Date Issued: August 5, 2022

File: ST-2021-008359

Type: Strata

Civil Resolution Tribunal

Indexed as: Coleman v. The Owners, Strata Plan VIS3918, 2022 BCCRT 890

Between:

BRIAN COLEMAN

Applicant

And:

The Owners, Strata Plan VIS3918

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      The applicant, Brian Coleman, co-owns a strata lot with his wife, SC, in the respondent strata corporation, The Owners, Strata Plan VIS3918 (strata). Mr. Coleman says that he and SC have endured over 2 years of verbal harassment from DB, who is a resident in another strata lot. Mr. Coleman says the strata has failed to adequately investigate his harassment complaints. He seeks an order that the strata “end the 2 years of verbal harassment”. I infer that Mr. Coleman means he wants an order that the strata enforce its bylaws.

2.      The strata says that DB denied harassing Mr. Coleman. It also says Mr. Coleman failed to provide any evidence to substantiate his claims, despite his insistence that he has recordings of the alleged harassment. The strata says it cannot enforce alleged bylaw violations that are undocumented.

3.      Mr. Coleman 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 the strata acted significantly unfairly by failing to enforce its bylaws.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, the applicant Mr. Coleman must prove his claims on a balance of probabilities (meaning “more likely than not”). The strata did not provide any documentary evidence, despite having the opportunity to do so. I have read all of the evidence and submissions before me, but I refer only to what I find is necessary to explain my decision.

10.   The strata was created in 1996 and includes 7 strata lots in a single building. The strata’s bylaws are the Standard Bylaws in the Strata Property Act (SPA), plus one amendment dealing with parking stalls, which is not relevant to this dispute.

11.   Mr. Coleman says that DB started harassing him and SC in about 2018. He alleges that the harassment includes ranting and loud singing outside their open windows, with use of antagonistic and disparaging comments, taunting, name calling, and rude gestures. The evidence does not indicate any specific reason that caused DB to start this alleged behaviour.

12.   Mr. Coleman and SC first advised the strata council of their concerns with DB’s behaviour in a May 9, 2019 email. The strata asked if they would like a hearing to discuss their allegations, but SC declined a hearing, and stated she sent her email so it was “on record”. Mr. Coleman says that DB’s ranting and singing escalated to an almost daily occurrence in 2020. Mr. Coleman says he phoned the police in June 2020 and was advised to start a journal to record the incidents and to install a doorbell with a camera, which he did.

13.   It is undisputed that the police ultimately spoke with DB about Mr. Coleman’s harassment allegations in July 2020. Mr. Coleman’s evidence suggests that DB’s behaviour improved after speaking with the police. However, Mr. Coleman says that at some point, DB’s harassing behaviour resumed. Mr. Coleman’s email evidence shows that SC attempted to contact DB’s spouse to discuss the behaviour in July and August 2021, but there is no evidence of any reply.

14.   On September 25, 2021, Mr. Coleman and SC requested a hearing with the strata council, which was held on October 23, 2021. Mr. Coleman says that between September 27 and October 7, 2021, his vehicle was vandalized on 3 separate occasions, including a punctured tire, paint scratches described as “keying”, and a broken windshield. Mr. Coleman acknowledges that he does not have any proof that DB committed this vandalism but says the timing is suspicious.

15.   The October 23, 2021 council meeting minutes state that Mr. Coleman and SC outlined DB’s alleged behaviour in detail for about one hour before the meeting was adjourned and council stated it would look at the available options. The strata council provided Mr. Coleman with an October 30, 2021 letter that stated the council president had spoken with DB after the hearing, though the letter did not specifically set out DB’s response to Mr. Coleman’s allegations. The letter advised Mr. Coleman that due to the lack of proof, the strata did not feel it was appropriate to send a formal warning or impose any bylaw fines. It also stated that given the police’s involvement, the strata decided the situation was better handled by the police.

16.   Mr. Coleman says he is unsatisfied with the strata’s decision. He says DB’s behaviour constitutes a breach of bylaws 3(1)(a), (b), (c), and (e), which prohibit causing a nuisance, unreasonable noise, or unreasonable interference with the rights of others to use and enjoy the common property or a strata lot.

17.   Under SPA section 26, a strata corporation must enforce its bylaws, subject to some limited discretion, such as when the effect of the breach is trivial: see The Owners, Strata Plan LMS 3259 v. Sze Hang Holdings Inc., 2016 BCSC 32. A strata may investigate bylaw contravention complaints as it sees fit, provided it complies with the principles of procedural fairness and is not significantly unfair to any person appearing before the council: see Chorney v. Strata Plan VIS 770, 2016 BCSC 148. The standard of care that applies to a strata council is not perfection, but rather “reasonable action and fair regard for the interests of all concerned”: see Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74 at paragraph 61.

18.   Essentially, the question is whether the strata treated Mr. Coleman significantly unfairly in its handling of his complaints. For the following reasons, I find it did not.

19.   As noted, the strata offered Mr. Coleman a hearing to investigate his concerns with DB’s behaviour, both in 2019 and 2021. The evidence shows the strata provided Mr. Coleman with the opportunity to thoroughly review the alleged incidents of harassment at the October 2021 hearing. The strata’s October 30, 2021 letter acknowledges that while Mr. Coleman’s complaints were unproven, the strata felt they were “also not baseless”. However, the letter also expressed concern that pursuing bylaw enforcement over the unproven allegations would likely digress into costly legal battles. Given these statements, I find there is insufficient evidence to suggest the strata lacked objectivity or impartiality in coming to its decision, as Mr. Coleman alleges.

20.   The strata was undoubtedly in a difficult position, faced with unsupported allegations against an occupant who denied the behaviour. It is unclear what Mr. Coleman expected the strata to do in order to further investigate his complaints. I infer that he simply wanted the strata to send DB a notice about the alleged bylaw infraction and proceed with imposing a fine. However, the strata’s letter shows it considered this option and exercised its discretion not to do so, given its inability to substantiate the alleged bylaw infraction. I find the strata’s exercise of discretion was reasonable under the circumstances.

21.   I note that Mr. Coleman says he made recordings of DB’s behaviour between June 2020 and August 2021, both on his phone and from his doorbell camera. Mr. Coleman provided only transcriptions he prepared himself of the alleged recordings. He provided no explanation for failing to provide the recordings themselves, though the strata’s submissions suggest he might be concerned about the legality of the recordings under the BC Privacy Act. In any event, it is undisputed that Mr. Coleman did not provide the alleged recordings of DB’s behaviour to the strata. Therefore, I find it was reasonable for the strata to conclude it had insufficient evidence to support a bylaw infraction notice or fine.

22.   Overall, I find the strata reasonably investigated Mr. Coleman’s complaints and did not act significantly unfairly in deciding not to pursue bylaw enforcement proceedings. So, I dismiss Mr. Coleman’s claims.

CRT FEES AND EXPENSES

23.   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. Given that Mr. Coleman was unsuccessful, I find he is not entitled to any reimbursement. The strata paid no fees and claimed no expenses, so I make no order.

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

ORDER

25.   I dismiss Mr. Coleman’s claims, and this dispute.