Date Issued: January 30, 2023

File: ST-2022-001585

Type: Strata

Civil Resolution Tribunal

Indexed as: Sidney v. Shon, 2023 BCCRT 77

Between:

GEORGE SIDNEY and AUDREY ANN SIDNEY

Applicants

And:

CHEOL HYUN SHON and The Owners, Strata Plan BCS2225

Respondents

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      George Sidney and Audrey Ann Sidney co-own strata lot 1 (SL1) in the strata corporation, The Owners, Strata Plan BCS2225 (strata). Cheol Hyun Shon co-owns strata lot 2 (SL2). The strata is a duplex.

2.      This dispute is about a retaining wall that separates the strata’s north border (which is on SL1’s side) from a neighbouring property. It is undisputed that the retaining wall needs to be replaced. There is a concrete pathway on top of the retaining wall that runs beside SL1, which will be affected by any work to the retaining wall. Both the retaining wall and concrete pathway are SL1’s limited common property (LCP).

3.      The Sidneys say that the strata has already accepted a $77,746.20 fixed-price quote from Coastal Peaks Construction Ltd. to replace the retaining wall and pathway. They also say the strata has already imposed a special levy raising the necessary funds, although neither party has paid it. The Sidneys ask for an order that Mr. Shon pay half the project’s cost, which is $38,873.10. They also ask for an order that Mr. Shon sign the necessary documents to obtain original strata plans and building permits from the City of Burnaby. The Sidneys are self-represented.

4.      Mr. Shon does not dispute that the strata is responsible for repairing the retaining wall or that he must pay half the cost. However, he says that he should not have to pay to replace the pathway. Mr. Shon also says that Coastal Peaks’ quote is excessive, having obtained estimates from other companies for around half as much. He also disputes the validity of the meeting where the Sidneys voted to accept Coastal Peaks’ quote and impose a special levy. Mr. Shon asks me to dismiss the Sidneys’ claims. He is self-represented.

5.      As discussed below, the strata did not file a Dispute Response or otherwise participate in this dispute.

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). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

7.      The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

8.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

9.      Under section 123 of the CRTA and the CRT rules, in resolving this dispute the tribunal 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.

10.   As noted above, the strata did not file a Dispute Response. This means that under section 1(1) of the CRTA, the strata is in default. However, the owners of both strata lots are parties in this dispute, and they disagree on the issues. So, I find that the strata could not meaningfully provide evidence or submissions because the owners are deadlocked. I therefore find that nothing turns on the strata’s default status or its lack of participation in this dispute.

ISSUES

11.   The issues in this dispute are:

a.    Did the strata already agree to hire Coastal Peaks Construction Ltd. to replace the retaining wall and impose a special levy raising the necessary funds?

b.    If not, should I order the strata to hire Coastal Peaks, or some other contractor, to replace the retaining wall?

c.    If not, is some other remedy appropriate?

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this, the Sidneys as the applicants must prove their case on a balance of probabilities, which means “more likely than not”. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

13.   The strata filed several bylaw amendments in the Land Title Office on February 20, 2007, but none I find relevant to this dispute. On the relevant issues, I find that the Standard Bylaws under the Strata Property Act (SPA) apply. I discuss them below where applicable.

14.   The strata was constructed in 2006. According to the Sidneys, the owner developer reinforced the existing retaining wall, which was already around 40 years old, as part of construction

15.   SL1 makes up the north half of the building and SL2 makes up the south half. According to the strata plan, the area around SL1 on the north half of the strata property is SL1’s LCP, including the retaining wall and the pathway on top of it.

16.   The strata’s property slopes down from south to north. So, SL1 is at a higher elevation than the neighbouring property to the north. The retaining wall runs along this north boundary. It is a relatively high retaining wall, almost 8 feet high at some points. Running alongside the strata property’s north boundary on top of the retaining wall is a concrete pebbled pathway and handrail. This pathway connects SL1’s front and back yards, and provides access to a side door. At its narrowest point, the pathway is only about 5 feet wide, with SL1’s exterior wall on one side and the retaining wall on the other.

17.   Mr. Sidney first raised the retaining wall issue with Mr. Shon in late 2021. According to the Sidneys, the retaining wall was bulging towards the neighbouring property. They say that the warped retaining wall was also causing the concrete pathway to shift away from SL1, which in turn was causing cracks. None of this is disputed, and I find that the Sidneys’ description of the retaining wall and concrete pathway are well supported by the photos in evidence.

18.   At first, Mr. Shon denied any responsibility for the retaining wall because it was on the Sidneys’ side of the strata property. The Sidneys proceeded to get quotes to replace the retaining wall. Their preferred quote was from Coastal Peaks because it was the least expensive and because it was for a fixed price. Mr. Shon later accepted responsibility to contribute to the retaining wall’s replacement but maintains that he should not have to pay anything towards the concrete pathway. He also obtained 2 of his own estimates, which are both for around $30,000. So, he says that the Coastal Peaks quote is excessive.

Did the strata already agree to hire Coastal Peaks to replace the retaining wall and impose a special levy raising the necessary funds?

19.   The Sidneys first attempted to hold a formal meeting to break the deadlock over the retaining wall in a February 11, 2022 letter to Mr. Shon. In the letter, the Sidneys called a “council meeting” for February 19, 2022, “as per Clause 14(1)” of the SPA. I find that the Sidneys intended to refer to Standard Bylaw 14, which is about calling strata council meetings. Mr. Shon did not attend because he was uncomfortable with an in-person meeting due to COVID-19 concerns. The Sidneys refused to hold the meeting by telephone because they were concerned about being able to communicate effectively. The Sidneys abandoned the meeting after Mr. Shon did not show up. Mr. Shon’s son later phoned the Sidneys, but they were unable to resolve the impasse.

20.   The Sidneys sent Mr. Shon another letter on February 27, 2022, calling another council meeting under Standard Bylaw 14, this one for March 6, 2022. According to the letter, the owners would consider 2 resolutions: that the strata hire Coastal Peaks to replace the retaining wall and impose a special levy to pay for the project.

21.   Mr. Shon did not attend the meeting, again because the Sidneys refused to allow telephone attendance. The Sidneys did not vote on the resolutions because quorum was not present. I note that quorum for a strata corporation with only 2 strata lots is 2, which is true both for strata council meetings (Standard Bylaw 16) and general meetings (section 48(2)(b) of the SPA).

22.   The Sidneys held another meeting a week later, relying on section 48(3) of the SPA, which says that if there is not quorum for a general meeting within 30 minutes of the meeting’s scheduled start, the meeting may be adjourned to the same time and place one week later. Then, the eligible voters who attend the adjourned meeting constitute a quorum. Mr. Shon did not attend the adjourned meeting on March 13, 2022, but based on section 48(3) of the SPA, the Sidneys considered themselves to have quorum and voted in favour of the 2 resolutions. The Sidneys argue that these resolutions bind the strata.

23.   I find that the 2 votes the Sidneys held at the March 13, 2022 meeting were invalid and do not bind the strata. I find that the Sidneys conflated strata council meetings with special general meetings (SGMs). For the reasons that follow, I find that the meeting was not valid either as a strata council meeting or an SGM.

24.   I will start by assessing the meeting’s validity as a strata council meeting. Standard Bylaw 14 allows any strata council member to call a strata council meeting on “at least one week’s notice”. The Interpretation Act governs how time must be calculated in statutes like the SPA or the Standard Bylaws. Section 25.2(2) of the Interpretation Act says that to calculate a number of weeks, one must start with the “reference day” (here, the meeting date) and count backwards. Applying this method, February 27 is 7 days before March 6. However, section 25.2(3) says that if the period is expressed as “at least” a certain number of weeks, one must add a day to the calculation. In effect, this means that the requirement to give “at least one week’s notice” means that the Sidneys had to give 8 days’ notice, not the 7 days they gave. So, there was insufficient notice.

25.   Also, section 48(3) of the SPA only applies to general meetings, not strata council meetings. There is nothing in the SPA or the Standard Bylaws that creates a similar process for holding strata council meetings without quorum. So, if the March 13, 2022 meeting was a strata council meeting, it did not have quorum. I also note that under section 108 of the SPA, the owners cannot approve a special levy at a strata council meeting, only at a general meeting.

26.   I will then assess the meeting’s validity as an SGM. Under section 43 of the SPA, owners holding at least 20% of a strata corporation’s votes can require the strata to hold an SGM. So, I find that the Sidneys were entitled to unilaterally call an SGM. However, under section 45 of the SPA, SGMs require “at least 2 weeks’ written notice”, which as discussed above, is 15 days. As noted, the Sidneys only provided 7. So, if the March 13, 2022 meeting was an SGM, there was insufficient notice. For this reason alone, the meeting was invalid.

27.   Because of my conclusion, I do not need to address Mr. Shon’s arguments about the Sidneys’ refusal to allow Mr. Shon’s participation over the phone, or any other irregularities with how the meeting was called.

28.   In conclusion, I find that the strata has not passed resolutions to hire Coastal Peaks or to impose a special levy. I therefore find that there is no basis to order Mr. Shon to pay half the cost of Coastal Peaks’ quote or to sign any documents to facilitate Coastal Peaks’ project. I find that these orders are all premature.

Should I order the strata to hire Coastal Peaks, or some other contractor, to replace the retaining wall? If not, is some other remedy appropriate?

29.   I turn then to the question of what other remedy may be appropriate. I recognize that the Sidneys did not ask for an order requiring the strata to hire Coastal Peaks in the Dispute Notice. However, I find it implicit in the parties’ submissions that they both expect me to make a decision that breaks the current deadlock. I say this because they both advocate for their preferred contractors. I also note that even though there is no evidence of an imminent collapse, there is some urgency to the issue because the retaining wall is clearly failing. Given the CRT’s mandate to be flexible and informal, and to recognize ongoing relationships, I find that it is appropriate for me to consider the parties’ positions about what the strata should do next and, if appropriate, make an order.

30.   As mentioned above, the parties agree that the retaining wall must be replaced. They disagree about the pathway. I find that the replacement of the retaining wall must include preserving the pathway. I say this for 2 reasons.

31.   First, I find that the SPA and Standard Bylaws make the strata responsible for repairing and maintaining the pathway. Section 72 of the SPA says that the strata is generally responsible for repairing and maintaining all common property but may make owners responsible for LCP by passing a bylaw to that effect. Standard Bylaw 2(2) makes an owner responsible for their LCP except in certain circumstances listed in Standard Bylaw 8(c). One of those circumstances is that the strata is responsible for repair and maintenance of LCP if it takes place less often than once a year. Clearly, the repairs at issue here are not annual repairs, so Standard Bylaw 8(c) makes the strata responsible for the pathway. I find that any project to replace the retaining wall that destroys the pathway would necessarily fail to maintain the pathway. I find that the strata’s obligation to repair and maintain the pathway requires it to replace it as part of the retaining wall project, which will necessitate the partial destruction of the existing pathway. I note that the obligation to repair and maintain can include replacement, where that is the only reasonable option. See The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363.

32.   Second, section 71 of the SPA says that the strata cannot make a significant change to the use or appearance of common property unless the change is approved by a resolution passed by ¾ of the owners or the change is immediately necessary to ensure safety or prevent significant loss or damage. There is no suggestion that the pathway needs to be permanently removed to prevent loss or damage. Clearly, destroying the pathway would be a significant change to the use and appearance of that portion of common property. This effectively means that the strata cannot remove the pathway without the Sidneys agreeing, which they clearly do not.

33.   I turn then to the parties’ positions about how to replace the retaining wall.

34.   As mentioned above, the Sidneys prefer the Coastal Peaks quote. It is for a like-for-like replacement of a sheer vertical retaining wall, as are the other 2 quotes the Sidneys received. According to Coastal Peaks, the height of the wall means that it will need to be reinforced with rebar. In contrast, Mr. Shon’s preferred quote from Fortress Retaining Walls and Landscapes Ltd. for $30,408.25 includes a stepped component, which Fortress says removes the need for rebar. This difference appears to largely explain the cost difference between the quotes. However, according to Coastal Peaks, the Fortress proposal would reduce the width available for the pathway by 3 feet, leaving only 2 feet at its narrowest point.

35.   I accept that the Sidneys are concerned that any stepped solution will effectively render the pathway useless. As mentioned above, the strata must ensure that the retaining wall replacement project preserves a usable pathway. Also, according to Fortress, its proposal requires cooperation from the neighbouring property owner, which there is no evidence of. So, I find that Mr. Shon has not proven that the Fortress proposal would meet the strata’s repair and maintenance obligations, or that the Fortress proposal is even feasible given the need for the neighbour’s cooperation.

36.   However, I find that the evidence also falls short of proving that the Coastal Peaks project is the only way to rebuild the retaining wall while preserving the pathway. I say this because the only professional evidence about the project is from Coastal Peaks itself, namely an email its employee wrote the Sidneys advocating for its own project over Fortress’s. I find that this evidence is tainted by Coastal Peaks’ financial interest in persuading the strata to accept its proposal.

37.   I therefore find that neither party has proven that their preferred proposal is the strata’s only reasonable path forward. The Sidneys have not proven that there are not less expensive options that will preserve the pathway. Mr. Shon has not proven that a stepped wall is feasible. The problem with having contractors advocate for their own proposal is evident in the parties’ entrenched positions. Neither of them appears to trust the other’s contractor to provide objective advice.

38.   On that point, I note that the Sidneys had 2 structural engineers inspect the retaining wall and give informal verbal opinions in late 2021. The Sidneys decided against hiring either of them to provide a formal report, which they say would have cost between $2,500 and $4,500. Hiring a structural engineer to provide a formal written report setting out the strata’s options for replacing the retaining wall while preserving the concrete pathway may be an appropriate first step for the parties to consider. However, since neither party suggested this in their submissions, I find it would be procedurally unfair for me to order the strata to do so. I therefore decline to make an order to that effect. That said, I am hopeful that these reasons will provide clarity on the strata’s legal obligations, which will in turn facilitate the parties agreeing on how to move forward. That said, nothing in this decision prevents either party from bringing a new CRT dispute if they are unable to agree.

39.   I note that both parties refer in their submissions to splitting all costs equally. However, according to the Schedule of Unit Entitlement filed with the Land Title Office, the strata lots’ unit entitlements are not equal. Rather, SL1 is responsible for 50.3% and SL2 is responsible for 49.7% of strata costs.

TRIBUNAL FEES AND EXPENSES

40.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I did not make the orders the Sidneys wanted because I agreed with Mr. Shon about the validity of the March 13, 2022 meeting. However, I did agree with the Sidneys about the need to replace the pathway along with the retaining wall. In the circumstances, I find that the Sidneys were partially successful. I order Mr. Shon to reimburse half the Sidneys’ $225 in CRT fees, which is $112.50.

DECISION AND ORDERS

41.   I order that within 30 days of the date of this order, Mr. Shon pay the Sidneys $112.50 in CRT fees.

42.   The Sidneys are entitled to post judgment interest under the Court Order Interest Act, as applicable.

43.   I dismiss the Sidneys’ remaining claims.

44.   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.