Date Issued: August 22, 2022

File: ST-2022-000455

Type: Strata

Civil Resolution Tribunal

Indexed as: Jenson v. The Owners, Strata Plan Vr. 211, 2022 BCCRT 940

Between:

MICHAEL JENSON

Applicant

And:

The Owners, Strata Plan Vr. 211

Respondent

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This dispute is about allegedly invalid or unenforceable strata corporation bylaws. The applicant, Michael Jenson, has for more than 20 years owned a strata lot in the respondent strata corporation, The Owners, Strata Plan Vr. 211 (strata). Mr. Jenson says the strata used to allow hot tubs in back yards and recreational vehicle (RV) parking in spaces not visible from the street, among other things. He says that in 2020 the strata implemented new bylaws that prohibited hot tubs, RV parking, and other previously permitted activities.

2.      Mr. Jenson says the strata promised but did not provide any retroactive exemptions from the new bylaws for present owners. He says this caused unreasonable hardship among the owners. Further, he says that the new bylaws were adopted using a flawed process, so none of the new bylaws are enforceable and the strata’s previous 1998 bylaws remain in place.

3.      Mr. Jenson requests an order that the strata acknowledge that there were mistakes in the “2020 bylaw process.” He also requests an exemption from unspecified bylaws, which I infer include the new RV parking and hot tub prohibition bylaws, for those who owned a strata lot on August 8, 2020, or alternatively that the August 8, 2020 bylaw resolution be rescinded and put “to a new vote.”

4.      The strata says there were no voting irregularities or bylaw exemption promises, and the August 2020 bylaws are valid. The strata warned Mr. Jenson that he violated a new RV parking bylaw, but says it has chosen not to enforce that bylaw pending this dispute’s resolution.

5.      Mr. Jenson is self-represented in this dispute. The strata is represented by a strata council member.

6.      For the reasons set out below, I dismiss Mr. Jenson’s requests.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

11.   Under CRTA section 61, the CRT may make any order or give any direction in relation to a CRT proceeding it thinks necessary to achieve the objects of the CRT in accordance with its mandate. The CRT may make such an order on its own initiative, on request by a party, or on recommendation by a case manager.

12.   CRT documents incorrectly show the name of the respondent as The Owners, Strata Plan VAS211. Based on section 2 of the Strata Property Act (SPA), the correct legal name of the strata is The Owners, Strata Plan Vr. 211. Given that the parties operated on the basis that the correct name of the strata was used in their documents and submissions, I have exercised my discretion under section 61 to direct the use of the strata’s correct legal name in these proceedings. Accordingly, I have amended the strata’s name above.

ISSUES

13.   The issues in this dispute are:

a.    Were new strata bylaws properly adopted and filed in 2020, and if not, should I order the strata to acknowledge that?

b.    Were the strata’s actions in proposing and implementing the new bylaws significantly unfair, and if so, should I “rescind” the August 8, 2020 bylaw resolution and order a new vote?

c.    Are those who owned strata lots on August 8, 2020 entitled to exemptions from certain bylaws?

EVIDENCE AND ANALYSIS

14.   In a civil proceeding like this one, as the applicant, Mr. Jenson must prove his claims on a balance of probabilities (meaning “more likely than not”). I have read and weighed the parties’ evidence and submissions, but I refer only to that which I find necessary to explain my decision.

15.   The strata was created in 1975 under the Strata Titles Act, and presently exists under the SPA. On June 16, 1998, the strata filed a complete set of bylaws at the Land Title Office (LTO).

16.   Where a strata corporation has not filed new bylaws at the LTO since January 1, 2002, under section 17.11 of the Strata Property Regulation (SPR), previously filed bylaws continue to apply, with the following 2 exceptions. If the previous bylaws are silent about an issue dealt with in the SPA’s Schedule of Standard Bylaws (standard bylaws), the standard bylaws apply with respect to that issue. If a previous bylaw conflicts with the SPA, the previous bylaw has no effect.

17.   Documents in evidence show no strata bylaw amendments were filed at the LTO between June 16, 1998 and August 24, 2020. I find the applicable bylaws during that period were those filed at the LTO in 1998 subject to SPR section 17.11 as explained above. I will refer to those bylaws as the 1998 bylaws.

18.   In early 2020, the strata investigated updates to its bylaws. June 1, 2020 strata council meeting minutes record a council member saying that the strata’s lawyer had repealed the 1998 bylaws and adopted the SPA’s standard bylaws, while continuing to draft new customized bylaws for the strata. I find the submitted evidence shows that no such amendments had been voted on by the ownership as required or filed at the LTO at that time. I find the council member statement recorded in the minutes was likely a temporary misunderstanding.

19.   It is undisputed that proposed new bylaws were circulated to the ownership and the strata held an information meeting about them on June 20, 2020. I find strata council meeting minutes in evidence show owner feedback from that meeting was incorporated into the proposed bylaws. At an August 8, 2020 special general meeting (SGM), the ownership voted on a resolution to repeal and replace all of the strata’s bylaws with the new proposed bylaws.

20.   The August 8, 2020 SGM minutes show that before the bylaw vote, there was discussion about enforcement of various proposed bylaws involving pets, hot tubs, RVs, renovations, window coverings, and other subjects, although no specific bylaw numbers were listed. Before the vote, a motion was passed for the strata council to “look at all the items in the complex to be” retroactively exempted, without further detail. Mr. Jenson says that a strata council member told the owners that the strata would not apply the new bylaws to any presently existing contraventions.

21.   However, I find that the submitted evidence does not support that contention. I find the plain meaning of the motion, in context, was that the strata council would investigate whether there could be or should be any exemptions from bylaw enforcement, or perhaps further changes to the bylaws. Correspondence and meeting minutes in evidence show that the strata later investigated whether bylaw exemptions were possible and whether to propose further bylaw amendments. However, I find the evidence before me does not show that the strata council committed to providing enforcement exemptions for any of the proposed new bylaws before the August 8, 2020 bylaw vote. More on the exemption investigations below.

22.   After passing the motion to investigate possible bylaw exemptions and further updates, the strata ownership voted on the resolution to adopt the new bylaws, which undisputedly passed by the 3⁄4 vote required under SPA section 128.

23.   On August 24, 2020, the bylaws approved on August 8, 2020 were filed at the LTO, as shown in a submitted Form I Amendment To Bylaws. I find that the Form I in evidence set out the amendment in the prescribed form as required by SPA section 128(2). I find the filed amendment said all of the 1998 bylaws were repealed, including the statutory standard bylaws, but with the exception of a grace period for rental limitation bylaws not at issue here. I find the Form I and amendment said the strata’s new bylaws were those listed in the amendment. I will refer to those new bylaws as the 2020 bylaws.

Were New Strata Bylaws Properly Adopted and Filed in 2020?

24.   As noted, Mr. Jenson says the 2020 bylaws are invalid because there were mistakes in the “2020 bylaw process”. I infer he means there were problems with the way the 2020 bylaws were voted on and filed. Mr. Jenson requests an order that the strata acknowledge those alleged mistakes. Referring to the non-binding but persuasive decision Fisher v. The Owners, Strata Plan VR 1420, 2019 BCCRT 1379 at paragraphs 62 to 69, I find that this is a request for declaratory relief that is incidental to Mr. Jenson’s other dispute requests. So, I find this request is within the CRT’s strata property jurisdiction.

25.   Specifically, Mr. Jenson says that under the SPA, the August 8, 2020 resolution did not properly repeal the 1998 bylaws or add the 2020 bylaws. He confirms that the owners voted on the bylaw resolution as it was recorded in the August 8, 2020 SGM minutes. He says a different resolution was filed at the LTO, one that contained the signatures of the strata council’s chair and vice chair. Mr. Jenson says the correct resolution wording needed to be filed at the LTO, and because it was not, the 2020 bylaws are not in force.

26.   From the evidence before me, I find what Mr. Jenson refers to as the “resolution” filed at the LTO is likely the first page of the Form I Amendment To Bylaws, which contained 2 strata council member signatures. I acknowledge that the Form I does not contain the bylaw resolution wording voted on by the ownership. The Form I simply says that the following or attached bylaw amendments were approved by a resolution passed in accordance with SPA section 128.

27.   However, nothing in the SPA requires the actual resolution voted on by the membership to be filed at the LTO. As noted above, the August 24, 2020 Form I set out the bylaw amendment as required under SPA section 128. Further, I find neither party alleged that the amendment filed at the LTO was not the same as the amendment passed by the August 8, 2020 3⁄4 ownership vote. Mr. Jenson also says the August 8, 2020 resolution referred to SPA section 126 rather than section 128. However, section 126 simply says the strata may amend its bylaws by complying with the SPA’s requirements, which include the section 128 requirements.

28.   Based on the evidence before me, I find that the 2020 bylaws were properly adopted by the strata ownership and filed at the LTO. So, I dismiss Mr. Jenson’s request to order the strata to acknowledge mistakes in the 2020 bylaw process.

Were the Strata’s Actions Significantly Unfair?

29.   Mr. Jensen says that alleged strata actions in proposing and enforcing the 2020 bylaws caused unreasonable hardship on the ownership. I find he alleges that the strata treated him significantly unfairly. Under CRTA section 123(2), the CRT can make orders to remedy a strata’s significantly unfair actions or decisions. The BC Court of Appeal decision Reid v. Strata Plan LMS 2503, 2003 BCCA 126 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.

30.   In Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, the court used a “reasonable expectations” test when considering whether a discretionary action of council was significantly unfair. The test asks whether the applicant’s expectation was objectively reasonable, and if so, whether the strata corporation violated that expectation with a significantly unfair action or decision.

31.   On the evidence before me, I find the strata’s actions were not significantly unfair, for the following reasons.

32.   Mr. Jenson says there was a “material understanding” by the owners that the strata council would permit unspecified 2020 bylaw contraventions by present owners. He says that the ownership voted in favour of the resolution adopting new bylaws based on that understanding, and that the strata council did not develop a list of exceptions to the bylaws in accordance with the August 8, 2020 SGM motion.

33.   Strata council meeting minutes confirm that in 2021, the strata surveyed the ownership about bylaw concerns and held an ownership meeting to discuss further bylaw updates. October 15, 2021 strata council meeting minutes said that the majority of owners wanted no change to the 2020 parking bylaws, which appear to be Mr. Jenson’s primary concern. I find these activities were consistent with the August 8, 2020 SGM motion to investigate bylaw exemption possibilities. I find it was not significantly unfair for the strata to pursue that investigation as it did.

34.   Turning to the strata’s alleged bylaw exemption promise, I note that among the 2020 bylaws, bylaw 37(2)(b) explicitly exempted some current owners who cultivated cannabis from new bylaw restrictions on that activity. However, there appear to be no similar exemptions in the other 2020 bylaws. Mr. Jenson does not explain why he should be entitled to rely on the strata’s alleged verbal promise of general, unspecified, and unwritten bylaw enforcement exemptions, rather than the 2020 bylaws that were explicitly approved by the ownership, filed at the LTO, and which lacked any further exemptions. I address Mr. Jenson’s exemption request in more detail below.

35.   In any event, I found above that the strata did not agree to make any specific exemptions from the 2020 bylaws. So, I find Mr. Jenson’s expectation, that the strata not enforce various 2020 bylaws based on an alleged exemption promise, was not objectively reasonable.

36.   Mr. Jenson also says he believes it is the strata council’s responsibility to ensure the owners understand the wording of the resolution they are voting on. I know of nothing in the SPA or any other authority that creates such a responsibility. Further, there is no evidence before me showing that any other owners misunderstood the proposed 2020 bylaws when they voted to approve them. Mr. Jenson does not say that he lacked an opportunity to obtain advice from a third party about the meaning of the proposed 2020 bylaws. I find it was not objectively reasonable to expect the strata council to confirm every owner’s understanding of the proposed 2020 bylaws, absent a legal requirement to do so.

37.   Finally, Mr. Jenson appears to argue that in the interests of fairness, those who owned strata lots on August 8, 2020 are entitled to ignore any bylaw changes prohibiting activities that used to be permitted under previous bylaws. However, the 2020 bylaws were properly adopted by the strata ownership in accordance with the SPA. I find it was not objectively reasonable for Mr. Jenson or any owner to expect that there would never be strata bylaw changes, or that any changes would not apply to present owners. This would effectively freeze in time the bylaws in force when an owner purchased a strata lot, which the SPA does not permit. Further, the give-and-take inherent in the SPA’s democratic processes means bylaw contraventions are not permitted even though some owners may disagree with those bylaws.

38.   For the above reasons, I find the strata did not act significantly unfairly. So, I dismiss Mr. Jenson’s claim for an order “rescinding” the August 8, 2020 bylaw resolution and calling a new vote.

Are Owners Entitled to Exemptions from the 2020 Bylaws?

39.   Mr. Jenson requests exemptions from the 2020 bylaws for “the owners as of August 8, 2020” although he is the only applicant in this dispute. Mr. Jenson does not identify the bylaw numbers of all the bylaws for which he seeks exemptions.

40.   As noted, the strata did not say it would not enforce any specific new 2020 bylaws on those who owned strata lots on August 8, 2020. I find submitted meeting minutes and correspondence show that after the strata filed the 2020 bylaws at the LTO, it investigated whether to provide any enforcement exemptions, and was advised that the SPA did not permit general bylaw exemptions.

41.   I find the non-binding CRT decision Field et al v. The Owners, Strata Plan 159, 2018 BCCRT 15 is persuasive on this point. In that decision, a CRT vice chair found that except for specific bylaw categories set out in the SPA, such as those related to pets, occupant age, or rental restrictions, there can be no exemptions. The strata is free to change its bylaws by following the requirements in the SPA. However, unless a bylaw itself contains an exemption for certain owners or the SPA exemptions apply, the bylaw becomes effective when filed at the LTO.

42.   As noted, the 2020 bylaws lack the exemptions Mr. Jenson argues for, and neither party argues that any of the SPA exemptions are applicable here. So, I find that the filed 2020 bylaws are effective, and I dismiss Mr. Jenson’s request for exemptions.

CRT Fees and Expenses

43.   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. Mr. Jenson was unsuccessful in this dispute, but the strata paid no CRT fees. Neither party claimed CRT dispute-related expenses. So, I order no reimbursements.

ORDER

44.   I dismiss Mr. Jenson’s claims, and this dispute.