Date Issued: November 4, 2021

File: ST-2021-000836

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan NW 2209 v. Stuart, 2021 BCCRT 1168

Between:

The Owners, Strata Plan NW 2209

Applicant

And:

JUDITH STUART

Respondent

And:

The Owners, Strata Plan NW 2209

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about hoarding in a strata lot.

2.      The respondent, Judith Stuart, owns strata lot 26 (SL26) in the applicant (and respondent by counterclaim) strata corporation, The Owners, Strata Plan NW 2209 (strata). Ms. Stuart is the applicant in the counterclaim.

3.      The strata says Ms. Stuart was hoarding inside her strata lot for several years, allowing garbage, debris, and waste to accumulate. The strata says Ms. Stuart’s hoarding caused pest and mould infestations to develop, which spread to other strata lots. It says to remedy the nuisance and health hazard coming from Ms. Stuart’s strata lot, the strata had to intervene and make immediate repairs, including hiring pest control and licensed contractors to remove the contents of Ms. Stuart’s strata lot. The strata seeks $33,492.90 as reimbursement of its repair costs.

4.      Ms. Stuart does not deny that her strata lot needed remediation. However, she says the strata refused to provide her with the work invoices, and she disputes the amount claimed. Ms. Stuart also says the strata did not properly inform her about the repair work or allow her to participate, so many of her belongings were wrongfully destroyed.

5.      Ms. Stuart counterclaims for the following:

a.    $20,000 for loss of salvageable personal property,

b.    $1,250 for loss of a dishwasher and freezer,

c.    $469 for changing the door locks on SL26,

d.    Reimbursement of fees to replace personal records improperly destroyed,

e.    An order that she is not responsible for charges for removal of the kitchen cabinets and bathroom vanity,

f.     An order that the strata obtain a municipal electrical inspection of SL26, and

g.    An order for unhindered access to SL26 to effect necessary repairs.

6.      The strata is represented by a strata council member, WS. Ms. Stuart is self-represented.

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.

ISSUES

11.   The issues in this dispute are:

a.    To what extent, if any, must Ms. Stuart reimburse the strata’s costs to repair SL26?

b.    Did the strata improperly dispose of any of Ms. Stuart’s property, and if so, what is the appropriate remedy?

c.    Does the strata have to obtain an electrical inspection?

d.    Should Ms. Stuart be granted unlimited access to SL26?

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”). Ms. Stuart bears the same burden of proof for her counterclaims. I have considered all the parties’ arguments and evidence, but I refer only to what I find necessary to explain my decision.

13.   The strata consists of two buildings, each with 4 storeys, containing a total of 100 strata lots. SL26 (also known as Unit 213) is on the second floor of Building A.

14.   The strata filed a complete set of bylaw amendments in the Land Title Office on June 12, 2002, with some amendments since then. The bylaws relevant to this dispute are summarized as follows:

a.    Bylaw 3.1 requires an owner to repair and maintain the owner’s strata lot, except for repair and maintenance that is the responsibility of the strata.

b.    Bylaw 4.1 says a resident or visitor must not use a strata lot, the common property or common assets in a way that causes a nuisance or hazard to another person, or unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets, or another strata lot.

c.    Bylaw 4.2 says a resident or visitor must not cause damage, other than reasonable wear and tear, to the common property, common assets or those parts of a strata lot which the strata corporation must repair and maintain under the bylaws or insure under section 149 of the Strata Property Act (SPA).

d.    Bylaw 10.1 says, in part, that a strata lot resident must allow a person authorized by the strata corporation to enter the strata lot or limited common property in an emergency, without notice, to ensure safety or prevent significant loss or damage. They must otherwise allow the strata corporation entry at a reasonable time and on 24 hours written notice to inspect, repair, replace or maintain common property, common assets, and any portions of a strata lot that is the strata’s responsibility, or to ensure a resident’s compliance with the SPA, bylaws and rules.

e.    Bylaw 11.1 requires the strata to repair and maintain common property and common assets, plus limited parts of a strata lot, including the structure of a building.

f.     Bylaw 42.1 says a resident must not allow a strata lot to become unsanitary or untidy, refuse must not be thrown, piled or stored in a strata lot or on common property, and any expenses the strata incurs to remove such refuse will be charged to the strata lot owner. Bylaw 42.1 requires a resident to ensure ordinary household refuse and garbage is securely wrapped and placed in the proper containers, recyclables are kept in designated areas, and other materials are appropriately removed.

Ms. Stuart’s responsibility for the strata’s repair costs

15.   The strata says that in about January 2020, it started to receive complaints from strata lot owners and residents about pest infestations involving rodents and insects in several strata lots. In February 2020, the strata hired a pest control company, LPC, to begin treating strata lots that had reportedly been affected. The evidence shows that various strata lots in Ms. Stuart’s building, from the first floor to the fourth floor, were treated for pests. The evidence also shows that by June 2020, the issue had not resolved, and some evidence suggests the problem was getting worse.

16.   The strata says that sometime in June 2020, strata lot owners verbally reported to one of the strata council members that they had seen mould, cockroaches, and mouse activity inside the windows of SL26. Ms. Stuart had not previously advised the strata of any infestation issues.

17.   On June 26, 2020, the strata wrote to the municipal fire service to seek advice because Ms. Stuart had not granted access to SL26 for the annual fire inspection, and there was a serious health hazard from suspected insect and mouse infestations in SL26. There is no evidence before me that the fire service responded to the strata.

18.   The strata says in July 2020, another strata resident called the police to investigate Ms. Stuart’s strata lot, due to infestation issues. The strata says that when the police arrived and discovered the infestation, they removed Ms. Stuart and advised the strata to take immediate action to address the observed hoarding in SL26.

19.   Ms. Stuart does not dispute any of these facts. She says she had been hoarding in SL26 for 25 years and describes it as a disorder for which she is being treated. I accept Ms. Stuart’s submission that she did not appreciate the magnitude of the problem at the time.

20.   The strata says that it first became aware of the extent of Ms. Stuart’s hoarding on July 17, 2020, when it hired LPC to document the contents of SL26 through photographs and video. The strata says based on the photographs and video, it concluded that remediation on SL26 was immediately necessary. It claims $33,492.90 for its costs to remediate Ms. Stuart’s strata lot.

21.   Section 133 of the SPA says:

133 (1) The strata corporation may do what is reasonably necessary to remedy a contravention of its bylaws or rules, including

(a)doing work on or to a strata lot, the common property or common assts, and,

(b)removing objects from the common property or common assets.

(2) The strata corporation may require that the reasonable costs or remedying the contravention be paid by the person who may be fined for the contravention under section 130.

22.   Based on my own review of the photographic and video evidence taken of SL26 on July 17, 2020, I am satisfied that Ms. Stuart failed to properly repair and maintain her strata lot and allowed it to become untidy and unsanitary with garbage and refuse left uncontained and piled throughout the apartment. Further, given the conditions in SL26, I find it is more likely than not that the strata’s rodent and insect infestation problems throughout 2020 originated in Ms. Stuart’s strata lot. In the strata context, nuisance is a substantial, non-trivial and unreasonable interference with an owner’s use and enjoyment of their property (see The Owners, Strata Plan LMS 1162 v. Triple P Enterprises Ltd., 2018 BCSC 1502). I find the evidence establishes that the infestations were a nuisance and a hazard to people in several other strata lots. Therefore, I find Ms. Stuart breached bylaws 3.1, 4.1, 4.2, 42.1, and 42.2.

23.   I note that Ms. Stuart does not particularly dispute that she breached the bylaws or that SL26 required remediation. Further, as noted, she acknowledges that she is likely responsible for certain costs the strata incurred to address the issues in SL26. However, she says the strata ordered work beyond its authority under the SPA and bylaws. She also says the strata has not proven the claimed amount for the work.

24.   I address each of the strata’s claimed expenses below.

Pest control treatments

25.   The evidence shows the strata hired LPC to perform pest control treatments between July 17 and September 3, 2020, for which the strata claims $6,473.25. I note that Ms. Stuart says LPC was not a hoarding expert, and that its treatment method likely made the building infestation situation worse. However, Ms. Stuart did not provide any evidence to support this allegation, so I find it is unproven.

26.   Ms. Stuart does not dispute that treating SL26 for rodents and insects was reasonably necessary, and I find that it was. Further, Ms. Stuart says she authorized LPC to enter SL26 for the purpose of treating it. However, Ms. Stuart argues the strata has not provided her with LPC’s invoices, only summary statements which appear to show duplicate charges.

27.   The strata provided LCP’s August 12, 2020 service statement that referenced 9 different invoice numbers, and stated it was for all work done in SL26 from July 17 to August 12, 2020, totalling $3,869.25. For 4 of the invoices, it provided a charge for only “part of invoice”. So, I infer that some of those invoices related to work done in areas other than SL26.

28.   The strata also provided a September 14, 2020 cheque statement, detailing the strata’s payment to LCP for treatments totalling $5,607. This cheque statement includes most of the invoice numbers that were on the August 12, 2020 service statement. There are handwritten notations showing what was already paid from the August 12 statement, and the strata claims the $2,604 difference.

29.   I am satisfied with the strata’s explanation of the amount claimed and find it is not claiming for any duplicate charges. I find it is unnecessary to review LCP’s individual invoices, as both the service statement and the cheque statement set out the treatment dates and amount charged. I find the treatments involved doing work on or to a strata lot or common property to remedy Ms. Stuart’s bylaw contraventions, which caused the pest infestations. Therefore, I find the strata could require Ms. Stuart to pay the $6,473.25 cost of the pest control treatments under SPA section 133(2).

30.   Section 135 of the SPA sets out the process the strata must follow to recover its reasonable costs for remedying a bylaw contravention. Under SPA section 135(1), before requiring a person to pay the remediation costs, the strata must have received a complaint, given the owner written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if one is requested. Under section 135(2), the strata must give the owner written notice of its decision to require them to pay the costs of remedying a bylaw contravention “as soon as feasible”.

31.   The requirements of section 135 must be strictly followed, as set out in Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449. In Terry, the BC Court of Appeal (BCCA) found if section 135 is not strictly followed, that is sufficient reason to set aside all fines that were imposed before the owner was given the particulars of the complaint and a reasonable opportunity to be heard, including a hearing. I find that the analysis in Terry generally applies to costs associated with remedying a bylaw contravention as to fines.

32.   The strata’s lawyer sent Ms. Stuart an October 13, 2020 letter that stated the strata had received a complaint that by allowing garbage, debris, and waste to accumulate in her strata lot, causing a pest and mould infestation affecting neighbouring strata lots, Ms. Stuart was alleged to have breached bylaws 3.1, 4.1, 4.2, 42.1, and 42.2. The letter included an itemized list of the expenses the strata said were incurred to remedy Ms. Stuart’s alleged bylaw contraventions, totalling the claimed $33,492.90. The letter provided Ms. Stuart with 3 weeks to respond to the allegations or request a hearing, failing which it stated the strata might decide to charge its remediation costs back to her under section 133 of the SPA.

33.   I find the October 13, 2020 letter complied with SPA section 135(1) by providing Ms. Stuart with written particulars of her alleged bylaw contraventions and a reasonable opportunity to answer the complaint. The evidence shows that Ms. Stuart responded by email, taking issue with much of the work done and requesting the invoices.

34.   In a November 30, 2020 letter, the strata provided Ms. Stuart with copies of the invoices, including the service statement and cheque statement for pest control treatment and its explanation about duplicate charges discussed above. The letter stated the receipts were for expenses incurred to remedy “her bylaw contraventions”, and it confirmed the strata had incurred expenses totalling $33,492.90. There is no evidence before me that Ms. Stuart requested a hearing at any time.

35.   The November 30 letter does not specifically state the strata had formally decided Ms. Stuart violated the bylaws and that she was required to pay the strata’s remediation costs under SPA section 133. There is no evidence before me that the strata otherwise provided Ms. Stuart with written notice of its decision to charge her for remediation costs, as required by SPA section 135(2).

36.   I note that the analysis in Terry focussed on the notice process set out in section 135(1) and did not specifically address whether strict compliance was also required under section 135(2). Nevertheless, several CRT decisions have found that strict compliance with SPA section 135(2) is required before a strata corporation can impose bylaw fines (see for example Zhang v. The Owners, Strata Plan LMS 2195, 2020 BCCRT 1443 and Hamaguchi v. The Owners, Strata Plan LMS 3146, 2018 BCCRT 307). While previous CRT decisions are not binding on me, I agree with the reasoning as it applies to compliance with SPA section 135(2) for imposing fines.

37.   In particular, I agree with the tribunal member’s comments at paragraph 51 of Hamaguchi, that a primary purpose of the requirement to advise an owner under SPA section 135(2) that the strata has determined they breached the bylaws and it will be imposing a fine, is so the owner has an opportunity to remedy the contravention. This is especially important where there may be a continuing contravention that could attract ongoing bylaw fines. However, I find these considerations do not necessarily apply where a strata is attempting to recover costs of remedying a bylaw contravention under SPA section 133.

38.   Further, the courts and the CRT have found that if a strata has failed to comply with the notice provisions in SPA section 135, including section 135(2), the strata can cure those procedural defects by starting over, and it can then impose valid fines once it has strictly complied with providing the required notice. However, this process does not fit situations where a strata is proceeding under section 133. The costs have already been incurred, and they will not change if the strata were to go back and provide fresh notice in strict compliance with section 135(2).

39.   So, while I find the strata was obligated to strictly comply with SPA section 135(1) in providing Ms. Stuart notice of the alleged bylaw contraventions and an opportunity to respond, I find some leeway may be permissible for the notice required under section 135(2). I also note the recent BC Supreme Court decision in The Owners, Strata Plan VR 2213, 2021 BCSC 905, which considered the meaning of the term “as soon as feasible” as it appears in several SPA provisions, and the court found the meaning will vary from one set of circumstances to the next.

40.   I find the strata’s November 30, 2020 letter implied that the strata had decided Ms. Stuart breached the bylaws and that she was required to pay its costs to remedy her bylaw contraventions under section 133 of the SPA. Ms. Stuart does not dispute that she was aware of the strata’s decision, and I find providing Ms. Stuart with explicit written notice that the strata decided to charge her for remediation costs was merely a formality. Under the circumstances, I find the strata’s November 30 letter provided sufficient written notice to Ms. Stuart of the strata’s decision, as soon as feasible.

41.   Further, given Ms. Stuart received the invoices for the work done on November 30, 2020, and her documented dispute of the strata’s claimed expenses, I find the strata reasonably concluded she did not intend to pay its remediation costs. The Dispute Notice was issued for this CRT dispute on February 2, 2021. I find the CRT Dispute Notice constituted further explicit written notice to Ms. Stuart of the strata’s decision to charge its remediation costs back to her under section 133 of the SPA, and that such notice was also provided as soon as feasible, under the circumstances.

42.   So, overall, I find the strata has complied with the notice provisions in section 135 of the SPA, and so Ms. Stuart must pay the strata’s claimed $6,473.25 cost for the pest control treatments under section 133(2) of the SPA.

Garbage disposal

43.   The strata hired 2 contractors to remove and dispose of the contents in SL26 between July 22 and 30, 2020, at a cost of $7,717.50 and $6,300 respectively. The strata relies on both SPA section 133(2) and bylaw 42.1 to recover this cost from Ms. Stuart.

44.   Ms. Stuart says the strata did not involve her in the decision about what contractors it hired to perform the disposal work. She also says the strata did not notify her about when the disposal work was going to start, so she was not present for the first 2 days of work, and during this time she says about 35% of the contents of SL26 had been removed and disposed of. The strata argues that it was not required under the SPA or the bylaws to provide Ms. Stuart with notice of the work being done.

45.   As noted, SPA section 133(1)(a) permits the strata to do work on or to a strata lot, and section 133(1)(b) specifically permits the strata to remove objects from common property, in order to remedy a bylaw contravention. Given section 133 confines the strata’s authority to removing objects from common property, I find it does not provide the strata with the authority to remove objects from within a strata lot.

46.   Given this interpretation of the strata’s authority under the SPA, I find the strata also cannot rely on bylaw 42.1 to recover its costs of removing refuse from Ms. Stuart’s strata lot. I find bylaw 42.1 is valid only to the extent that it requires owners to keep their strata lots in a tidy and sanitary condition, and not to throw, pile, or store refuse in a strata lot or on common property. While the strata may charge an owner for its costs to remove such refuse from common property, I find bylaw 42.1 does not extend to permit the strata to charge an owner for removing refuse from a strata lot. This is because I find that entering a strata lot and removing its contents, including refuse, is contrary to the strata’s authority under the SPA.

47.   I find this conclusion is consistent with the common law of nuisance. In a nuisance claim, a court may order a property owner to remove or remediate the source of the nuisance. However, courts do not typically allow the individuals impacted by the nuisance to enter another’s property to remove the nuisance themselves.

48.   I note that sections 84 and 85 of the SPA provide that if a strata lot owner fails to comply with a notice or work order from an authorized public or local authority, the strata may do the required work, and the owner must reimburse the strata for its costs. I find this is the only legal basis, under common law or the SPA, that may permit a strata corporation to enter a strata lot and remove items. I note that section 85(3) also requires the strata to provide one week’s notice before starting the work, except in an emergency.

49.   For all the above reasons, I find the strata exceeded its authority under the SPA and its bylaws by hiring contractors to remove contents from within SL26. Therefore, I find the strata cannot recover its garbage disposal costs under bylaw 42.1 or section 133 of the SPA. I find Ms. Stuart does not have to pay the strata’s claimed $14,017.50 for garbage disposal costs.

Additional repair work

50.   Once all the contents in SL26 were removed, the strata paid a contractor to remove the drywall and insulation. The photographs in evidence show the drywall and insulation were heavily damaged with mould and holes that I infer were created by rodents.

51.   I am satisfied on the evidence that it was reasonably necessary to remove the drywall and insulation as part of the strata’s efforts to remedy Ms. Stuart’s bylaw contraventions. I find this was work done on or to a strata lot under SPA section 133(1)(a), and that the strata could recover its reasonable costs for this work under section 133(2). The August 19, 2020 invoice in evidence shows the strata paid $5,250.00 to remove the drywall and insulation from SL26, an amount I find was reasonable.

52.   This expense was included in the strata’s October 13, 2020 letter and further correspondence about recovering its remediation costs, as set out above. So, I find the strata complied with the SPA section 135 procedural requirements to recover this cost, and I order Ms. Stuart to pay the strata $5,250.00 under section 133 of the SPA.

53.   At the same time the drywall and insulation were removed, the strata also paid the contractors $1,050 to remove the kitchen cabinets, bathroom vanity, bathtub, and dishwasher.

54.   In her counterclaim, Ms. Stuart alleges there was a previous water leak in the apartment above SL26 that caused mould and damaged her kitchen cabinets and bathroom vanity. She says she should not be charged for their removal in the context of the strata’s repairs because these items needed to be removed anyway. Ms. Stuart did not say when the alleged leak occurred or provide any independent evidence of it, other than photographs of stains on the hallway ceiling outside SL26. I find Ms. Stuart has provided insufficient evidence to establish the cabinets and vanity were damaged from a water leak. In any event, I am satisfied on the photographic and video evidence that the cabinets and vanity needed to be removed and destroyed as a result of the rodent and insect infestation, independent of any alleged water damage.

55.   On balance, I find it was reasonably necessary to remove the kitchen cabinets, bathroom vanity, and bathtub (to access the drywall and insulation), in order to remedy Ms. Stuart’s bylaw contraventions.

56.   As for the dishwasher, Ms. Stuart also alleges in her counterclaim that she told WS she wanted to keep the dishwasher, so she says she should not be charged for its removal. As I discuss below, I find Ms. Stuart has not proven the strata improperly removed the dishwasher. In any event, I find Ms. Stuart has not shown any reduction to the contractor’s invoice is warranted. I say this because I find it is likely that most of the $1,050 cost related to removing the cabinets, vanity, and bathtub, as they would have been affixed to the walls and required some demolition before they were removed. I find Ms. Stuart has not established that any portion of the charge was specifically for removing the dishwasher, or that the strata would have been charged less if the dishwasher had not been removed.

57.   Given the expense to remove the kitchen cabinets, bathroom vanity, bathtub, and dishwasher was also included in the strata’s October 13, 2020 letter and further correspondence about recovering its remediation costs, as set out above, I find the strata complied with the SPA section 135 procedural requirements to recover this cost. I order Ms. Stuart to pay the strata $1,050.00 under section 133 of the SPA.

Door locks

58.   Ms. Stuart says that once the pest issue was addressed and all the contents and walls had been removed, she specifically advised the strata that it had no authority to do any further work. She says in response, the strata changed the locks on SL26 and continued to do further unauthorized work.

59.   The evidence shows that on August 25, 2020, the strata removed and replaced the door locks on SL26, to prevent Ms. Stuart from accessing it. The strata says that SL26 was uninhabitable because it had no plumbing, electricity, floors, or cabinets, and it was concerned that Ms. Stuart would move back in and begin hoarding again. The strata’s lawyer sent Ms. Stuart a September 4, 2020 letter requesting details of how she planned to return SL26 to a habitable condition, and advising she would be permitted full access to SL26 only when it was habitable again. The strata claims reimbursement its $344.40 expense to change the door locks.

60.   I find there is no evidence before me that Ms. Stuart was not cooperating with the remediation process. I find the strata changed the locks and restricted Ms. Stuart’s access to her own strata lot based on what amounts to a speculative future bylaw contravention. I find changing the locks on SL26 was not authorized by SPA section 133 because it was not reasonably necessary to remedy a bylaw contravention. So, I find the strata cannot claim its costs for doing so under that provision.

61.   The strata says bylaw 10.2 also applies this expense. Bylaw 10.2 says if forced entry to a strata lot is necessary due to required emergency access and the owner cannot be contacted, the owner is responsible for the costs of the forced entry. However, when the strata changed the locks, there was no emergency and no forced entry. I find that bylaw 10.2 does not apply in these circumstances.

62.   I find there is no applicable bylaw or SPA provision that would permit the strata to change the locks on SL26 or charge that cost back to Ms. Stuart. So, I find Ms. Stuart does not have to pay the strata’s claimed $344.40 for changing the locks.

Further repair work

63.   The strata also claims for work done after the locks were changed, including charges for applying a wall sealant ($1,233.75), installing insulation and vapour barrier ($4,200), and painting the ceiling ($472.50), all of which Ms. Stuart disputes. The invoices in evidence do not provide detailed descriptions of the work performed, and the strata did not make any submissions about who recommended this work or why it was necessary.

64.   I note that a September 4, 2020 letter from the strata’s lawyer to Ms. Stuart, stated that drywall was restored to the SL26 exterior walls for fire safety purposes. However, I find that letter is insufficient to conclude that applying a wall sealant, installing insulation or vapour barrier, or painting the ceiling was reasonably necessary to remedy Ms. Stuart’s bylaw contraventions. As such, I find the strata cannot recover those expenses under SPA section 133.

65.   Finally, the strata claims $451.50 for performing an electrical check and installing a new smoke alarm. The work order in evidence says the electrician confirmed all power outlets, lights, and switches worked, and no damage was found on wires inside the strata lot. The electrician also noted the smoke alarm was missing, so they installed a new one.

66.   Ms. Stuart does not specifically dispute the necessity of this electrical work. However, as discussed further below, Ms. Stuart says that the strata did not obtain a required municipal inspection of the electrical wiring. On balance, I am satisfied that having an electrician check the wires for damage or existing hazards and installing a smoke alarm were reasonably necessary as part of the SL26 remediation work.

67.   I find this expense was included in the strata’s October 13, 2020 and further correspondence about recovering its remediation costs, so I find the strata complied with the SPA section 135 procedural requirements to recover this cost. I order Ms. Stuart to reimburse the strata’s $451.50 cost of the electrical work under section 133 of the SPA.

68.   In summary, I find the strata is entitled to reimbursement of $13,224.75 for pest control, strata lot repair work, and electrical work done to remediate Ms. Stuart’s bylaw contraventions.

Is the strata responsible for improper disposal of Ms. Stuart’s property?

69.   Ms. Stuart claims that at least $20,000 worth of salvageable belongings were removed from her strata lot before she discovered the removal work had started and she could participate in the sorting process.

70.   Ms. Stuart provided an itemized list of the belongings she says were wrongfully removed between July 22 and July 24. The items include art, tools, jewelry, and electronics, among other items, and she has provided what I infer is an approximate value for each item. Ms. Stuart says all her personal identification documents and medical records were also removed and presumably destroyed during this period. Ms. Stuart also says that later in the clean out process, after advising WS in writing that she wanted to keep the dishwasher and freezer in SL26, these items were also removed.

71.   The strata argues that no strata council members were involved in sorting or removing Ms. Stuart’s belongings, and any claim that its contractors failed to carry out their work properly should be brought against the contractors directly.

72.   Courts have said that a strata corporation, in discharging its repair and maintenance obligations, must act reasonably, and is not liable for damage unless it has been negligent (see Weir v. Strata Plan, NW 17, 2010 BCSC 784; John Campbell Law Corp. v. Strata Plan 1350, 2001 BCSC 1342). While these court decisions deal with the strata’s obligation to repair and maintain common property, I find the principles apply equally to circumstances where a strata is undertaking repairs and remediation of an owner’s bylaw contraventions.

73.   While Ms. Stuart has not used these words specifically, I find she is alleging the strata was negligent in carrying out the remediation of her bylaw contraventions. To prove the strata was negligent, Ms. Stuart must demonstrate that the strata owed her a duty of care, that the strata breached the standard of care, that Ms. Stuart sustained damage, and that the damage was caused by the strata’s breach (Mustapha v. Culligan of Canada Ltd., 2008 SCC 27). The strata’s standard of care for repair and maintenance is reasonableness (Wright v. The Owners, Strata Plan #205, 1996 CanLII 2460 (BC SC), affirmed 1998 Can LII 5823 (BC CA)).

74.   In Wright, the Court of Appeal held that a strata corporation is not an insurer and is not responsible for damage so long as it acted reasonably in the circumstances. This means that even if a strata corporation’s contractors fail to carry out work effectively, the strata is not responsible and cannot be found negligent (see Kayne v. LMS 2374, 2013 BCSC 51, John Campbell, and Wright).

75.   Here, I find that the strata owed Ms. Stuart a duty of care in performing the remediation work inside her strata lot. I find the strata acted unreasonably by hiring the contractors to enter SL26 and remove its contents, contrary to its authority under the SPA. I also find the strata knew Ms. Stuart had been unable to enter SL26 since the police removed her on July 17, 2020. So, even if the strata was authorized to remove items from her strata lot, I find it was unreasonable for the strata to arrange for removal and permanent disposal of SL26’s contents to start without any notice to Ms. Stuart so she could remove belongings she wanted to keep and participate in the sorting process. I find failing to provide this notice to Ms. Stuart was also breach of the strata’s standard of care in performing its repair and maintenance work.

76.   Further, I find the strata’s breach of its standard of care caused damage to Ms. Stuart, as I accept her evidence that many salvageable items were likely disposed of during those first 2 days of clean out work. The question is how to quantify the damage. The strata argues that Ms. Stuart has failed to provide any evidence to demonstrate the value of the contents allegedly removed. I note that the strata did not provide any evidence from the contractors to refute Ms. Stuart’s claims about what they threw out.

77.   I find that under the circumstances, it would be impossible for Ms. Stuart to prove what items were disposed of. However, her list provides sufficient detail about many items that I find she could have given some supporting evidence of at least their replacement value. Yet, Ms. Stuart provided only her own estimate of each item’s value, without further description about how she determined that value. She also provided no information about how much it will cost to replace her lost identification and other personal documents.

78.   In the absence of evidence, on a judgment basis, I find the value of Ms. Stuart’s belongings that were disposed of without her knowledge or consent is $5,000. So, I find the strata must pay Ms. Stuart $5,000 in damages for its negligence.

79.   I note that Ms. Stuart also claims $125 for the cost of the existing door lock that the strata removed and undisputedly did not return to Ms. Stuart. However, she did not provide any evidence about the value of the existing lock, or why the lock the strata installed is insufficient and needs replacement. So, I find this part of Ms. Stuart’s counterclaim unproven, and I dismiss it.

80.   As for Ms. Stuart’s claim for her dishwasher and freezer, I find the strata is not liable for those items. Ms. Stuart says they were removed well after she was aware that work was proceeding in her strata lot. While she says she advised WS that she wanted to keep those items and had left notes on them in SL26, I find there is no evidence before me that WS or the strata were involved in or directed their removal. On balance, I find the contractors likely removed these items from SL26 and the strata cannot be found negligent for the contractors’ work. So, I dismiss this aspect of Ms. Stuart’s counterclaim.

Electrical inspection

81.   Ms. Stuart provided a copy of an August 17, 2020 email she received from the municipality and provided to the strata the next day. The email advised that whenever an electrical system has been potentially compromised by a pest infestation, a licensed electrical contractor must apply for a permit, perform a safety check and any necessary repairs, and obtain a municipal inspection when the permit has been issued. Ms. Stuart alleges that the strata started rebuilding walls inside SL26 before obtaining a permit and inspection.

82.   The strata did not specifically respond to this allegation, but refers to bylaw 3, which says it is the strata lot owner’s responsibility to repair and maintain the strata lot. I infer it is the strata’s position that obtaining the electrical inspection is Ms. Stuart’s responsibility.

83.   Under the SPA and bylaw 11.1, the strata is responsible for repairing and maintaining common property. Under the SPA, common property is defined as including wires for the passage or provision of electricity, telephone, television, or other similar services if they are located within a wall, floor, or ceiling that forms a boundary between 2 strata lots or between a strata lot and the common property. I find it is likely that at least some of the wiring in SL26 is located in the walls, floors, or ceilings between SL26 and another strata lot, so it is common property, at least in part.

84.   As noted above, the strata hired an electrician to check the wiring in SL26 to confirm it was working. So, is the strata also required to obtain a permit and municipal inspection? I find the answer is yes. The municipality’s email stated that obtaining a permit and inspection is mandatory. I find the permit and inspection of electrical wiring falls under the strata’s responsibility for repairing and maintaining common property.

85.   So, if it has not already done so, within 30 days I order the strata to hire an electrical contractor to apply for the appropriate electrical permit, so they can obtain a municipal inspection of the electrical system in SL26.

Ms. Stuart’s access to SL26

86.   The strata submits that it should not be ordered to provide Ms. Stuart with access to SL26 until she provides information about how she intends to return SL26 to a habitable condition. The strata says it takes this position to safeguard the other strata lot owners from the risk of having Ms. Stuart move back in and resume hoarding, and perhaps cause another pest infestation.

87.   I find there is no provision in the SPA or the bylaws that entitled the strata to take over control of Ms. Stuart’s strata lot and refuse her access to it. Short of a court order, I find there is no authority for such action by a strata corporation.

88.   I acknowledge the strata’s concerns. However, I find there are other ways the strata can monitor Ms. Stuart’s compliance with its bylaws. For example, bylaw 10.1 provides that on 24 hours written notice, Ms. Stuart must allow the strata to enter to her strata lot to ensure her compliance with the bylaws. If Ms. Stuart is found to have breached the bylaws, she may be fined or the strata may choose to involve a relevant public or local authority for assistance.

89.   Ms. Stuart says she has no intention of moving back into SL26, and that she just wants access so she can repair it and sell it. Ms. Stuart says she is willing to have regular inspections so that the strata can be satisfied she has not moved in and that repairs are progressing.

90.   For all these reasons, I order the strata to immediately provide Ms. Stuart with full access to SL26, which includes providing her with all keys to the current door lock. Should Ms. Stuart choose to change the door lock, I find she is not required to provide the strata with keys or the access code to SL26.

CRT FEES, EXPENSES AND INTEREST

91.   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. The parties were both partially successful. I find that the appropriate result is that neither party reimburses the other’s CRT fees. Neither party claimed any dispute-related expenses.

92.   The Court Order Interest Act (COIA) applies to the CRT. I have found the strata is entitled to reimbursement of $13,224.75 for its expenses to remediate Ms. Stuart’s bylaw infractions, and Ms. Stuart is entitled to $5,000 in damages for lost belongings due to the strata’s negligence. So, I find Ms. Stuart must pay the strata the $8,224.75 difference.

93.   I find the strata is entitled to prejudgment interest on the $8,224.75 from February 2, 2021, the date of the Dispute Notice was issued, to the date of this decision. This equals $27.91.

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

ORDERS

95.   The strata must immediately provide Ms. Stuart with full access to SL26, which includes providing her with all keys to the current door lock.

96.   Within 30 days of the date of this decision, if it has not already done so, I order the strata to hire an electrical contractor to apply for the appropriate electrical permit, so they can obtain a municipal inspection of the electrical system in SL26 once the permit has been issued.

97.   Within 60 days of the date of this decision, I order Ms. Stuart to pay the strata $8,252.66, broken down as follows:

a.    $13,224.75 as reimbursement for the costs of remedying Ms. Stuart’s bylaw contraventions, and

b.    $27.91 in pre-judgment interest under the COIA, less

c.    $5,000 in damages for Ms. Stuart’s lost belongings due to the strata’s negligence.

98.   The strata is also entitled to post-judgment interest under the COIA.

99.   I dismiss Ms. Stuart’s remaining counterclaims.

100.      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.