Date Issued: December 1, 2021

File: ST-2021-001224

Type: Strata

Civil Resolution Tribunal

Indexed as: 1113849 BC Ltd. v. Fortune, 2021 BCCRT 1267

Between:

1113849 BC LTD.

Applicant

And:

KATHY FORTUNE

Respondent

INTRODUCTION

1.      This is a summary decision refusing to resolve a dispute due to lack of jurisdiction.

2.      The applicant, 1113849 BC Ltd. (111), owns a strata lot (strata lot A) in a strata corporation, The Owners, Strata Plan VIS 3644 (strata).

3.      The strata plan shows that the strata is a duplex, with only 2 strata lots. The strata is not named as a party in this dispute. The sole respondent, Kathy Fortune, owns the other strata lot in the strata (strata lot B).

4.      Ms. Fortune is self-represented in this dispute. 111 is represented by DS, whom I infer is a director or employee.

5.      In its dispute application, 111 says that it notified Ms. Fortune of problems with the strata’s septic system, and that it hired contractors to repair them. 111 says Ms. Fortune verbally agreed to pay half of the septic repair costs, but now refuses to pay. 111 requests an order that Ms. Fortune pay it $2,326.01 for septic repairs.

6.      Ms. Fortune says she agreed to an initial septic repair, which 111 said would be between $400 and $800. She says the bill 111 sent her for that first repair was $1,291.50, which was more than she agreed to pay. Ms. Fortune also says 111 had further repairs done after that, to which she did not agree. She says she owes nothing, and 111’s claim should be dismissed.

7.      For the reasons explained below, I refuse to resolve 111’s claim for septic system repair and maintenance expenses because I find it does not fall within the CRT’s strata property jurisdiction.

JURISDICTION AND PROCEDURE

8.      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.

9.      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.

10.   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.

11.   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.

12.   In her submissions, Ms. Fortune made allegations of bullying and harassment against 111’s principals, and also described alleged conduct by 111’s tenants. Ms. Fortune did not file a counterclaim in this dispute. Therefore, I conclude that these issues are not before me to decide in this dispute, and I make no findings about them.

ISSUES

13.   The issues in this dispute are:

a.    Does the CRT have jurisdiction to decide 111’s claim for septic repair expenses under its strata property jurisdiction?

b.    If so, must Ms. Fortune reimburse 111 $2,326.01 for septic system repairs?

REASONS AND ANALYSIS

14.   In a civil claim like this one, 111, as applicant, must prove its claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

15.   There are no bylaw amendments for this strata filed at the Land Title Office. Therefore, based on Strata Property Act (SPA) section 120(1), I find the Standard Bylaws in the SPA are the strata’s bylaws.

16.   111 asserts that the strata is a bare land strata plan. I find that is incorrect, because the strata plan shows buildings for both strata lot A and strata lot B, which does not meet the definition of “bare land strata plan” in the SPA.

17.   The parties agree that the septic system is common property, rather than part of either strata lot. As the strata plan does not specifically show otherwise, and based on the definition of “common property” in SPA section 1(1), I therefore accept that the septic system components at issue in this dispute are common property.

18.   111 submits that Ms. Fortune verbally agreed to pay half the cost of septic system repairs. Both parties agree that there were problems with the septic system, although they disagree about the cause.

19.   Ms. Fortune says that in early January 2019, she agreed to pay for half of a septic repair that would cost between $400 and $800. She says she never agreed to pay more, or for the subsequent repairs that are part of 111’s claim.

20.   Under SPA section 72, the strata corporation is responsible to repair common property. There are some exceptions for limited common property (LCP), or if permitted under the Strata Property Regulation (Regulation). However, I find these exceptions do not apply. First, there is no suggestion that the septic system is LCP. Second, there is no current or prior Regulation permitting a strata corporation to delegate responsibility for non-LCP common property repairs to strata lot owners.

21.   Therefore, based on SPA section 72, I find the strata corporation was responsible to pay for all repairs and maintenance of the common property septic system. However, the parties agree the strata has no functioning council, and has no meetings, minutes, or bank account. This is not permitted under the SPA. The SPA makes it mandatory for all strata corporations to have annual general meetings, at which the owners must vote on an annual budget. Also, under SPA section 92, strata corporations must collect strata fees from owners to pay for common expenses. SPA section 1(1) defines “common expenses” as expenses relating to the strata’s common property and common assets, or required to meet any other strata purpose or obligation.

22.   The parties did not follow the SPA’s requirements in arranging or paying for septic system repairs and maintenance.

23.   CRTA section 121(1) sets out the CRT’s strata property jurisdiction. It says the CRT has jurisdiction over a claim “in respect of” the SPA, including a claim concerning the common property or common assets of a strata corporation.

24.   I find that 111’s claim for enforcement of a verbal contract about common property repairs and maintenance is not a claim in respect of the SPA. As explained above, the SPA requires that such expenses be paid by the strata, usually through strata fees collected from owners. Alternatively, strata corporations can impose a special levy on owners, by following the procedure in SPA section 108.

25.   The parties agree that this did not occur here. Rather, 111 arranged and paid for repairs, and now seeks 50% reimbursement from Ms. Fortune based on a verbal contract. There is nothing in the SPA that permits such a contract between owners for common property maintenance or repair expenses.

26.   For this reason, I find that 111’s claim for enforcement of a contract between the parties is not a claim in respect of the SPA. I therefore find that based on the wording of SPA section 121(1), the claim does not fall within the CRT’s strata property jurisdiction. See Alameer v. Zhang, 2021 BCCRT 435.

27.   CRTA section 10(1) says the CRT must refuse to resolve a claim that it considers not within its jurisdiction. Based on that provision, I refuse to resolve 111’s claim for alleged breach of contract, and this dispute.

28.   In making this finding, I note that the CRT’s case manager raised this jurisdictional issue with 111’s representative during the facilitation phase of this dispute, and suggested that he make submissions about it. I therefore find 111 had notice of this issue and an opportunity to make submissions about it.

29.    I make no findings about whether this claim fits within the CRT’s small claims jurisdiction, or whether the alleged contract between the parties is enforceable.

CRT FEES AND EXPENSES

30.   111 claims reimbursement of $240 for expert witness expenses, plus $225 for CRT fees. Under CRTA section 49 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. Since 111 was unsuccessful in this dispute, I do not order any reimbursement.

ORDER

31.   I refuse to resolve 111’s claims, and this dispute, under CRTA section 10(1).