Date Issued: May 5, 2022

File: ST-2021-007335

Type: Strata

Civil Resolution Tribunal

Indexed as: Johnson v. The Owners, Strata Plan EPS3792, 2022 BCCRT 537

Between:

FRANCENE JOHNSON

Applicant

And:

The Owners, Strata Plan EPS3792

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about window film and associated bylaw fines.

2.      The applicant, Francene Johnson, owns strata lot 68 (SL68) in the respondent strata corporation, The Owners, Strata Plan EPS3792 (strata).

3.      Miss Johnson bought SL68 from the owner developer. Shortly after she moved in, she installed a film on the windows of the solarium dedicated for SL68’s exclusive use. Miss Johnson says the strata unreasonably refused to retroactively approve the window film. She also says the strata unreasonably imposed bylaw fines against her when she did not remove the film. Miss Johnson seeks an order that the strata approve the window film and rescind the related bylaw fines.

4.      The strata says the solarium glass is limited common property, and Miss Johnson did not receive the strata’s approval to alter it with the film, as required under the bylaws. The strata says that requiring Miss Johnson to remove the film is not unreasonable because the film voids the warranty on the solarium glass structure. The strata also says it properly imposed fines against Miss Johnson for this bylaw violation.

5.      Miss Johnson is self-represented. The strata is represented by a strata council member.

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.

ISSUES

10.   The issues in this dispute are:

a.    Did Miss Johnson breach the bylaws by installing the window film?

b.    Is the strata’s decision to not retroactively approve the window film significantly unfair to Miss Johnson?

c.    Are the bylaw fines imposed against Miss Johnson valid?

BACKGROUND

11.   In a civil proceeding like this one, the applicant Miss Johnson must prove her claims on a balance of probabilities. I have read all the arguments and evidence provided by the parties but refer only to what I find is relevant to provide context for my decision. I note that Miss Johnson did not provide any final reply submissions, despite having the opportunity to do so.

12.   The strata consists of 273 strata lots in 3 separate buildings. As noted, Miss Johnson bought SL68 from the owner developer, QH, and she moved in sometime in February 2017. At that time, QH was still performing the duties of a strata council. The strata’s first AGM was held on April 11, 2017, where the first council was elected.

13.   The strata plan filed with the Land Title Office (LTO) shows SL68 is located on the 6^th floor, with only a common property attic level above it. The strata plan also shows each strata lot has both a deck and an enclosed balcony attached to it, that are each designated as limited common property (LCP) for that strata lot’s exclusive use. I find that when the parties refer to a solarium, they mean the LCP enclosed balcony.

14.   A Form Y Owner Developers’ Notice of Different Bylaws for the strata was filed with the LTO on January 5, 2017. This notice amended the strata’s bylaws so that they differed from the Schedule of Standard Bylaws under the Strata Property Act (SPA). There have been no subsequent bylaw amendments filed with the LTO.

15.   Among the amendments, the Form Y notice added bylaw 37, which is headed “Miscellaneous Rules”. The following portions of bylaw 37 are relevant to this dispute:

a.    Bylaw 37(7): “As per Standard Bylaws, any alteration to a strata lot or common property must first be approved by the strata corporation.”

b.    Bylaw 37(11): “No awnings, shades, window or balcony guards or supplementary heating or air conditioning devices should be installed in or about the property or the limited common property without such installations being approved in writing by the strata corporation. No awning, shades, blinds or similar shall be installed inside or outside of the solarium windows.”

16.   I find that standard bylaw 6(1) is also relevant, which states that an owner must obtain the strata’s written approval before making an alteration to common property, including limited common property.

17.   The parties also refer to a rule about solarium blinds that the strata undisputedly adopted on May 2, 2017. The council meeting minutes in evidence show this rule was ratified at the June 27, 2018 annual general meeting (AGM). It says that owners must apply to the strata council for permission to install blinds and an indemnity agreement must be signed before commencing installation. It also says the solarium blinds must be a specified colour and be manufactured by Lumon Canada Inc. (Lumon).

18.   As noted, bylaw 37(11) prohibits the installation of any awning, shades, or blinds on solarium windows. While the rule about solarium blinds appears to have been intended as a limited exception to bylaw 37(11), rules cannot be used to circumvent or change the meaning of a bylaw. Section 125(5) of the SPA says that if a strata rule conflicts with a bylaw, the bylaw prevails. However, given the parties did not address this issue in their evidence or submissions, and because I do not have to apply this rule in this dispute, I make no findings about its enforceability.

EVIDENCE AND ANALYSIS

Did Miss Johnson breach the bylaws by installing the window film?

19.   Miss Johnson says she did her “due diligence” by contacting QH shortly after she moved in about installing a film on the solarium windows. She says this contact was done through a portal, and that QH responded through the portal that her request was “not a priority”. She also says QH referred her to Lumon, which supplied the solarium window glass. Miss Johnson says that Lumon told her on March 28, 2017 that it had no film options at the time, which is undisputed.

20.   It is also undisputed that Miss Johnson no longer has access to the portal, so she was unable to provide evidence of her alleged communications with QH. However, I note that a December 2016 email chain between Miss Johnson and the builder, RC, shows the portal was set up to report deficiencies. On balance, I find Miss Johnson only communicated with RC through the portal about installing a window film, and she likely received a response that it was not a priority because it was not a construction deficiency. I find there is no evidence before me that Miss Johnson specifically asked QH for approval to install film on the solarium windows or received that approval.

21.   Miss Johnson says that given the responses she received through the portal and from Lumon, she hired a third-party company to install a film on the solarium windows on April 12, 2017. This is supported by an April 12, 2017 invoice she filed in evidence, totalling $1,502.55. I also accept Miss Johnson’s undisputed evidence that the film has a 10-year warranty.

22.   I find that Miss Johnson installed the window film as an alternative to installing blinds. It is undisputed that the film is tinted and is intended to provide ultraviolet sun protection and reduced temperature in the solarium. As noted, bylaw 37(11) says that no awnings, shades, blinds, or “similar” can be installed inside or outside solarium windows. On balance, I find the film Miss Johnson installed is “similar” to a shade or blinds, as contemplated by bylaw 37(11). So, I find that bylaw 37(11) prohibited Miss Johnson from installing the film on the solarium windows, and I find she breached bylaw 37(11) by doing so.

23.   Even if I am wrong about the breach of bylaw 37(11), for the following reasons I find Miss Johnson also violated standard bylaw 6(1) and bylaw 37(7). As noted, these bylaws require owners to get the strata’s advance written approval to make an alteration to common property, including LCP. The solariums are LCP and I find that includes the solarium’s windows, which is not disputed.

24.   In The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363, the court defined an “alteration” as something that changes the structure of common property. Generally, “immaterial changes” to common property are not considered “alterations” for the purpose of standard bylaw 6(1): see Allwest International Equipment Sale Co. Ltd. v. The Owners, Strata Plan LMS4591, 2018 BCCA 187.

25.   The strata provided a December 13, 2021 email from Ben Togeretz, a Lumon Regional Manager, about the solarium glass. Mr. Togeretz stated that that applying a film can cause the glass to increase and decrease in temperature, which can make the glass more susceptible to random breakage. Mr. Togeretz also stated that the film sticks to the glass, so if the glass shatters for any reason, instead of breaking into “thousands of tiny pieces”, it can fall out as a full sheet of broken glass to the ground below, increasing the risk of injury or death.

26.   Mr. Togeretz’s email does not include his qualifications, which is generally required to accept expert evidence under CRT rule 8.3. However, given Mr. Togeretz’s position with Lumon, I am satisfied that he has the required knowledge and experience to provide expert evidence about the effect of installing film on Lumon’s solarium glass. So, I find it is appropriate to exercise my discretion under CRT rule 1.2(2) to waive the requirements of rule 8.3(2). Also noting that Miss Johnson did not question the accuracy of Mr. Togeretz’s statements, I accept his email as expert evidence.

27.   Based on Mr. Togeretz’s email, I find that installing a film changes the structure of the LCP windows. I also find that given the film is tinted and is intended to remain in place for at least 10 years, supports a conclusion that the film is not an immaterial change. For these reasons, I find that the window film constitutes an alteration to common property.

28.   Therefore, I find Miss Johnson was required to get the strata’s advance written approval to install the film. On Miss Johnson’s own evidence, even if it was QH that responded that her request about window film was not its priority, I find that statement did not constitute written approval to install the film. So, I find Miss Johnson breached standard bylaw 6(1) and bylaw 37(7) by installing the film on the solarium windows without the strata’s approval.

Did the strata treat Miss Johnson significantly unfairly?

29.   While Miss Johnson does not use these words, I find she is saying that the strata treated her significantly unfairly by refusing to retroactively approve the window film and requiring her to remove it.

30.   SPA section 164 sets out the BC Supreme Court’s authority to remedy significantly unfair actions. The CRT has jurisdiction over significantly unfair actions under CRTA section 123(2), which has the same legal test as that under SPA section 164: see The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164. 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.

31.   In Kunzler, the Court of Appeal confirmed that an owner’s expectations could be a relevant factor in assessing significant unfairness. In considering an owner’s expectations, the following test from Watson applies:

a.    What was the affected owner’s expectation?

b.    Was that expectation objectively reasonable?

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

32.   For the following reasons, I find that Miss Johnson’s expectation that the strata would retroactively approve the window film and allow her to keep it is not objectively reasonable.

33.   The bylaws are clear that no shades, blinds, or similar products are permitted to be installed on solarium windows. As noted, the strata adopted a rule about the installation of Lumon blinds, shortly after Miss Johnson installed the window film. The parties agree that the specified Lumon blinds are the only type of window shade or blind that the strata will approve.

34.   Miss Johnson says that the rule is unpopular. She says that owners who installed the Lumon blinds were dissatisfied with their quality and effectiveness, which the strata does not dispute. It is also undisputed that a petition was circulated in 2019 to amend the bylaws to permit installation of metallic window film with the strata’s approval, which received the support of more than 20% of the owners. The strata says it did not act on the petition because it was “not completed properly”, though it did not say how it was deficient.

35.   In any event, the bylaws have not been amended to specifically permit installation of film on solarium windows. In August 2020, the strata sent letters to the 8 owners who had installed window film, including Miss Johnson. I note that I do not find any delay in notifying Miss Johnson about a potential bylaw violation until more than 3 years after she had installed the film, was significantly unfair. The result to Miss Johnson would have been the same if the strata had enforced the bylaws sooner.

36.   The evidence suggests that there have been ongoing discussions between the strata and owners about whether to allow window film. However, the strata says those discussions were before the strata received relevant information about the warranty for the solarium windows. The email evidence between the strata and Lumon shows that Lumon advised the strata in November 2021 that applying film to Lumon’s windows voids the warranty on the solarium glass.

37.   So, while Miss Johnson may have been hopeful that she could keep the solarium window film based on previous discussions, I find the strata’s final decision not to retroactively approve the film was not lacking in probity or fair dealing, nor was it made in bad faith.

38.   The strata says that of the 8 owners with window film, 6 have already removed it, and one other has scheduled a removal date. I acknowledge that requiring Miss Johnson to remove the film may leave her without a desirable alternative, given the parties agree the Lumon blinds are not particularly effective. However, this simply leaves Miss Johnson in the same position as all other owners. I find Miss Johnson has not shown that removing the window film is so burdensome or harsh that it should be considered oppressive.

39.   Overall, I find the strata’s refusal to retroactively approve the window film and its demand to remove it, were not significantly unfair to Miss Johnson.

Are the bylaw fines valid?

40.   In the Dispute Notice claim summary, Miss Johnson included “fines prior to a written decision from council”. I infer that this statement refers to an allegation that the bylaw fines the council imposed were invalid. While Miss Johnson did not provide any submissions specifically on this issue, the strata did. Given the issue was raised in the Dispute Notice, I address here.

41.   SPA section 135(1) says a strata corporation may not impose a bylaw fine unless it has received a complaint, given the owner written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if requested. SPA section 135(2) says the strata must also give notice in writing of its decision to impose the fine to the owner as soon as feasible. SPA section 135(3) says that once the strata has complied with these procedural steps, the strata may impose fines or penalties for a continuing contravention without further compliance with these steps.

42.   The BC Court of Appeal has found that strict compliance with section 135 of the SPA is required before a strata corporation can impose fines. The court also determined that bylaw fines are invalid if the section 135 procedural requirements are not followed: Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449. Terry is binding precedent that the CRT must follow.

43.   The evidence shows the strata sent Miss Johnson what it referred to as a “courtesy letter” dated August 28, 2020, advising that an alteration to the solarium windows had been brought to the council’s attention, which violated the bylaws. The letter warned that failure to remove the film by September 28, 2020 might result in a formal bylaw infraction and possible fine. The strata sent a further “formal” letter dated October 13, 2020. I find this letter contained sufficient particulars of the complaint against Miss Johnson relating to her adding unauthorized window film to the LCP solarium, in breach of bylaw 6(1).

44.   It is undisputed that Miss Johnson requested a hearing and that the strata held 2 hearings with Miss Johnson about this issue, on December 8, 2020 and January 18, 2021. The strata says it provided Miss Johnson with several requests and goodwill extensions to provide her alleged permission from QH to install the window film. In a September 13, 2021 letter, the strata advised Miss Johnson that if she did not remove the film by the end of September 2021, the strata might impose fines up to $200 every 7 days for a continuing contravention.

45.   In an October 18, 2021 letter, the strata advised that it had voted to levy a $200 fine every 7 days starting November 1, 2021. I find that as of the October 18, 2021 letter, the strata had complied with SPA section 135, and any bylaw fines imposed as of November 1, 2021 were valid.

46.   The strata lot account for SL68 in evidence shows the strata imposed a total of $1,800 in continuing bylaw fines between November 1, 2021 and January 1, 2022. Given that I have found Miss Johnson breached bylaws 6(1), 37(7) and 37(11) and the strata met the notice requirements under SPA section 135, I conclude that Miss Johnson is responsible to pay those fines.

47.   There is no evidence before me that Miss Johnson has paid any fines imposed for this bylaw contravention to date. However, as the strata did not file a counterclaim, I make no order for payment.

48.   I note that the strata lot account also shows a $200 bylaw fine was imposed on May 17, 2021 for “unapproved alteration”. The strata’s “By-law Infraction Tracker” printout in evidence shows this fine was for the window film violation. There is no evidence before me that the strata provided Miss Johnson with written notice that it had decided to impose a fine before it imposed that fine, as required by SPA section 135(2). Therefore, I find the strata did not strictly comply with SPA section 135, and so the $200 fine imposed on May 17, 2021 was not valid. I order the strata to immediately reverse it.

CRT FEES AND EXPENSES

49.   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 find that Miss Johnson was partly successful, and so I therefore order the strata to reimburse Miss Johnson $112.50 for half her paid CRT fees. The strata did not pay any fees and neither party claimed any dispute-related expenses.

50.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Miss Johnson.

ORDERS

51.   I order that the strata must:

a.    immediately reverse the May 17, 2021 $200 bylaw fine imposed on Miss Johnson’s strata lot account, and

b.    pay Miss Johnson $112.50 in CRT fees within 30 days.

52.   Miss Johnson is also entitled to post-judgment interest on the CRT fee reimbursement under the Court Order Interest Act.

53.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.