Date Issued: June 7, 2022

File: ST-2021-008624

Type: Strata

Civil Resolution Tribunal

Indexed as: Faherty v. The Owners, Strata Plan EPS4579, 2022 BCCRT 669

Between:

LINNEA FAHERTY

Applicant

And:

The Owners, Strata Plan EPS4579

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about alterations to common property. The applicant, Ms. Linnea Faherty, owns strata lot 68 (SL68) in the respondent strata corporation, The Owners, Strata Plan EPS4579 (strata). Ms. Faherty says the strata approved her alteration request subject to certain conditions. She says the strata failed to respond to her requests to change or remove those conditions. She seeks orders for the strata to decide on her requests and compensate her $375.87 for an installed railing and $131.25 for an inspection report about the alterations. Ms. Faherty explained in submissions she is only seeking these amounts totaling $507.12 and not the $1,350 claimed in the Dispute Notice.

2.      The strata disagrees and says it acted reasonably. It submits that Ms. Faherty installed the alterations and requested permission afterwards, so Ms. Faherty suffered no delay or deprivation. It also says it has now granted Ms. Faherty’s requests.

3.      Ms. Faherty represents herself. A strata council member represents the strata.

4.      For the reasons that follow, I dismiss Ms. Faherty’s claims.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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

9.    The issues in this dispute are as follows:

a.    Should I order the strata to decide Ms. Faherty’s common property alteration request?

b.    Should I order the strata to reimburse Ms. Faherty $375.87 for the railing and $131.25 for the home inspection report?

BACKGROUND, EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, Ms. Faherty as the applicant must prove her claims on a balance of probabilities. This means more likely than not. I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant to provide context for my decision.

11.   I begin with the undisputed background. As noted above, Ms. Faherty owns SL68. The strata plan shows it is a 2-storey townhouse. It also has an outdoor deck that is designated as part of SL68.

12.   The strata registered a complete set of bylaws in the Land Title Office in November 2017. There are registered amendments that I find are not relevant to this dispute. Bylaw 6(1) says that an owner must obtain the written approval of the strata before making an alteration to common property. Bylaw 6(2) says that the strata may require as a condition of its approval that the owner agree, in writing, to take responsibility for any expenses relating to the alteration and/or to take responsibility for the ongoing maintenance and repair of the alteration.

13.   Ms. Faherty filled out an application form dated February 23, 2021 and sent it to the strata on March 3, 2021. She proposed changing the common property as follows. Photos show that immediately south of SL68’s deck is a narrow walkway. I note for context that the parties also refer to the walkway as a dog run. Most of the walkway is covered in landscape rocks. There is an air conditioning unit in the walkway. It is undisputed that the walkway is common property.

14.   The photos and diagrams attached to the application show that the walkway is above ground level. At the time of the application, it largely lacked any railing. Ms. Faherty explained in her application that the lack of railing breached building codes and presented a falling hazard. She proposed adding 7 feet of railing to the narrow walkway to reduce the risk of falling. She also signed the strata’s indemnity agreement as part of her application.

15.   As noted above, Ms. Faherty submitted her application to the strata on March 3, 2021, but it is undisputed that she installed the railing on March 7, 2021. So, I find Ms. Faherty breached bylaw 6 by proceeding with the alterations without first obtaining the strata’s permission.

16.   At the March 30, 2021 strata council meeting, the strata council retroactively approved the alteration subject to certain conditions: 1) the neighbouring strata lot owner must not object, 2) the strata’s landscaper must be able to access the walkway using an installed gate, 3) all dog waste in the area had to be picked up immediately, and 4) the common property had to be restored to its original state if SL68 were sold or the permission for the alteration cancelled. The property manager emailed Ms. Faherty about the approval and conditions on April 12, 2021.

17.   In an April 27, 2021 email to the property manager, Ms. Faherty expressed concerns that the decision did “not adequately define the terms of approval”. Ms. Faherty expanded on this in a May 19, 2021 email. She objected to condition 2 and suggested that she be responsible for all walkway landscaping. She also objected to condition 4. She suggested that instead of restoring the walkway to its original state in the event of a sale, she install a secured matching deck railing in compliance with building codes.

18.   The strata did not immediately reply, nor did it impose any fines or take any actions against Ms. Faherty in connection with the railing. Ms. Faherty periodically requested updates and on September 23, 2021, requested a hearing about the railing. She reminded the strata about her hearing request on October 15, 2021. There is no indication that the strata held the requested hearing.

19.   On October 13, 2021, the strata emailed Ms. Faherty to ask if she would agree to allow the strata’s contractors access to service any common property or common assets blocked by the installed railing. Ms. Faherty replied and agreed that same day.

20.   Ms. Faherty then applied for dispute resolution in November 2021. The strata’s property manager, SW, provided a statement about the December 7, 2021 strata council meeting. SW said that the strata council removed the conditions Ms. Faherty objected to. The parties did not provide a copy of the December 2021 meeting minutes. However, SW’s evidence is undisputed and there is no indication that the strata is seeking to enforce any bylaws in connection with the railing. So, I accept SW’s evidence as accurate.

Issue #1. Should I order the strata to decide Ms. Faherty’s common property alteration request?

21.   Ms. Faherty alleged that the strata refused to decide on her application. I find this misstates what actually occurred. As noted above, the strata approved Ms. Faherty application twice: first on April 12, 2021 with certain conditions, and again on December 7, 2021 with fewer conditions.

22.   Instead, I find that Ms. Faherty’s main complaint is that the strata took an unreasonable period of time to decide on her May 2021 request to change the conditions of approval. However, as the strata decided upon her request in December 2021, I find this claim is essentially moot. A claim is said to be moot if, after a party initiates a claim or proceeding, events occur that affect the parties’ relationship so that no “present live controversy” exists that affects the parties’ rights. See Binnersley v. BCSPCA, 2016 BCCA 259.

23.   Determining mootness involves 2 questions. The first is whether the live issue has disappeared, and any issues are theoretical or academic. If there is no live issue, the second question is whether the court or tribunal should exercise its discretion to hear the case anyway. Here, I find that deciding this claim would service no useful purpose, so I decline to exercise my discretion to decide it. I dismiss this claim.

Issue #2. Should I order the strata to reimburse Ms. Faherty $375.87 for the railing and $131.25 for the home inspection report?

24.   Ms. Faherty seeks reimbursement of a total of $507.12 for the installed railing and an inspection report about the railing work. I find she relies upon the law of significant unfairness.

25.   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 cases under SPA section 164. See The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164. Significantly unfair conduct is conduct that is 1) oppressive in that it is burdensome, harsh, wrongful, lacking in probity or fair dealing, or done in bad faith, or 2) conduct that is unfairly prejudicial in that it is unjust or inequitable: Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173 at paragraph 88.

26.   In Kunzler, the Court of Appeal confirmed that an owner’s expectations should be considered as a relevant factor. I therefore use the test from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, to consider the following factors:

a.    What is or was the expectation of the affected owner?

b.    Was that expectation on the part of the owner objectively reasonable?

c.    If so, was the expectation violated by an action that was significantly unfair?

27.   I find that Ms. Faherty expected the strata to respond to her May 19, 2021 email within a reasonable time period. I also find Ms. Faherty expected the strata to hold a hearing within 4 weeks of her September 23, 2021 request.

28.   As noted above, Ms. Faherty asked for the strata to change the conditions of approval in that email. I find that this expectation was objectively reasonable. I also note that SPA section 34.1(2) requires the strata to hold a council meeting to hear an applicant within 4 weeks after the request. I find that Ms. Faherty made such a request in her September 23, 2021 email and she had a reasonable expectation for the strata to comply with the SPA and hold a hearing.

29.   However, I find that the strata did not violate Ms. Faherty’s expectations through a significantly unfair act. In reaching this conclusion I put significant weight on the fact that Ms. Faherty breached bylaw 6 and constructed the railing without permission. Because of this, I find it unproven that Ms. Faherty suffered any prejudice from the strata’s delay. Further, as noted earlier, the strata did not take any steps to enforce the bylaws against Ms. Faherty. There is also no indication the strata threatened to do so. I also find that fact that Ms. Faherty breached bylaw 6 mitigates any unfairness she encountered before she applied for dispute resolution.

30.   Further, I find there is little to no connection between the strata’s delay and the items that Ms. Faherty claims compensation for. She seeks compensation for the railing installed in March 2021 and an inspection report about the railing from May 2021. Ms. Faherty spent money on these items before any significant delay by the strata. She was not forced to spend the money because of the strata’s actions or inaction. So, I find it unproven that Ms. Faherty suffered any loss from the strata’s delay.

31.   For those reasons, I dismiss this claim.

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. I see no reason in this case not to follow that general rule. I dismiss Ms. Faherty’s claims for reimbursement.

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

ORDER

34. I dismiss Ms. Faherty’s claims and this dispute.