Date Issued: June 10, 2022

File: ST-2021-004211

Type: Strata

Civil Resolution Tribunal

Indexed as: Hua v. The Owners, Strata Plan NW 1974, 2022 BCCRT 682

Between:

XIAO RUI HUA

Applicant

And:

The Owners, Strata Plan NW 1974

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This dispute is about strata governance and other issues.

2.      The applicant, Xiao Rui Hua, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan NW 1974 (strata).

3.      Ms. Hua alleges irregularities in meetings, voting and minutes, incorrect interpretation of the Strata Property Act (SPA), deprivation of services, and other governance problems. Ms. Hua requests a refund of 2 years of strata fees, totaling $4,173.12, because “we did not get the service which we paid for.” She also says the strata should follow the SPA and stop bullying.

4.      The strata generally denies Ms. Hua’s claims and says Ms. Hua and her husband owe the strata $3,323.35. The strata filed a counterclaim but in a preliminary decision the CRT refused to resolve it for lack of jurisdiction.

5.      Ms. Hua represents herself. A strata council member represents the strata.

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.   Is Ms. Hua entitled to a strata fee refund?

11.   If not, are any other remedies appropriate?

EVIDENCE AND ANALYSIS

12.   As the applicant in this civil proceeding, Ms. Hua must prove her claims on a balance of probabilities, meaning more likely than not. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

13.   The strata was created in 1982 and includes 18 strata lots. The strata filed a complete set of bylaws in the Land Title Office (LTO) on June 1, 2007.

14.   Ms. Hua owns strata lot 4. She lived there with her husband, XBZ, until sometime in 2019 when they moved out. She now rents strata lot 4 to tenants. Ms. Hua says she and her husband moved out because of a physical attack from a council member, but she does not provide details.

15.   On May 26, 2019, the strata wrote to Ms. Hua and XBZ to warn about their failure to pay strata fees by post-dated cheques in contravention of bylaw 1(2). I infer that the strata did not apply a fine as there is no record of a contravention and evidence suggests Ms. Hua later paid strata fees by e-transfer.

16.   In the same letter, the strata advised that it intended to register a lien on strata lot 4 for $3,323.35 for “personal expenses”. Although it was not set out in the letter, the strata’s submissions in this dispute explain that it determined XBZ and Ms. Hua engaged in fraudulent transactions between 2012 and 2014 when they “controlled strata council”. There is no evidence that the strata ever registered a lien on title for strata lot 4.

17.   The strata said in its May 26 letter that it was taking “special measures” until Ms. Hua or XBZ paid the $3,323.35. The strata described these measures as follows:

a.    The strata’s insurance would not cover Ms. Hua’s strata lot.

b.    If Ms. Hua wanted to sell her strata lot, the strata would not provide documents such as the Form B information certificate or Form F certificate of payment.

c.    Ms. Hua would be unable to vote an annual and special general meetings (AGMs and SGMs).

d.    If there were any “breakdown” in Ms. Hua’s strata lot, such as “water, electricity, telephone, TV, courtyard, deck, door or window and so on,” the strata would not “give any coordination and maintenance.”

Is Ms. Hua entitled to a strata fee refund?

18.   As noted, Ms. Hua’s Dispute Notice requests only 1 remedy – a refund of 2 years of strata fees. In support, she raises a number of allegations, which I summarize here.

•         The strata failed to hold an AGM in 2020 or 2021 (until December 2021).

•         Because there was no AGM, the strata council members have no right to represent the strata in these or other proceedings.

•         The strata did not have authorization to file the counterclaim in this dispute.

•         The strata’s president was paid a salary for working as a strata manager or building manager.

•         The strata president held multiple proxies and voted for himself as president.

•         Some strata council members are not fluent in English.

•         There was no interpreter present at the 2019 AGM.

•         The strata has not let Ms. Hua vote at general meetings.

•         The strata has not provided services and refused to provide a Form B information certificate upon request.

•         Various documents were missing from the 2021 AGM package.

•         The strata overpaid an owner working as a landscaper or groundskeeper.

•         The strata improperly paid or reimbursed another owner for a legal expense.

•         Another owner was not allowed to vote to elect council.

19.   The strata generally denies most of the allegations.

20.   Not all of the allegations, if proven, would amount to a breach of the SPA. Importantly, none of the allegations, if proven, would entitle Ms. Hua to her requested remedy of a strata fee refund.

21.   There is no provision in the SPA or the strata’s bylaws that allows an owner to withhold strata fees for any reason or entitles an owner to a strata fee refund. SPA section 91 says that the strata is responsible for the strata’s common expenses. Section 92 says that to meet its expenses the strata corporation must establish, and the owners must contribute by means of strata fees, to an operating fund and a contingency reserve fund. Thus, section 92 imposes mutual obligations on the strata and on each owner. Section 92 does not indicate that if the strata does not meet its obligations or contravenes the SPA, the owners are relieved of their obligation to pay strata fees, or vice versa. In addition, the strata’s bylaw 1 requires Ms. Hua to pay strata fees on or before the first day of the month to which the strata fees relate.

22.   In Stewart v. The Owners, Strata Plan KAS 2601, 2020 BCSC 809, at paragraph 106, the BC Supreme Court confirmed that payment of strata fees is mandatory for all strata owners under the SPA and cannot be waived or withheld in protest of strata actions. Based on SPA section 92 and the reasoning in Stewart, I find Ms. Hua is not entitled to a refund of strata fees.

Are any other remedies appropriate?

23.   Although Ms. Hua only requested a strata fee refund, in the section of the Dispute Notice that is supposed to describe what steps Ms. Hua took to resolve the claim, it says the strata should follow the SPA and “stop strata bully.”

24.   Bullying is a subjective term. An order that the strata refrain from bullying is likely too vague to be enforceable. In any event, there is insufficient evidence that the strata, its council, or any particular members bullied Ms. Hua. So, I decline to order the strata to stop bullying Ms. Hua.

25.   Ms. Hua does not identify what sections of the SPA she thinks the strata is not following. The strata must comply with the SPA and the Strata Property Regulation (Regulation) whether I order it to or not. A general order that the strata comply with the SPA and Regulation would therefore be unenforceable and unhelpful.

26.   However, it is apparent that the strata misunderstands the extent of its power to take remedial action under the SPA over the alleged debt it claims Ms. Hua or her husband owe. The evidence shows the strata contravened the SPA in 2 ways.

27.   First, the minutes for the December 14, 2019 SGM indicate that a representative for strata lot 4 was deemed ineligible to vote due to strata lot 4 owing “more than $3,498”.

28.   The strata says it was entitled to revoke Ms. Hua’s voting rights because she and XBZ refused to return the $3,323.35 the strata found owing from 2012-2014. I will not address the possible limitation period issue given the CRT refused to resolve the strata’s counterclaim that sought payment of that alleged debt as it was not within the CRT’s jurisdiction.

29.   SPA section 53(1) says that by default each strata lot has 1 vote at a general meeting SPA section 53(2) allows a strata, by bylaw, to provide that a strata lot’s vote may not be exercised for certain votes if the strata corporation is entitled to register a lien against that strata lot under SPA section 116(1). The strata has provided for this in bylaw 27(8).

30.   Section 116(1) says there are 4 types of debts that can be the subject of a lien. They are strata fees, a special levy, reimbursement of the cost of work under a work order from a public or local authority, and the strata lot’s share of a judgment against the strata corporation. The strata does not say how the $3,323.35 falls under SPA section 116(1). The $3,323.35 is not strata fees, a special levy, reimbursement for a work order, or share of a judgment. I find that it does not fall under SPA section 116(1).

31.   This means the strata was not entitled to refuse to permit Ms. Hua to vote at general meetings, like it did at the 2019 SGM. However, as the resolutions were carried unanimously at that SGM, Ms. Hua’s vote would not have changed the outcome of any votes on the resolutions, nor does Ms. Hua challenge any resolutions. Instead, I order the strata to stop refusing to permit Ms. Hua to vote at general meetings in contravention of SPA section 53.

32.   The second way the strata contravened the SPA is by refusing to provide the Form B information certificate upon request. Ms. Hua engaged a real estate agent, Tim Wang, to sell her strata lot in March 2019. In an unchallenged written statement, Tim Wang said the strata president and manager, HX, refused to provide the information certificate meeting minutes, depreciation report and other documents, until Ms. Hua paid all the money she allegedly owed to the strata.

33.   SPA section 59(1) says a strata corporation must give an information certificate to an owner or their agent within a week of the request. Section 59(3) sets out the information the certificate must disclose, which includes amounts owed to the strata. I find the strata was not entitled to refuse to give an information certificate to Ms. Hua’s agent. I order the strata to stop refusing to provide Ms. Hua or her agents with information certificates in contravention of SPA section 59.

34.   The other enforcement measures the strata described in its May 26, 2019 letter, if taken, risk contravening the SPA. SPA section 155 says each owner and tenant is a named insured in a strata corporation’s insurance policy, and nothing in the SPA gives strata corporations the power to change that. A strata corporation’s duties to repair and maintain common property, limited common property and parts of a strata lot are set out in the SPA and the strata’s bylaws. An owner’s debt to the strata, even if lienable, which is not the case here, does not affect the strata’s repair and maintenance duties under the SPA and bylaws. However, there is insufficient evidence that the strata followed through with either of those measures, so I will not make any other orders. Specifically, I find Ms. Hua has not proved that the strata breached its repair and maintenance obligations, or that she has been denied the benefits of the strata’s insurance.

CRT FEES AND EXPENSES

35.   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. Ms. Hua was partially successful, so I order the strata to reimburse her $125, representing half her $250 CRT fees, which includes $25 for a default order. Ms. Hua did not claim any dispute-related expenses.

36.   The strata claims expenses of $15,363.38. I dismiss the strata’s claim for dispute-relate expenses for the reasons set out below.

a.    $125 for CRT fees for the counterclaim. The CRT refused to resolve the counterclaim because it was not within the CRT’s jurisdiction, so there is no reason Ms. Hua should be responsible for these CRT fees.

b.    $3,323.35 for “embezzlement” and $1,975.06 for “fines and interest”. These amounts appear to be part of the substance of the counterclaim that the CRT refused to resolve. In any event, these amounts are not dispute-related expenses and cannot be claimed here.

c.    $509.38 for legal advice in 2020 and $335.33 for legal advice in 2021. CRT Rule 9.5(3) says the CRT will not order a party to pay another party any fees a lawyer has charged unless there are extraordinary circumstances. I find this dispute was not overly complex, Ms. Hua did not cause unnecessary delay or expense, and there is no evidence about the lawyer’s involvement. I find there are no extraordinary circumstances, so I decline to allow this expense.

d.    $272.68 for copying and toner fee for meeting minutes. The strata provided no receipts and did not explain why copying or printing were necessary for a dispute conducted online, so I do not allow this expense.

e.    $180 for its representative’s time. I find this would be contrary to CRT rule 9.5, so I do not allow this expense.

f.     $8,642.58 for other council members’ and owners’ delay in wages, consulting lawyers and “labour fee”. I find this would be contrary to CRT rule 9.5, and there is no evidence in support of the claimed amount, so I do not allow this expense.

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

ORDERS

38.   Effective immediately, I order that the strata:

a.    Stop refusing to permit Ms. Hua to vote at general meetings contrary to SPA section 53.

b.    Stop refusing to provide Ms. Hua or her agents with information certificates upon request contrary to SPA section 59.

39.   Within 30 days of the date of this order, I order the strata to pay Ms. Hua $125 for CRT fees.

40.   Ms. Hua is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

41.   I dismiss Ms. Hua’s remaining claims and the strata’s claim for dispute-related expenses.

42.   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.