Date Issued: August 2, 2022

File: ST-2021-009513

Type: Strata

Civil Resolution Tribunal

Indexed as: Emmerton v. The Owners, Strata Plan BCS 3407, 2022 BCCRT 872

Between:

JOHN EMMERTON and VAN ORTEGA

Applicants

And:

The Owners, Strata Plan BCS 3407

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about whether owners in a strata corporation can keep a hot tub on the patio outside their strata lot.

2.      The applicants, John Emmerton and Van Ortega, co-own strata lot 197 (SL197) in the respondent air space parcel strata corporation, The Owners, Strata Plan BCS 3407 (strata).

3.      The applicants placed an inflatable hot tub on a limited common property rooftop patio outside SL197. The strata says its bylaws do not permit hot tubs on patios, and so the strata says the applicants have contravened the bylaws. The applicants disagree, and they argue the strata has unfairly targeted them for bylaw enforcement. The applicants request an order for the strata to “stop infringing their rights” to choose the patio furniture they want.

4.      The strata asks that I dismiss the applicants’ claims.

5.      The applicants are self-represented. The strata is represented by a lawyer, Andrea Fammartino.

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.

10.   The strata objected to the applicants’ final reply submissions on the basis that all but one paragraph was not responsive to the strata’s submissions, and instead consisted of arguments that should have been included in the applicants’ original submissions. In making its objections, the strata provided additional submissions both in response to the portion of the applicants’ submissions it says were proper and the portion to which it objects. I find the strata’s objections are essentially sur-reply submissions.

11.   Nevertheless, given the CRT’s mandate, which includes flexibility, I find it is appropriate to allow both the applicants’ reply submissions and the strata’s objection submissions. I note the strata’s objection submissions do not relate to the issue of significant unfairness. Given the outcome of the dispute below, I find it is not necessary to give the applicants an opportunity for further submissions in response to the strata’s objection submissions.

ISSUES

12.   The issues in this dispute are:

a.    Did the applicants breach the bylaws by placing a hot tub on the patio?

b.    Did the strata treat the applicants in a significantly unfair manner?

c.    What remedy, if any, is appropriate?

BACKGROUND, EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities (meaning “more likely than not”). I have read all of the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

14.   When the strata was created in 2009, the owner developer filed a set of bylaws at the Land Title Office (LTO), which replaced the Standard Bylaws under the Strata Property Act (SPA). The strata filed several amendments after that, most of which are not relevant to this dispute. Amendments to bylaws 51 and 53 filed on October 27, 2010 are relevant, and these bylaw are discussed further below.

15.   The strata consists of over 450 strata lots in 2 high-rise buildings, referred to as the “north tower” and the “south tower”. The strata plan shows that SL197 is on the north tower’s 26^th floor, which is essentially that tower’s top floor, with only a roof level above it. The strata plan also shows the 26^th floor includes a large open deck designated as limited common property for the exclusive use of SL197. While the strata plan uses the term “deck”, the parties have referred to it as a balcony or patio. For consistency, I will refer to it as a patio.

16.   The applicants purchased SL197 in about July 2021. The evidence shows that the applicants obtained an August 20, 2021 engineering assessment about whether the patio outside SL197 could support an inflatable hot tub. The applicants say that based on this assessment they were satisfied that the hot tub would not cause any structural issues, and so they installed the hot tub on the patio on about August 28, 2021.

17.   The strata management company, RMS, sent the applicants a September 14, 2021 notice of infraction letter, which advised that the strata had received a September 3, 2021 complaint about the applicants having erected a “pool” on their patio. The letter indicated that this was a contravention of bylaws 4(1)(a) and (e), 51(11), (13), (14), and 53(4). The letter provided the applicants with 2 weeks to respond and stated the strata might impose a fine for the bylaw violations.

18.   The applicants’ lawyer sent RMS a September 17, 2021 letter in response to the infraction letter, disputing that the applicants’ hot tub breached the bylaws. RMS sent the applicants a second infraction letter on October 6, 2021, advising of an October 1, 2021 complaint about the “pool” on their patio. The applicants requested a hearing before the strata council, which was held on October 25, 2021. RMS sent an October 26, 2021 letter advising that the strata council had decided the applicants’ hot tub specifically contravened bylaw 53(4), but did not refer to bylaws 4 or 51. The letter stated that if the applicants did not remove the hot tub by November 15, 2021, the strata would impose weekly $200 fines against the applicants for bylaw non-compliance.

19.   RMS sent the applicants a November 8, 2021 letter advising of a further November 1, 2021 complaint about the “pool” on the applicants’ patio. The letter again referred to contravention of bylaws 4, 51, and 53. The applicants responded in a November 13, 2021 email, disputing the alleged bylaw contraventions. The applicants requested another hearing, which was held November 29, 2021.

20.   RMS sent a November 30, 2021 letter, which stated the strata had previously declined other owners’ requests to place inflatable hot tubs on their balconies or patios, so the applicants were not being “singled out”. The letter suggested a “compromise” that the strata propose a bylaw amendment at the next annual general meeting to allow inflatable hot tubs, but that the applicants would have to remove their hot tub until the amendment passed. The letter confirmed that the strata would impose weekly $200 fines if the applicants failed to remove the hot tub.

21.   On December 10, 2021, RMS sent a further infraction letter advising of a November 30, 2021 complaint about the “pool” on their patio. This letter referred only to a contravention of bylaws 53(1), (4), and (5).

22.   The applicants submitted their application for CRT dispute resolution on December 16, 2021. The strata says it has held off on imposing any fines against the applicants pending the outcome of this dispute.

Did the applicants breach the bylaws by placing a hot tub on the patio?

23.   Until RMS’ December 10, 2021 infraction letter, the previous infraction letters all referred to contraventions of bylaws 4(1)(a) and (e), 51(11), (13), (14), and 53(4). However, the October 26, 2021 decision letter referred only to a breach of bylaw 53(4), and the parties have both focussed their submissions on that bylaw. So, I will start by addressing whether the applicants’ hot tub breaches bylaw 53(4).

24.   Bylaw 53(4) says residents must not use balconies or patios for storage, and that only plants with saucers, patio furniture, and propane or electric BBQs are allowed.

25.   There is no suggestion that the applicants are improperly “storing” the inflatable hot tub on the limited common property patio. I infer that when the hot tub is on the patio, it is generally inflated and filled, and the applicants actively use it. So, the question is whether it is a permitted item on balconies and patios, and specifically, whether it is “patio furniture”. For the following reasons, I find that it is.

26.   The parties agree that the basic rules of statutory interpretation apply when interpreting strata bylaws, as confirmed in Semmler v. The Owners, Strata Plan NES3039, 2018 BCSC 2064 at paragraph 18. Further, the court in The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 said that a strata corporation’s bylaws are to be given their plain and ordinary meaning.

27.   In the non-binding but persuasive CRT decision in Trent v. The Owners, Strata Plan EPS3454, 2020 BCCRT 358, a tribunal member engaged in a thorough review of court and CRT decisions involving an interpretation of the terms “furniture” and “patio furniture”. I agree with the reasoning in Trent, and subsequent CRT decisions that have found a key aspect in determining whether something is furniture is whether it is readily moveable: see for example Carpenter v. The Owners, Strata Plan V.R. 614, 2022 BCCRT 264 and Balazs v. The Owners, Strata Plan VR420, 2021 BCCRT 986.

28.   I note that in Balazs, the tribunal member held that a hot tub was not furniture, as that term was used in the applicable bylaw. However, the hot tub in Balazs required a crane to place it on the patio, and it was embedded into a deck specifically designed and constructed around the hot tub. Further, there was no evidence about the hot tub’s dry weight to prove the applicant’s assertion that 2 people could easily move the hot tub when empty. On the available evidence, the tribunal member found the hot tub there had a degree of permanence and was not reasonably moveable.

29.   Here, I find there is no similar permanent quality to the applicants’ hot tub. As noted, it is inflatable. The applicants provided video evidence showing that the hot tub can be inflated or deflated within about 5 minutes, and it is easily folded and carried by 2 people when deflated. The device used to inflate and heat the hot tub runs off a standard electrical outlet. This device can also be easily lifted and carried by a single person. Given the hot tub’s size, I accept that water can be drained from the hot tub relatively quickly and easily with a small pump and standard hose.

30.   Overall, I accept that the applicants’ inflatable hot tub is readily moveable. I find it is a piece of furniture in which the applicants can sit to use and enjoy the patio. I also find that it can be placed in different locations on the patio each time it is inflated and filled. So, I find it is properly considered patio furniture under bylaw 53(4). Therefore, I find the applicants have not breached bylaw 53(4) by placing their hot tub on the patio outside SL197.

31.   While the strata does not specifically argue the hot tub breaches other bylaws, I will also address the bylaws referred to in RMS’ other infraction letters.

32.   I turn first to bylaw 51, which deals with hazards and insurance. Bylaw 51(11) says everyone must protect strata lots and common property from all hazards and must not do anything or fail to do anything that could present a hazard to a strata lot, the common property or people. Bylaw 51(13) says owners must not do anything that might increase the risk of explosion, fire, water or other damage or the rate of fire insurance premiums. Bylaw 51(14) says everyone must conserve the plumbing and electrical systems of the building, and any damage or blockage to these systems cause by the wrongful act or neglect of a resident or visitor must be repaired at the owner’s expense.

33.   As noted, the applicants obtained an August 20, 2021 structural engineer report. The report was prepared by V. Golijanin of VG Engineering and stamped with their professional engineer registration number. V. Golijanin concluded that the hot tub’s maximum load was lower than the patio’s maximum permitted live load. The strata does not specifically dispute the structural engineer’s qualifications or conclusions, and it presented no contrary evidence. I accept this report as expert evidence under the CRT’s rules, and I am satisfied that the applicants’ hot tub does not present a structural hazard to the building.

34.   The evidence shows that after the applicants started this dispute, the strata requested information from the applicants about the hot tub’s specifications, including how and where they drained the water. The strata says it has concerns about draining the hot tub into the patio drains because they may be plugged, which likely causes water to build up under the patio tiles. The strata also provided evidence of a municipal bulletin that says hot tubs should be drained into the sanitary sewer system, as the municipal bylaws prohibit draining hot tubs into storm drains.

35.   While the applicants say they were initially draining the hot tub directly into a patio drain, I find there is insufficient evidence that this represented a hazard to any strata lot or the common property. A text message exchange between Mr. Ortega and the occupant of the strata lot directly below the applicants shows the below neighbour had not observed any excess water coming out of the overflow drain from the SL197 patio since the applicants got their hot tub. Further, the strata’s own evidence from Pacific West Mechanical Ltd. (PWM), which inspected the patio drains, suggests that water build-up likely would only occur if the applicants drained the hot tub onto the patio surface, rather then putting a hose directly down the drain, as the applicants say they did. In any event, I accept the applicants’ submission they now use a pump and hose to drain the hot tub into the sanitary sewer system in their strata lot, which is shown in their video evidence.

36.   Further, the applicants provided an April 4, 2022 report prepared by Leon Prinsloo, a principal engineer at SG Arch Engineering Ltd. (Arch Engineers). This report states that based on review of the hot tub’s owner’s manual, photos of the patio, and the BC Building Code, in the event of a catastrophic failure (meaning the hot tub ruptures), the patio deck is large enough and the drainage and wastewater systems are sufficient to drain all the hot tub water. It also states the free chlorine concentration levels in the water are so low that draining all the water would not damage the drainage or wastewater pipes or systems.

37.   I accept the Arch Engineers report as expert evidence under the CRT’s rules, noting the strata did not object to it. Based on this report and the other evidence set out above, I find the applicants’ hot tub does not likely present a flood risk or a hazard to any strata lot or the common property. I also find there is no evidence that the hot tub water will cause any damage or blockage to the building’s plumbing or electrical systems. So, on the evidence before me, I find the applicants’ hot tub does not breach the noted subsections of bylaw 51.

38.   I turn to bylaws 4(1)(a) and (e). Bylaw 4(1)(a) says owners must not use common property in a way that causes a nuisance or hazard to another person. There is no evidence before me that the strata has received any complaints that the hot tub is a nuisance. For instance, there is no evidence of any noise complaints against the applicants relating to the hot tub. Given this and my findings above that the hot tub does not present a hazard to others, I find no breach of bylaw 4(1)(a).

39.   Bylaw 4(1)(e) says owners must not use common property in a way contrary to a purpose for which it is intended. As noted, the hot tub is on a limited common property patio designated for the exclusive use of SL197. Given my finding above that the hot tub is patio furniture, I find the patio is not being used contrary to its intended purpose. So, I find no breach of bylaw 4(1)(e).

40.   This brings me to the alleged breaches of bylaws 53(1) and (5), referred to in RMS’ December 10, 2021 letter. Bylaw 53(1) says every owner is responsible for the cleaning, good appearance and repair of limited common property balconies and patios for the use of their strata lot. It also says owners must keep drains clear and contact council if problems exist. Bylaw 53(5) says residents must maintain a consistently high standard of cleanliness, appearance and repair in and around a strata lot, limited common property adjoining a strata lot, balconies and patios.

41.   I find the photographic and video evidence of the patio designated for SL197’s use shows the applicants keep it clean and tidy, and the strata has provided no evidence to the contrary. There also does not appear to be anything covering the patio drains.

42.   In a May 6, 2022 email to RMS, PWM stated its inspection of the patio drains showed the weep holes around the drains were plugged. However, I find there is insufficient evidence to conclude that the applicants knew or should have known the weep holes were plugged. Importantly, I also find PWM did not suggest the drains themselves were plugged. In fact, PWM stated that if the applicants put a hose into the deck drain, as the applicants submit they did, there would be no issue draining the hot tub. So, on the evidence before me, I find the applicants did not breach bylaw 53(1) or (5).

43.   Given that I have found the applicants’ hot tub does not breach any of the bylaws RMS cited in its infraction letters, I find there is nothing currently requiring the applicants to remove their inflatable hot tub from the patio.

Significant unfairness

44.   As noted, the applicants say the strata unfairly targeted them in its attempts to enforce the bylaws against them relating to their hot tub. I find the applicants are essentially alleging the strata treated them significantly unfairly.

45.   Under CRTA section 123(2), the CRT can make orders to remedy a strata’s significantly unfair actions or decisions. In Reid v. Strata Plan LMS 2503, 2003 BCSC 126, the BC Court of Appeal interpreted a significantly unfair action as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable.

46.   In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the BC Court of Appeal confirmed that the reasonable expectations of an owner may also be relevant to determining whether the strata’s actions were significantly unfair. The test for assessing an owner’s reasonable expectations is from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44:

a.    What was the owners’ expectation?

b.    Was that expectation reasonable?

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

47.   The applicants’ expectations about whether they were permitted to have a hot tub on the patio are not entirely clear. The evidence shows that Mr. Ortega sent a September 9, 2021 email to the strata manager about the approval process for putting a portable hot tub on the patio. Mr. Ortega advised that the applicants’ insurer had confirmed their policy would cover any potential flood damage from the hot tub. There is no evidence of any further correspondence between the parties about the hot tub before the RMS’ first infraction letter on September 14, 2021.

48.   Given Mr. Ortega’s email, I infer that the applicants expected they would be permitted to have a hot tub on the patio so long as they had sufficient insurance coverage, which I find also implies they may have anticipated being required to sign an indemnity agreement. If that was the applicants’ expectation, I find it was objectively reasonable. As noted, the applicants obtained professional assurances that the hot tub would not compromise the building’s structure, and they considered it patio furniture, which is permitted on patios under the bylaws.

49.   Although I have found the applicants’ hot tub does not breach the bylaws, I find it was reasonable for the strata to attempt bylaw enforcement. This is because under SPA section 26, a strata corporation has an ongoing duty to enforce its bylaws. So, once it receives a complaint about a potential bylaw violation, the strata is obligated to investigate and proceed with enforcement, subject to very limited exceptions that I find do not apply here.

50.   The strata provided evidence that it previously denied another owner’s request to put an inflatable hot tub on a limited common property patio in April 2021, on the basis that bylaw 53(4) did not permit hot tubs. I find this evidence suggests the strata has consistently interpreted its bylaws as prohibiting hot tubs on patios, at least in recent times.

51.   I acknowledge the applicants provided evidence that the strata previously approved another owner’s request to install a hot tub on a limited common property patio in 2012, though it was never installed. While the strata did not specifically comment on this evidence, I find that a single decision 10 years ago is insufficient to establish that the strata arbitrarily attempted to enforce the bylaws against the applicants. I note there is no evidence before me that any strata lots currently have a hot tub on a patio or balcony.

52.   The applicants also argue that another sub-penthouse strata lot with a large limited common property patio has been permitted to have a pond, covered structure, and fountain feature for many years. However, the evidence shows that once the applicants informed the strata council about these items’ existence, the strata started bylaw enforcement proceedings against that strata lot owner and ultimately decided to impose fines for breaches of bylaws 53(1), (4), and (5). I find it is likely that the strata did not previously enforce the bylaws against the other strata lot owner because it was unaware of the bylaw violations, and not because it was turning a blind eye to them, as the applicants allege.

53.   I note the applicants specifically allege the strata enforced the bylaws against them because they are an interracial, sexual-minority couple. However, I find this allegation is speculative and there is insufficient evidence to prove that is the case. Overall, I do not find the strata’s bylaw enforcement attempts were burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable. Therefore, I find the strata’s actions were not significantly unfair.

Remedy

54.   As noted, the applicants request an order that the strata stop infringing their rights to choose their preferred patio furniture. Given that I have found the strata was entitled to attempt to enforce its bylaws and that the strata was not acting significantly unfairly in doing so, I decline to make that requested order.

55.   The applicants submit in their reply submissions that I should order they be permitted to keep the hot tub on the patio. While the applicants did not initially frame their requested order that way, I find all of the parties’ arguments and evidence dealt with whether the applicants are permitted to have a hot tub on the patio. So, I find it would not be unfair to consider that remedy.

56.   Nevertheless, I decline to order that the strata allow the applicants to keep the hot tub. As I have found the applicants’ inflatable hot tub is patio furniture, I find the bylaws expressly permit the applicants to have the hot tub on the patio. In the absence of a bylaw contravention, I find the strata has no authority to require the applicants to remove the hot tub from the patio. Therefore, I find it is unnecessary to specifically order that the applicants be permitted to keep their hot tub on the patio, and so I make no orders about the hot tub.

CRT FEES AND EXPENSES

57.   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 the applicants were substantially successful in this dispute. I therefore order the strata to reimburse the applicants $225 for CRT fees.

58.   The applicants also claim $1,120 for the Arch Engineer’s expert report. I find the report was relevant and helpful in determining that the hot tub did not present a hazard. However, the e-transfer record in evidence shows the applicants paid Arch Engineers only $1,050, and they did not explain the difference. Therefore, I order the strata to reimburse the applicants $1,050 for dispute-related expenses.

59.   The strata claims reimbursement for its legal fees. Ms. Fammartino provided an April 19, 2022 letter that stated the strata had incurred over $22,000 in legal fees and disbursements related to this CRT dispute. Given the strata was unsuccessful, I decline to award reimbursement of its legal fees and disbursements. Further, CRT rule 9.5(3) says the CRT will not order reimbursement of lawyer’s fees in a strata dispute unless there are extraordinary circumstances, which I find do not exist here. I find the legal concepts in this dispute were not overly complex, involving a relatively limited interpretation of the strata’s bylaws. Therefore, I would have declined to order reimbursement of the strata’s legal fees in any event.

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

ORDERS

61.   Within 30 days of this decision, I order the strata to pay the applicants a total of $1,275, which is made up of $225 in CRT fees and $1,050 in dispute-related expenses.

62.   I dismiss the applicants’ remaining claims and the strata’s claim for dispute-related expenses.

63.   The applicants are entitled to post-judgment interest, as applicable.

64.   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.