Date Issued: August 2, 2022

File: ST-2021-008776

Type: Strata

Civil Resolution Tribunal

Indexed as: Paulson v. The Owners, Strata Plan LMS 1035, 2022 BCCRT 868

Between:

SAMANTHA PAULSON

Applicant

And:

The Owners, Strata Plan LMS 1035

Respondent

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      This is a strata dispute about smoking bylaw violations. The applicant, Samantha Paulson, owns strata lot 68 (SL68) in the respondent strata corporation, The Owners, Strata Plan LMS 1035 (strata). Ms. Paulson says that the strata unfairly fined her $600 for alleged bylaw violations. She seeks an order that the strata reverse the $600 fines.

2.      The strata says, in essence, that the fines are valid and that it treated Ms. Paulson fairly at all times.

3.      Ms. Paulson is self-represented. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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.

7.      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

8.      The issue in this dispute is whether I should order the strata to reverse the $600 fines.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, the applicant, Ms. Paulson 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. Ms. Paulson did not provide reply submissions, despite having the opportunity to do so.

Background

10.   It is undisputed that Ms. Paulson owns and lives in SL68. The strata says that between May 28, 2021 and June 18, 2021, it received complaints from other strata lot owners that someone in SL68 was smoking cannabis. In its submissions, the strata says that Ms. Paulson’s guest who was staying with her during the relevant times, was the alleged smoker. Ms. Paulson does not deny that someone in SL68 was smoking cannabis. However, she says that the strata failed to give her proper notice of the complaints before imposing the $600 fines. She also says the strata did not provide her with any evidence of the alleged bylaw violations during her hearing with the council and that the council did not adequately investigate the complaints. Lastly, Ms. Paulson says that the strata has bullied her by continuing to send her letters about the outstanding fines.

Bylaws

11.   The strata filed its bylaws at the Land Title Office in March 2002, which I find are the bylaws applicable to this dispute. The strata also filed various bylaw amendments after March 2002. Other than the May 2019 amendments to smoking bylaw 46(15), I find the remaining amendments are not relevant to this dispute.

12.   Bylaw 46(15) says that a person must not smoke or permit smoking of any tobacco or cannabis product in any strata lot or on any common or limited common property. Bylaw 28.1 says that the strata may fine an owner $50, up to a maximum of $200, for each bylaw violation.

Should the $600 fines be reversed?

13.   As mentioned above, Ms. Paulson does not deny that someone was smoking cannabis in SL68. However, she says that she either did not receive the strata’s bylaw violation letters or received them after the date set out in the letters for a response, because the mailing address used by the strata for Ms. Paulson was incorrect. In particular, Ms. Paulson says that the strata addressed the letters to “Norfolk Avenue” instead of “Norfolk Street”. The strata says that it has confirmed with Canada Post that so long as the postal code on the envelope is correct, the mail is successfully delivered regardless of whether it is labelled “Norfolk Avenue” or “Norfolk Street”. It also says that the bylaw violation letters were emailed to Ms. Paulson on July 7, 2021 in any event, so she had notice of every smoking violation in advance of her hearing, contrary to her submissions.

14.   The evidence shows that after Ms. Paulson’s hearing before the strata council on July 21, 2021 (July hearing), the strata fined her $600 for 7 violations of bylaw 46(15). The alleged violations took place on May 22, May 28, June 4, June 5, June 11, June 13, and June 18, 2021 (smoking violations). The evidence also includes a November 4, 2021 letter to Ms. Paulson from the strata manager informing Ms. Paulson that she was being fined a further $200 for a September 1, 2021 bylaw violation. However, based on the evidence before me, it is unclear whether the strata reversed this fine. Further, Ms. Paulson did not raise the November 4, 2021 fine in her Dispute Notice or submissions. She also does not seek any orders with respect to this fine, so I do not address it further in this decision.

Strata Property Act Section 135

15.   I now consider whether the strata satisfied the Strata Property Act’s (SPA) requirements before it imposed the $600 in fines. SPA section 135 sets out the requirements a strata corporation must meet before imposing a fine. It says the strata must not impose a fine unless it has received a complaint and given the owner particulars of the complaint in writing and a reasonable opportunity to answer the complaint, including a hearing if requested. The strata must also give the owner notice in writing “as soon as is feasible” if it has decided to impose a fine for the bylaw breach.

16.   The BC Court of Appeal has found that strict compliance with SPA section 135 is required before a strata corporation can impose bylaw fines, and fines may be found to be invalid if section 135’s procedural requirements are not followed (Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449). In Terry, the Court of Appeal specifically considered what constituted sufficient particulars for the purpose of section 135. In paragraph 28, the Court said that an owner must be given notice that the strata is considering imposing a fine for the alleged contravention of an identified bylaw or rule, and particulars sufficient to call attention to the owner of the contravention at issue.

17.   The evidence before me includes emails the strata received between May 28, 2021 and June 18, 2021 from a strata resident complaining of cannabis smell and smoke coming from SL68 on the same dates as the smoking violations mentioned above (complaint emails). The evidence also includes 6 bylaw violation letters that the strata says it sent to Ms. Paulson by mail. Each letter set out the date and time of the alleged violations and the bylaws Ms. Paulson was alleged to have contravened. The letters also said Ms. Paulson had an opportunity to answer the complaints in writing and to request a council hearing under SPA section 135. In the letters, the strata gave Ms. Paulson 14 days from the date of each letter to provide a written response or request a hearing, failing which, the strata council could decide to issue a $200 fine against her for each bylaw violation.

18.   The evidence does not show when Ms. Paulson requested a hearing. However, and as mentioned above, it is undisputed that Ms. Paulson had the July hearing before the strata council. The strata council’s July 22, 2021 meeting minutes note that the owner of a strata lot attended for a hearing to dispute smoking violations. The minutes say that after the owner left, the council confirmed that a bylaw had been contravened and voted to impose $600 in fines. The strata informed Ms. Paulson of its decision to fine her $600 in its July 26, 2021 letter which it sent to Ms. Paulson by mail and email. This letter listed the dates of each bylaw violation she was being fined for. These dates correspond with the dates set out in the complaint emails and the bylaw violation letters.

19.   Though Ms. Paulson says that she did not receive some of the bylaw violation letters and received some of them late, she has not provided any specifics to this allegation. It is unclear which bylaw violation letters Ms. Paulson claims were never delivered or how late she allegedly received the other letters. Ms. Paulson also has not responded to the strata’s submission that the bylaw violation letters were also emailed to her.

20.   It is undisputed that the bylaw violation letters were incorrectly addressed to “Norfolk Avenue” instead of “Norfolk Street”. However, despite this error in the address, Ms. Paulson admits that she received some of the bylaw violation letters, which led her to request a hearing before the strata council to address the violations. The strata’s July 26, 2021 decision letter clearly set out the specific dates of the smoking violations she was being fined for. If there were violations set out in this letter that she was not previously aware of, I expect Ms. Paulson would have written to the strata council about this. However, Ms. Paulson provided no evidence of any communications between her and the strata where she said she had not received notice of all of the smoking violations before the July hearing.

21.   On balance, I find it is more likely than not that Ms. Paulson received the 6 bylaw violation letters before the July hearing and before the strata imposed the $600 fines. As a result, I find Ms. Paulson was provided with particulars of each complaint and given a reasonable opportunity to answer the complaints at the July hearing. So, I find that the strata validly imposed the $600 fines by satisfying SPA section 135’s requirements.

Significant Unfairness

22.   Though she does not use these exact words, I find Ms. Paulson essentially argues that the strata treated her significantly unfairly by failing to adequately investigate the complaints and because it did not provide any evidence of the alleged bylaw violations at the July hearing. As mentioned above, Ms. Paulson also says that the strata has tried to bully her by continuing to send her letters about the outstanding fines.

23.   As noted, the strata says that it treated Ms. Paulson fairly at all times. It says that after the July hearing, it reviewed the information Ms. Paulson provided and concluded that the smoking bylaw had been violated. It further says the strata council determined that it would be appropriate to reduce the fines from $200 to $100 for each violation. Although there were 7 dates on which the smoking bylaw was alleged to have been breached, it appears the strata treated the May 22, 2021 and May 28, 2021 incidents as 1 violation.

24.   With respect to the alleged bullying, the strata says that the letters sent by its strata manager are standard letters that are sent to any owner whose account is in arrears. The strata says that it does not direct the strata manager to send these letters and that the strata manager follows the standard practice for addressing all complaints.

25.   Under CRTA section 123(2), the CRT can make orders remedying significantly unfair actions or decisions by a strata corporation or strata council (see The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164). Courts have found that a strata’s actions are significantly unfair when they are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, or are unjust or inequitable (see Reid v. Strata Plan LMS 2503, 2003 BCCA 126 and Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44). Dollan also established a reasonable expectations test. According to paragraph 28 of Watson, the reasonable expectations test asks whether an objectively reasonable expectation by an owner or tenant was violated by a significantly unfair action.

26.   As mentioned, Ms. Paulson says that the strata did not adequately investigate the complaints before imposing the $600 in fines. The SPA does not set out any procedures for assessing bylaw complaints. In Chorney v. The Owners, Strata Plan VIS770, 2016 BCSC 148, the BC Supreme Court stated that the SPA allows strata corporations to deal with complaints of bylaw violations as it sees fit, as long as it complies with the principles of procedural fairness and its actions are not significantly unfair to any person who appears before it (paragraph 52).

27.   Here, the strata decided that the bylaw violations had taken place based on the complaint emails it had received, and since, at the July hearing, Ms. Paulson did not deny that her guest had been smoking in SL68. Ms. Paulson was given the opportunity to address the alleged smoking violations at the July hearing. As mentioned, the strata says that it considered the information Ms. Paulson provided at the hearing in making its decision. As a result, the strata decided to fine Ms. Paulson less than the maximum amount for each violation. I find the evidence does not establish that Ms. Paulson was denied any procedural fairness at the July hearing, or otherwise. As noted above, I have already found that the strata satisfied its SPA section 135 requirements before imposing the fines. These requirements are in place in order to ensure an owner procedural fairness. Since Ms. Paulson did not deny that someone had been smoking in SL68, I find it was not significantly unfair for the strata to impose the $600 fines without further investigating the smoking complaints.

28.   Though Ms. Paulson takes issue with the fact that the strata allegedly did not provide any evidence at the July hearing, she has not established that she had asked the strata to provide such evidence. If Ms. Paulson wanted evidence, she was entitled to request the complaint emails from the strata under SPA section 36. It appears she did not do so. Given that Ms. Paulson did not dispute that someone was smoking in SL68 and the lack of evidence that she asked the strata to provide proof of the alleged bylaw violations, I find it was reasonable for the strata to not provide evidence of the bylaw violations at the July hearing.

29.   Lastly, I address Ms. Paulson’s allegation that the strata tried to bully her by sending her letters about the outstanding fines after she started this CRT dispute. These include October 26, 2021 and November 26, 2021 letters from the strata manager to Ms. Paulson requesting Ms. Paulson to pay the outstanding $600 fines. There is also an April 4, 2022 notice of default letter from the strata manager, demanding payment from Ms. Paulson for the outstanding fines under SPA section 112(2).

30.   I note that SPA section 114(1)(b)(ii) says that where there is a disputed debt that is the subject of a current CRT dispute, an owner can pay the disputed amount to the strata to hold in trust until a CRT decision is issued. Under this section, Ms. Paulson could have paid the strata the $600 to avoid receiving any further letters about the outstanding fines. If Ms. Paulson was successful in having the fines reversed in this CRT dispute, under section 114(3), the strata would have been required to return the $600 back to her. Though Ms. Paulson disputes the validity of these fines, I find the strata was entitled to attempt to collect the outstanding fines until the fines were ordered invalid and reversed. So, I find the strata did not bully or treat Ms. Paulson unfairly by sending these letters.

31.   Since I have already found that the $600 fines were validly imposed, and since Ms. Paulson has failed to prove that the strata treated her significantly unfairly, I decline to reverse the $600 fines.

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. As Ms. Paulson was unsuccessful, I find she is not entitled to any reimbursement. The strata did not pay any CRT fees or claim any dispute-related expenses, so I order no reimbursement.

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

 

 

ORDER

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