Date Issued: October 22, 2021

File: ST-2021-002899

Type: Strata

Civil Resolution Tribunal

Indexed as: Pigeon v. The Owners, Strata Plan LMS 2599, 2021 BCCRT 1121

Between:

JOHN PIGEON

Applicant

And:

The Owners, Strata Plan LMS 2599

Respondent

REASONS FOR DECISION
Tribunal Member:	Roy Ho

INTRODUCTION

1.      This is a strata property dispute about the replacement of a rooftop wooden deck (wooden deck).

2.      The applicant, John Pigeon, owns a strata lot (SL82) in the respondent strata corporation, The Owners, Strata Plan LMS 2599 (strata). Mr. Pigeon says the strata unfairly replaced SL82’s wooden deck with a smaller one. He seeks an order for the strata to restore SL82’s wooden deck back to its original size at the strata’s expense.

3.      The strata denies Mr. Pigeon’s claims. The strata says that it reasonably relied on the owner developer’s original wooden deck plans (OD plans) to replace SL82’s wooden deck. The strata says that it was diligent and fair with Mr. Pigeon. The strata asks to have this dispute dismissed.

4.      Mr. Pigeon is self-represented. The strata is represented by a strata council member.

5.      For the reasons to follow, I find the strata was significantly unfair to Mr. Pigeon. I order the strata to restore SL82’s wooden deck to its original size at the strata’s expense.

JURISDICTION AND PROCEDURE

6.      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 ssection 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.

7.      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.

8.      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.

9.      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.

ISSUE

10.   The issue in this dispute is whether the strata was significantly unfair to Mr. Pigeon, and if so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, as the applicant, Mr. Pigeon bears the burden of proving his claims on a balance of probabilities. I have read all of the evidence provided but refer only to evidence I find relevant to provide context for my decision.

Background

12.   The strata was created in 1996 under the Condominium Act and continues to exist under the SPA. It is a multi-building residential strata with 90 strata lots, 26 of which are strata lots with a rooftop (rooftop strata lots).

13.   The strata plan filed with the Lands Title Office (LTO) in 1996 shows that all rooftop strata lots in building B have an adjacent patio space designated as limited common property (LCP) for the exclusive use of their occupants. SL82 is a rooftop strata lot in building B, so I find that SL82’s patio is LCP.

14.   It is undisputed that each rooftop strata lot’s LCP patio has a wooden deck installed on it, including SL82. The wooden decks are built on top of the LCP patios. I find that the wooden decks are fixtures on the LCP patio and form part of the LCP patio. In other words, I find the decks are common property (CP) limited to the exclusive use of a rooftop strata lot owner but do not alter nor determine SL82’s LCP patio space.

15.   Mr. Pigeon is the first owner of SL82, as shown in the land title search record.

16.   According to the strata’s February 24, 2017 depreciation report, the strata’s roof needed to be replaced along with the wooden decks (project). So, the strata retained EllisDon Project Management Services (EPMS) to draft a request for proposal (RFP) for roofing contract bids.

17.   The strata filed a complete set of bylaws at the LTO on April 29, 2010, subject to amendments that are not relevant to this dispute. Bylaw 11 says the strata must perform all repairs and maintenance of CP that is part of the structure of the building, the exterior of the building, “patios, chimneys, stairs, balconies and other things attached to the exterior of a building”. I find bylaw 11 captures the CP wooden decks, as they are attached to the exterior of the building. Therefore, I find that the strata is responsible for the wooden decks’ repairs and maintenance under bylaw 11.

18.   The strata says EPMS determined that some wooden decks were inconsistent in size compared to the OD plans. The OD plans in evidence show that the wooden decks were intended to be all the same size occupying a smaller square footage space than the LCP patio square footage space itself. The strata says EPMS found that while some wooden decks were built according to the OD plans, other ones were bigger and some were even bigger than the strata plan’s LCP patio square footage space. Mr. Pigeon did not challenge EPMS’s findings about the inconsistent wooden deck sizes, so I accept them as accurate. Therefore, I find the original wooden decks installed on rooftop strata lots’ LCP patio were inconsistent in size, with some built according to the OD plans, while others were not. There are no records before me about the original wooden decks’ sizes. However, it is undisputed that SL82’s original wooden deck was the size of the LCP patio square footage space.

19.   The strata says it is unsure why the wooden decks were inconsistent with the OD plans. It is undisputed that the strata does not have any records or explanation about why the wooden decks were built different from the OD plans. So, the strata decided to replace all the wooden decks based on the OD plans as a part of the project to make it fair for all rooftop strata lot owners.

20.   The strata submits that the wooden decks built contrary to the OD plans were unapproved alterations made by rooftop strata lot owners. However, I find this assertion speculative and unproven. Given that there were no records or evidence showing why some wooden decks were built contrary to the OD plans, I find it reasonable to conclude that the owner developers built them like that. I find the RFP supports my conclusion since it does not suggest the original decks were altered with new or different materials, but just that they were all built differently from each other.

21.   Mr. Pigeon argues it was unfair for the strata to make SL82’s wooden deck smaller than its original size. While not specifically argued in these terms, I find Mr. Pigeon’s position is that the strata treated him significantly unfairly by replacing SL82’s wooden deck with a smaller one. He seeks an order that the strata restore SL82’s new wooden deck according to SL82’s LCP patio space as set out in the strata plan. Conversely, the strata argues it acted fairly and reasonably in replacing SL82’s wooden deck.

Significant Unfairness

22.   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.

23.   In Reid v. Strata Plan LMS 2503, 2003 BCCA 128, the BC Court of Appeal (BCCA) said that actions are “significantly unfair” when they are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable.

24.   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. In Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, the BCCA established an expectation test, restated in Watson at paragraph 28 as follows:

a.    What is or was the expectation of the affected owner or tenant?

b.    Was that expectation on the part of the owner or tenant objectively reasonable?

c.    If so, was that expectation violated by an action that was significantly unfair?

25.   In this dispute, Mr. Pigeon’s expectation was that, after the project, SL82’s new wooden deck would be the same size as the original wooden deck. For the following reasons, I find this expectation was objectively reasonable.

26.   On January 27, 2020, the strata sent the owners notice of a February 19, 2020 special general meeting (SGM) for the project. The notice informed rooftop strata lot owners that the project would replace the original wooden decks with new wooden decks based on the OD plans. The notice said:

Owners who would like their [wooden] decks built to specifications other than the [OD plans] may be permitted to do so subject to pre-approval by the strata council and on the condition that (1) the owner shall be responsible for any additional costs resulting from the desired alterations and (2) alterations shall be made by the contractor selected by the strata at the time decks are rebuilt.

27.   The strata repeated its January 27, 2020 notice in the strata council meetings minutes on March 25, 2020, April 9, 2020, May 27, 2020, and September 10 and 17, 2020, and through a September 10, 2020 email to rooftop strata lot owners. It was also repeated in the February 19, 2020 SGM minutes. It is undisputed that Mr. Pigeon did not make an alteration request with the strata.

28.   Based on Mr. Pigeon’s submissions, I find that he believed SL82’s original wooden deck was built to the OD plans. I find that Mr. Pigeon did not realize that SL82’s original wooden deck was not built according to the OD plans until after it was replaced. While I accept that the strata gave ample notice to owners about its decision to replace the wooden decks based on the OD plans, I find this notice was inadequate. I find the notice does not sufficiently explain nor warn rooftop strata lot owners which strata lot’s wooden deck was not built to the OD plans. I find this particularly important given the undisputed evidence that the wooden decks were inconsistent in sizes. Since the strata knew which rooftop strata lots had wooden decks built contrary to the OD plans, I find that it would have been reasonable, fair, and easy for the strata to notify those owners so that they could determine whether they needed to make an alteration request. I find it unreasonable for the strata to expect owners, like Mr. Pigeon, to determine themselves whether their original wooden deck was built to OD plans, given the inconsistent sizes of the wooden decks.

29.   The strata suggest that its notices were adequate because other rooftop strata lot owners made wooden deck alteration requests. However, the test in Dollan that I must apply is what the expectation of the affected owner was, not what the expectation of other owners were. For this reason, I find it reasonable for Mr. Pigeon to expect that the strata would replace SL82’s wooden deck back to its original size during the project, since that was its size when he purchased SL82.

30.   The strata argues that it was only required to rebuild the wooden decks based on the OD plans because those were the plans approved by the municipality. However, I find this argument unpersuasive and somewhat contradictory. The undisputed evidence is that the strata accepted alteration requests from rooftop strata lot owners for larger wooden decks than those based on the OD plans. It is undisputed that Mr. Pigeon’s neighbour enlarged their wooden deck. A September 10, 2020 email to rooftop strata lot owners also shows that the strata accepted wooden deck alterations up to the LCP patio’s boundaries. I find this means that the strata was not bound by the OD plans in replacing the wooden decks, and it was open for the strata to replace the wooden decks back to their original sizes.

31.   I find the strata has not provided sufficient reasons why it could not have replaced SL82’s wooden deck back to its original size during the project. There is no evidence or suggestion that the municipality would not have approved the original wooden deck sizes. I find the strata’s decision to reduce SL82’s wooden deck size rather than to restore it to its original size to be significantly unfair.

32.   For the same reason, I find that it is also significantly unfair to make Mr. Pigeon pay to restore SL82’s wooden deck back to its original size. Following Reid, as cited above, I find this burdensome, unjust, and inequitable. The strata plan shows SL82’s LCP patio to be about 175 square feet. The parties submitted evidence showing that SL82’s new wooden deck was approximately 104 square feet. So, SL82’s new wooden deck is about 71 square feet smaller than the original wooden deck. I find that Mr. Pigeon losing about 71 square feet is significant and inequitable. I find that making Mr. Pigeon responsible for the costs to restore SL82’s deck back to its original size is unfair and burdensome, given that he purchased SL82 with a bigger wooden deck. For all these reasons, I find that the strata replacing SL82’s wooden deck with a smaller one was significantly unfair to Mr. Pigeon. I find the appropriate remedy is to order the strata to replace SL82’s wooden deck back to its original size, which is equivalent to SL82’s LCP patio square footage space.

33.   In summary, I find that the strata must restore SL82’s wooden deck with a wooden deck based on the dimensions of SL82’s strata plan.

CRT FEES, EXPENSES AND INTEREST

34.   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. As Mr. Pigeon was successful, I find that the strata must reimburse Mr. Pigeon $225 in CRT fees. The parties did not claim dispute-related expenses.

ORDERS

35.   I order that within 90 days of this decision the strata to:

a.      Restore, at the strata’s expense, SL82’s wooden deck with a wooden deck based on the measurements of SL82’s LCP patio boundaries as shown on the strata plan and

b.      Reimburse Mr. Pigeon $225 in CRT fees.

36.   Mr. Pigeon is entitled to post judgment interest under the Court Order Interest Act.

37.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Pigeon.

38.   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.