Date Issued: January 24, 2023

File: ST-2022-001715

Type: Strata

Civil Resolution Tribunal

Indexed as: Whiting v. Peters, 2023 BCCRT 64

Between:                 

SHARON ELAINE WHITING

Applicant

And:

DANA ANAIS PETERS, MALCOLM RONALD ROLFSEN, and
The Owners, Strata Plan K803

Respondents

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about governance of a strata corporation. The respondent strata corporation, The Owners, Strata Plan K803 (strata), consists entirely of 2 strata lots. The applicant, Sharon Elaine Whiting, owns strata lot 2 (SL2). The respondents, Dana Anais Peters and Malcolm Ronald Rolfsen (SL1 owners), co-own strata lot 1 (SL1).

2.      Ms. Whiting says the strata must pay $4,147 to renew its insurance. She seeks an order for the strata to do so. She also says the strata owes her $1,713.70 and the SL1 owners $3,427.50, for a total of $5,141.20. She says the SL1 owners refuse to co-sign the strata’s cheques as required by the strata’s bank. So, she seeks an order to facilitate payment.

3.      The SL1 owners disagree. They say the strata’s insurance has been renewed and paid for. They also say that the strata should instead pay the SL1 owners $3,963.70 and only $105.63 to Ms. Whiting.

4.      Ms. Whiting represents herself. The SL1 owners also represent themselves, and Mr. Rolfsen provided evidence for both SL1 owners. The strata did not file a Dispute Response and is technically unrepresented. Nothing turns on this for reasons discussed below.

5.      For the reasons that follow, I allow part of Ms. Whiting’s claims, refuse to resolve some other claims, and dismiss the remaining claims.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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.

The Strata’s Role in this Dispute

10.   As noted earlier, the strata is unpresented and technically in default as it did not file a Dispute Response. It did not provide any submissions or evidence. However, I find nothing turns on this for the following reasons.

11.   Land Title Office documents show the strata uses the Schedule of Standard Bylaws outlined in the Strata Property Act (SPA). Under bylaw 9(2), all the owners of a strata corporation of this size are strata council members. As noted above, all owners in the strata are parties to this dispute. So, it follows that under bylaw 9(2), all strata council members are also parties to this dispute. As they currently disagree, I find it would serve no useful purpose for the strata to provide separate responsive material. Given this, I find nothing turns on the strata’s default or its lack of separate submissions in this dispute.

The SL1 Owners’ Request for an Audit and Acknowledgment of a Budget

12.   In submissions the SL1 owners requested an order for an audit of the strata, from its inception date to present. They also “counterclaim” for Ms. Whiting to acknowledge the July 3, 2021 budget as valid. I discuss this issue further in the chronology below.

13.   The SL1 owners did not file any counterclaims or pay the fee required to do so under CRT rule 3.2(1)(d). So, I will not consider the SL1 owners’ requests in this decision.

 

Ms. Whiting’s Standing to Make Claims for Payment to the SL1 Owners

14.   As noted above, Ms. Whiting says the strata should pay the SL1 owners a total of $3,427.50. The SL1 owners only disagree to the extent that they believe it should be $3,963.70.

15.   Under other circumstances I might have found that Ms. Whiting lacked standing to make claims for the strata to pay the SL1 owners. That said, no parties raised any objections about standing. All the relevant parties, including the strata and the SL1 owners themselves, are parties to the dispute. I also find Ms. Whiting has an interest in ensuring the strata is governed correctly. The CRT has used similar reasoning in other decisions. See, for example, the non-binding decision of Gulf Manufacturing Ltd v. The Owners, Strata Plan BCS 1348, 2019 BCCRT 16 at paragraphs 44 to 47. So, under these circumstances, I find it appropriate to decide Ms. Whiting’s claims about reimbursement by the strata to the SL1 owners.

Claims for Payment of CRT Fees

16.   Ms. Whiting seeks orders for the strata to pay $5.63 to her and $19.82 to the SL1 owners to satisfy a January 26, 2021 CRT order. The CRT made the order in the decision indexed as Whiting v. Peters, 2021 BCCRT 96.

17.   The CRT has no jurisdiction to enforce its own orders. Rather, sections 57 and 58 of the CRTA say that the CRT’s strata orders can be enforced in the BC Supreme Court or BC Provincial Court (for orders $35,000 and under). I find that Ms. Whiting’s claims for partial payment of the CRT order is essentially for enforcement of a previous order. So, I must refuse to resolve them.

ISSUES

18.   The remaining issues in this dispute are as follows:

a.    Must I order the strata to pay $4,147 for insurance?

b.    Must the strata refund or reimburse the parties any amounts?

BACKGROUND, EVIDENCE AND ANALYSIS

19.   In a civil proceeding like this one, the applicant Ms. Whiting must prove her claims on a balance of probabilities. This means 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.

20.   As noted above, the strata consists of 2 strata lots in a duplex. Title searches show Ms. Whiting became the owner of SL2 in March 2002 and the SL1 owners became the owners of SL1 in June 2010.

21.   I have mentioned that the strata’s bylaws are those outlined in the SPA’s Schedule of Standard Bylaws. There is one filed amendment about the date of payment for strata fees, which has no bearing on this dispute. The bylaws are key to this dispute, so I will discuss them in detail below.

22.   I turn to the relevant chronology. The parties’ history is outlined in several disputes: Peters et al. v. Whiting et al, 2019 BCCRT 1282, Whiting v. Rolfsen, 2020 BCCRT 217, and the Whiting 2021 decision, cited above. These decisions show that for may years the owners did not comply with the SPA. They performed and paid for repairs and maintenance separately, rather than through the strata.

23.   The owners later took steps to comply with the SPA. For example, they held their first annual general meeting (AGM) ever in September 2018. The parties also pay strata fees. It is undisputed that the strata’s bank balance as of August 31, 2022, was $26,902.90. Of that, $11,802.72 was for the continency reserve fund.

24.   More recently, the strata held an AGM on January 21, 2020. The owners passed a budget for the fiscal year or October 1, 2019 to September 30, 2020. The CRT held this budget was valid in the Whiting 2021 decision at paragraph 54.

25.   The strata next held an AGM on April 2, 2021. The owners voted on but failed to approve a budget for the fiscal year of October 1, 2020 to September 30, 2021. The SL1 owners scheduled an SGM for June 26, 2021, in part to approve a budget. Ms. Whiting objected in a June 29, 2021 email.

26.   The parties provide differing accounts of what happened next and 2 differing budgets. Ms. Peters prepared SGM minutes dates July 3, 2021. They state the following. The SL1 owners held what they considered to be the June 26, 2021 SGM. They then adjourned the meeting to July 3, 2021 because Ms. Whiting did not attend. The SL1 owners attended the July 3, 2021 SGM. Mr. Whiting attended but left partway through. Mr. Rolfsen remained and voted to pass a budget for a shortened period of June 26, 2021 to September 30, 2021.

27.   Ms. Whiting provides a different account. In emails to the SL1 owners, Ms. Whiting characterized the July 3, 2021 SGM as having been adjourned to July 11, 2021. Ms. Whiting prepared SGM minutes dated July 11, 2021. She wrote following. Ms. Whiting and Mr. Rolfsen both attended. Mr. Rolfsen said the meeting was already held previously on July 3, 2021 and left partway through. Ms. Whiting stayed and passed a different budget for the period of July, August, and September 2021.

28.   For this dispute, I find nothing turns on which budget is valid, or if either is valid, for reasons discussed below.

29.   On November 18, 2021, the strata held another AGM. The minutes show that the owners failed to approve a budget for the period of October 1, 2021 to September 30, 2022. The minutes also show the SL1 owners disagreed on reimbursing Ms. Whiting for gutter cleaning and ivy trimming. Ms. Whiting subsequently applied for dispute resolution on March 22, 2022.

Issue #1. Must I order the strata to pay $4,147 for insurance?

30.   As noted above, Ms. Whiting says the strata must pay $4,147 to renew its insurance, as required by the SPA. The SL1 owners say the strata has already made this payment. I find that the SL1 owners essentially argue this issue is moot.

31.   A claim is moot when something happens after a legal proceeding starts that removes any “present live controversy” between the parties. Generally, moot claims will be dismissed. See Binnersley v. BCSPCA, 2016 BCCA 259.

32.   I find the evidence clearly shows that the strata paid for insurance and is currently insured. An email receipt from the insurer, BFL Canada, shows that the strata paid for insurance covering the period of April 9, 2022 to April 9, 2023. A copy of the $4,247 payment cheque is also in evidence and shows the strata as payee. This is slightly more than what Ms. Whiting says was necessary, but I find nothing turns on this. I find there is no present live controversy between the parties on this issue. So, I dismiss this claim as moot.

Issue #2. Must the strata reimburse the parties any amounts?

33.   As noted above, Ms. Whiting says the strata must pay 1) $3,427.50 to the SL1 owners, and 2) $1,713.70 to Ms. Whiting. The SL1 owners provide different numbers. They say the strata should pay the SL1 owners $3,963.70 and $105.63 to Ms. Whiting.

34.    I will first discuss the amount Ms. Whiting says the strata owes her. Ms. Whiting says the strata should reimburse her for the following: 1) $954.48 for a February 2020 inspection report about the windows, decks, railings and stairs, 2) $158.81 for an October 2021 receipt for ivy trimming ivy, 3) $283.50 for an April 2022 invoice for gutter repair and maintenance, 4) $161.28 for a May 2022 receipt for purchasing and installing a handrail, 5) $150 for the cost of fence staining “as agreed in the SGM” and supported by several 2021 receipts, and 6) $5.63 in regard to the CRT order.

35.   I have already refused to resolve the claim about the CRT order. This leaves the other expenditures. I find the bylaws are key to this issue.

36.   Bylaw 20(1) says that the strata council may delegate its spending powers or duties to council members or non-members. However, bylaw 20(2) says the council must do so by a resolution that delegates authority to make the expenditure for a specific purpose and amount. Alternatively, underly bylaw 20(2)(b), the council may delegate a general authority to make expenditures to a person. However, under bylaw 20(3), the council must still do so by a resolution that sets out the maximum amount to spend and the purpose or conditions under which the money may be spent.

Consistent with this, bylaw 21(1) says a person may not spend the strata corporation’s money unless the person has been delegated the power to do so in accordance with the bylaws.

The exception to this is bylaw 21(2). It says a strata council member may spend the strata’s money to repair or replace common property or assets if the repair or replacement is immediately required to ensure safety or prevent significant loss or damage.

37.   Bylaws about council decisions and recording them are also relevant. Bylaw 18(1) says that at council meetings, decisions must be made by a majority of council members present in person at the meeting. Bylaw 18(3) says the results of all votes at a council meeting must be recorded in the council meeting minutes. As noted in Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610 at paragraphs 8 and 23, the SPA requires the strata to keep minutes. These must contain records of the results of any votes or records of decisions taken by the strata council but may or may not report in detail the discussions leading to those decisions.

38.   Further, as stated in Kayne, members of the strata council may meet informally to discuss matters of relevance to the strata. Those are not meetings of the council, and it would be unrealistic to expect minutes be kept of such meetings. However, the decisions of such meetings do not have any validity unless and until they are ratified by a properly constituted and minuted council meeting.

39.   With the bylaws in mind, I now consider whether Ms. Whiting had authority to make expenditures on behalf of the strata then seek reimbursement. I find she did not for several reasons.

40.   There is no indication that Ms. Whiting ever sought approval from the strata council for the expenditures. There is no indication the parties held strata council meetings to discuss such matters. There is no indication the parties agreed informally, by email or in conversation, for Ms. Whiting to spend the money, and then later ratified such a decision.

41.   I considered whether Ms. Whiting’s expenditures were necessary on an emergency basis under bylaw 21(2). However, Ms. Whiting did not say this was the case, and I find the evidence does not show this.

42.   Ms. Whiting says she should be reimbursed by the strata because she spent amounts that were in accordance with the budget. As noted above, the parties dispute which budget applies. Regardless, I find Ms. Whiting still had to obtain council approval to spend strata funds, even if those expenditures were contemplated in the budget. It is one thing to set aside money for the expenditures. It is another to decide on its specifics, including how, when, with whom the expenditure should be made, or if circumstances have changed removing the necessity of spending up to the budgeted limit. For those reasons, I must dismiss Ms. Whiting’s remaining claims for the strata to reimburse her.

43.   This leaves Ms. Whiting’s claims that the strata should reimburse the SL1 owners. Ms. Whiting says the amount is comprised of the following: 1) $280 for a duplicate strata fee payment made on October 15, 2019, 2) a $1,180 “overpayment” made on Feb 3, 2020 and shown in a bank statement, 3) $1,218.50 for the strata’s insurance paid in April 2020, 4) $226.68 for electrical work to September 2021, 5) $240 for electrical work to March 2022, 6) $262.50 for fence staining, and 7) $19.82 regarding the CRT order.

44.   The SL1 owners agree with repayment, though they say it should actually equal a higher amount. However, as the SL1 owners did not file a counterclaim, I find I am limited to the sums Ms. Whiting raised in the Dispute Notice.

45.   As above, I have refused to resolve the claim for payment of the CRT order. This leaves the other amounts. The parties agree and the evidence shows that the SL1 owners paid the strata a total of $1,180 by mistake. This is not a situation where the SL1 owners are seeking reimbursement for an expense. So, I find it appropriate to order the strata to pay this amount to the SL1 owners.

46.   The parties also agree that the SL1 owners overpaid strata fees. I considered dismissing the claim for repayment of the strata fees as out of time under the Limitation Act (LA). Section 6 of the LA says the basic limitation period is 2 years from the date a claim is discovered. If that period expires, the right to bring the claim ends, even if the claim would have otherwise been successful.

47.   The SL1 owners made the payment in October 2019. However, no party raised this as an issue, and Ms. Whiting herself raised the claim to pay the SL1 owners. Given the history of litigation, I also find it would counter to the CRT’s mandate, which includes proportionality, to return to the parties for further submissions on this matter. So, I order the strata to pay $280 to the SL1 owners as well.

48.   The remaining claims, however, are for reimbursement of expenses paid by the SL1 owners, purportedly on the strata’s behalf. As before, there is no indication that the SL1 owners followed the proper bylaw procedures to obtain council approval to spend either the strata’s money or spend money on its behalf. The parties did not say the money was paid on an emergency basis to repair or replace common property or common assets. The evidence falls short of showing this. So, I must dismiss the remaining claims to reimburse the SL1 owners.

49.   The Court Order Interest Act (COIA) applies to the CRT. The SL1 owners are entitled to prejudgment interest on the sum of $1,460, from underlying payment dates of October 15, 2019 and February 3, 2020, to the date of this decision. This equals $24.30.

CRT FEES AND EXPENSES

50.   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.

51.   Ms. Whiting proved less than half her claims. So, I decline to order reimbursement of CRT fees. The parties did not claim for any specific dispute-related expenses.

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

ORDERS

53.   Within 30 days of the date of this order, I order the strata to pay the SL1 owners a total of $1,484.30, broken down as follows:

a.    $1,460 for the return of money paid to the strata, and

b.    $24.30 in pre-judgment interest under the COIA.

54.   The SL1 owners are entitled to post-judgment interest under the COIA.

55.   I refuse to resolve Ms. Whiting’s claims for payment of the CRT’s January 26, 2021 order.

56.   I dismiss Ms. Whiting’s remaining claims.

57.   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.