Date Issued: October 22, 2021

File: ST-2020-008952

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan NW 2243 v. Henderson, 2021 BCCRT 1125

Between:

The Owners, Strata Plan NW 2243

Applicant

And:

DOROTHY HENDERSON

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      The respondent, Dorothy Henderson, owns a strata lot in the applicant strata corporation, The Owners, Strata Plan NW 2243 (strata). In 2019, Ms. Henderson’s visitor damaged a wall in the strata building’s common property hall. The strata seeks reimbursement of the $761.25 it paid to repair the wall.

2.      Ms. Henderson denies that she must pay to repair the wall. She says the strata council members failed to act prudently, failed to follow the Strata Property Act and attempted to overcharge her for the repair.

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

4.      For the reasons that follow, I find Ms. Henderson must pay the strata the claimed $761.25.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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.

Preliminary Issues

Document Disclosure

9.      On July 16, 2021 a CRT Vice Chair made a preliminary, non-binding, decision about Ms. Henderson’s requests for document disclosure prior to this dispute moving to the adjudication stage. Ms. Henderson had requested disclosure of certain documents she believed the strata may possess about the strata property repairs. The Vice Chair denied Ms. Henderson’s request. She concluded that Ms. Henderson had not proven that the strata possessed the requested documents or that the requested documents were relevant to the disputed issues. After having reviewed the submissions and evidence uploaded by both parties, I find the strata likely disclosed the documents relevant to this dispute that were in its possession. So, I did not order the strata to disclose any additional records for this proceeding.

Damages

10.   Ms. Henderson asks that I order the strata to pay her $986.25 in damages for alleged significant unfairness in charging her to repair the hallway drywall and in starting this CRT dispute. Section 123(2) of the CRTA gives the CRT authority to remedy a significantly unfair action of a strata corporation, including by awarding damages. However, Ms. Henderson would have had to file a counterclaim with the CRT to claim damages in this dispute and she did not file one. So, I have not considered Ms. Henderson’s damages claim. I would have likely denied the damages claim anyways, given my findings below that Ms. Henderson owes the claimed repair costs and the strata did not act unfairly.

ISSUE

11.   The issue in this dispute is whether Ms. Henderson must reimburse the strata for the cost to repair the wall, and if so, how much.

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this one, the applicant strata must prove its claims on a balance of probabilities (meaning “more likely than not”). I have read the parties’ submissions and weighed their evidence, but only refer to that necessary to explain my decision.

13.   As shown on the strata plan filed in the Land Title Office (LTO), the strata is made up of several buildings containing multiple strata lots.

14.   The strata filed a full set of bylaws amendments in the LTO on October 12, 2001, and further amendments in the years following. The relevant bylaws to this dispute are bylaws 8 and 35(3).

15.   Bylaw 8 says the strata is responsible to repair and maintain the strata’s common property, common assets, and other parts not relevant here.

16.   The strata’s bylaw 35(3) says, in part, that subject to the Strata Property Act (SPA) and bylaws, the strata will recover from an owner the costs to repair any physical damage to the common property that the strata is required to repair, if the strata lot owner or their guest or invitee are responsible. The strata may choose to seek recovery, including by suing, from the owner of a strata lot in relation to damage caused by a guest or invitee.

17.   There is no dispute that Ms. Henderson’s guest or visitor punched a hole in the common property hallway wall on April 12, 2019. A contractor, Remdal Painting & Restoration Inc. (Remdal), was doing other work on the exterior of the strata property and the strata asked Remdal to repair the drywall as well. Remdal patched the drywall on about May 1, 2019.

18.   On May 2, 2019, the strata wrote to Ms. Henderson and told her that her guest punched a hole in the hallway drywall. It informed her that the strata was required to repair the drywall and it intended to enforce bylaw 35 to recover the repair costs from her. The strata gave Ms. Henderson an opportunity to respond, including through a hearing at her request before charging her the repair costs. Ms. Henderson did not respond or request a hearing in May 2019.

19.   As shown in the May 16, 2019 council meeting minutes, the strata council decided it would recover the common property repair cost from Ms. Henderson.

20.   Ms. Henderson wrote the strata on June 24, 2019 and agreed to pay up to $400 for the drywall repair based on her own “outside quote” of what the repair cost should be. Ms. Henderson did not provide a copy of any quote to the strata or for this proceeding.

21.   On July 19, 2019 the strata wrote Ms. Henderson and directed her to reimburse the strata $761.25 for the drywall repairs. It enclosed Remdal’s May 23, 2019 invoice of $761.25 for “Corridor drywall repair and re-texture” and gave Ms. Henderson another opportunity to respond in writing and request a hearing. I infer Ms. Henderson did not respond or request a hearing because there is no evidence that she did so.

22.   On July 12, 2020 the strata wrote Ms. Henderson again asking her to pay the $761.25 repair cost and Ms. Henderson requested a hearing. After an August 6, 2020 hearing, the council decided Ms. Henderson could repay the $761.25 in 2 installments on August 31, 2020 and September 30, 2020. Ms. Henderson did not then pay.

23.   The strata filed this CRT dispute on November 18, 2020 for an order that Ms. Henderson reimburse it $761.25 for the drywall repair.

24.   I find Ms. Henderson must reimburse the strata for it claimed cost to repair the wall. My reasons follow.

25.   The common property hallway was the strata’s responsibility to repair under bylaw 8. Since Ms. Henderson’s guest damaged the common property that the strata was required to repair, I find bylaw 35(3) applies to the repair costs. Because the bylaw uses the word “shall”, I find the strata was required under bylaw 35(3) to recover its $761.25 cost from Ms. Henderson to repair the hole.

26.   In Strata Plan VIS4663 v. Little, 2001 BCCA 337, the BC Court of Appeal held that bylaws should be interpreted purposively, so that they accomplish the community’s goals. I find the purpose of bylaw 35(3) is to require individual owners rather than the ownership as a whole, to pay for any damage that their guests cause to common property. I find the owner must reimburse the strata for its costs to repair damages caused by its guest. I note Ms. Henderson does not argue that bylaw 35(3) should be interpreted in any other way. She argues I should not order her to pay the repair costs for other reasons.

27.   Ms. Henderson argues the strata failed to act prudently in hiring Remdal to perform the work without first obtaining a quote or entering into a written contract for the drywall repair. Ms. Henderson asserts that Remdal’s call out rate is higher than any other company. She also says the strata delayed asking Remdal to return to fix a deficiency and intended to charge her for a second repair. She alleges the strata failed to “protect owners from foreseeable harm and to act as a prudent person”. She says this should disqualify the strata from claiming back its repair costs.

28.   The standard of care that applies to a strata corporation with respect to repairs and maintenance of common property is reasonableness: see Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784 at paragraph 23. When faced with a range of possible solutions to solve a problem, the fact that a strata corporation chooses a good solution instead of the best solution does not render its approach unreasonable: Weir at paragraph 28.

29.   I find Ms. Henderson has not proven that Remdal’s fees were too high for the work it performed. She produced no quote or other evidence from an independent contractor showing that the costs to perform the drywall repairs should have been less. I find Ms. Henderson’s own opinion about the rates is insufficient to conclude the rates were higher than those of other companies.

30.   Considering the minor nature of the repair, I find it was reasonable that the strata just added the task to Remdal’s other strata property work rather than obtaining quotes from other contractors or entering into a separate written contract. Remdal never charged the strata to return to fix a minor deficiency, which was done under warranty. There is also no evidence of any harm done by the delay in returning to fix the deficiencies. For these reasons, I find Ms. Henderson has not proven that the strata overcharged her for the repairs or failed to act prudently.

31.   Next, Ms. Henderson says the strata treated her unfairly by allegedly failing to follow the procedural fairness requirements under SPA section 135. Ms. Henderson refers to the BC Court of Appeal decision in Terry v. The Owners, Strata Plan NW309, 2016 BCCA 449, that says a strata corporation must strictly follow SPA section 135 requirements before the strata can impose fines on an owner for a bylaw contravention.

32.   Ms. Henderson also cites the CRT decision Teh v. The Owners, Strata Plan 202, 2021 BCCRT 180 where the CRT Member ordered the strata to reverse fines applied to an owner’s strata lot account where it failed to follow SPA section 135. I note the strata did not fine Ms. Henderson for any bylaw contravention here.

33.   SPA section 135 sets out the process a strata corporation must follow when enforcing bylaw infractions. It says the strata may not fine a person or require a person to pay the costs of remedying a contravention unless it has received a complaint, given the owner written particulars of the complaint, and a reasonable opportunity to answer the complaint, including a hearing if requested.

34.   I find this is not a situation where SPA section 135 applied because the strata did not fine Ms. Henderson nor charge her to remedy a bylaw contravention. Instead, the strata attempted to recover the costs it incurred to repair the common property damage under bylaw 35(3). In any event, I find the strata afforded Ms. Henderson the same procedural fairness safeguards as set out in SPA section 135 in attempting to recover the repair cost.

35.   As summarized above, I find the strata gave Ms. Henderson written notice and a reasonable opportunity to respond, including the right to a hearing, before it charged her for any repair costs. I acknowledge Ms. Henderson’s point that the May 2019 council minutes incorrectly state that council gave her 20 days to respond to their May 2, 2020 letter when it only gave her about 14 days. However, I find Ms. Henderson was not prejudiced by this 6 day difference. The strata did not charge Ms. Henderson anything within that 20 day period and Ms. Henderson did not respond within the 20 days. The strata also gave Ms. Henderson a further opportunity to respond to its July 19, 2019 letter, including an opportunity for a hearing before it charged her strata lot account with the repair costs. In the circumstances, I find the strata acted fairly towards Ms. Henderson.

36.   While Ms. Henderson says the strata intended to charge her more for a second repair, it never charged her anything other than the $761.25 it paid Remdal for the May 2019 repair. Again, I find the strata was required to recover the costs of this common property repair from Ms. Henderson under bylaw 35(2) because it was her strata lot guest that caused the damage by punching a hole in the wall. So, I find Ms. Henderson must pay the strata $761.25 for the repair.

CRT FEES, EXPENSES AND INTEREST

37.   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 therefore order Ms. Henderson to reimburse the strata for paid CRT fees of $225. The strata claimed no dispute-related expenses.

38.   The Court Order Interest Act (COIA) applies to the CRT. The strata is entitled to prejudgment interest on the $761.25 from the May 23, 2019 invoice date to the date of this decision. The interest equals $20.72.

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

ORDERS

40.   I order that within 30 days of the date of this order, Ms. Henderson pay the strata a total of $1,006.97, broken down as follows:

a.    $761.25 for the common property repairs,

b.    $20.72 in prejudgment interest under the COIA, and

c.    $225 in CRT fees.

41.   The strata is also entitled to post-judgment interest under the COIA as applicable.

42.   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.