Date Issued: September 8, 2022

File: ST-2022-002128

Type: Strata

Civil Resolution Tribunal

Indexed as: Barnett v. The Owners, Strata Plan LMS908, 2022 BCCRT 997

Between:

ALLAN BARNETT

Applicant

And:

The Owners, Strata Plan LMS908

Respondent

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      This dispute is about a bylaw fine. The applicant, Allan Barnett, co-owns strata lot 38 (SL38) in the respondent strata corporation, The Owners, Strata Plan LMS908 (strata). The strata imposed a $200 bylaw fine against Mr. Barnett for removing a strata hot tub’s timer control knob and for posting a sign nearby. The strata says Mr. Barnett violated strata bylaws 3(1)(c), 3(2), 3(18) and 6(1) by doing so. Mr. Barnett requests an order cancelling this bylaw fine.

2.      In the Dispute Notice, Mr. Barnett also requested a $55.23 refund of his strata lot’s alleged share of the strata’s insurance deductible that he says the strata paid in response to this dispute. However, Mr. Barnett has withdrawn his request for this remedy in his submissions. Since this requested remedy is no longer before me, I make no findings about it. However, Strata Property Act (SPA) sections 167(2) and 189.4 prevent the strata from charging Mr. Barnett for its dispute-related expenses, even without this remedy request. This is discussed further below.

3.      In the Dispute Response, the strata denies Mr. Barnett’s claim and says that it properly imposed the $200 bylaw fine. However, the strata later said in its submissions that it will reverse the bylaw fine. Mr. Barnett says that the strata has not done so yet.

4.      Mr. Barnett is self-represented. The strata is represented by the strata council president and treasurer.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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

9.      The remaining issue in this dispute is whether the strata must reverse the $200 bylaw fine imposed against Mr. Barnett.

EVIDENCE AND BACKGROUND

10.   In a civil proceeding like this one, as the applicant Mr. Barnett must prove his 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.

11.   The strata consists of 111 apartment-style residential strata lots. The strata filed a complete set of consolidated bylaws with the Land Title Office (LTO) in May 2015, which I find apply to this dispute. The strata filed subsequent bylaw amendments at the LTO which I find are not relevant to this dispute.

12.   The strata has a hot tub located near SL38. The strata owns the hot tub as a common asset under SPA section 1(1), which is located on common property.

13.   Mr. Barnett says the hot tub’s jet pumps were extremely noisy. He admits that he removed the hot tub’s timer control knob at 6:30 pm on December 11, 2021, which prevented other residents from activating the hot tub’s jet pumps. Mr. Barnett says that he replaced the control knob at 10:30 am on December 12, 2021. He sent the strata an email at 11:04 am on December 12, 2021 saying that he replaced the control knob and that had he placed a sign nearby asking hot tub users to not use the hot tub timer. Based on the above, I find that Mr. Barnett removed the hot tub’s timer control knob and that he placed a sign by the timer control.

14.   The strata sent Mr. Barnett a letter on January 13, 2022 warning him that he had allegedly violated strata bylaws 3(1)(c), 3(2), 3(18) and 6(1). These bylaws say the following:

a.    Bylaws 3(1)(c) says that an owner must not unreasonably interfere with the rights of other persons to use and enjoy common assets or the common property.

b.    Bylaw 3(2) says that an owner must not damage common assets or common property, other than reasonable wear and tear.

c.    Bylaw 3(18) says that owners may not post signs on common property without prior strata approval.

d.    Bylaw 6(1) says that owners must obtain written approval before they alter common assets or common property.

15.   The strata’s January 13, 2022 letter warned Mr. Barnett that the strata might impose a bylaw fine for the above alleged bylaw violations. The letter also notified Mr. Barnett of his right to request a hearing about these allegations.

16.   The minutes from the March 1, 2022 strata council meeting say that the strata council decided to impose a $200 bylaw fine against Mr. Barnett for his removal of the hot tub control knob and his placement of the sign nearby. There is no evidence or submissions before me showing that the strata notified Mr. Barnett of this decision.

17.   On March 7, 2021, Mr. Barnett sent the strata an email requesting a hearing disputing the bylaw fine. The strata held a hearing on March 15, 2022 and the strata sent Mr. Barnett a March 22, 2022 email denying his request to reverse the bylaw fine.

REASONS AND ANALYSIS

18.   As discussed above, the strata has agreed to reverse the $200 bylaw fine in its submissions. Based on this, I find that Mr. Barnett’s request to cancel the bylaw fine is no longer contested. So, I order the strata to reverse the $200 bylaw fine.

19.   Further, even if the strata had not so agreed, I would have ordered the strata to reverse the bylaw fine because the strata failed to comply with SPA section 135(2) when it imposed the $200 bylaw fine. SPA section 135(2) says that a strata corporation must, as soon as feasible, give notice in writing of a decision imposing the bylaw fine. Bylaw fines are not valid if a strata corporation does not strictly comply with SPA section 135 (Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449). Here, there is no evidence or submissions showing that the strata complied with SPA section 135(1) by notifying Mr. Barnett of its decision to impose the bylaw fine. So, I find that the bylaw fine is not valid.

20.   For the above reasons, I find that the strata’s $200 bylaw fine imposed against Mr. Barnett must be reversed. In his submissions, Mr. Barnett also claims that the strata treated him significantly unfairly by imposing the bylaw fine. Based on my findings above, I find it unnecessary to consider this.

CRT FEES AND EXPENSES

21.   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. I therefore order the strata to reimburse Mr. Barnett for CRT fees of $225. Neither party requested reimbursement of and dispute-related expenses so none are ordered.

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

ORDERS

23.   I order that the strata immediately reverse the $200 bylaw fine imposed against Mr. Barnett, relating to the hot tub timer control knob.

24.   Within 30 days of this order, I order the strata to pay Mr. Barnett $225 as reimbursement of CRT fees.

25.   All other claims are dismissed.

26.   Mr. Barnett is also entitled to post-judgment interest under the Court Order Interest Act.

27.   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.