Date Issued: April 29, 2022

File: ST-2021-007353

Type: Strata

Civil Resolution Tribunal

Indexed as: Bumann v. The Owners, Strata Plan NW2105, 2022 BCCRT 502

Between:

ADELHEID BUMANN

Applicant

And:

The Owners, Strata Plan NW2105

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      This is a strata property dispute about windows.

2.      The applicant, Adelheid Bumann, owns a strata lot (SL5) in the respondent strata corporation, The Owners, Strata Plan NW2105 (strata). In 2021, Mrs. Bumann replaced her SL5 bedroom windows. She says the window seals had failed and the window configuration was unsafe. She says the strata was responsible to repair and maintain the windows under the bylaws and it should have replaced the windows at the strata’s cost. She says the strata also treated her unequally by paying for other owners’ new windows. Mrs. Bumann seeks an order that the strata reimburse her $7,153.80 for new SL5 windows and dispute-related expenses.

3.      The strata agrees that the SL5 window seals failed but says it was a cosmetic issue and the full windows with frames did not need to be replaced. It says it never treated Mrs. Bumann inequitably and it would have paid to replace the glass panes. However, it says Mrs. Bumann went ahead and replaced the SL5 windows without its approval and she is not entitled to any reimbursement for that expense.

4.      Mrs. Bumann is self-represented. The strata is represented by a strata council member.

5.      For the reasons that follow, I find the strata is not responsible to reimburse Mrs. Bumann for the new windows and I dismiss her claim.

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.

ISSUE

10.   The issues in this dispute are:

a.    Did the strata fail to reasonably repair and maintain the SL5 windows?

b.    Was the strata’s decision to deny Mrs. Bumann’s request that the strata pay for replacement windows significantly unfair?

c.    If either are true, must the strata reimburse Mrs. Bumann the claimed $7,153.80 for the new windows and expenses?

EVIDENCE AND ANALYSIS

11.   As the applicant in a civil proceeding such as this, Mrs. Bumann must prove her claims on a balance of probabilities, meaning “more likely than not”. I note Mrs. Bumann chose not to submit any reply to the strata’s submissions even though she had a reasonable opportunity to do so.

12.   I have read all the submissions provided by the parties, including the case law relied on by the strata in argument. However, I refer only to the evidence and argument that I find relevant to give context for my decision.

Background

13.   The strata plan filed in the Land Title Office (LTO) shows that the strata was created in the 1980s under the former Condominium Act. The strata continues to exist under the current Strata Property Act (SPA).

14.   The strata consists of 12 residential buildings in varying configurations, plus a clubhouse. Mrs. Bumann’s SL5 is a single storey strata lot in a building with 4 side-by-side attached strata lots.

15.   The strata passed a full set of amended bylaws with the LTO in 2002, plus some amendments in the following years. Bylaws 4 and 7 apply to this dispute. Bylaw 4(1)(d) says that an owner must obtain the strata’s written approval before making an alteration to a strata lot that involves a window. Under bylaw 4(2) the strata must not unreasonably withhold its approval under subsection (1), but may require as a condition of its approval that the owner agree, in writing, to take responsibility for any expenses relating to the alteration. Bylaw 7(d) says the strata must repair and maintain all windows on the exterior of a strata lot.

16.   There is no dispute that Mrs. Bumann’s SL5 bedroom windows were the strata’s responsibility to repair and maintain under bylaw 7(d).

17.   As set out in a March 6, 2020 Depreciation Report prepared for the strata by RDH Building Science Inc. (RDH), the original strata lot windows were installed in 1985. The original windows were aluminum framed with “awning and slider operators”. RDH’s report estimates that the aluminum windows have a 40-year “service life” and their “next renewal year” is forecasted for 2030.

18.   The photographs of Mrs. Bumann’s original bedroom windows show they were aluminum framed windows with awnings that opened at the top. I find they were likely installed in 1985 as set out in the RDH report.

19.   The strata records show that Mrs. Bumann’s family member emailed the strata manager on May 11, 2021 on behalf of Mrs. Bumann. The email states that Mrs. Bumann was gathering quotes for a new window in SL5’s bedroom because it had a “leaky seal”. She also wrote that there had been a fire incident in another strata lot and it was “suggested by the experts to have an easy exit window with an opening at the bottom”. She asked for the strata to let her know when it would reimburse her to replace the window. I note there is no expert report or order from a Fire Marshal suggesting that the windows posed a fire safety risk or requiring the strata to replace the windows. I come back to the lack of evidence in my analysis below.

20.   The parties agree that the strata did not respond to Mrs. Bumann’s family member’s email for several months. Mrs. Bumann asserts, without evidence, that the delay was deliberate. I find based on the strata’s emails and strata manager’s witness statement that the delay was not deliberate but was an oversight by the strata manager who misplaced the email and did not forward it to the strata council until August 2021.

21.   After not receiving a response from the strata, Mrs. Bumann purchased 4 windows from Centra Windows (Centra) in June 2021 for $7,003.80 as shown on Centra’s receipt. It shows a “shipment date” of December 24, 2021. Mrs. Bumann then told the strata a second window seal was broken and that “safety exit in case of fire and efficient windows when it comes to heating my home are very important to me”. She asked the strata for post-purchase approval and reimbursement for the windows.

22.   The strata council considered Mrs. Bumann’s request for replacement windows at its July 2021 council meeting and denied her request to replace the full windows at the strata’s cost. However, council agreed to pay to replace the glass panes since the seals were broken. Council told Mrs. Bumann that they added the SL5 glass replacement to the strata’s “priority list for glass replacements as funds become available”. However, they also told Mrs. Bumann that an owner may replace their windows at their own expense with the strata’s prior approval and offered to provide her with information about other owners who paid for their own new windows.

23.   After the strata manager forwarded the original May 2021 email request to council in August 2021, the council wrote Mrs. Bumann again to inform her that it would not pay to replace her windows or share the cost for window replacements that an owner decided to replace without prior strata approval.

24.   The strata’s uncontested evidence is that Mrs. Bumann replaced 4 windows in SL5 in about October 2021. I note there is no suggestion that the strata is requiring Mrs. Bumann to remove the windows and so, I find it is likely not requiring that of her.

Did the strata fail to reasonably repair and maintain the SL5 windows?

25.   As mentioned, Mrs. Bumann argues the strata failed in its repair and maintenance duties by not replacing the SL5 windows. She alleges the windows were unsafe due to an alleged fire safety risk, and had “leaky seals”. She says leaking seals could cause mould and other damage if left unaddressed and the strata should have addressed the leaky seal issue within a reasonable time. She says the strata must reimburse her for the new windows.

26.   The strata says the seal is located in between the two panels of glass, therefore, when a seal leaks, air enters between the two panels causing the window to fog up. It says a “leaking window seal” is simply a cosmetic issue and it agreed to pay to replace the glass to resolve that issue. It says its maintenance budget is not “copious” enough to replace window frames that are not broken and it needs the maintenance funds to address essential repairs. It says there was “nothing inherently wrong” with the windows and so it was reasonable for it to decline to pay for new windows with frames. It says Mrs. Bumann is not entitled to any reimbursement.

27.   The courts (and CRT) have held that a strata corporation must act reasonably in carrying out its repair and maintenance duties. The standard is not one of perfection. See Wright v. Strata Plan No. 205, 1996 CanLII 2460 (BCSC), aff’d (1998) 1998 CanLII 5823 (BCCA). Following these decisions, I find the strata was required to act reasonably in repairing and maintaining the windows. I also find the strata’s duty to repair and maintain the windows could include a duty to replace the windows if it was necessary to do so. See The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363.

Fire Safety Risk

28.   I find that determining whether the bedroom windows posed a fire safety risk is outside the knowledge or expertise of an ordinary person and requires expert opinion evidence. See Bergen v. Guliker, 2015 BCCA 283. Mrs. Bumann provided no report from an expert stating that the original bedroom windows were a fire safety risk. Again, she also submitted no order from a Fire Marshal requiring the strata to replace the windows.

29.   Instead, Mrs. Bumann submitted into evidence a copy of her Centra contract with a handwritten comment by someone with the initials B.S. that states “windows did not meet egress”. I find this initialled comment does not meet the criteria for expert opinion evidence under CRT rule 8.3. I infer B.S. is the Centra “estimator” because the initials match the estimator’s name at the top of the contract. However, there is no information about B.S.’s qualifications and no statement from B.S. explaining who they are or what they meant by their comment. I find this handwritten comment by a Centra estimator, without additional context, is unreliable and I put no weight on it in determining whether the windows required replacement. Without expert opinion evidence, I find Mrs. Bumann has not proven that the windows posed a fire safety risk or needed to be replaced.

Window Seals

30.   Mrs. Bumann submitted no evidence to establish that the failed window seals caused condensation or a risk of water entering SL5, or a risk of mould or other damage to her strata lot. There is also no evidence of any damage in SL5 due to the failed seals. Without evidence to the contrary, I accept the strata’s assertion that the seal “leak” was only a cosmetic issue between glass panes and I find there was likely no urgency in getting it repaired.

31.   Although a full window replacement may have been the most desirable option for Mrs. Bumann, I find the strata was not required to choose the best option for Mrs. Bumann. As discussed in Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784 at paragraph 29, the strata must act “in the best interests of all the owners and endeavor to achieve the greatest good for the greatest number” in carrying out its repair duties. This involves implementing necessary repairs within a budget that the owners as a whole can afford and balancing competing needs and priorities.

32.   I find the strata acted reasonably and chose a good and less expensive option by agreeing to pay to replace the glass to remedy the seal issue rather than replace the full windows with frames. Given the lack of urgency, I find it was reasonable in the circumstances for the strata to put Mrs. Bumann on a priority list to replace the glass when strata funds became available. I find Mrs. Bumann has not established that the strata failed to meet its repair duty by not replacing the windows or glass on her timeline.

Was the strata’s decision to deny Mrs. Bumann’s request for the strata to pay for replacement windows significantly unfair?

33.   As mentioned, Mrs. Bumann alleges that the strata treated her inequitably by not approving her request to replace the windows at the strata’s cost. I find the strata is not required under the SPA or the bylaws to treat all owners the same. However, if the strata’s decision or action towards an owner is “significantly unfair”, the owner might be entitled to a remedy under CRTA section 123(2). So, I have considered whether the strata’s decision to deny Mrs. Bumann’s request was significantly unfair. I find it was not for the reasons that follow.

34.   SPA section 164 sets out the BCSC’s authority to remedy significantly unfair actions. CRTA section 123(2) has the same language as SPA section 164. See The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164.

35.   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 and Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173.

36.   In Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, Madam Justice Garson of the Court of Appeal applied a “reasonable expectations” test when considering whether a discretionary action of council was significantly unfair. The test asks: What was the applicants’ expectation? Was that expectation objectively reasonable? Did the strata violate that expectation with a significantly unfair action or decision?

37.   The strata’s uncontradicted evidence is that it attempted to replace a few windows throughout the strata buildings each year but discontinued that practice after June 2019. It says the costs to replace the windows were too high and prevented it from devoting sufficient funds to other necessary repairs. As there is no evidence that the strata’s practice of paying for window replacements continued, I accept the practice ended about 2 years before Mrs. Bumann replaced her windows.

38.   Mrs. Bumann provided no witness statements or records establishing that the strata has since paid for other owners’ new windows in similar circumstances. Instead, the strata’s correspondence indicates that the council has approved another owner’s request to replace their windows but required that owner to pay for the new windows themselves. Mrs. Bumann has not proven that the strata treated her inequitably by refusing to pay for replacement windows because of broken seals.

39.   I find it was Mrs. Bumann’s own choice to go forward and purchase windows from Centra despite not receiving any response or affirmation from the strata that it would pay for those windows. Mrs. Bumann has not established that she had a reasonable expectation that the strata would then pay for the new windows. I say this because she has not proven with evidence that the frames were broken, that they posed a safety risk, required a full replacement, or that the strata had continued to pay for other owners’ new windows.

40.   I find the strata’s refusal to reimburse Mrs. Bumann for new windows was not oppressive or unfairly prejudicial, and so, I find the strata’s decision was not significantly unfair.

Conclusion

41.   In summary, I conclude that the strata acted reasonably in offering to pay to replace the glass in SL5’s windows and did not treat her inequitably or significantly unfairly. I conclude that Mrs. Bumann has not proven that the strata was required to replace the SL5 bedroom windows to meet its maintenance and repair duty under bylaw 7(d). As Mrs. Bumann has not established that the strata otherwise had an obligation to reimburse her for the new windows, I dismiss Mrs. Bumann’s claim.

CRT FEES AND EXPENSES

42.   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. I see no reason in this case not to follow that general rule. As the unsuccessful party, I find Mrs. Bumann is not entitled to any reimbursement. The strata did not pay any CRT fees or claim any dispute-related expenses.

43.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mrs. Bumann.

ORDER

44.   I dismiss Mrs. Bumann’s claims and this dispute.