Date Issued: November 26, 2021

File: ST-2020-007732

Type: Strata

Civil Resolution Tribunal

Indexed as: Kaminski v. The Owners, Strata Plan K 577, 2021 BCCRT 1246

Between:

CARLA KAMINSKI

Applicant

And:

The Owners, Strata Plan K 577

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      The applicant, Carla Kaminski, owns strata lot 15 (unit 403) in the respondent strata corporation The Owners, Strata Plan K 577 (strata). Ms. Kaminski makes several claims against the strata about common property repair and maintenance, governance, voting procedures, an insurance deductible chargeback, and other issues. Ms. Kaminski is self-represented.

2.      Ms. Kaminski asks for orders that the strata:

a.     Reimburse her $1,650 for engineering and mould reports,

b.     Pay her $5,000 in damages for the loss of the use of her fireplace,

c.      Repair or replace the chimney serving unit 403 to usable and “code compliant” condition,

d.     Reverse a $10,000 insurance deductible chargeback for a water leak incident,

e.     Stop charging insurance deductibles without first obtaining judgment under section 158(2) of the Strata Property Act (SPA),

f.       Reimburse her $557.51 for an engineer’s inspection to identify a leak source,

g.     Reimburse her $426.56 for consultation with the engineer,

h.     Complete the repairs recommended in an engineering report and an environmental report she obtained,

i.       Promptly assess and conduct other needed repairs and maintenance,

j.       Disclose all work done to common property,

k.      Register a video surveillance bylaw,

l.       Take a new vote on a short-term rental bylaw,

m.    Pay her $250 for spoiled food allegedly resulting from unit 403’s power being turned off,

n.     Provide her with requested video footage and all documentation from the fire department and a contractor about a flood

o.     Reinstate her personal locker allegedly confiscated in May 2020,

p.     Obtain an accountant’s review of the strata’s finances and expenditures,

q.     Obtain a “legal review” to identify expenditures not expressly authorized, and

r.      Reimburse her $41,183.48 for legal expenses.

3.      The strata denies Ms. Kaminski’s claims for various reasons. The strata also says some of the matters in this dispute were already decided in a previous CRT decision. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). CRTA section 2 says the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties in this dispute call into question the other’s credibility. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. In the circumstances of this dispute, I find that I am able to assess and weigh the evidence and submissions before me. Bearing in mind the CRT’s mandate that includes proportionality and a prompt resolution of disputes, I decided to hear this dispute through written submissions.

6.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, even where the information would not be admissible in court. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under CRTA section 123, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

Issues already decided

8.      The strata argues that some of the issues in this dispute were decided in a previous CRT decision involving the same strata corporation, C.2K Holdings Ltd. v. The Owners, Strata Plan K 577, 2018 BCCRT 236. In C.2K Holdings, the applicant was a corporate owner of a commercial strata lot. The CRT ordered the strata to (a) hold all future votes according to the SPA and its Schedule of Voting Rights, (b) review its division of common expenses and determine those that do not benefit the commercial strata lots, and (c) hold a special general meeting within 6 months to consider and vote on a different method of allocating fees.

9.      The strata’s arguments that some of the claims and issues in this dispute were already decided in C.2K Holdings were addressed in a March 29, 2021 preliminary decision. In that decision, a CRT vice chair considered the legal principle res judicata, which generally prevents a party from raising the same matter twice. I agree with the vice chair’s reasoning that Ms. Kaminski is not the same party or a privy of C.2K Holdings Ltd., so the legal tests for issue estoppel and cause of action estoppel are not met. I find it is appropriate to consider Ms. Kaminski’s claims. C.2K Holdings only bears on this dispute in the context of a short-term rental bylaw that I discuss below.

Video surveillance bylaw registration

10.   Ms. Kaminski says the strata owners approved a bylaw about video surveillance but the strata has not registered it with the Land Title Office (LTO). She seeks an order that the strata register the bylaw. I directed CRT staff to conduct an index search with the LTO, which confirmed that the strata filed amended bylaws on July 27, 2021. It filed similar amended bylaws with corrected numbering and removal of what appears to be inadvertent duplication on August 24, 2021. Those bylaws included the video surveillance bylaw.

11.   A claim is said to be moot if, after a party initiates a proceeding, events occur that affect the parties’ relationship so that no “present live controversy” exists: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC). Ms. Kaminski argues that the strata cannot rely on evidence created after the evidence submission deadline. I disagree. CRTA section 42 says the CRT may inform itself in any way it considers appropriate, and I find it would be a waste of the CRT’s resources to consider whether to order a strata to do something it has already done. I determined that it was not necessary to seek further submissions from the parties because Ms. Kaminski’s only requested remedy was for the strata to register the bylaw, which it has done.

12.   In submissions, Ms. Kaminski further says her concerns about the video surveillance camera outside her strata lot are under investigation with the Office of the Information and Privacy Commissioner (OIPC), and she does not wish to address those concerns in the CRT dispute. Accordingly, I have not considered any video surveillance issues.

ISSUES

13.   The remaining issues in this dispute are:

a.      Must the strata repair or replace the common property chimney serving unit 403?

b.      Should I order the strata to reimburse Ms. Kaminski for the engineering and mould reports she obtained related to the chimney?

c.      What compensation, if any, is Ms. Kaminski entitled to for the loss of use of her fireplace?

d.      Must the strata reimburse Ms. Kaminski for her leak investigation expenses?

e.      Should I order the strata to complete the repairs recommended in 2 reports Ms. Kaminski obtained?

f.       Should I order the strata to assess and conduct other needed repairs and maintenance?

g.      Should I order the strata to disclose all previous work done to common property?

h.      Must the strata give Ms. Kaminski the video footage she requested and documentation about a water leak?

i.       Must the strata conduct a new vote on the short-term rental bylaw, and if so, under what terms?

j.       Is Ms. Kaminski entitled to compensation for food spoilage after her electricity was switched off?

k.      Was the May 2021 change to the lockers a significant change requiring a 3⁄4 vote, or significantly unfair to Ms. Kaminski?

l.       Must the strata obtain either an accountant’s review or a “legal review” of its finances and expenditures?

m.    Is Ms. Kaminski entitled to reimbursement of some or all her legal expenses?

EVIDENCE AND ANALYSIS

14.   As the applicant in this civil proceeding, Ms. Kaminski must prove her claims on a balance of probabilities, meaning more likely than not. While I have read all the evidence and submissions, I only refer to what is necessary to explain my decision.

15.   The strata plan was filed in 1983. The strata building is a 5-storey, mixed-use building with 20 strata lots located in Kelowna, BC. Ms. Kaminski’s unit 403 is a residential strata lot on the fourth floor.

Chimney and fireplace

16.   The strata plan shows that each residential strata lot has a common property chimney on its western wall. Some of the larger strata lots have 2 chimneys, but unit 403 has 1. I infer that each residential strata lot originally had a wood-burning fireplace, and that the flues from each fireplace travelled up one of the five chimneys to the roof. It is undisputed that the flues are common property. Under bylaw 8, the strata is required to repair and maintain common property.

17.   In December 2018, another owner brought to the strata’s attention that in the rooftop chimney structure, the flues for units 203, 303, and 403 had been removed. It is undisputed that this meant Ms. Kaminski and others were unable to safely use their fireplaces. The strata says it does not know who removed the flues, or when they were removed. Ms. Kaminski says the owner or former owner of unit 503, DM, removed the flues during a renovation.

18.   Ms. Kaminski says the flue removal was a flagrant disregard of her safety and that of others in the building. She says the chimney is now a fire hazard and non-compliant with BC fire codes.

19.   The strata’s bylaws 5 and 6 require owners to obtain the strata’s written approval before altering common property, limited common property or chimneys, among other things. DM applied for renovation approval in 2014, when Ms. Kaminski was on strata council. The application did not mention any changes to the chimney. At a June 3, 2014 strata council meeting, the council approved a motion to send a letter to unit 503 indicating an inspection was required because of unapproved changes, including unspecified changes on the roof. At a special general meeting later that year, the council was removed and replaced. It is undisputed that DM became strata council president at that time and the inspection did not happen.

20.   On January 2, 2019, strata wrote to Ms. Kaminski not to use her wood-burning fireplace due to the “ongoing issue with the chimney flue”. At the time, the strata was attempting to determine how many wood burning fireplaces still existed and were in use, to determine whether it was adequately insured. Ms. Kaminski requested to recommission the chimney but the strata refused.

21.   In March 2019, Ms. Kaminski hired JD Joorisity, a professional engineer, to prepare a “systems review” report. The report said the flue removal and other work was done without regard to good building practice and BC Building Code requirements. It also said properly recommissioning the fireplaces would be a “major project” requiring significant upgrades to comply with the current BC Building Code and local bylaws.

22.   Ms. Kaminski also hired Apex EHS Services to conduct a mould assessment in unit 403’s chimney and the roof chimney housing. The March 22, 2019 mould assessment report concluded that despite the lack of proper capping on the chimney housing on the roof, there was no water damage or mould growth in unit 403.

23.   The strata says on July 8, 2021, the ownership approved a new bylaw that prohibited the use of word-burning fireplaces. Ms. Kaminski says the strata should not be able to rely on events that transpired after the parties submitted their evidence. However, she does not dispute that the owners approved the bylaw. As noted above, I asked CRT staff to obtain any new bylaws filed with the LTO. The filed bylaw 35(c) prohibits use of wood-burning fireplaces and says strata council approval is required should an owner wish to “rebuild the current fireplace or use an alternate technology” at the owner’s expense.

24.   With that background set out, I turn to Ms. Kaminski’s requested remedies related to the chimney and fireplace. As noted, Ms. Kaminski wants the strata to restore the common property flue and chimney serving her strata lot to usable and code-compliant condition.

25.   As set out in SPA sections 3 and 72, the strata is responsible for managing common property for the benefit of the owners and has a statutory duty to repair and maintain it. The SPA does not address claims by owners about changes to common property that affect the use of the owner’s strata lot.

26.   The standard of care for a strata corporation in fulfilling its duty under SPA section 72 is reasonableness: Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784. Here, I find the strata acted reasonably by ordering affected owners not to use wood-burning fireplaces when it discovered the change. There is no evidence the strata knew about the flue removal and allowed it to happen. The strata council president’s knowledge of their own renovation is not equivalent to the strata council’s knowledge.

27.   SPA section 71(a) requires a 3/4 vote at an annual or special general meeting before the strata can make a significant change in the use or appearance of common property. Changes to common property made by individual owners may also trigger SPA section 71: see Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333. Arguably, the strata indirectly allowed a significant change in the use of the common property flues when DM or someone else removed them. However, I find that by enacting the bylaw prohibiting wood-burning fireplaces and therefore flue use, the strata effectively obtained the 3/4 vote necessary for the change.

28.   Although Ms. Kaminski does not use these exact words, I find she argues the strata’s combined action of failing to prevent or address the flue removal and subsequently prohibiting wood-burning fireplaces with bylaw 35(c) was significantly unfair to her. The CRT has jurisdiction over significantly unfair actions under CRTA section 123(2), which has the same legal test as cases under SPA section 164: see The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164. 

29.   “Significantly unfair” means conduct that is oppressive in that it is burdensome, harsh, wrongful, lacking in probity or fair dealing, or done in bad faith, or conduct that is unfairly prejudicial in that it is unjust or inequitable: see Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, affirmed in 2003 BCCA 126. A strata corporation’s enactment or amendment of a bylaw may constitute significantly unfair conduct: see Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173. In Kunzler, the court confirmed that an owner’s reasonable expectations are a relevant factor. In considering an owner’s reasonable expectations, the following test from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44 applies:

a.      What was the affected owner’s expectation?

b.      Was that expectation objectively reasonable?

c.      Did the strata violate that expectation with a significantly unfair action or decision?

30.   I find it implicit in Ms. Kaminski’s submissions that her expectation was that the strata would prevent owners from removing common property. This expectation is objectively reasonable because the SPA requires the strata to manage and maintain common property. However, I find this only extends to changes to the common property that the strata is aware of. A strata cannot be expected to prevent changes it is not aware of. The standard is reasonableness, not perfection. Nothing in DM’s renovation indicated they would be removing common property flues. I find the strata had no knowledge of the flue removal and no reason to suspect an owner would remove common property flues.

31.   If Ms. Kaminski expected the strata to replace the chimney flue to its former state, I find that expectation was unreasonable in the circumstances. JD Joorisity’s systems review report said recommissioning Ms. Kaminski’s fireplace would require significant upgrades to the flue and chimney to comply with current regulations. In other words, just restoring the flue as it was before would not permit Ms. Kaminski to safely use her fireplace.

32.   If Ms. Kaminski expected that the bylaws would never change and she would always be allowed to use her wood-burning fireplace, I find that expectation was unreasonable. On the evidence, there were legitimate reasons to prohibit wood-burning fireplaces related to safety and the strata’s increasing insurance rates. The strata acted on the recommendation of its “Insurers Risk Assessment” to provide cost savings in insurance premiums. The strata prohibited smoking in the building at the same time, for the same reason. There were other wood-burning fireplaces in the strata when it was passed, and no evidence the bylaw was targeted at Ms. Kaminski.

33.   While Ms. Kaminski’s use of the fireplace is not determinative, I find it is another relevant factor. The parties disagree about whether Ms. Kaminski ever used her fireplace. She described herself in emails, including on April 28, 2016 and December 17, 2018, as a non-resident owner. I find that she did not reside in unit 403. I also find the fireplace was not a primary heat source, because there was a central heating system and electric baseboard heaters. Ms. Kaminsky did not lead any evidence of the impact of the loss of use of the fireplace, such as reduced rental income.

34.   For the reasons stated above, I find Ms. Kaminski has not established that the strata treated her in a significantly unfair way. I dismiss her claims for $5,000 in damages for the loss of use of the fireplace and for an order that the strata restore the flue.

35.   Ms. Kaminski also seeks reimbursement of the cost of the systems review and mould assessment reports. It is undisputed that Ms. Kaminski engaged these contractors and requested these reports on her own initiative. They were created well before Ms. Kaminski filed her Dispute Notice, so they are not dispute-related expenses.

36.   The fact that both reports discuss issues affecting common property is not a sufficient reason to make the strata responsible for them. A strata corporation, not an owner, makes decisions about when and where investigation is required as part of its duty to repair and maintain common property. It would be unfair to make all the owners pay for reports obtained by an individual owner for their own purposes. I decline to order the strata to reimburse Ms. Kaminski for the reports.

Improper handling of repairs, maintenance, and alterations affecting common property

37.   Ms. Kaminski seeks orders that that the strata complete the remediation recommended by Apex EHS Services and JD Joorisity, and “promptly assess and conduct other needed repairs and maintenance.” I note Ms. Kaminski asserts that the strata has failed to ensure asbestos testing happened before previous renovations but she does not ask for any particular remedy related to asbestos testing, so I have not considered it further.

38.   Apex recommended the strata retain a qualified professional to assess the ducting system for the fireplaces within units 203, 303, 403 and 503 to ensure proper ventilation and determine whether the chimney housing vents can be capped. This was suggested as a step to be taken before operating any fireplaces. It would not make sense to order the strata to do this work. The strata is aware that the wood-burning fireplaces cannot safely be used in their present state and bylaw 35(c) acknowledges this.

39.   Apex also recommended a qualified professional assess unit 503 for mould growth or water damage. This recommendation appears to arise out of an abundance of caution, as the report found no mould growth or water damage in unit 503. The report said Apex did not have access to unit 503, so it was not possible to determine whether there was water ingress into unit 503. Given the renovations in unit 503 were completed relatively recently, there does not appear to be substantial risk of undiscovered mould growth or water damage. I decline to make this order.

40.   JD Joorisity’s systems review report noted deficiencies related to heat pump units installed on the roof, with piping and wiring penetrating through the roof to connect to various strata lots in the building. The report said there are several instances of penetrations that have not maintained the integrity of the fire-rated membranes. JD Joorisity questioned whether the installations followed the BC Building Code. There was only 1 recommendation in the report, which was that a competent and experienced building consultant, architect or professional engineer be engaged to survey the building for “other significant safety related deficiencies.”

41.   The strata says it is diligently addressing maintenance and repairs within its budgetary and time constraints. The strata also says that without specifics about what other repairs or maintenance Ms. Kaminski alleges need to be addressed, the strata cannot properly respond to the broad relief she is seeking. I agree. A strata is not generally required to complete maintenance and repairs identified in a report commissioned by an owner for their own purposes. As noted, the strata's maintenance and repair obligations are set out in SPA section 72. A strata corporation must act reasonably in performing the duty of repair and maintenance, while balancing competing priorities among owners: Weir. While there is evidence of some building envelope and fire safety issues, there is equal evidence that the strata is taking steps to address the issues. I find the evidence falls short of establishing that the strata has neglected its responsibility to repair and maintain common property.

42.   In addition, orders that a party do or stop doing something are known as injunctions. In Nova Scotia v. Doucet-Boudreau, 2003 SCC 62, the Supreme Court of Canada said that an injunction must give the parties proper notice of the obligations imposed on them and clearly define the standard of compliance expected of them. This is because an injunction is a legal order that can be enforced by the court. I find that this requested order that the strata conduct “other needed repairs and maintenance” does not have the required precision.

43.   For all of these reasons, I decline to make the requested orders.

44.   Ms. Kaminski also requests that the strata disclose all work done to the common property. The strata says the common property improvements are visible to all owners. It also says the request is overly broad given the strata has been in existence since the 1980s. I agree. I also find Ms. Kaminski has not articulated a sufficient reason to make such an order. I dismiss this claim.

January 2020 water leak and related issues

45.   It is undisputed that in January 2020 multiple water leaks related to freezing temperatures occurred in the strata building. The strata says it is still investigating the leak that was associated with unit 403. There was speculation that unit 403 was cold enough to cause a fire sprinkler head to crack.

46.   In Ms. Kaminski’s correspondence with the strata, through her lawyer, she asserted that a common property sprinkler pipe ruptured due to cold temperatures in the space immediately above her strata lot. She attributes the cold temperatures to the strata’s 2018 decision to shut down its boiler and central HVAC system and leave owners to heat their strata lots on their own.

47.   Ms. Kaminski retained JD Joorisity to review issues related to the ruptured fire sprinkler. According to JD Joorisity’s January 15, 2020 report (leak report), the leak was caused by a cracked forged steel tee fitting on the sprinkler supply line above unit 403’s ceiling. The leak report says the broken fitting is evidence that unit 403’s temperature was not below freezing, because if it was, the sprinkler head would have cracked. The leak report also provides an explanation for why the space between unit 403 and unit 503 was so cold. It is unnecessary to get into those details here.

48.   The strata says it never applied a chargeback for the insurance deductible, but it reserves the right to do so if its investigation finds Ms. Kaminski was responsible.

49.   Ms. Kaminski says the strata applied and then reversed a $10,000 chargeback. She provided no evidence to confirm this, despite providing her owner’s ledger from previous years. In any event, it is undisputed that there is no charge on her account related to the leak now.

50.   Ms. Kaminski says the leak report and her lawyer’s letter are what caused the strata to reverse the $10,000 charge. However, she says the strata charged her strata lot account on February 27, 2020. This was well after the leak report was produced. So, I do not accept Ms. Kaminski’s assertion that the chargeback necessitated the leak report. I dismiss her claim for reimbursement of the leak report and consultation with the engineer. Like the other reports Ms. Kaminski obtained, it is not a dispute-related expense, and she has not established that it was necessary in the circumstances.

51.   Ms. Kaminski also seeks an order that the strata stop charging back insurance deductibles without first obtaining judgment under SPA section 158(2). There is no supporting evidence that the strata charged Ms. Kaminski for an insurance deductible, and the CRT does not normally grant prospective orders about events that have yet to occur. So, I decline to grant this remedy.

52.   Ms. Kaminski says she requested video footage from the camera outside her door for “unauthorized entry both times the Kelowna Fire Department” was involved. I infer that the fire department entered her unit in response to a fire alarm or sprinklers being set off. The strata says it is not sure what video footage she is requesting, but video footage is not kept for long and therefore no longer exists. The only evidence of Ms. Kaminski requesting video footage request is about a property loss from the parkade on a different date. I decline to order the strata to provide video footage from the water leak incidents.

53.   Ms. Kaminski also requests “all documentation” about the flood from the fire department and from Pacific Western Fire Protection, whom I infer attended in response to the January 2020 leak. I infer that she means all documentation the strata received from these parties. SPA section 35(2) requires the strata to retain all correspondence sent or received by the strata corporation and council, and any reports on the repair or maintenance of major items in the strata. The strata points out that Ms. Kaminski has not made a request under SPA section 36, which sets out the procedures and timelines for such requests.

54.   Although parties are required to provide all relevant evidence in a CRT dispute, I find these documents are not relevant to this dispute. I say this because strata has not applied a chargeback and the documents would not assist Ms. Kaminski in recovering her leak report expenses. I decline to order the strata to provide additional documents.

55.   For these reasons, I dismiss Ms. Kaminski’s claims related to the 2020 water leak.

Rental bylaw vote

56.   Ms. Kaminski says the strata has relaxed rental restrictions in a roundabout way. Some background is necessary. On April 28, 2016, the strata passed bylaw amendments that were filed in the LTO on December 5, 2016. Bylaw 30, titled “rental restriction bylaw”, included 4 subsections. Bylaw 30(a) prohibited the rental or lease of any strata lot for less than 2 days. Bylaw 30(b) required owners renting or leasing their strata lots for less than 6 months to pay an annual rental fee to be determined by strata council. Bylaws 30(c) and (d) are not relevant to this dispute.

57.   In C.2K Holdings, a commercial strata lot owner challenged the April 28, 2016 approval of this these bylaws for procedural irregularities. The CRT upheld the bylaw amendments. The CRT member noted that the strata and the commercial owner agreed that bylaw 30(b) was unenforceable. The CRT member “directed” the strata to “address the unenforceable provisions” at its next annual or special general meeting, but did not make any order to that effect.

58.   On October 24, 2019, the strata put forward a resolution to repeal bylaw 30(b) and leave the rest of bylaw 30 intact. The resolution achieved the required 3/4 vote from the residential strata lots but not the commercial strata lots, and was defeated.

59.   Ms. Kaminski says bylaw 30(a) relaxed rental restrictions and would not have had adequate support without the balancing mechanism of bylaw 30(b). She says the strata then proposed to remove bylaw 30(b) without reconsidering the rental bylaw as a whole or ensuring that bylaw 30(a), without bylaw 30(b), had 3/4 vote approval. She says the owners should have been given the option to restore the former bylaws that she says did not permit short term vacation rentals. So, she seeks an order for a new vote on the short-term rental bylaw.

60.   The strata says Ms. Kaminski’s claim is barred under the doctrine of collateral attack, and out of time under the Limitation Act. I find it is not necessary to consider those arguments. There is no evidence the strata council misled owners by including a bylaw it knew was unenforceable in 2016. Nothing in the SPA, or any legal authority of which I am aware, says that later discovery or agreement that part of a bylaw is unenforceable invalidates the original bylaw’s approval, or requires a new vote. In any event, there was a new vote, and I find it was plain to see for the owners what it meant to repeal bylaw 30(b) and leave the rest of bylaw 30 intact.

61.   If the owners wish to repeal bylaw 30 in its entirety, SPA section 43 allows for those holding 20 percent of the votes to demand that the strata hold a special general meeting to consider a resolution to repeal the bylaw.

Electricity shut-off

62.   Ms. Kaminski says a strata council member turned off her power in December 2017 and again in December 2018. She alleges this happened because she is opposed to short-term rentals. She also says it was due to a noisy pump in unit 403 that a neighbour did not care for. Ms. Kaminski claims $250 for food that had to be discarded in December 2018 because her fridge and freezer shut off. She does not claim damages for the December 2017 loss of power.

63.   Ms. Kaminski says only strata council members have access to the locked basement mechanical room to revoke power to her strata lot. The strata does not generally dispute this. The strata’s response is documented in a December 2018 email in which it explained that there were a number of different trades working on heating, air conditioning, cameras and fobs that month. It said any systems were shut off temporarily to allow the work, and her power must have been turned off in error.

64.   I accept this explanation and find Ms. Kaminski’s power likely remained off due to a contractor’s inadvertent error. Ms. Kaminski says the strata is responsible for any damages that resulted regardless. I disagree. A strata is not an insurer and is not responsible for its contractors’ negligence, so long as it acted reasonably in the circumstances: see Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74.

65.   Additionally, Ms. Kaminski failed to provide evidence of food spoilage. For these reasons, I decline to grant any order for the electricity shut-off.

Storage locker

66.   The strata plan does not identify storage lockers. Ms. Kaminski says her storage locker was on the second floor. After the January 2020 water leaks from frozen pipes, the strata hired a contractor to improve the building’s insulation. The strata asked all residents remove their belongings from the lockers for May 2021 to facilitate the work.

67.   Ms. Kaminski raises 2 issues about the storage lockers. The first issue is that she used to have a particular locker. She says a person employed by the owners doing short term vacation rentals now uses it. Elsewhere Ms. Kaminski says the strata gave her locker to unit 503’s owner.

68.   The strata says it was at liberty to assign the new storage lockers as it deemed fit, relying on Moore v. The Owners, Strata Plan KAS 1878, 2017 BCCRT 51, a decision about common property parking stalls. I find that because the storage lockers are common property, and not limited common property, the strata was free to assign storage lockers as it saw fit, so long as it was not significantly unfair to any owner.

69.   There is no dispute that Ms. Kaminski still has a storage locker. She does not say where her new locker is or why its location is inferior, or how it has created a burden for her. Without this evidence, it is difficult to support a finding of significant unfairness. In other words, I am unable to find that a change in locker location was conduct that rose to the level of being oppressive, unjust or inequitable: see Kunzler.

70.   The second issue Ms. Kaminsky raises about the lockers is that the strata changed the lockers from wood to wire. This meant anyone in the locker room could see the lockers’ contents. Was a vote required? As noted, SPA section 71(a) requires 3/4 approval for any significant change in the use or appearance of common property.

71.   In Foley, the court summarized the criteria for a significant change as follows:

a.      A change would be more significant based on its visibility to residents and towards the general public.

b.      Whether the change to common property affects the use or enjoyment of a unit or a number of units or an existing benefit of a unit or units.

c.      Is there a direct interference or disruption as a result of the changed use?

d.      Does the change impact on the marketability or value of the unit?

e.      The number of units in the building may be significant along with the general use, such as whether it is commercial, residential, or mixed.

f.       Consideration of how the strata corporation has governed itself in the past and what it has allowed.

72.   I find the only factor suggesting the change from wood to wire lockers was significant is that it likely affected every owner who used the storage lockers.

73.   Most of the factors suggest the change was not significant. The lockers are not visible to the public and, I infer, only visible to residents when storing or retrieving items in the lockers. There is no change in use of the area, which is still being used for storage, and no direct interference or disruption, except the temporary loss of use of the lockers, which was necessary for the insulation work. There is no evidence of the impact on marketability or value of the strata lots, but I find the impact would likely be limited. For these reasons, I find the change was not significant and did not trigger SPA section 71.

Strata finances and expenditures

74.   Ms. Kaminski seeks an order for an accountant’s review of the strata’s finances, comparing accounts receivable to income, and actual expenditures to authorized expenditures. She also seeks an order for a “legal review” to identify expenditures that were not expressly authorized under the SPA. As an example, Ms. Kaminski says after the January 2020 flood the strata insulated the storage room and added electric heat in various areas without documentation or disclosure of the cost.

75.   The strata says it keeps books of account showing money received and spent and the reason, in compliance with the SPA. While the strata did not provide any financial records in this dispute, I am not persuaded that this is evidence the strata is not complying with the SPA, or is trying to hide something. Ms. Kaminski made a large number of claims and requested remedies, often without sufficient particulars to allow the strata to properly respond.

76.   I find Ms. Kaminski is essentially requesting an audit of the strata’s financial records. Audits cost time and money. The burden of proving that an audit is necessary rests with Ms. Kaminski as the applicant in this dispute. I find she has not met that burden. I decline to grant the requested remedy.

Ms. Kaminski’s legal expenses

77.   Ms. Kaminski hired a lawyer to write letters to the strata, attend strata council meetings, and to assist with her CRT and OIPC claims.

78.   Ms. Kaminski says she has been put to considerable effort to compel the strata corporation to comply with its legal obligations. She says these expenses arise from the strata council’s repeated unreasonable non-compliance with mandatory legal requirements. She claims $41,183.48, although the account statement shows fees and disbursements totaling $42,835.65. The account statement covers legal fees incurred from January 30, 2017 to February 10, 2021.

79.   I acknowledge the conviction with which Ms. Kaminski believes hiring a lawyer was necessary to protect her safety, well-being and interest in her strata lot and the common property. However, legal fees are not generally recoverable as damages: see Voyer v. C.I.B.C., 1986 CanLII 1226 (BC SC). Rather, they are recoverable in the context of “costs” or dispute-related expenses. To the extent that Ms. Kaminski’s legal expenses pre-date the CRT proceeding, they are not dispute-related expenses because they do not relate directly to the dispute. As well, some of the expenses relate to disputes in other forums that may make their own rulings on costs.

80.   As for the legal fees that may constitute dispute-related expenses, CRT rule 9.5(3) says the CRT will not order reimbursement of a lawyer’s fees unless there are extraordinary circumstances, which I find are not present here. In any event, reimbursement of Ms. Kaminski’s legal fees would not be appropriate given she has been unsuccessful.

CRT FEES AND EXPENSES

81.   In accordance with the CRTA and the CRT’s rules, as Ms. Kaminski was unsuccessful, I find she is not entitled to any reimbursement of CRT fees. Neither party claimed dispute-related expenses.

82.   The strata must comply with SPA section 189.4, which includes not charging dispute-related expenses against Ms. Kaminski.

ORDER

83.   I dismiss Ms. Kaminski’s claims and this dispute.