Date Issued: April 20, 2022

File: ST-2021-007951

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan NW 2777 v. North, 2022 BCCRT 448

Between:

The Owners, Strata Plan NW 2777, KEN HALL and DON ZAHARUK

ApplicantS

And:

RYAN NORTH

Respondent

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This dispute is about alleged bylaw violations and property damage.

2.      The respondent, Ryan North, owns strata lot 28 (SL28) in the applicant strata, The Owners, Strata Plan NW 2777 (strata). The other co-applicants, Ken Hall and Don Zaharuk, each own a strata lot in the respondent strata and are both strata council members.

3.      The applicants says Mr. North verbally abused Mr. Hall and Mr. Zaharuk on April 10, 2021 while they were completing maintenance work on the roof of a strata building. The applicants also say Mr. North damaged a gutter by banging a ladder being used by Mr. Hall and Mr. Zaharuk to access the roof. The applicants claim $100 for nuisance and damage to common property under the strata’s bylaws. The applicants also claims $500 to replace the damaged gutter.

4.      Mr. North does not dispute that he yelled at Mr. Hall and Mr. Zaharuk when they were on the roof. He says he was upset because the strata continually fails to give residents notice of “expected disturbances to owners”. He denies that he damaged the gutter and says he is not responsible for any of the applicants’ claims.

5.      The applicants are represented by a strata council member, SB. Mr. North is self-represented.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

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

Preliminary Issue - Standing

10.   As noted above, the named applicants in this dispute are the strata, Mr. Hall and Mr. Zaharuk. Mr. Hall and Mr. Zaharuk are both strata council members and owners in the applicant strata. The applicants’ representative, SB, provided submissions on behalf of all three applicants. As I will discuss further below, I find the applicants’ claims against Mr. North arise from alleged bylaw violations and damage to common property. However, individual owners do not have standing (a legal right) under the Strata Property Act (SPA) to bring a claim against another owner for bylaw violations (see the non-binding but persuasive decision Kuan et al v. The Owners, Strata Plan NW2603, 2019 BCCRT 800 at paragraph 29). So, I find Mr. Hall and Mr. Zaharuk have no standing to claim that Mr. North violated the strata’s bylaws, or to seek reimbursement for damage to the strata’s common property. I also find that Mr. Hall and Mr. Zaharuk did not disclose any personal claims against Mr. North. Even if they did, those claims would not fall under the CRT’s strata property jurisdiction. For these reasons, I find that Mr. Hall and Mr. Zaharuk have no standing to bring their claims against Mr. North. Therefore, I dismiss Mr. Hall and Mr. Zaharuk’s claims, and I will consider only the strata’s claims against Mr. North in this dispute.

ISSUES

11.   The remaining issues in this dispute are:

a.    Must Mr. North pay the strata $100 for alleged bylaw violations?

b.    Is Mr. North responsible to pay the strata $500 for the damaged gutter?

EVIDENCE AND ANALYSIS

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

13.    The strata filed consolidated bylaws in the Land Title Office in May 2009. The strata also filed several bylaw amendments since that time, but none of those amendments are relevant to this dispute. I will discuss the relevant bylaws below.

Must Mr. North pay the strata $100 for alleged bylaw violations?

14.   The strata says that Mr. North violated bylaw 4.1 and 4.2 and claims $100 as a bylaw violation fine. In the strata’s submissions for its dispute-related fees and expenses claim, the strata claims $300 for three $100 bylaw violations (bylaw 4.1 (a), (b), and (c)). The strata did not amend the Dispute Notice to include this claim for a further $200 in alleged fines. I find it would be procedurally unfair to consider these further claimed amounts as Mr. North did not have notice of them. So, I will only consider the strata’s $100 claim as set out in the Dispute Notice.

15.   Bylaw 4.1 says, in part, that an owner must not use a strata lot, common property or common assets in a way that (a) causes a nuisance or hazard to another person, (b) causes unreasonable noise, (c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets, or another strata lot.

16.   Bylaw 4.2 says, among other things, that an owner must not cause damage to the common property.

17.   Bylaw 28 says the strata may fine a resident $100 for each contravention of a bylaw.

18.   Under SPA section 135(1), before imposing bylaw fines, 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 impose fines “as soon as feasible”.

19.   The BC Court of Appeal has found that strict compliance with section 135 of the SPA is required before a strata corporation can impose bylaw fines. The court also determined that bylaw fines may be found to be invalid if the procedural requirements set out in section 135 are not followed. See Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449.

20.   I find Mr. North is not responsible to pay $100 for the alleged bylaw violation fine because I find the strata has not followed SPA section 135. The strata submitted evidence of complaints made to the strata following the April 10, 2021 incident in this dispute. However, the strata did not submit evidence that it provided written notice of the complaints to Mr. North. Mr. North provided a July 2, 2021 letter to the strata that refers to April 11, 2021 and June 15, 2021 letters from the strata. However, those letters were not submitted in evidence, and I do not know the contents of them. Further, the available evidence does not show that the strata actually imposed a $100 fine, or any other fine, on Mr. North for the April 10, 2021 incident, or gave Mr. North notice of any fine. Given this, I find the strata has not proved that it is entitled to payment of $100 from Mr. North for alleged bylaw violations. I dismiss the strata’s claim for payment of the alleged $100 fine.

Is Mr. North responsible to pay $500 for the damaged front gutter?

21.   As noted, the strata also asks for an order that Mr. North pay $500 to repair a gutter damaged during the April 10, 2021 incident. Mr. North disputes this claim and says he did not damage the gutter.

22.   The strata submitted a photo of a gutter, located on the exterior on what I infer is a strata building. I find the gutter is common property. SPA section 72 requires the strata to repair and maintain common property and assets. Bylaw 12.1 also says, in part, that the strata must repair and maintain common property. However, the strata can recover common property repair costs from owners in certain circumstances.

23.   SPA section 130 allows a strata corporation to fine an owner for bylaw violations. SPA section 133 permits a strata corporation to require that an owner who can be fined under section 130 to pay the “reasonable costs” of remedying a bylaw contravention.

24.   As noted, bylaw 4.2 says that an owner must not cause damage to the common property. Bylaw 38(4) says that if an owner causes damage to common property and the damage is not covered by insurance, the owner must reimburse the strata for the full repair costs.

25.   Given the above, I find the strata is entitled to recover the gutter repair costs from Mr. North under SPA section 133 if he caused the gutter damage. As with the bylaw fines, the strata must comply with SPA section 135 before requiring Mr. North to pay these costs. However, for the following further reasons, I find the strata has not met its burden of proving Mr. North damaged the gutter. Given this, I find it is not necessary for me to determine whether the strata complied with the SPA section 135.

26.   I find the photograph of the gutter in evidence shows that it is slightly dented in one location. An August 12, 2021 estimate from Weatherguard quoted $500 plus GST to replace the gutter. Given this evidence, I accept that the gutter was damaged.

27.   As noted, the strata says Mr. North damaged the gutter by banging a ladder against it. Mr. North denies doing so. He also says the ladder should not have been leaning on the gutter, and says the gutter was bent at the spot it was used to access the roof. I infer Mr. North argues that the gutter was bent when Mr. Hall and Mr. Zaharuk accessed the roof. The strata did not dispute that the ladder was leaning on the gutter when it was used to access the roof.

28.   The strata submitted several statements from other strata lot owners who were present or nearby when the April 10, 2021 incident occurred. However, most of the statements do not say that Mr. North banged a ladder on the gutter or that Mr. North damaged the gutter. Instead, most say that Mr. North threw the ladder to the ground and do not mention any gutter damage. Only one statement, from JW, says that Mr. North banged the ladder on the gutter and damaged it. However, this statement was typed and signed by SB, the strata’s representative in this dispute. As the strata’s representative, I find SB is not neutral. Given this, I place little weight on JW’s statement. Overall, I find the statements do not confirm that Mr. North damaged the gutter as the strata alleges.

29.   As noted, the strata bears the burden of proving its claims. Here, I find the strata has not proved that Mr. North damaged the gutter. I find it equally likely that the gutter was damaged when the ladder was placed against it and used to access the roof. Even if I had found that Mr. North damaged the gutter, beyond the August 12, 2021 estimate for the gutter’s replacement, the strata did not submit further evidence that shows the gutter was replaced or that the strata incurred any costs in doing so.

30.   Given all the above, I dismiss the strata’s claim for $500 to replace the gutter.

31.   I note that in his submissions and evidence, Mr. North raised various allegations against the strata about strata governance and bylaw enforcement, among other issues. First, I note that it would be procedurally unfair to address these issues given that the strata did not have proper notice of them. Second, Mr. North did not request any remedies flowing from these allegations, and did not file a counterclaim. So, I have not addressed Mr. North’s allegations against the strata in this decision.

CRT FEES AND EXPENSES

32.   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. As the applicants were unsuccessful, I find they are not entitled to any reimbursement. Mr. North did not pay any CRT fees or claim any dispute-related expenses, so I award none.

33.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. North.

ORDER

34.   I dismiss the applicants’ claims and this dispute.