Date Issued: January 14, 2022

File: ST-2021-004516

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan EPS1495 v. Tri-R Development Group Inc.,

2022 BCCRT 53

Between:

The Owners, Strata Plan EPS1495

Applicant

And:

TRI-R DEVELOPMENT GROUP INC.

Respondent

INTRODUCTION

1.      This is a summary decision refusing to resolve this dispute. It is not a decision based on the merits of the dispute.

2.      The applicant strata corporation, The Owners, Strata Plan EPS1495 (strata) says that the respondent, Tri-R Development Group Inc. (Tri-R) has failed to construct a caretaker cottage on the strata’s common property (CP) as it agreed to do. Tri-R is a company that, together with other companies, make up Bridal Falls Properties Limited Partnership (Bridal Falls), the strata’s owner developer under the Strata Property Act (SPA).

3.      The strata requests an order that Tri-R provide a caretaker cottage on the CP, that is about 900 square feet in size with 1 bedroom and 1 bathroom.

4.      Tri-R says it agrees with the strata and that it will ensure a caretaker cottage is constructed on CP.

5.      The strata is represented by a strata council member. Tri-R is represented by a director.

6.      For the reasons explained below, I refuse to resolve the strata’s claim for the caretaker cottage because I find it is either does not disclose a reasonable claim or does not fall within the CRT’s strata property jurisdiction.

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.    Does the CRT have jurisdiction to decide the strata’s claim for a caretaker cottage under its strata property jurisdiction?

b.    If so, should the CRT order Tri-R to build a caretaker cottage?

BACKGROUND, REASONS AND ANALYSIS

12.   In a civil claim like this one, the strata, 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.

13.   The strata is a 6-phase, bare land strata corporation of which the first phase is complete, and the second phase has commenced. In its submissions, Tri-R says it has a contract of purchase and sale for the “project”, including the land comprising the remaining phases of the strata, and that the purchaser will construct the caretaker cottage.

14.   On August 23, 2018, the strata filed a complete set of bylaws with the Land Title Office (LTO). I infer the Standard Bylaws under the SPA do not apply as a result. Another bylaw was filed with the LTO on October 16, 2020. However, based on my review of the bylaws, I find there are no bylaws that apply to this dispute.

15.   Under section 14 of the Real Estate Development and Marketing Act (REDMA), the developer of a bare land strata corporation is required to file a disclosure statement before marketing the development for sale. Among other things, a disclosure statement sets out the intentions of the developer, or the owner developer in this case. A copy of the original disclosure statement dated June 7, 2013 and the first amendment to the disclosure statement dated March 7, 2014 were not provided in evidence, however copies of the second and third amendments to the disclosure statement dated May 19, 2015 and November 29, 2019 respectively were provided. The second and third amendments confirm the owner developer is Bridal Falls and not Tri-R.

16.   Under clause 3 of a document entitled “Settlement Agreement” dated April 10, 2019 between the strata and a number of companies including Tri-R and Bridal Falls, collectively defined as the “Developer”, among other things, the Developer agreed to construct a “manager’s cottage” by April 15, 2020 at a value of $200,000. Based on the Settlement Agreement, the Developer agreed to do this as part of an agreement to settle outstanding strata fees it owed to the strata. I find the manager’s cottage referenced in the Settlement Agreement means the caretaker cottage in this dispute.

17.   On April 16, 2020, clause 3 of the Settlement Agreement was amended to require the caretaker cottage to be “delivered and operational” by April 15, 2021, 1 year after the date originally agreed to by the parties to the agreement.

18.   There is no evidence Tri-R has authority to represent the Developer (or Bridal Falls as owner developer of the strata) in this dispute, but I find I need not make that determination considering my conclusion to refuse to resolve this dispute set out below.

CRT Jurisdiction

19.   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. The Supreme Court of Canada has found the phrase “in respect of” is one with the widest possible scope. However, it is not a phrase of infinite reach, and when interpreting the phrase, consideration must be given to the context in which the words are found: Sarvanis v. Canada, 2002 SCC 28 at paragraphs 22 and 24.

20.   The parties agree that Tri-R confirmed it will ensure a caretaker cottage is constructed on CP. Based on the submissions and evidence, I find the parties’ agreement is based on the Settlement Agreement, which is a contract between the strata and the Developer. The difficulty here is that Tri-R is not the Developer identified in the Settlement Agreement, as I have noted.

21.   I have considered whether there is any scenario involving Tri-R that would persuade me to grant the strata’s requested order and find there is not. First, if Tri-R does not have authority to bind the Developer, as defined in the Settlement Agreement, I would refuse to resolve this dispute under CRTA section 11(1)(b) because the dispute does not disclose a reasonable claim in that the party to the Settlement Agreement (the Developer) is not a party to this dispute. Second, if Tri-R does have authority to bind the Developer, which is not proven, I find the issue before me is a contractual one between the strata and the Developer that does not involve the SPA as I set out below. Third, if the strata relied on a verbal contract between it and Tri-R, which neither party here has argued, I would reach the same conclusion and find the dispute does not involve the SPA.

22.   Based on my review of the CRTA and the SPA, and following Sarvanis, I find a claim “in respect of” the SPA is one that could only proceed by relying on the SPA. See Alameer v. Zhang, 2021 BCCRT 435 and 1113849 BC Ltd. v. Fortune, 2021 BCCRT 1267.

23.   I find the strata’s claim for enforcement of a contract (verbal or written) about construction and delivery of a caretaker cottage is not a claim in respect of the SPA. Although the SPA permits a strata corporation to enter into contracts, there is nothing in the SPA that addresses enforcement of a contract, except under SPA section 10 (contracts before the first annual general meeting) and section 194 (contracts involving sections), neither of which apply here.

24.   For this reason, I find the strata’s claim for enforcement of a contract between the parties, even if Tri-R has authority to act on behalf of the owner developer, which is unproven, is not a claim in respect of the SPA. Therefore find that based on the wording of SPA section 121(1), the strata’s claim does not fall within the CRT’s strata property jurisdiction.

25.   CRTA section 10(1) says the CRT must refuse to resolve a claim that it considers is not within its jurisdiction. Based on that provision, I would refuse to resolve the strata’s claim and this dispute.

26.   I make no findings about whether the alleged contract between the parties is enforceable. Nor do I make any findings about the enforceability of a potential contract between Tri-R and another person for completion of the strata corporation phasing, including the construction of a caretaker cottage.

27.   Finally, I note that I decided not to canvass the parties about whether they wished this dispute to continue under the CRT’s small claims jurisdiction because the value of the caretaker cottage is placed at $200,000, which exceeds the small claims maximum of $5,000.

CRT FEES AND EXPENSES

28.   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. The strata is the only party that paid CRT fees, but it was unsuccessful, so I make no order for CRT fee reimbursement. Neither party claimed dispute-related fees, so I make no order about that.

ORDER

29.   I refuse to resolve the strata’s claim and this dispute.