Date Issued: January 4, 2023

File: ST-2022-003571

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan NES 172 v. Pennie, 2023 BCCRT 5

Between:

The Owners, Strata Plan NES 172

Applicant

And:

ALISON PENNIE

RespOndent

And:

The Owners, Strata Plan NES 172

Respondent BY COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      This dispute is about strata bylaws.

2.      The respondent and applicant in the counterclaim, Alison Pennie (owner), owns a strata lot (SL5) in the applicant strata corporation, The Owners, Strata Plan NES 172 (strata). The strata is the respondent in the counterclaim.

3.      The strata says the owner violated bylaw 4(4), which regulates who can occupy the strata lots and for how long, by allowing a guest to stay in SL5 for more than 31 days in a calendar year. The strata says it began fining the owner after giving her notice of the violation, but the owner refused to pay. It asks that I order the owner to pay $2,400 in unpaid fines.

4.      The owner says bylaw 4(4) contravenes the BC Human Rights Code (Code). She says bylaw 4(4) discriminates against her on the basis of family status because it only permits owners with a “family comprised of a narrow class of blood relations to have someone else reside in the strata lot.” This excludes her chosen live-in companion, FB. She also says the strata’s application of bylaw 4(4) is significantly unfair because she reasonably expected her ability to have others reside in SL5 would not be so narrowly restricted. The owner asks that I order the strata not to enforce bylaw 4(4) against her. She also asks that I declare bylaw 4(4) unenforceable.

5.      The owner is self-represented. The strata is represented by a strata council member.

6.      For the reasons that follow, I find in favour of the owner.

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.

Late Evidence

11.   The owner submitted late evidence in this dispute after the CRT’s deadlines. The late evidence is a final statement of account for legal fees the owner says she incurred before and during the dispute. The strata says the legal fees were not included in the counterclaim and only mentioned in the owner’s final reply, and so I should not permit the late evidence. The strata was given an opportunity to review the evidence and provide submissions on it, which it did. I find the owner included unspecified legal costs in the requested resolutions described in her dispute notice. I find there is no prejudice in allowing this late evidence, so I allow it, which is consistent with the CRT’s mandate that includes flexibility.

ISSUES

12.   The issues in this dispute are:

a.    Is the strata entitled to collect bylaw fines from the owner in connection with alleged bylaw 4(4) violations?

b.    Did the strata treat the owner significantly unfairly by enforcing bylaw 4(4) against her?

c.    Does bylaw 4(4) discriminate against the owner under the Code?

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, the strata must prove its claim on a balance of probabilities (meaning “more likely than not”). The owner must prove her counterclaim to the same standard. 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.

Background

14.   The strata was created in 1994 under the Condominium Act and continues to exist under the SPA. It is made up of 5 strata lots in a single-story building, each with a basement.

15.   The owner bought SL5 in July 2020. At that time, the SPA’s Schedule of Standard Bylaws were the strata’s bylaws, modified by 5 amendments filed with the Land Title Office (LTO) in June 2020.

16.   In June 2021, the strata filed a complete new set of bylaws with the LTO that replaced the Schedule of Standard Bylaws and amendments. This includes new bylaw 4(4). No bylaw amendments have been filed with the LTO since June 2021.

17.   Bylaw 4(4) says

Owners shall use their strata lot as a single-family residence only. For the purposes of these bylaws, “single-family” or “family” shall be defined as including persons who are a spouse of the owner, a grandparent, parent, child, or grandchild of the owner, or a grandparent, parent, child or grandchild of the spouse of the owner, to a maximum of FOUR (4) persons residing within the strata lot. Persons visiting an owner of a strata lot shall be entitled to occupy the strata lot for a period not exceeding 31 days in the aggregate in any calendar year [...]

18.   After the new bylaws were approved at a May 30, 2021 Special General Meeting, the strata’s lawyers provided a legal opinion confirming the likely validity and enforceability of bylaw 4(4). The owner retained her own lawyer, who provided an opposing October 29, 2021 opinion. The owner also requested a hearing with the strata council. Following the November 25, 2021 hearing, the strata’s lawyer wrote to the owner’s lawyer reiterating the strata’s position that the bylaws are valid and enforceable.

19.   In December 2021, FB began staying with the owner in SL5. The owner advised the strata FB would be her guest for December 2021 and January 2022. In February 2022, the owner told the strata FB was now living in SL5 as her companion. The parties agree that FB does not fall within the strata’s definition of “family” under bylaw 4(4).

20.   In its February 3, 2022 letter to the owner, the strata advised her that she had allegedly violated bylaw 4(4) by having FB stay with her for more than 31 days in a calendar year. On February 12, 2022 the strata wrote to the owner to advise that strata council had found her in violation of bylaw 4(4) and would immediately begin fining her $200 a week until she confirmed FB was no longer living in SL5. The strata wrote the owner at least two more letters on April 9, 2022 and April 30, 2022 reiterating the bylaw contravention and advising her of the fines imposed.

21.   It is undisputed that FB did not move out of SL5 until at least March 23, 2022. The strata says FB did not move out until May 28, 2022, but it only fined the owner up to April 30, 2022 when it became “convinced there would be no resolution in continuing via this route.” The fines levied by the strata between February 12, 2022 and April 30, 2022 total $2,400.

Does bylaw 4(4) discriminate against the owner under the Code?

22.   I begin with the owner’s counterclaim that bylaw 4(4) contravenes the Code because it too narrowly restricts who can live in a strata lot.

23.   CRTA section 11(1)(d) says the CRT may refuse to resolve a claim or dispute within its jurisdiction that involves the Code. I find this means the CRT has discretion to resolve such a claim or dispute. Since the parties have not argued otherwise, I find it is appropriate for the CRT to resolve this claim.

24.   The owner argues bylaw 4(4) discriminates against her based on her family status because under its definition of “single-family” or “family” she lacks family or spousal status with FB. She says an owner without a family as narrowly defined in bylaw 4(4) is forced to live alone and in solitude, which is burdensome and disadvantageous to them. The owner says bylaw 4(4) withholds from her the benefits of companionship and emotional support available to other owners who live with family.

25.   Section 8 of the Code says, in part, that unless there is a bona fide (genuine) and reasonable justification, a person must not, based on family status, discriminate against another person about any accommodation, service, or facility customarily available to the public.

26.   Prior CRT and Human Rights Tribunal (HRT) decisions, which are non-binding but that I find persuasive, confirm section 8 of the Code applies to strata corporations (see for example The Owners, Strata Plan LMS 2900 v. Mathew Hardy, 2016 BCCRT 1; Lenius v. The Owners, Strata Plan KAS 2959, 2022 BCCRT 515; St Pierre v. The Owners, Strata Plan BCS1586, 2022 BCCRT1284; Konieczna v. Strata Plan NW 2489, 2003 BCHRT 38 and Williams v. Strata Plan LMS 768, 2003 BCHRT 165).

27.   SPA section 121(1)(a) says a bylaw is unenforceable to the extent it contravenes the SPA, the SPA’s regulations, the Code or any other enactment or law.

28.   For the owner to establish a complaint of discrimination on the basis of family status under section 8 of the Code, she must identify a family relationship, allege an adverse impact arising from the strata’s enforcement of bylaw 4(4) and describe a connection between that adverse impact and her family status (see Perry v. Strata #49 Council, 2014 BCHRT 7 and Hallonquist v. Strata Plan NW307 and another, 2014 BCHRT 117). After that, the burden shifts to the strata to establish a bona fide and reasonable justification for enforcing bylaw 4(4) against the owner.

29.   Has the owner identified a family relationship? The Code does not define either “family status” or “family relationship”. The HRT says family status “includes family type [...] and who is in your family.”

30.   In Bowes v. The Corp. of The City of Victoria, 1998 CanLII 2860 (BCSC), the Court considered the requirement that certain residential premises could only be occupied by a family under the defendant City’s Zoning Regulations Bylaw. The Court found the City had not discriminated against the plaintiff on the basis of “family status” because it had broadened the definition of “family” in its bylaw to make compliance dependent on how the premises could be used and not on the premises’ users. The Court said the City’s definition of “family” ensured that use was not restricted to people married or related by blood, but included arrangements where people normally lived together as a family, with at least some permanence and commitment to each other (see also 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101 (CanLII) at paragraphs 62-63).

31.   In The Owners, Strata Plan LMS 744 v. Gan, 2021 BCCRT 1338, a non-binding decision, a vice chair considered what “family” meant in a dispute where the strata argued 4 people occupying strata lots as renters did not form a family. The vice chair relied on the online Merriam Webster dictionary (www.Merriam-webster.com) which says:

In modern use, family may refer to one of a number of different groups of people [...] who may or may not share ancestry. Family is often encountered in legal use, but even within the jargon of the law it is not restricted to a single meaning. In many legal contexts family denotes “individuals related by blood, marriage, or adoption,” but in others the definition may be somewhat broader, encompassing groups of individuals not related by these things.

The vice chair concluded “people do not need to be related by blood, marriage, or adoption, as the strata appears to suggest, in order to be considered a family.”

32.   Here, the owner says that while they lived together in SL5, she and FB "shared meals, entertained mutual friends for dinner, went for walks, and assisted one another with basic life needs, such as offering one another transportation to hospitals [...They] operated much like a "family" would. They formed a committed unit that cared and looked after one another.” She also describes how FB offered her “companionship, continued socialization, and emotional support” and that it was always her intention “to reside with an individual who would form a family unit with her.” The strata does not dispute any of this. The owner says FB never paid her rent or other monetary compensation to live in SL5, nor did they sign a tenancy or other agreement. FB’s written statement in evidence supports the owner’s claims. It indicates FB “was always treated as a live-in companion by Alison, for the purposes of providing her with company and support, since she does not have a partner or a spouse [...]” and she “had hoped to be able to live in the Residence for a long period of time.”

33.   Based on the above and the evidence before me, I find the owner has identified a relationship with FB in which they were committed to mutually supporting each other and intended to live together with a degree of permanence, and which is essentially a family relationship.

34.   I also find the owner has proven her family relationship with FB was adversely impacted by bylaw 4(4) because the strata’s interpretation and subsequent enforcement of it against the owner meant she and FB were unable to live together in SL5 as other owners with family were. So, I find the owner has proven her claim of discrimination on the basis of family status under section 8 of the Code.

35.   I turn to the strata’s justification for enforcing bylaw 4(4) against the owner. The strata argues that almost all its bylaws including bylaw 4(4) were copied from other strata corporations in BC and that bylaw 4(4) is used by several strata corporations in BC and across the country. I find this has no bearing on whether a bylaw is discriminatory or is being enforced in a discriminatory way.

36.   The strata also says its bylaws do not make allowances for a multi-family dwelling and because it has defined “a single-family, no other definition outside of [its] stated definition is valid.” I disagree. The fact that the strata may define and interpret terms in its bylaws in a particular way does not exempt it from compliance with the Code.

37.   The strata also argues bylaw 4(4) is necessary to protect the single-family adult community enjoyed by the owners. It says the owner has shown disregard for its bylaws from the time she bought SL5 and betrayed other owners’ trust such that the strata questions “her motives and end game”. It also says it is concerned “there might be a revolving door of roommates with no means of determining if rent is being paid.” The owner admits when she first moved into SL5 she misinterpreted the rental restriction bylaw. It is unclear whether she rented out part or all of SL5, but in any case, the owner acknowledges she breached the bylaw on that occasion. She says, and the strata does not explicitly dispute, that since then until this dispute, she has complied with the rental restriction bylaw. So, I find the strata’s argument about roommate turnover speculative and unproven. I also find it is moot, since under the new version of SPA section 141 “the strata corporation must not screen tenants, establish screening criteria, require the approval of tenancies require the insertion of terms in tenancy agreements or otherwise restrict the rental of a strata lot.”

38.   In addition, I disagree with the strata’s position that it was required to enforce bylaw 4(4) against the owner. Bylaw 4(4) says ““single-family” or “family” shall be defined as including persons who are a spouse of the owner, a grandparent, parent, child, or grandchild of the owner, or a grandparent, parent, child or grandchild of the spouse of the owner [...]” (my bold emphasis).

39.   Under the Interpretation Act section 8, an enactment must be given a liberal interpretation that best ensures it attains its goals. The strata’s bylaws qualify as an enactment under the Interpretation Act. 

40.   The goal of bylaw 4(4) is to ensure the protection of the single-family adult community and lifestyle the owners enjoy. It would be inconsistent with that purpose if the strata could exclude without exception people not on the list, but who otherwise fall within a broader category of adults adhering to a single-family lifestyle and the values of a such a community.

41.   I find this position is supported by the word “including” in the definition in bylaw 4(4). I find a liberal interpretation of bylaw 4(4) that best ensures it attains its goals is one that recognizes the list of people in the definition is not exhaustive. Other people could be considered “family” under the strata’s own definition. If the strata wanted the list to be restricted to those listed, it could have simply said “shall be defined as [...]”. So, I find under the strata’s own definition there is room to interpret “family” as persons other than those listed.

42.   In summary, I find the strata has not provided a bona fide and reasonable justification for enforcing bylaw 4(4) against the owner. I conclude the strata discriminated against the owner on the basis of family status under section 8 of the Code.

43.   Given my conclusion on the discrimination claim, I find I do not have to consider the owner’s claim that the strata acted significantly unfairly towards her.

44.   As noted earlier, SPA section 121 says that a bylaw is unenforceable to the extent it contravenes the Code. Since I find the strata discriminated against the owner, under SPA section 121 I find the strata has no authority to enforce bylaw 4(4) against her as it did. So, I dismiss the strata’s claim for $2,400 in unpaid fines.

Remedy

45.   The owner asks that I order the strata not to enforce bylaw 4(4) against her. Based on my findings above, I order the strata to stop enforcing bylaw 4(4) against the owner to the extent it prevents her from living with FB in SL5. I note this order does not cover the owner’s living arrangements with any other person, but only her living arrangement with FB.

46.   The owner also asks that I make an order that bylaw 4(4) is unenforceable under SPA section 121. I find this request is for a declaratory order. The CRT does not generally have jurisdiction to make declaratory orders.

47.   Even if the CRT had jurisdiction to make a declaratory order in this dispute, I would have declined to make that order. This is because I find the list of persons included in the definition of “family” under bylaw 4(4) is not exhaustive and so bylaw 4(4) could be interpreted and enforced in a non-discriminatory way.

CRT FEES, EXPENSES AND INTEREST

48.   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. As the owner was largely successful in this dispute, I find she is entitled to reimbursement of $125 in CRT fees.

49.   The owner claims reimbursement of $7,669.93 in legal fees incurred before this dispute began and $12,712.07 in legal fees incurred during the dispute. CRT rule 9.5(3) says the CRT will not order reimbursement of legal fees in a strata property dispute, except in extraordinary circumstances. I find the circumstances of this dispute are not extraordinary. In making this finding, I have considered the factors set out in the CRT rule 9.5(4). I find this dispute was not unusually complex compared to typical CRT disputes, did not involve novel legal issues, and did not include an usually large amount of evidence or submissions. So, I dismiss the owner’s claim for reimbursement of legal fees.

50.   The owner asks that if I dismiss her claim for reimbursement of legal fees, I order the strata to pay her punitive damages for its hostility and discrimination towards her. Punitive damages would require malicious, oppressive, and high-handed conduct by the strata. I find there is no evidence the strata’s conduct rose to that level here. I dismiss the owner’s claim for punitive damages.

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

ORDERS

52.   I order that:

a.    The strata must stop enforcing bylaw 4(4) against the owner to the extent it prevents her from living with FB in SL5.

b.    Within 30 days of this decision, the strata must reimburse the owner a total of $125 in CRT fees.

53.   I dismiss the owner’s remaining claims.

54.   I dismiss the strata’s claims.

55.   The owner is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

56.   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.