Date Issued: September 27, 2021

File: ST-2021-000083

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan VR 264 v. Sabanskis, 2021 BCCRT 1038

Between:

The Owners, Strata Plan VR 264

Applicant

And:

YANA SABANSKIS

Respondent

INTRODUCTION

1.      This dispute is about accessing a strata lot for inspection and repairs. The respondent, Yana Sabanskis, owns strata lot 26, known as unit 407, in the applicant strata corporation, The Owners, Strata Plan VR 264 (strata). The strata performed electrical inspections and upgrades in owners’ strata lots due to insurance requirements. The strata says Ms. Sabanskis has not permitted the strata’s contractors to access her strata lot to complete the electrical work, despite being notified about it. The strata requests an order that Ms. Sabanskis allow access to her strata lot to perform this work, and pay any costs in excess of $420 for it.

2.      Ms. Sabanskis opposes the strata’s claims. She says the strata’s contractors have not consistently worn face masks or observed certain COVID-19 pandemic precautions while performing work at the strata’s premises. She says she agrees to have the electrical work done in her strata lot when the strata resolves these issues and other complaints to her satisfaction.

3.      The strata is represented by a strata council member. Ms. Sabanskis is self-represented.

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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.

7.      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.

8.      Ms. Sabanskis submitted three letters into evidence after the deadline. I find the letters are relevant to this dispute. The strata does not object to them and had an opportunity to comment on them. So, I allow the late letters as evidence.

ISSUE

9.      Must Ms. Sabanskis permit the strata and its contractors to enter her strata lot to perform electrical work, and if so, must she pay for any of it?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, as the applicant the strata must prove its claim on a balance of probabilities. I have read and weighed the parties’ evidence and submissions, but I refer only to that which I find necessary to explain my decision.

11.   The strata was formed in 1975 and presently exists as a strata corporation under the Strata Property Act (SPA). The strata’s premises are a 4-storey building with 30 strata lot apartments. On February 1, 2002, the strata repealed and replaced most of its bylaws under the SPA. The strata amended its bylaws several more times, but none of those newer amendments are relevant to this dispute.

12.   This dispute involves the residential electrical utilities serving strata lot 26. The SPA’s definition of common property (CP) includes wires and other facilities for the passage or provision of electricity that are wholly or partially within a strata lot, if they are capable of being and intended to be used in connection with the enjoyment of another strata lot or CP, or are within a wall, floor, or ceiling between the strata lot and another strata lot or CP. It is undisputed that strata lot 26’s electrical fixtures are connected by wires to a CP electricity supply shared by other strata lots and CP. So, I find that the electrical wires within the walls, floors, and ceilings of strata lot 26 are CP, because they are intended to be used in connection with other strata lots and CP. This is consistent with other non-binding but persuasive CRT decisions, for example paragraph 23 of Prior v. The Owners, Strata Plan VR 269, 2019 BCCRT 649 about telephone wires, which I find are analogous to electrical wires under the SPA.

13.   SPA section 72 and strata bylaw 9 say that the strata must repair and maintain CP that is not limited common property, among other things. So, I find the strata must repair and maintain the electrical wires within strata lot 26’s walls, ceilings, and floors.

14.   SPA section 149 requires the strata to insure buildings shown on the strata plan, CP, and fixtures built or installed on a strata lot if they are part of the owner developer’s original construction. Strata Property Regulation (SPR) section 9.1 says “fixtures” includes electrical fixtures.

15.   Strata bylaw 8(1)(b) says that an owner must allow a person authorized by the strata to enter the strata lot at a reasonable time on 48 hours’ written notice, to inspect, repair, or maintain common property (CP), common assets, and any portions of a strata lot that are the strata’s responsibility to repair and maintain or to insure under SPA section 149. Bylaw 8(2) says that the notice must include the date and approximate time of entry, and the reason for entry.

16.   Given my findings above, I find that bylaw 8 allows a person authorized by the strata to enter a strata lot at a reasonable time on 48 hours’ written notice to perform inspections or repairs to electrical fixtures and wiring. As long as the notice includes the date, approximate time, and reason for entry, there are no other requirements for entry in the SPA or strata bylaws.

17.   It is undisputed that from September 2020 to November 2020, strata contractors entered all of the strata lots except Ms. Sabanskis’ and performed electrical inspections and upgrades. Ms. Sabanskis has not permitted the strata or its contractors to enter strata lot 26 to perform that work. The strata says it is doing this work at the request of its former insurer, and that failing to complete the work will affect its insurance options. Ms. Sabanskis agrees that this work, among other work at the strata premises, is likely needed. She agrees to “have the electrical work done” in her strata lot when several of her concerns are addressed to her satisfaction.

18.   In a January 11, 2021 letter to the strata, Ms. Sabanskis requested a letter from the strata’s insurer verifying that “electrical concerns have been inspected in detail and any repairs completed”, among requests for other strata work, verifications, and commitments. Ms. Sabanskis wrote that once she received the insurer’s letter, she would be “happy” to permit a company to do the work in her suite. However, she also said the contractors had to provide COVID-19 test results or vaccination certificates “as per the Provincial COVID regulations”, and the strata had to agree to take responsibility for any “medical fallout” resulting from the entry.

19.   I find Ms. Sabanskis has not identified any particular COVID-19 regulations or restrictions applicable to a contractor’s entry into her strata lot. Further, the SPA and bylaws do not require the strata to take medical responsibility for an owner before entering a strata lot and performing repairs. I also note that Ms. Sabanskis’ request was impossible to fulfill. The electrical inspections and repairs could not be completed until a contractor entered her strata lot and did the work, but she refused entry to her strata lot until that electrical work was completed, among other preconditions.

20.   I find that nothing in the bylaws or SPA allowed Ms. Sabanskis to refuse entry by the strata under bylaw 8 for any reason other than insufficient notice of that entry.

21.   Correspondence in evidence showed that Ms. Sabanskis was aware of the strata’s requests to enter her strata lot, and that she refused for a period of at least several months. On October 9, 2020 the strata offered that it could provide notices by a different method than regular mail to Ms. Sabanskis’ strata lot if requested, but the evidence does not show that Ms. Sabanskis made such a request. SPA section 61 says that unless another address is provided, the strata may give notice by regular mail to a person’s strata lot, among other methods. The strata mailed Ms. Sabanskis an October 30, 2020 notice saying that under bylaw 8(1), Ms. Sabanskis must provide access to her strata lot on November 4, 2020 at 9:30 a.m. for the electrical work. I find this was sufficient notice under bylaw 8, and that Ms. Sabanskis did not provide the requested access or propose a different date and time to the strata. I find Ms. Sabanskis broke bylaw 8.

22.   Ms. Sabanskis says she is concerned about the strata contractors’ COVID-19 precautions, and does not want those persons in her strata lot unless they fulfill her requests. Ms. Sabanskis says that she has observed electrical contractors not always wearing face masks in common areas, among other alleged failures to observe required COVID-19 precautions. As the party alleging that the contractors have not followed provincial COVID-19 restrictions, Ms. Sabanskis bears the burden of proving those restrictions and that the contractors are likely to violate them when in her strata lot. As noted, Ms. Sabanskis has not identified any government COVID-19 restrictions applicable to contractors entering her strata lot to perform electrical work. In particular, I find she has not proven that contractors are required to wear face masks or gloves, to take a COVID-19 test, or to be vaccinated against COVID-19.

23.   Having said that, Ms. Sabanskis admits that the electrical contractors have worn masks in the strata building at least some of the time. I also note that the strata says it offered to take additional precautionary COVID-19 measures for the strata lot 26 electrical work. The strata’s representative says she offered to personally monitor the work, including oversight, hand washing, sanitizing, mask wearing, and clean up. Even if Ms. Sabanskis had proven these precautionary steps were required, I find she has not proven that the strata will fail to provide them.

24.   Ms. Sabanskis also suggests she is particularly vulnerable to COVID-19 infection because of medical conditions. However, she provided no supporting medical evidence, including any showing that particular infection precautions were necessary, or that the strata’s proposed measures were insufficient. Ms. Sabanskis also says her other concerns about building maintenance have not been addressed and the building is likely uninsurable, but I find this is irrelevant to the strata’s right of access under bylaw 8. Ms. Sabanskis says she did not receive notice of the special general meeting where the strata membership voted to fund the electrical work, but I find the strata’s ability to enter a strata lot to perform repairs under bylaw 8 is not contingent on Ms. Sabanskis’ participation in a funding vote. Ms. Sabanskis also questions the contractor’s qualifications, but I find bylaw 8 does not require any particular qualifications for entry.

25.   I find the strata was entitled to access Ms. Sabanskis’ strata lot to perform electrical inspections and repairs, and Ms. Sabanskis failed to provide that access in breach of bylaw 8. I order that within 30 days of the date of this decision, Ms. Sabanskis provide the strata and its authorized contractors with access to strata lot 26 for as long as reasonably necessary to perform this work. I order Ms. Sabanskis to provide this access at a date and time specified by the strata in 48 hours’ written notice provided to Ms. Sabanskis in accordance with bylaw 8 and SPA section 61.

26.   The strata also requested that Ms. Sabanskis pay any fees for the strata lot 26 electrical work that exceed the $420 originally quoted by the contractor. The strata says it would be unfair for the other owners to bear extra expenses caused by Ms. Sabanskis’ failure to provide timely access to her strata lot. As noted, bylaw 9 and SPA section 72 make the strata responsible for repairing and maintaining common property that is not limited common property, which I found above includes the electrical work at issue here. I find the bylaws and SPA do not allow the strata to directly charge Ms. Sabanskis for that work. In any event, the strata did not provide evidence showing the estimated extra costs of the strata lot 26 electrical work, so I find the amount the strata seeks is unknown and unproven. I dismiss the strata’s claim for an unspecified amount for excess electrical work costs.

CRT FEES AND EXPENSES

27.   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. I find the strata was largely successful in this dispute, so I find it is entitled to reimbursement of the $225 it paid in CRT fees. No dispute-related expenses were claimed.

28.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. Sabanskis.

ORDERS

29.   I order that within 30 days of the date of this decision, Ms. Sabanskis provide the strata and its authorized contractors with access to strata lot 26 for as long as reasonably necessary to perform electrical inspections, repairs, and upgrades, at a date and time specified by the strata in 48 hours’ written notice provided to Ms. Sabanskis in accordance with bylaw 8 and SPA section 61.

30.   Within 30 days of the date of this decision, I order Ms. Sabanskis to pay the strata $225 in CRT fees.

31.   The strata is also entitled to post-judgment interest under the Court Order Interest Act from the date of this decision, as applicable. I dismiss the strata’s remaining claims.

32.   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.