Date Issued: January 17, 2023

Files: ST-2021-008942,
ST-2022-004279,
ST-2022-004285,
and ST-2022-004465

Type: Strata

Civil Resolution Tribunal

Indexed as: Muller v. The Owners, Strata Plan EPS4420, 2023 BCCRT 44

Between:

CATHERINE MULLER

Applicant

And:

The Owners, Strata Plan EPS4420

Respondent[s]

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This decision involves 4 separate disputes with the same parties. The applicant in all 4 disputes, Catherine Muller, co-owns a strata lot in the respondent strata corporation, The Owners, Strata Plan EPS 4420 (strata). The strata is the respondent in all 4 disputes.

2.      The disputes are mainly about repair and maintenance of common property, but also involve governance issues. Ms. Muller seeks the following orders:

a.     In Dispute ST-2021-008942, an order for the strata to repair scratches on her windows, which she values at $2,500.

b.     In Dispute ST-2022-004279, an order that that strata plant catmint in a roof top planter and replace grass plants on common property that were previously removed, which she values at $2,000.

c.      In Dispute ST-2022-004285, orders that the strata stop spending money from the operating budget on unauthorized expenses, that it detail its expenditures, and that it obtain owner approval for financial decisions.

d.     In Dispute ST-2022-004465, orders for the strata to repair a water feature, repair or replace a damaged “bumper” on an outside concrete wall, repair and maintain common property carpeting and landscaping, and have a fire inspection. She values these remedies together at $5,000.

3.      The strata generally says it has complied with its obligations under the Strata Property Act (SPA) to reasonably repair and maintain common property and in making its financial decisions. The strata specifically denies that it has improperly incurred expenses for which it should have obtained owner approval through a resolution.

4.      Ms. Muller is self-represented. The strata is represented by a strata council member.

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.

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.

Preliminary Matter - Dispute Notices

8.      The original Dispute Notice for Dispute ST-2021-008942 included several separate issues and claims. The Dispute Notice was later amended to remove all issues except the window scratch claim. The strata was given an opportunity to revise its Dispute Response but elected not to do so. I find the strata’s decision not to revise its Dispute Response created no procedural fairness issues.

9.      Ms. Muller then filed separate CRT claims in Disputes ST-2022-004279 and ST-2022-004285 to address some of the issues that were removed from the initial Dispute Notice. The strata filed Dispute Responses to the new disputes. Ms. Muller later filed a fourth CRT claim in Dispute ST-2022-004465, and the strata also filed a Dispute Response to that dispute. I note that one of the issues Ms. Muller raises in the fourth dispute is essentially the same landscaping claim she raised in Dispute ST-2022-004279, as discussed further below.

10.   Several issues removed from the initial Dispute Notice for Dispute ST-2021-008942 have not been raised in the other 3 linked disputes, and so I will not be addressing them in my reasons below.

ISSUES

11.   The remaining issues are:

a.    Is the strata responsible to repair or replace Ms. Muller’s scratched windows?

b.    Did the strata improperly use operating funds to pay for shrub removal that should have received separate ownership approval?

c.    Has the strata failed to properly maintain landscaping on common property, and if so, what is the appropriate remedy?

d.    Has the strata incurred unauthorized and unapproved expenses or has it failed to properly disclose all of its expenses?

e.    Has the strata failed to properly repair and maintain the water feature, and if so, what is the appropriate remedy?

f.     Must the strata repair or replace a damaged “bumper” on an exterior wall?

g.    Has the strata failed to properly repair and maintain hallway carpeting?

h.    What is the appropriate remedy for the delayed fire inspection, if any?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, the applicant Ms. Muller must prove her 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.

13.   The strata is an air-space parcel strata corporation created in December 2017. The strata plan shows the strata consists of parts of a single building that has 2 below-ground parking levels, a mezzanine level (first floor), 4 additional above-ground levels (floors 2 through 5), and a roof level. Large portions of each of the building’s first parking level, mezzanine level, and first above-ground level are not part of the strata. The evidence shows that a Save-On Foods (Save-On) grocery store operates in a portion of those areas that are not part of the strata.

14.   The land title documents in evidence show that Ms. Muller owns a 53/100 undivided interest in strata lot 28 (SL28), JZ owns a 27/100 undivided interest in SL28, and YV owns the remaining 20/100 undivided interest. JZ and YV are not parties to this dispute. It is undisputed that Ms. Muller (and JZ and YV) purchased SL28 from the strata’s owner developer (developer), and Ms. Muller moved into SL28 in early 2018.

15.   SL28 is located on the building’s fifth floor. The strata plan shows there is a roof deck that is designated as limited common property (LCP) for the exclusive use of SL28 (roof deck). There is also a common property planter around the north, east, and south sides of the roof deck.

16.   The owner developer filed a notice of different bylaws in the Land Title Office (LTO) on December 1, 2017, which modified the SPA’s Schedule of Standard Bylaws about pets. The strata filed additional bylaw amendments in the LTO on March 13, 2019 and June 25, 2021. I find these amendments, together with the owner developer’s notice and the SPA’s Standard Bylaws, apply to this dispute.

Dispute ST-2021-008942: Window Scratches

17.   Ms. Muller says that in June 2020, her window washer advised her that they found extensive scratches on 13 of SL28’s windows. She says she had not noticed the scratches before, as they can only be seen in certain light and with a “trained eye”. I accept this is likely true, as the photographs in evidence appear to have been taken at a certain angle, from below and into direct sunlight, so the scratches would be visible. I find the evidence shows the subject scratches are on the windows’ exterior.

18.   Ms. Muller alleges that the scratches resulted from the strata’s developer not taking appropriate steps to clear “loose material” from the windows when it completed the building’s construction, so the windows became scratched when they were cleaned. Ms. Muller says the scratches are likely a wide-spread problem, and the strata failed to properly notify owners so they could inspect their windows and failed to “take action” before the developer’s warranty for the windows expired.

19.   Ms. Muller undisputedly notified the developer about the scratches in July 2020. The evidence shows the developer referred her to the windows’ manufacturer, TA, which inspected her windows. In an October 5, 2020 email, TA advised Ms. Muller it was confident the scratches were not a manufacturing or installation defect, and so they were not covered by TA’s warranty.

20.   Ms. Muller says she advised the strata about the scratches in early 2021. The strata’s April 1, 2021 council meeting minutes state that it reviewed Ms. Muller’s correspondence about the windows and discussed that other units had also noted small window scratches that could be seen in sunlight. The strata directed its strata manager to address the issue with the developer.

21.   On May 19, 2021, the strata manager advised the strata that the developer denied any responsibility for the scratches because they were not reported during the initial warranty periods. The evidence shows the strata then decided to arrange for a selection of the building’s windows to be inspected. The strata hired Extreme Glass to inspect the windows in Ms. Muller’s and 3 other randomly selected strata lots on June 21, 2021.

22.   The strata council president, DC, attended the window inspections and prepared a signed statement for the purpose of these CRT disputes. DC stated that the Extreme Glass technician observed varying degrees of window scratches in each strata lot they inspected, but advised they were cosmetic only and presented no structural or integrity issues. The strata council’s July 13, 2021 meeting minutes stated that given the advice that the scratches were not structural, the strata decided to take no further action.

23.   I find the question is whether the strata acted reasonably in addressing the window scratch issue. For the following reasons, I find that it did.

24.   Contrary to Ms. Muller’s submission, I find the strata was not obligated to explicitly direct all owners to inspect their window for scratches to determine the full extent of the problem. I find the strata sufficiently notified owners about the potential issue when it recorded in its meeting minutes that Ms. Muller and other strata lot occupants had reported window scratches. Further, given Extreme Glass found window scratches in all strata lots it inspected, I find the strata knew the scratches were likely widespread. Overall, I find it was unnecessary for the strata confirm exactly how many windows were scratched.

25.   I say that because I find Ms. Muller has not established that the developer’s position on covering the scratches under warranty would have changed if the strata had advised the developer that more windows were scratched. There is no direct statement from the developer, other than an August 3, 2021 email to Ms. Muller advising simply that it did not consider the scratches a warrantable deficiency. I find the evidence suggests the developer took that position because the scratches were not reported for over 2 years, so it could not determine when they occurred, particularly given the windows had already been cleaned by third parties several times.

26.   Further, the strata discussed by email the possibility of pursuing the developer legally over the window scratches, depending on the outcome of a professional inspection. DC stated that while the Extreme Glass technician said such scratches can occur during installation, another council member reported several new scratches after an annual window washing that was completed earlier in 2021. So, I find the strata reasonably decided it might not be successful in a claim against the developer.

27.   Ms. Muller did not provide any evidence to support her submission that the scratches occurred during the construction phase or due to the developer failing to properly clear loose material from the windows once it completed construction. Overall, I find the strata acted reasonably in deciding not to pursue the matter against the developer, particularly given Extreme Glass’ opinion that the scratches did not present any structural issues.

28.   I find it is Ms. Muller’s position that in the absence of the developer repairing or replacing the scratched windows under warranty, the strata must repair the scratches. For the following reasons, I find Ms. Muller has not established that the strata is responsible for repairing her scratched windows.

29.   Section 72 of the SPA requires the strata to maintain and repair all common property. However, it is unnecessary to determine whether the windows are common property because standard bylaw 8(d) requires the strata to repair and maintain the building’s exterior and any windows on the building’s exterior, even if they are part of a strata lot. I find SL28’s scratched windows are on exterior walls. So, I find the strata is responsible for the repair and maintenance of the windows.

30.   This does not necessarily mean that the strata must repair the claimed window scratches. This is because the strata’s obligation to repair and maintain is measured by the test of what is reasonable in all the circumstances: see The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363. The standard is not one of perfection.

31.   Ms. Muller provided no evidence that the scratches could potentially result in future window failure, as alleged, and I find there is insufficient evidence before me that the scratches pose any structural or safety issues. Further, Ms. Muller provided an October 1, 2020 estimate of the cost to buff the scratches out of the windows totalling $8,950. Ms. Muller did not explain why she claimed a remedy of only $2,500, given this estimate.

32.   In any event, I find the strata is not required to provide Ms. Muller with perfectly unscratched windows. Given the scratches are only visible at a particular angle in certain lighting and the relatively high estimated repair cost, I find the strata is not reasonably required to repair SL28’s scratched windows.

33.   For all these reasons, I dismiss Ms. Muller’s claims in Dispute ST-2021-008942.

Dispute ST-2022-004279: Common property landscaping

34.   At the outset, I note that Ms. Muller raised the same landscaping issues that are the subject of this dispute, in each of the other 3 linked disputes. However, I find her submissions and evidence on the issues were essentially duplicated in each dispute, and so I have addressed the landscaping issues only in the context of this dispute.

35.   Ms. Muller says that the strata removed shrubs from the common property planter along the entire east-side length of the roof deck designated for SL28’s exclusive use. She says the strata did not obtain the owners’ approval for the $3,500 cost to remove the shrubs. She also says the strata replaced the shrubs only partially and with completely different plants, which “negatively and dramatically” changed the appearance of the common property planter.

36.   Ms. Muller seeks an order for the strata to plant additional catmint along the east roof deck perimeter, and to replace grasses around a tree in the planter’s northeast corner, which the strata undisputedly removed because the grasses had died.

37.   The strata says that its landscaper, Meridian Landscaping (Meridian), reported in about March 2020 that certain shrubs along the planter’s east side were getting too large, creating a potential safety issue for the landscapers and a risk that the roots could break through the planter sealant, which could flood the rooftop. I find Meridian’s recommendation to remove the shrubs is supported by a March 11, 2020 quote Meridian prepared for the strata, which included 5 separate landscaping projects. I find only the shrub removal project involved potential safety issues and the others were recommended for primarily aesthetic reasons.

38.   Despite the potential safety risk, the strata says it did not have money in its landscaping budget to complete the shrub removal in 2020. It says Meridian advised that the work could wait, so the strata deferred the project. I note the strata council’s March 20, 2020 meeting minutes record that it received Meridian’s quote about overgrowing shrubs, and that the council would review this and the other recommended landscaping items for completion over time. The strata submits that it planned to revisit the shrub removal in its 2022-2023 budget.

39.   It is undisputed that some ornamental grasses died in the planter around the roof deck in about March 2021. The strata says Meridian advised that the watering system was inadequate for ornamental grasses in that location and recommended planting catmint, which was a heartier plant. So, the strata says in June 2021, it instructed Meridian to remove the dead grass and plant catmint, which undisputedly cost $115.

40.   The strata says that in September 2021, Meridian recommended that the shrubs along the planter’s east side be removed before the spring of 2022. The evidence shows Meridian provided the strata with a September 9, 2021 quote for $3,195 plus tax to remove the shrubs. An October 2021 report from the strata council’s landscaping committee also stated that following consultation with Meridian, it recommended the shrubs be immediately removed as they were becoming too large, the roots were growing deeper, and their size made it difficult to maintain the planter.

41.   Meridian undisputedly removed the shrubs along the planter’s east side in November or December 2021. It is also undisputed that the strata used its operating budget to pay for the shrub removal and did not obtain a 3⁄4 vote before incurring the expense.

42.   The strata says Meridian advised that no additional planting would be required to replace the removed shrubs, as the remaining plants would grow to fill in any empty spaces. However, the strata says at Ms. Muller’s insistence, it planted catmint along the planter’s east side in May 2022, at a cost of $540 plus tax.

Operating fund expense

43.   Ms. Muller’s main argument appears to be that the strata should have obtained the owners’ approval before incurring the expense to remove the shrubs.

44.   Section 92 of the SPA says that strata owners must contribute, through strata fees, to an operating fund and a contingency reserve fund (CRF), which are each used for different common expenses of the strata. “Common expenses” is defined in SPA section 1(1) as expenses relating to common property and common assets of the strata corporation, or expenses required to meet any other purpose or obligation of the strata. It is undisputed that the removed shrubs were common assets or on common property, so I find the removal cost was a common expense of the strata.

45.   Section 92(a) of the SPA says that the operating fund is for common expenses that usually occur either once per year or more often than once per year, or are necessary to obtain a depreciation report. There is no indication in the evidence that the shrub removal was related to obtaining a depreciation report, so I find that provision is not relevant to this dispute. SPA section 97(a) says the strata must not spend money from the operating fund unless it is consistent with the purposes of the fund as set out in section 92(a).

46.   SPA section 92(b) says the CRF is for common expenses that usually occur less often than once a year or that do not usually occur. SPA section 96 requires that an expenditure from the CRF must be pre-approved by a resolution passed by majority vote at an annual or special general meeting if it is related to repair, maintenance, or replacement of common property or common assets as recommended in the most current depreciation report, or by 3⁄4 vote for other expenditures.

47.   Section 98(3) of the SPA allows unapproved spending from the CRF or the operating fund, if there are reasonable grounds to believe that the immediate expense is reasonably necessary to ensure safety or prevent significant loss.

48.   I find the evidence shows each of the strata’s annual landscaping maintenance budgets between 2020 and 2023 have been comprised of a contract with Meridian to perform general landscaping services, plus an additional amount for other landscaping maintenance that fell outside its contract with Meridian. For instance, the strata’s 2021-2022 operating fund budget, which the owners approved, allocated $33,000 for landscaping maintenance. The evidence shows the strata’s contract with Meridian was approximately $27,000, and the strata added $6,000 for what the treasurer’s report described as “a variety of items considered as the current year portion of cyclical maintenance items”, including both specific and “TBD” projects.

49.   I find that by approving these budgets, the owners accepted that the strata was entitled to use its operating fund for some amount of landscaping annually that was not included in its basic contract with Meridian. I find it would be onerous to expect the strata to obtain owner approval for every landscaping expense not covered by its basic contract with Meridian. Given the strata’s landscaping has various live plants and trees, many of which are on the roof level, I find that removing and replacing dead or overgrown plant life is likely something that occurs annually or more often.

50.   As the strata included a reserve in its operating budget for landscaping maintenance to be determined, and my finding that removal of overgrown shrubs is properly considered an expense that occurs more than once per year, I find the strata was not obligated to pass a 3⁄4 vote resolution to fund that project from the CRF.

51.   Further, I agree with the strata that it was entitled to incur the unapproved shrub removal expense from the operating fund because it was reasonably necessary to ensure safety or prevent significant loss. As noted, the strata says it had planned to wait until its 2022 AGM to consider how to proceed with he shrub removal. However, on professional advice from Meridian, the strata determined the removal had to be completed earlier for both Meridian’s safety and to prevent potential significant loss due to flooding. Ms. Muller did not provide any evidence or submissions to the contrary, and from the photos of the removed shrubs in evidence, I accept that the strata reasonably considered removing the shrubs was urgent.

52.   For these reasons, I find the strata did not act improperly by funding the shrub removal from the operating fund, and not first obtaining owner approval to incur the expense.

Maintenance of common property

53.   I turn to Ms. Muller’s requested remedy for an order that the strata plant additional catmint and replace the ornamental grasses in the planter’s northeast corner. I find it is her position that the strata has failed to properly maintain the common property planter since the shrubs and dead ornamental grasses were removed.

54.   As noted in my decision in Dispute ST-2021-008942 above, the strata is held to a standard of reasonableness in its common property repair and maintenance obligations under SPA section 72. When deciding how to approach its maintenance obligations, the strata might have “good, better, or best” solutions available, and it must act in the best interests of all the owners, balancing competing needs and priorities within its budget: see Weir v. The Owners, Strata Plan NW 17, 2010 BCSC 784. No single owner can direct the strata how to conduct its repairs and maintenance: see the non-binding but persuasive decision in Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241.

55.   Further, in the CRT decision in Khodadadi v. The Owners, Strata Plan VR 1294, 2022 BCCRT 928, a tribunal member found it would be unreasonable to expect a strata corporation to keep landscaping exactly the same over time, and it need only ensure that a landscaped area retains its overall character to meet its maintenance obligations. While prior CRT decisions are not binding on me, I agree with this reasoning and apply it here.

56.   Ms. Muller’s video evidence shows the removed shrubs were growing against the glass railing around the roof deck and were at or just above the railing height. The video and photograph evidence show other parts of the planter contained different types of low hedges, as well as taller trees, grasses, and other ground cover.

57.   Ms. Muller says the strata failed to replant the section where the shrubs were removed, leaving large areas of bare dirt. I agree that the undated photos Ms. Muller provided show limited ground foliage where the shrubs used to be. However, the strata says Ms. Muller’s photos were taken before it planted the catmint in May 2022. I find the strata’s July 2022 photos show the catmint and other plants grew in substantially and the dirt areas were largely covered. I note that both parties’ photos show low hedges around the planter’s outer edge that I infer were present before the shrubs’ removal but could not be seen because the taller shrubs were in front of them.

58.   Overall, I find the low hedges around the planter’s outer edge, along with the grown-in catmint and other ground plants where the shrubs were removed do not provide a significantly different aesthetic than the shrubs previously provided. While Ms. Muller essentially argues it would be “better” to have more catmint planted, I find the strata chose a “good” solution to plant some catmint that would grow in over time. In other words, I find the existing catmint the strata planted is sufficient for the strata to meet its landscape maintenance obligations under the SPA.

59.   As for the ornamental grass replacement, there are no photos in evidence of the grasses that undisputedly died. While Ms. Muller disputes the strata’s submission that ornamental grasses are unlikely to survive in the northeast corner, I find the strata was entitled to replace the dead grasses with other reasonably similar plants. The strata undisputedly planted catmint to replace the ornamental grasses, which I find likely provides a sufficiently similar visual character. Overall, I find Ms. Muller has not established that the strata must plant additional catmint or ornamental grasses in the common property planter on the roof.

60.   For all the above reasons, I dismiss Ms. Muller’s claims in Dispute ST-2022-004279.

Dispute ST-2022-004285: Unauthorized and unexplained expenses

61.   Ms. Muller says the strata allocates up to $25,000 per year in its budget, over the repair and maintenance contracts it has in place, and the strata does not adequately explain or disclose what that money is spent on. As noted, Ms. Muller requests orders that the strata stop spending money on unauthorized expenses, obtain owner approval for all expenses not included in its repair and maintenance contracts, and properly detail all expenditures.

62.   Neither the SPA nor the strata bylaws address the level of detail that must be included in an operating budget. The level of detail is up to each strata corporation to decide. Strata owners can direct the strata on what level of detail to include in the budget. Contrary to Ms. Muller’s position, I find that an operating budget does not have to contain a separate line item for each specific expense, and it is acceptable to group expenses together or name them generally.

63.   Ms. Muller alleges that the strata’s original strata management company advised the strata council to “pad” the budgets to avoid getting ownership approval for expenditures not budgeted for. The strata denies this allegation and I find it unproven. SPA section 103 says the strata is responsible for preparing a budget for anticipated expenses in the coming fiscal year. This means that for repair and maintenance expenses, the strata will likely consider several factors, including the previous year’s expenditures, to estimate its future expenses and determine the necessary strata fees required to cover those expenses. I find that simply because general repair and maintenance items are not each specifically set out as line items in the budget, does not mean the strata has “padded” the budget to avoid getting owner approval for the expenditures.

64.   I agree with the strata’s submission that it would be impractical and unreasonable for the strata to hold a general meeting every time a minor repair and maintenance issue arose that was not expressly listed as a line item in the approved budget or covered by the strata’s existing third-party repair and maintenance contracts. As with the landscaping budget discussed above, I find the strata inevitably incurs repair and maintenance expenses that occur annually or more often, and it is appropriate for the strata to anticipate those expenses and include them in its operating budget.

65.   For example, the strata says it used the operating fund to pay for the following expenses out of the repair and maintenance budget in the 2021-2022 fiscal year: lock repairs, 2 separate water loss incidents, and service calls to deal with a power outage. Given the strata’s size, I find such repairs are likely required at least once per year, and so the strata reasonably and appropriately used operating funds to pay for them, noting there is no evidence the strata spent over its budget that year.

66.   Further, if owners want additional information about the strata’s expenses, they are entitled to request documents under SPA sections 35 and 36. Under section 35(c), the strata must prepare books of account showing money received and spent and the reason for the receipt or expenditure.

67.   The evidence shows that Ms. Muller requested documentation of the strata’s repair and maintenance expenses for the 2019-2020 fiscal year, and the strata emailed her a general ledger of repair and maintenance expenses on June 4, 2020. I find this general ledger complies with the criteria for books of account under section 35(c) of the SPA to explain the amount of money spent and the reason for each expenditure. Ms. Muller did not take issue with any particular expense on that general ledger in this dispute. There is also no evidence before me that she requested the general ledger of expenses for the following years, or took issue with any particular expenditure, other than construction of a walkway later in 2020, discussed below.

Walkway

68.   It is undisputed that in 2020 the strata installed a walkway from the strata’s front entrance to the street. The installation cost $1,869, which was paid from the operating fund. Photos in evidence show a sidewalk runs along the length of the strata building, with a grass boulevard between the sidewalk and the street. The strata installed concrete pavers from the sidewalk to the street, so owners could get from the building to the street without walking on the grass boulevard.

69.   The strata plan in evidence shows the strata’s property line is at the edge of the sidewalk closest to the building. So, I find the sidewalk and grass boulevard are likely city property, and the walkway also likely lies on city property.

70.   In any event, the evidence shows the strata considered building the walkway to be a safety issue for its residents, as some are elderly or have mobility issues and found it difficult to navigate the grass when accessing the street to or from the entrance. Therefore, even though the walkway is not on common property or a common asset, I am satisfied that its construction fell within the scope of a “purpose or obligation” of the strata to ensure resident safety when coming and going from the building, and so was an appropriate common expense.

71.   Nevertheless, it is undisputed, and I find that construction of the walkway was an expense that occurs less frequently than once per year or does not usually occur. Therefore, I find the expense should have been funded from the CRF rather than the strata’s operating fund.

72.   As discussed above, CRF expenditures must first be approved by a resolution passed by the ownership at an annual or special general meeting. There is no evidence the walkway was recommended in the most current depreciation report. So, I find the strata was obligated under SPA section 96(b)(i)(B) to pass a resolution by a 3⁄4 vote for the walkway expenditure before it incurred the expense.

73.   The only exception to the requirement for ownership pre-approval is section 98(3), also discussed above, which permits immediate expenditures out of the CRF if there are reasonable grounds to believe it is necessary to ensure safety or prevent significant loss or damage. While the strata argues that the walkway was immediately necessary, which I find unproven on the evidence before me, it is undisputed that the strata used the operating fund, and not the CRF. Therefore, I find the strata breached section 97 of the SPA by using the operating fund for an expenditure that was not consistent with the purposes of that fund.

74.   So, what is the appropriate remedy for this breach? As the money has already been spent and the work completed, I find the error is essentially not correctable. I find there would be little point in requiring the strata to bring a retroactive resolution to approve the expense or ordering it to transfer $1,869 from the CRF to the operating fund several years later.

75.   Further, Ms. Muller’s requested remedies for this dispute are prospective in nature, as they are all essentially requests for the strata to govern itself according to the SPA going forward. The strata is already required to comply with the SPA, and the CRT does not generally grant prospective orders. Under the circumstances here, I am not satisfied that making any orders would be helpful to the parties. So, I decline to make any orders, and I dismiss Ms. Muller’s claims in Dispute ST-2022-004285.

 

 

Dispute ST-2022-004465: Common property repairs and fire inspection

76.   This dispute involves 4 separate claims, set out below. I note that Ms. Muller also provided evidence and final reply submissions referencing a roof vent issue involving food smells from Save-On spreading to the roof deck. As Ms. Muller did not raise this issue in the Dispute Notice or her initial submissions, I find that issue is not properly before me, and it would be unfair to consider it. So, I have not addressed it below.

Water feature

77.   Ms. Muller says that an outdoor water feature has been shut down for more than 2 years. She seeks an order for the strata to repair and maintain it, so that the water feature is seasonally functional.

78.   Photos of the water feature show it is attached to the building’s exterior, next to the building entrance. It consists of a rectangular metal pool basin sitting above the ground, with three spouts coming out of the building’s exterior wall above it, from which water is intended to flow into the basin. It is undisputed and I find that the water feature is common property.

79.   The strata does not dispute that the water feature has been turned off for some time. It says the water is intended to flow during the spring, summer, and fall months, and be turned off during the winter. However, the strata says soon after the water feature was initially turned on in 2018, it developed several flaws. For instance, the strata says water splashed on the building’s brick exterior where the spouts exited, the basin started rusting, and ongoing debris accumulation blocked the water flow. None of these issues are disputed and I find they are supported in the strata’s email communications with the developer in 2018.

80.   While it appears the strata had the water feature functioning in 2019 and 2020, the strata’s evidence shows the feature continued to experience numerous operational issues, such as “sludge” build-up on decorative stones at the drainage end, algae growth, and corrosion. Given these issues, the strata says it elected not to turn the water feature on in the spring of 2021.

81.   The strata says that in 2021, it instructed is previous strata management company, FSR, to obtain estimates to fix some of the water feature’s deficiencies, to ensure smooth water flow without splashing, prevent sludge and debris accumulation, and repair rusted parts. The strata says FSR failed to obtain the requested estimates. While the strata did not provide supporting evidence of its instructions to FSR, the evidence suggests that FSR failed to follow up on numerous issues for the strata, so the strata terminated FSR’s contract and obtained a new strata manager, QP, effective March 1, 2022. As it is undisputed, I accept that the strata made efforts to determine how to fix the water feature in 2021 but was unsuccessful.

82.   The strata says that in the spring of 2022, it instructed QP to obtain quotes for the water feature’s repair and maintenance, as well as quotes to remove the water feature and determine options for its replacement. The strata says that once it receives this information, it will call a general meeting for the ownership to discuss how to proceed with the water feature. I find this is consistent with the minutes from the strata’s May 30, 2022 AGM, which state the owners discussed the water feature and it’s potential removal, and that the strata would gather further information and address the issue again at the following AGM.

83.   Based on the above, I find Ms. Muller has not established that the strata has unreasonably failed to repair or maintain the water feature. Rather, I find the evidence shows the strata has repeatedly tried to address the feature’s many operational deficiencies and determine its options to either maintain or replace it in a cost-effective manner. Given the evidence shows the strata is actively working on a solution, it is unnecessary to order the strata to take further action. I dismiss this aspect of Dispute ST-2022-004465.

Bumper

84.   Ms. Muller says the strata has failed to repair or replace a damaged metal bumper on a concrete wall that surrounds landscaping along the alley behind the building. She says it has gone unrepaired for about 3 years. The evidence shows the bumper (also referred to as “flashing”) was damaged on several occasions by Save-On delivery trucks that must travel down the relatively narrow alley to access 3 loading bays in the alley. It is undisputed that the wall and damaged bumper are common property.

85.   The strata says that Save-On acknowledged and took responsibility for the damage its delivery trucks caused, and while Save-On initially replaced the bumper, it was re-damaged soon after. The strata says that Save-On advised that it contracted with an architectural firm to design a more permanent solution than continually replacing the bumper. The most recent correspondence the strata provided about the issue with Save-On was July 2020.

86.   The strata says it is reasonably waiting for Save-On to provide it with a proposal instead of incurring unnecessary costs to repair the bumper, which will inevitably be re-damaged. I agree. I find the strata’s April 1, 2021 Deficiency Report in evidence does not mention the damaged or missing bumper as a concern, and Ms. Muller has provided no evidence that the missing bumper is a safety issue or that its repair is urgent to prevent further damage. Rather, I find the missing bumper is likely primarily a cosmetic issue.

87.   So, while the strata may have options other than waiting for Save-On to propose a permanent solution, I find the strata reasonably decided not to replace the bumper. There is no evidence before me about the bumper’s cost. However, given the likelihood it will be re-damaged, I find that regardless of the cost, replacing the bumper would likely be a waste of money. While the strata might want to follow up with Save-On about the status of its architectural proposal, I find it is unnecessary to make an order for the strata to do so.

88.   I dismiss this aspect of Ms. Muller’s claims in Dispute ST-2022-004465.

Carpets

89.   Ms. Muller says the hallway carpet on the building’s fifth floor has been stained for 2 to 3 years. She says one stain is from dog urine and another is from a water leak in the ceiling. Ms. Muller says the strata has access to extra carpeting from the developer but has failed to use it to repair or replace the stained carpet.

90.   I note that Ms. Muller did not specifically mention the carpet stains in the Dispute Notice, though the claim was generally described as the council failing to provide proper repair and maintenance of “certain areas of the building”. As Ms. Muller addressed the stained carpets in her initial submissions and the strata provided thorough submissions and evidence in response, I decided it was appropriate to address it in these reasons.

91.   The strata admits the carpets are stained, though suggests the stains came from other sources. I find the stains’ causes are irrelevant to this decision, so I do not need to address that issue. The strata also acknowledges that Ms. Muller advised it of the extra carpet roll, though neither party said when she did so.

92.   The strata provided a signed October 13, 2022 statement from a strata council member, RR, for the purpose of this dispute. RR stated that at the council’s direction, QP investigated the extra carpet roll and reported at the council’s October 4, 2022 meeting that the developer would not release the carpet to the strata until “all building deficiencies are resolved”. RR stated that the council instructed QP to follow up, as it believed all deficiencies have been resolved.

93.   The strata says that as it does not yet have access to the extra carpet, it has been unable to assess whether it can be used to repair or replace the stained areas. Further, the strata says it has not yet determined the cost to install new carpeting, whether it uses the developer’s extra carpet or has to purchase new carpeting.

94.   On the relatively limited evidence before me, I find Ms. Muller’s claim about carpet repairs is premature. I find she has not established that the strata has unreasonably delayed investigating whether it can access the developer’s extra carpet, nor has she proven the strata should prioritize repairing the 5^th floor carpet stains over other repair and maintenance projects. For these reasons, I dismiss Ms. Muller’s claims about the stained carpets in Dispute ST-2022-004465.

Fire inspection

95.   Ms. Muller alleges that the strata failed to arrange a fire inspection for 2 years, which she says resulted in the fire alarm going off in her strata lot and may have caused her interior overhead lights to become non-functional. Ms. Muller says she incurred expenses to hire a third party to investigate this issue, as discussed below.

96.   The strata says that it previously arranged annual fire inspections in the building, typically every December. I find the evidence shows this was true for 2018, 2019, and 2020. The strata says that in 2021, FSR failed to schedule the annual fire inspection, which the strata says was one of the factors leading to its decision to terminate FSR’s services. The evidence shows a fire inspection was then completed in July 2022, once the strata hired QP.

97.   The strata argues that Ms. Muller’s claim is moot, given a fire inspection has now been completed, albeit 7 months late. A claim is moot when something happens after a legal proceeding starts that removes any “present live controversy” between the parties. See Binnersley v. BCSPCA, 2016 BCCA 259. Generally, moot claims will be dismissed. Here, I agree that Ms. Muller’s requested order for an urgent fire inspection is moot, as one has already occurred in 2022.

98.   However, I find that Ms. Muller also argues that the delayed annual inspection may have caused electrical problems in her strata lot for which she claims compensation. Specifically, Ms. Muller submits that the strata should pay her $261.45 for Skylight Electrical (Skylight) to inspect why her lights did not work and the fire alarms were set off in her strata lot.

99.   The difficulty for Ms. Muller is that she did not explain or provide any supporting evidence about when or how often the fire alarms sounded in her strata lot, or when her lights became non-functional. She also provided no evidence that these alleged events were connected to the lack of a fire inspection in 2021.

100.      The undated invoice from Skylight stated a breaker was detecting a short circuit in the outside plugs or lights on the roof deck, and that smoke detectors were being set off because they were different models and not properly communicating with one another. There is insufficient evidence before me to establish that the smoke detectors or light circuits fall within the strata’s responsibility to repair and maintain. Further, the Skylight invoice does not mention anything that would connect the delayed fire inspection to the noted light circuit or smoke detector issues.

101.      Overall, even if I accepted that the strata failed to properly maintain common property by not scheduling a fire inspection in 2021, I find Ms. Muller has not proven the delayed inspection caused her alleged electrical issues. Therefore, I dismiss Ms. Muller’s claims related to the delayed fire inspection, and Dispute ST-2022-004465.

CRT FEES AND EXPENSES

102.      Ms. Muller claims $125 for CRT intake fees for each of the 4 disputes, plus a single $100 CRT decision fee, for a total of $600.

103.      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. Ms. Muller was not successful in any of her claims. So, I make no order for reimbursement of Ms. Muller’s CRT fees or expenses.

104.      The strata did not pay any CRT fees. While it initially claimed dispute-related expenses for all 4 disputes, it provided no evidence or submissions about any expenses it alleges to have incurred. So, I dismiss the strata’s claims for dispute-related expenses.

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

 

ORDERS

106.      I order that Ms. Muller’s claims, the strata’s claims for dispute-related expenses, and these disputes, are dismissed.