018, under the Strata Property Act (SPA).

15.   The parties agree that the CP electrical outlet closest to Mr. Walsh’s parking stalls was capped off. Photos in evidence show that the outlet is mounted on a post next to the stalls, and that at some point, it was covered with a plastic faceplate with no openings.

16.   The strata says the OD capped the outlet on its own initiative, but Mr. Walsh says the strata did it, or requested that the OD do it. There is no conclusive evidence before me on this point. However, I find it does not matter whether the strata or the OD capped off the outlet. SPA sections 3 and 72 say the strata is responsible for managing, repairing, and maintaining CP and common assets. The parties agree that the outlet is CP, which I find is correct since the entire parkade is marked as CP on the strata plan. Therefore, since the outlet is CP, the strata is responsible for it.

17.   In any event, the strata says that even though the OD capped the outlet, it should remain capped. The strata says capping the outlet was a reasonable measure to prevent damage to the electrical infrastructure, as at least one other owner has used the outlet to charge vehicles, which has frequently resulted in burnt out or melted outlets and blown fuses.

18.   I find the strata has not provided sufficient evidence to prove its assertion that vehicle charging or other owner use has damaged parkade outlets. The only evidence on this point is a March 4, 2021 email from the municipality’s Electrical Safety Officer, stating that the parkade outlets are for “maintenance only”, not electric car charging, as shown on the drawings the electrical engineer submitted for the building permit.

19.   However, I find the strata does not have to prove that electrical components were damaged in order to justify leaving the outlets capped. First, there is no requirement in the SPA or bylaws that owner can access and use all CP. For example, many strata corporations have mechanical rooms, roof access hatches, supply cupboards, and other CP areas or resources that are used for maintenance purposes. Such areas are kept locked, and are not available for use by owners. I find there is no obligation that the strata make any electrical outlets on CP available for use by owners.

20.   Second, the strata says the outlet is still usable, and could be accessed by maintenance staff if necessary by removing the cover. Based on the photo in evidence, and since Mr. Walsh has not proven otherwise, I accept this assertion. For that reason, I find the strata has not failed to repair and maintain CP, as required in SPA section 72. Also, I find that capping the outlet was not a significant change in use or appearance of CP. The change in the outlet’s appearance is trivial, and it is still useable for maintenance purposes, which the municipal Electrical Safety Officer’s email shows was its original purpose.

21.   For these reasons, I find the strata was entitled to cap the outlet.

22.   A substantial amount of Mr. Walsh’s submissions and evidence were about his need to charge his electric vehicle. While I accept that this is extremely important to him, I find there is nothing requiring the strata to provide charging access. The evidence shows that at a strata council meeting on March 15, 2021, the council ratified an earlier September 2020 council decision, taken by electronic vote, to create the following rule:

No one is allowed to leave anything plugged in and unattended in common property.

23.   I have no evidence before me about whether the strata ownership has ratified this rule at a general meeting, as contemplated in SPA section 125(6). Given that Mr. Walsh did not dispute this, I accept that the charging rule is in force. Under SPA section 125(1), the strata is entitled to make and enforce rules governing the use of CP, which I find includes the charging rule.

24.   Mr. Walsh argues that, in effect, the strata’s decision to leave the outlet capped is significantly unfair to him. CRTA section 123(2) says that in resolving a strata property claim the CRT may make an order necessary to prevent or remedy a significantly unfair action or decision by the strata in relation to an owner or tenant.

25.   Arguably, the strata’s decision to leave the outlet capped was not a decision in relation to “an owner”, since the outlet is on CP. However, since the capped outlet is immediately next to Mr. Walsh’s parking stalls, and since other outlets in the parkade were not capped, I accept that this claim falls within section 123(2).

26.   In Reid v. Strata Plan LMS 2503, 2003 BCCA 126, the BC Court of Appeal said a significantly unfair action is one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable. In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the BC Court of Appeal confirmed that an owner’s reasonable expectations may also be relevant in determining whether the strata’s actions were significantly unfair.

27.   When an owner’s reasonable expectations are relevant, as I find they are here, I must determine whether the strata violated those expectations with a significantly unfair action or decision: see Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44.

28.   In this dispute, Mr. Walsh’s expectation was that he would have access to an electrical outlet next to his parking stalls. For the following reasons, I find this expectation was not reasonable.

29.   There are many other parking stalls that do not have outlets immediately adjacent. So I find Mr. Walsh is not being denied access to something available to all other owners. Mr. Walsh says he was assigned his specific parking stalls on a “preferential” basis by the OD, because he had an electric car, and had one of the larger strata lots. However, I find Mr. Walsh has not provided evidence that he was promised access to vehicle charging. Rather, Mr. Walsh provided notes of a May 7, 2021 telephone conversation with realtor JA, who was the “buyers’ agent” when he bought his strata lot. According to Mr. Walsh’s notes, JA told him the OD probably assigned him parking stalls next to the outlet because of his request about vehicle charging, but “it was not her intention to indicate that we would be able to charge our car”.

30.   Mr. Walsh says that capping the outlet has reduced the value of his strata lot. However, he provided no evidence to support that assertion, such as an opinion from a realtor or appraiser. Also, I find this argument unpersuasive, given that the strata’s rule prevents all unattended vehicle charging.

31.   In his submissions, Mr. Walsh says he agrees that he will not use the outlet to charge his car, since that is prohibited by the rule. I find Mr. Walsh has shown no other reason why he needs access to an outlet next to his parking stalls, or why having that outlet would affect his property’s value. Mr. Walsh mentioned vacuuming in his Dispute Response Form, but did not respond to the strata’s assertion that he could access other outlets in the parkade for that purpose. Based on the diagram of outlet locations provided in evidence, I find that Mr. Walsh could vacuum his car using an extension cord, or by temporarily moving his car closer to uncapped outlets.

32.   For these reasons, I find Mr. Walsh’s expectation that the strata would provide access to an uncapped CP electrical outlet next to his assigned parking stalls is unreasonable. I therefore find the strata’s decision to keep the outlet capped was not significantly unfair to Mr. Walsh.

CRT FEES AND EXPENSES

33.   Under CRTA section 49 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.

34.   The strata is the successful party. It paid no CRT fees and claims no dispute-related expenses. I therefore do not award them to any party.

35.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to Mr. Walsh.

ORDER

36.   I dismiss Mr. Walsh’s claims and this dispute.