Date of Original Decision: October 20, 2021
Date of Amended Decision: November 8, 2021
File: ST-2021-002954 & ST-2021-002816
Type: Strata
Civil Resolution Tribunal
Indexed as: The Owners, Strata Plan BCS945 v. Miller, 2021 BCCRT 1111
Between:
The Owners, Strata Plan BCS945
Applicant
And:
MICHAEL MILLER
Respondent
And:
The Owners, Strata Plan BCS945
Respondent BY COUNTERCLAIM
| AMENDED[i] REASONS FOR DECISION |
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| Tribunal Member: |
Sherelle Goodwin |
INTRODUCTION
1. This dispute is about bylaw fines and enforcement in a strata corporation.
2. The respondent, Michael Miller, owns a strata lot in the applicant and respondent by counterclaim strata corporation, The Owners, Strata Plan BCS 945 (strata). The strata says Mr. Miller has failed to pay fines levied by the strata for bylaw violations. The strata says Mr. Miller kept his garage door open when not in the area, and installed a video surveillance camera, contrary to the strata’s bylaws. The strata claims $1,350 in unpaid garage door related fines and $2,850 in video camera installation related fines. The strata also asks that Mr. Miller be ordered to remove the video surveillance camera and stop leaving his garage door open. This is dispute ST-2021-002954.
3. Mr. Miller denies violating the strata’s bylaws and says he should not have to pay the fines. He says the strata has acted in a significantly unfair manner toward him and breached sections 26 and 31 of the Strata Property Act (SPA). He also says the garage door bylaw contravenes section 10(1)(a) of the Human Rights Code (HRC). In his counterclaim, Mr. Miller seeks various declarations, asks that the garage door and camera bylaws be struck down as unenforceable, and asks for an unspecified penalty against the strata for breaching the bylaws and the SPA. This is dispute ST-2021-002816.
4. Although the parties filed separate disputes, I have decided to issue a single decision, given that both disputes are between the same parties and address fundamentally the same issues.
5. The strata is represented by a council member. Mr. Miller represents himself.
6. As explained below, I find Mr. Miller violated the strata’s garage door bylaw and common property alteration bylaw. I find he must pay the strata $4,100 in fines. I dismiss Mr. Miller’s claims.
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. After issuing my original decision it came to my attention that I did not address the strata’s request for an order that Mr. Miller remove any outside cameras and stop leaving his garage door open. The strata included these requested remedies in its application for dispute resolution. Through inadvertence, I failed to address the strata’s request for orders against Mr. Miller.
12. At common law, an administrative tribunal may reopen a proceeding to cure a jurisdictional defect, which is reflected in section 51(3) of the CRTA. In Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, the BC Court of Appeal discussed the scope of the power to reopen a hearing to cure a jurisdictional defect. Among other things, the court found it is a jurisdictional defect for an administrative tribunal to fail to decide an issue properly before it, or to provide the parties with procedural fairness.
13. I find that I failed to decide whether the strata was entitled to the requested orders, which was properly before me. I find, my original decision involved a jurisdictional error and so I decided to reopen the proceeding to cure the defect.
Section 31 of the SPA
14. Mr. Miller argues that the strata has acted contrary to section 31 of the SPA, which requires strata council members to act honestly and in good faith with a view to the strata’s best interests. In The Owners, Strata Plan LMS 3259 v. Sze Hang Holdings Inc., 2016 BCSC 32, the BC Supreme Court concluded that a strata council member owes these duties to the strata, not to individual strata lot owners. In Rochette v. Bradburn, 2021 BCSC 1752, the court confirmed that an owner does not have standing, or a legal right, to bring a claim against a strata corporation because they believe that the strata council breached section 31. I find that Mr. Miller has no standing to bring a claim against the strata under section 31 of the SPA and so dismiss that counterclaim.
ISSUES
15. The remaining issues in this dispute are:
a. Are bylaws 3(2)(u) or 3(2)(t) unenforceable because either contravene the SPA or section 10(1)(a) of the HRC?
b. If not, did Mr. Miller breach bylaw 3(2)(u) by leaving his garage door open?
c. Did Mr. Miller breach bylaws 3(2)(t), 7 or 8 by installing a video camera?
d. Did the strata act significantly unfairly toward Mr. Miller and, if so, what is the appropriate remedy?
e. Must Mr. Miller pay any of the fines levied by the strata and, if so, in what amount?
EVIDENCE AND ANALYSIS
16. In a civil dispute like this one the applicant strata must prove its claims on a balance of probabilities (meaning “more likely than not”). Mr. Miller has the same burden to prove his claims. I have reviewed the parties’ submissions and weighed the evidence submitted but only refer to that necessary to explain and give context to my decision.
Background
17. The strata was created in 2004 when the strata plan was deposited in the Land Title Office (LTO). The strata consists of 23 separate buildings, each containing contain 8 townhouse-style residential strata lots. Mr. Miller purchased strata lot 60, or unit 35, in 2015.
18. The strata plan and Mr. Miller’s photos show that each 3-level townhouse includes an attached, single-car garage at the front of the ground level. The strata plan shows the attached garage to be part of each strata lot.
19. It is undisputed that the strata previously fined Mr. Miller for not keeping his garage door closed when his garage was not in use, contrary to the strata’s former bylaw 45(4). In The Owners, Strata Plan BCS 945 v. Miller, 2018 BCCRT 414, another tribunal member found Mr. Miller did not contravene the bylaw because, although the garage door remained open, the garage was in “use” when Mr. Miller used it to partially house his large, parked, pickup truck.
20. The strata filed an amended set of bylaws in the LTO on June 6, 2019, which I find apply to this dispute.
21. Bylaw 3(2)(u) prohibits an owner from leaving a ground level exterior door open, including an overhead garage door, unless the owner is “physically present in the area immediately adjacent to the door”.
22. Based on strata council meeting minutes and the parties’ correspondence, I find the strata notified Mr. Miller of allegations that he left his garage door open and unattended between October 2019 and December 2020. The strata ultimately fined Mr. Miller for repeated contraventions of bylaw 3(2)(u) between October 2019 and December 2020.
23. Bylaw 3(2)(t) prohibits an owner from operating a security camera which captures activity outside the strata lot, other than a strata lot entry door. Bylaw 7(1) requires an owner to obtain the strata’s written approval before making an “alteration, addition, change or improvement” to the exterior of a strata lot. Bylaw 8(1) requires the strata’s written approval for common property changes.
24. Based on strata council meetings and the parties’ correspondence, I find the strata notified Mr. Miller of allegations that he had installed a camera, or cameras, on his townhouse exterior wall in December 2019. The strata levied weekly fines against Mr. Miller for continued contraventions of bylaws 3(2)(t), 7(1) and 8(1) between February 2020 and March 2021.
25. It is undisputed that Mr. Miller has not paid any of the garage door or camera fines levied against him by the strata.
Are either bylaw 3(2)(u) or 3(2)(t) unenforceable?
26. Section 121(1) of the SPA says that a bylaw is unenforceable to the extent that it contravenes the SPA, the HRC, or any other law. Mr. Miller says bylaw 3(2)(u) violates section 10(1)(a) of the HRC.
27. Section 10(1)(a) of the HRC prohibits a person from denying another person the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant. I agree with the strata and find section 10(1)(a) of the HRC does not apply to this dispute because Mr. Miller is not a tenant, but rather an owner of the strata lot, which I find includes the attached garage.
28. Mr. Miller also says that the strata has violated its duty to accommodate him and has discriminated against him for using the garage as a living space. The HRC prohibits any person from discriminating against another person on the grounds of race, colour, age, gender identity, and other identified factors. Mr. Miller has not explained the grounds on which he alleges the strata has discriminated against him, or how the strata allegedly failed to accommodate him. Rather, he says the strata’s continued enforcement of its bylaws against him, after the prior CRT dispute dismissal, are discriminatory.
29. To the extent that Mr. Miller argues that the strata’s enforcement of bylaw 3(2)(u) violates his right to use his garage as a living space, I find that is not a right protected by the HRC. So, I find Mr. Miller has not proved that bylaw 3(2)(u) violates the HRC.
30. Mr. Miller also says that bylaws 3(2)(t) and (u) violate the SPA.
31. Mr. Miller does not explain how either bylaw allegedly contravenes the SPA. As noted, section 121(1) of the SPA says a bylaw is unenforceable to the extent it contravenes the SPA or another enactment. I find subsections 121(2) and (3) do not apply to this dispute as they concern bylaws that affect easement rights or the right to sell, lease, mortgage or dispose of a strata lot. I find no provision in the SPA that governs an owner’s right to leave their garage door open or use a video camera surveillance system on common property.
32. On balance, I find Mr. Miller has failed to prove either bylaw 3(2)(t) or 3(2)(u) is unenforceable because it contravenes the SPA.
Bylaw 3(2)(u) – Garage Door
33. According to his emails to the strata, another owner (X), saw Mr. Miller’s garage door open at various times between 7 am and 11pm, as well as overnight, on a regular basis between January 29 and December 20, 2020. The strata says it received a complaint about Mr. Miller’s open and unattended garage door before October 24, 2019 and again on December 17, 2019 but did not submit copies of those complaints in evidence. However, I accept the strata received those complaints because the specific complaints are noted in the strata council meeting minutes.
34. Mr. Miller says he built a wooden partition in his garage to create a recreational or living space in the rear portion of his garage. His photos show a wooden wall that reaches from floor to nearly the ceiling and across the entire width of the garage. Based on Mr. Miller’s photos, I accept his garage rec room contains a television, a table, armchair, stool and carpet. It is unclear whether Mr. Miller’s garage “rec room” contravenes section 70(4) of the SPA, which governs the conversion of non-habitable to habitable space in a strata lot. However, as that issue is not before me in this dispute, I find I need not decide whether SPA section 70(4) applies here.
35. Mr. Miller’s photos also show that, when he backs his large pickup truck into his garage, the cab portion of the truck remains outside the garage, on the driveway, with the garage door open. Mr. Miller confirms that he cannot close his overhead garage door when his truck is parked there, because there is not enough room.
36. Mr. Miller does not dispute that he frequently and repeatedly leaves his overhead garage door open. Rather, he says leaving the garage door open does not violate bylaw 3(2)(u) because he is physically present in the recreational space at the rear of his garage. However, I find such presence is not in “the area immediately adjacent to the door” as required by the bylaw.
37. Bylaws must be given their plain and ordinary meaning in interpretation (The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32). According to the Merriam-Webster online dictionary, “adjacent” means not distant, nearby, or having a common endpoint or border while “immediately” means without any intervening time or space (www.merriam-webster.com). Based on these definitions, I find Mr. Miller was not “immediately adjacent” to the open garage door when he was in the garage rec room because the wooden partition interrupted the space between Mr. Miller and the open door. In other words, Mr. Miller was not physically beside the open overhead door. So, I find Mr. Miller violated bylaw 3(2)(u) by keeping his overhead garage door open when he was not immediately adjacent to it, even if he was physically present behind the wall in the separate garage recreational space at the time.
Bylaw 3(2)(t) - Camera
38. The strata says it received a complaint that Mr. Miller installed a video camera on the exterior of his townhouse sometime prior to the December 18, 2019 strata council meeting. The strata provided no detail about that report, or any supporting documentation. According to the strata’s February 11, 2020 letter to Mr. Miller, the camera remained in place on February 7, 2020. However, in this dispute the strata did not explain how the camera’s existence was confirmed. Nor did either party provide any photos of the alleged camera installation.
39. The strata submitted emails from X, who reported seeing a surveillance camera mounted to the exterior of Mr. Miller’s townhouse on February 17, 2020. As of February 29, 2020, X saw 3 cameras on Mr. Miller’s townhouse and reported that the cameras remained on April 20, 2020.
40. Mr. Miller admits that he mounted a video camera on his townhouse exterior wall but says it does not violate bylaw 3(2)(t) because it does not capture any activities outside his strata lot, other than his entry door. The strata refutes Mr. Miller’s position because he provided no supporting evidence. However, as the applicant, the strata bears the burden of proving Mr. Miller violated bylaw 3(2)(t). I find it has failed to meet that burden here, as it provided no evidence, such as photos or witness statements, describing where Mr. Miller’s camera was mounted, or what it was pointed at.
41. Based on the strata plan and definition of common property in section 1(1) of the SPA, I find that the exterior of SL 60 is common property. So, I find bylaw 8(1) applies here, rather than bylaw 7(1) which is about altering a strata lot. As noted, bylaw 8(1) prohibits an owner from making an “alteration, addition, change or improvement” to common property without the strata’s written approval. It is undisputed Mr. Miller did not obtain written approval from the strata to install a video camera on the exterior of his townhouse. However, Mr. Miller says he did not need approval, and that his camera does not violate bylaw 8(1), because it is not an alteration. Rather, Mr. Miller says, the wireless blue-tooth camera was attached to the wall using double-sided tape, which did not alter or change the wall itself. Mr. Miller’s photo of the removed video camera shows double sided tape and no wires.
42. The strata relies on the CRT decision of Parnell v. The Owners, Strata Plan VR 2451, 2018 BCCRT 7 (Parnell), in arguing that that installing a video camera on common property, by any means, alters the nature of common property. The cameras at issue in Parnell included an overhead camera mounted to a hallway ceiling joist and a doorbell camera mounted to the drywall in a common property hallway. The decision does not specify how the cameras were mounted. However, at paragraph 17 of the decision the vice chair noted that cameras are “of an entirely different character” than the hallway joist or wall. Referring to The Owners, Strata Plan NWS 254 v. Hall, 2016 BCSC 2363, the vice chair found the cameras did not “build on or supplement what was already there” but rather found the cameras added to the structure that was already there. Thus, the cameras were an addition or alteration.
43. Although CRT decisions are not binding, I agree with and adopt the vice-chair’s reasoning in Parnell and apply it here. Although I accept that Mr. Miller’s video camera installation did not penetrate the outside of his wall or require any permanent type of fixture, I find the surveillance camera was an alteration or addition to his exterior wall because it changed the nature of the common property to one where images and recordings could be captured. I find bylaw 8(1) required Mr. Miller to obtain the strata’s written approval before installing the camera, regardless of the installation method. By failing to obtain that approval, I find Mr. Miller violated the bylaw.
Significant Unfairness
44. Mr. Miller says the strata exercised its section 26 SPA duties unreasonably and unfairly, and inconsistently with the SPA. I infer Mr. Miller argues that the strata acted significantly unfairly toward him.
45. Under section 26 of the Strata Property Act (SPA), a strata corporation must enforce its bylaws, subject to some limited discretion, such as when the effect of the breach is trivial (see The Owners, Strata Plan LMS 3259 v. Sze Hang Holdings Inc., 2016 BCSC 32). A strata may investigate bylaw contravention complaints as it sees fit, provided it complies with the principles of procedural unfairness and is not significantly unfair to any person appearing before the council (see Chorney v. Strata Plan VIS 770, 2016 BCSC 148). The standard of care that applies to a strata council is not perfection, but rather “reasonable action and fair regard for the interests of all concerned” (see Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74 at paragraph 61).
46. Section 123(2) of the CRTA gives the CRT the power to make an order directed at the strata, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights. Significantly unfair conduct must be more than mere prejudice or trifling unfairness (see Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44). Significantly unfair means conduct that is oppressive or unfairly prejudicial. “Oppressive” is conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith, while “prejudicial” means conduct that is just and equitable (see Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, affirmed in 2003 BCCA 126). In considering an owner’s reasonable expectations the courts have applied the following test from Dollan:
a. What was the applicant’s expectation?
b. Was the expectation objectively reasonable?
c. Did the strata violate that expectation with a significantly unfair action or decision?
47. 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 continue to be relevant to determining whether the strata’s actions were significantly unfair.
48. Mr. Miller says the strata acted unfairly in relying on X’s observations about the camera and garage door. I find his stated expectation that the strata only rely on observations of strata council members is not objectively reasonable. This is because the strata council meeting minutes specifically advise owners that bylaw enforcement is a complaint driven process and that the strata will not investigate potential violations without first receiving a complaint. I find this approach is not an abdication of the strata’s responsibility to enforce bylaws. Rather, I find this is a practical and common approach for a strata community, where the general rule is “you are all in it together” (see Oakley et al v. Strata Plan 1098, 2003 BCSC 1700).
49. I also find it was not objectively reasonable for Mr. Miller to expect the strata further investigate X’s observations about Mr. Miller’s camera, because Mr. Miller did not respond to the strata’s December 20, 2019 complaint notification letter, or February 7, 2020 fine letter. So, the strata had no contrary evidence to consider.
50. I find X’s observations about Mr. Miller’s unattended garage door also required no further investigation, given Mr. Miller’s emails to the strata in which he admitted he left his garage door open while he was behind his garage wall. Even if a strata council member determined Mr. Miller was present behind the wall with the door open, I found that would still violate bylaw 3(2)(u).
51. Further, I find the strata did not abdicate its enforcement responsibility as Mr. Miller alleges. Based on the strata council meeting minutes and its letters to Mr. Miller, I find the strata considered and weighed X’s recorded observations, along with Mr. Miller’s emails to the strata and his December 18, 2019 strata council hearing presentation when considering whether to reverse its initial garage door fine and impose further fines. While Mr. Miller argues that X’s reports could be fabricated, he provided no evidence or explanation to support his allegation. So, I find Mr. Miller’s expectation that the strata discount X’s observations is not objectively reasonable, in the circumstances.
52. I also find Mr. Miller’s expectation that the strata would stop fining him once he explained that he was present in the garage rec room is objectively unreasonable. The strata is not required to accept Mr. Miller’s explanation or agree with his interpretation of bylaw 3(2)(u). As noted, the strata is required by the SPA to enforce its bylaws.
53. Finally, I find it unreasonable for Mr. Miller to expect the strata not to enforce bylaw 3(2)(u) against him because of his prior success at the CRT regarding former bylaw 45(4). Although both bylaws address open garage doors, they are distinctly different.
54. Even if I found any of Mr. Miller’s expectations were reasonable, I would not find the strata acted in a significantly unfair manner by enforcing its bylaws against Mr. Miller. Based on the strata council meeting minutes provided, I find the strata repeatedly enforced its bylaws against many other owners, including sending warning letters and levying fines. So, I find the strata treated Mr. Miller in the same manner it did other owners. Overall, I find the strata did not act significantly unfairly in imposing increasing fines against Mr. Miller for his repeated and ongoing violations of bylaws 3(2)(u) and 8(1).
55. I dismiss Mr. Miller’s claims that the strata breached section 26 of the SPA and failed to consistently and fairly enforce its bylaws against him.
Remedies – Fines and Orders
56. Section 135(1) of the SPA say a strata cannot impose a fine against an owner for a bylaw contravention unless it has first given the owner written particulars of the complaint received and a reasonable opportunity to answer the complaint, including a hearing if requested.
57. As noted, I accept the strata received complaints that Mr. Miller’s garage door was open and unattended in October 2019 and again on December 17, 2019, even though the complaints themselves are not in evidence. Given that Mr. Miller does not dispute the garage door was open, and admits he was behind the wall in his garage, I find he violated bylaw 3(2)(u) in October and December 2019. As noted, I also find Mr. Miller repeatedly violated the bylaw between January and December 2020.
58. I find the strata complied with SPA section 135 by providing Mr. Miller with nearly monthly notices of the bylaw contravention complaints before fining him for each monthly set of contraventions, and by providing Mr. Miller with a December 18, 2019 strata council hearing when he requested one.
59. Based on the strata council’s fine notifications and March 9, 2021 statement of account, I find the strata fined Mr. Miller a total of $1,350 for contravening bylaw 3(2)(u) repeatedly between October 2019 and December 2020. I find the strata acted within bylaw 30(1), which allows a maximum $200 fine for each contravention. So, I find Mr. Miller must pay the strata $1,350 in fines for violating bylaw 3(2)(u).
60. As noted, I find Mr. Miller violated bylaw 8(1) by installing a security camera on common property without written strata approval. Given Mr. Miller’s admission that he attached a security camera to his exterior wall, and the strata’s undisputed assertion that the camera was there in December 2019, I find Mr. Miller likely first violated the bylaw at that time. Based on X’s undisputed observations, I find the camera remained until at least April 2020. As Mr. Miller does not dispute it, I also find the camera likely remained in place for the duration of time the strata imposed weekly fines against Mr. Miller, up to March 2021.
61. The strata provided Mr. Miller with notice of the bylaw violation complaint in a December 20, 2019 letter and notice of the potential for recurring weekly fines in a January 27, 2020 letter. The strata fined Mr. Miller $50 in a February 11, 2020 letter and again warned Mr. Miller that it would levy a $50 fine weekly until the camera were removed. I find bylaw 31 authorizes the strata to impose a fine every 7 days for continued contraventions.
62. Section 135(3) of the SPA says that once the strata has complied with subsection (1), then it may impose a fine for a continuing contravention without further compliance with section 135. Given the above letters, I find the strata complied with SPA section 135.
63. Based on the strata’s March 9, 2021 undisputed statement of account, I find the strata fined Mr. Miller a total of $2,850 for continuing contraventions of bylaw 8(1) between February 2020 and March 2021. So, I find Mr. Miller must pay the strata $2,850 in fines for violating bylaw 3(2)(t). In total, I find Mr. Miller must pay the strata $4,100 in fines.
64. The strata asks the CRT to order Mr. Miller to stop leaving his garage door open when he is not physically present in the area immediately adjacent to the door which. I find the strata essentially requests that Mr. Miller be ordered to comply with bylaw 3(2)(u), which contains the same wording. Mr. Miller is already statutorily required to comply with the strata’s bylaws. It is clear that Mr. Miller contravened the bylaw because he misinterpreted it, not because he has no regard for its authority. Under the circumstances, I find an order imposing an existing obligation is unnecessary and decline to grant the strata’s requested order.
65. I find the strata’s request that Mr. Miller be ordered to remove all video cameras he has installed on his strata lot exterior is appropriate in the circumstances. This is because I find at least 1 camera was installed, or mounted, in contravention of bylaw 3(2)(t) and it is unclear whether Mr. Miller has removed it already. Nothing in this order prevents Mr. Miller from mounting or installing cameras in the future, provided that he follows the strata bylaws including receiving the strata’s written approval.
66. In his claim (ST-2021-002816), Mr. Miller seeks a penalty against the strata for breaching the bylaws and the SPA. As noted above, I find the strata has complied with sections 26 and 135 of the SPA and I find Mr. Miller has no standing to bring a claim for violation of SPA section 31. Mr. Miller has not specified what other sections of the SPA, or specific bylaws, the strata allegedly breached in its dealings with Mr. Miller. Even if Mr. Miller had proven that the strata acted contrary to the SPA or its own bylaws, the SPA does not provide for a penalty to be imposed against the strata. I dismiss Mr. Miller’s claim for a penalty.
CRT FEES, EXPENSES AND INTEREST
67. 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. As Mr. Miller is unsuccessful in his claim, he is not entitled to reimbursement of his CRT fees or claimed disbursement-related expenses, including legal fees. As explained below, I would not have allowed Mr. Miller’s claim for legal fees in any event.
68. As the strata was successful in its claim, I find Mr. Miller must reimburse the strata $225 in CRT fees. The strata seeks reimbursement of its legal fees as a dispute-related expense. CRT rule 9.5(3) says the CRT will not order reimbursement of lawyer’s fees in a strata dispute unless there are extraordinary circumstances. CRT rule 9.5(4) says the CRT may consider the complexity of the dispute, the degree of the lawyer’s involvement, whether the conduct of a party or their representative has caused unnecessary delay or expense, and any other factors the CRT finds appropriate.
69. I find the issues before me in these 2 disputes were not overly complex. Both parties had assistance, but not representation, from legal counsel. Neither party caused unnecessary delay or expense during the proceedings and there is no indication of reprehensible conduct from either party in the course of this dispute. Overall, I find the rule 9.5(4) factors and the lack of extraordinary circumstances weigh against ordering reimbursement of the strata’s legal fees as a dispute-related expense.
70. The strata also claims reimbursement of its legal costs under bylaw 30(2) which, I find is distinct from a claim for reimbursement of a dispute-related expense. The bylaw requires an owner to indemnify the strata for all expenses and costs, including legal fees, incurred by the strata in collecting overdue fines. As noted by the strata, the CRT has previously ordered reimbursement of legal fees incurred to collect outstanding bylaw fines, where recovery of legal fees is specifically authorized under a strata’s bylaw (see The Owners, Strata Plan VR 293 v. Bains, 2019 BCCRT 504 and The Owners, Strata Plan KAS 1201 v. Neilson, 2021 BCCRT 607).
71. I accept that bylaw 30(2) authorizes recovery of the legal costs spent to collect unpaid fines. However, to the extent that such legal fees relate to the strata filing its application in the CRT, to participating in the dispute, or in defending Mr. Miller’s dispute claims, I find the strata cannot recover those legal fees. This is because SPA section 171(6)(a) says that an owner who is being sued by their strata is not required to contribute to the expense of the lawsuit. Section 167(2) says an owner who sues their strata is not required to contribute to the expense of defending the suit. Section 189.4 says these sections also apply to CRT disputes. As noted, SPA section 121 renders a bylaw unenforceable to the extent it contravenes another section of the SPA, which I find is the case here. So, while I find bylaw 30(2) authorizes recovery of legal fees, I find it cannot apply to legal fees for bringing, or defending against, a CRT dispute.
72. My conclusion is consistent with the vice-chair’s reasoning in Bains, where she awarded reimbursement of only half the strata’s legal bill on a judgment basis, finding at least some of the fees were spent on defending the strata from the owner’s counterclaim in the CRT dispute, and thus recovery was prohibited under SPA section 167(2). I find the tribunal member in Bains did not consider the impact of SPA sections 167(2) or 171(6)(a) on the strata’s bylaw allowing legal cost recovery. Further, it is unclear from the decision whether the claimed legal fees were incurred in relation to the CRT dispute, or pre-litigation recovery of the unpaid fines.
73. In this case, I find the evidence is unclear. The legal account submitted by the strata shows that it’s legal counsel opened a file on January 20, 2021 and first issued a bill for $1,867.96 on May 5, 2021. The strata did not provide a copy of the invoice, and so I cannot determine how much of that invoice relates to pre-litigation collection costs. There is no indication the strata sent Mr. Miller a demand notice or took other legal steps to collect on the unpaid fines. The strata’s Dispute Notice was issued on April 15, 2021 and Mr. Miller’s was issued on April 27, 2021. Based on the May 2021 strata council meeting minutes, I find the strata sought, and was receiving, legal assistance with the CRT disputes. On balance, I find it likely that the majority of the May 5, 2021 legal invoice was for legal costs to either bring the strata’s CRT claim or defend against Mr. Miller’s claim. As the strata is not entitled to recovery of those legal fees, and it has failed to show the legal fees claimed were incurred to collect on Mr. Miller’s unpaid fines before the CRT disputes, I find the strata is not entitled to reimbursement of its claimed legal fees in these circumstances.
74. The Court Order Interest Act (COIA) applies to the CRT. The strata is entitled to prejudgment interest on the $4,100 in fines from the March 9, 2021 statement of account to the date of this decision. This equals $11.42.
75. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Miller.
ORDERS
76. Within 30 days of the date of this order, I order Mr. Miller to pay the strata a total of $4,336.42, broken down as follows:
a. $4,100 in bylaw contravention fines,
b. $225 in CRT fees, and
c. $11.42 in pre-judgment interest.
78. The strata is also entitled to post judgment interest under the COIA.
79. I dismiss Mr. Miller’s claims.
80. 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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| Sherelle Goodwin, Tribunal Member |