Date Issued: March 9, 2023
File: ST-2022-005476
Type: Strata
Civil Resolution Tribunal
Indexed as: Colman v. The Owners, Strata Plan N.W. 1674, 2023 BCCRT 194
Between:
LINDY COLMAN
Applicant
And:
The Owners, Strata Plan N.W. 1674
Respondent
| REASONS FOR DECISION |
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| Tribunal Member: |
Chad McCarthy |
INTRODUCTION
1. This dispute is about approval of strata building alterations. The applicant, Lindy Colman, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan N.W. 1674 (strata). Ms. Colman replaced several exterior windows and doors to her strata lot and replaced the bathroom window with a larger one. The strata did not approve the bathroom window enlargement as required under the strata’s bylaws, which the strata says would be a significant change to common property requiring ¾ ownership approval. The strata requested that Ms. Colman change the new window to its original size or face bylaw fines for an unapproved alteration.
2. Ms. Colman says the strata should have approved the bathroom window enlargement. She requests orders for the strata to approve the bathroom window and to stop fining her. She also requests an order for the strata to recognize that the renovation increased the value of all strata lot owners’ homes and may inspire others to do similar renovations, and an order for the strata to acknowledge how many alternative window formats exist in the strata development. She also claims $2,500, which she clarified in her submissions is her estimate of the bathroom window replacement cost “or a guess as to accrued fines.”
3. The strata says Ms. Colman decided to enlarge the window despite knowing the strata did not approve it. The strata says its decision not to approve the window enlargement was correct, so Ms. Colman’s claims should be dismissed. Also, the strata says it has not yet imposed any fines.
4. Ms. Colman is self-represented in this dispute. A strata council member represents the strata.
5. For the following reasons, I dismiss Ms. Colman’s claim.
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), and over small claims brought under CRTA section 118. 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.
9. Under CRTA section 123, in resolving this dispute the CRT may order a party to do or stop doing something, or to pay money. The CRT may include in its order any terms or conditions the CRT considers appropriate.
10. CRT documents incorrectly show the name of the respondent as The Owners, Strata Plan NW 1674. Based on section 2 of the Strata Property Act (SPA), the correct legal name of the strata is The Owners, Strata Plan N.W. 1674. Given that the parties operated on the basis that the correct name of the strata was used in their documents and submissions, I have exercised my discretion under CRTA section 61 to direct the use of the strata’s correct legal name in these proceedings. Accordingly, I have amended the strata’s name above.
ISSUES
11. The issues in this dispute are:
a. Was it unreasonable or significantly unfair for the strata to withhold its approval of the enlarged bathroom window?
b. If so, what are the appropriate remedies?
EVIDENCE AND ANALYSIS
13. The strata was formed in 1981 and presently exists under the Strata Property Act (SPA). It consists of 2-storey townhouses. The strata replaced all of its bylaws in a 2001 amendment filed with the Land Title Office. In a filed 2006 bylaw amendment, the strata repealed bylaw 2(2)(a) about owners’ repair and maintenance of property. The strata later filed other bylaw amendments that are not relevant to this dispute.
14. The parties agree that this dispute turns on strata approval of Ms. Colman’s alterations under bylaw 6. The relevant parts of bylaw 6 say an owner must obtain the strata’s written approval for strata lot alterations if they involve the exterior of a building, including exterior windows. Bylaw 6 also says the strata will not unreasonably withhold its approval if the alterations “maintain the scheme of the complex with regards to colour etc.” Finally, bylaw 6 says an owner must not do any act or alter a strata lot in any manner that, in the strata council’s opinion, will alter the building’s exterior appearance, without providing a written proposal complete with drawings and receiving written approval from council.
15. In April 2022 Ms. Colman requested the strata’s approval to replace several exterior windows and doors, and to enlarge the bathroom window. The strata replied that Ms. Colman could replace the windows and doors, but they needed to be white, brown, or beige like all of the other similar replacements at the strata, and the windows needed to be the same size as the originals. None of this is disputed.
16. Ms. Colman says that when she requested the strata’s approval of those alterations, she had already ordered new windows, including a larger new bathroom window. Despite the strata specifically rejecting window enlargements, she installed a bigger bathroom window anyway.
17. The strata sent Ms. Colman bylaw infraction letters repeatedly asking Ms. Colman to restore the bathroom window to its original size by certain dates or face fines for violating bylaw 6. Contrary to Ms. Colman’s suggestion, I find the strata did not ask her to reinstall the original bathroom window, only to return the bathroom window to its original size. The strata sent another infraction letter after a hearing with Ms. Colman, again asking her to restore the window to its original size by a specific date. Ms. Colman did not do so.
18. The strata says it has not yet levied any fines against Ms. Colman for the alleged bylaw 6 violation, because Ms. Colman initiated this CRT dispute shortly after the last infraction letter and the strata decided to wait for the CRT’s decision. I find none of the evidence before me shows the strata has imposed any fines on Ms. Colman. The evidence shows that, to date, the strata has only warned Ms. Colman about the possibility of fines if the bathroom window size was not restored.
19. I find Ms. Colman argues, essentially, that the strata’s decision not to approve the bathroom window enlargement was unreasonable and was significantly unfair to her.
Significant Unfairness and Reasonableness
20. CRTA section 123(2) says the CRT may make an order directed at the strata or its council if the order is “necessary to prevent or remedy a significantly unfair action, decision, or exercise of voting rights.” In Reid v. Strata Plan LMS 2503, 2003 BCCA 126, the BC Court of Appeal found that a significantly unfair action is one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable.
21. In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the court said that a reasonable expectations test, as described in Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, can form part of a significant unfairness inquiry involving allegedly oppressive conduct. According to Dolnik v. The Owners, Strata Plan LMS 1350, 2023 BCSC 113, the Dollan reasonable expectations test asks a) whether the objective evidence supports the applicant’s stated reasonable expectation, and b) whether a significantly unfair strata action violated that expectation. However, Dollan also noted that there is little room for a finding of significant unfairness merely because a strata decision adversely affects some owners to the benefit of others, if the decision is otherwise made in good faith and on reasonable grounds.
22. Under the first element of the Dollan test, the evidence, examined objectively, must show that Ms. Colman’s expectations were objectively reasonable in the circumstances. What were those expectations?
23. It is undisputed that over time, other owners have replaced windows in their strata lots, and those replacements have different styles and colours. Ms. Colman says that because the strata’s windows are of various styles and colours, she expected she should be allowed to replace her bathroom window with a different style, colour, and size. However, correspondence in evidence shows that the strata disapproved of Ms. Colman’s bathroom window replacement not because of its colour or style, but only because of its increased size.
24. Ms. Colman does not refute the strata’s statement that no existing windows have been replaced with larger ones in any strata lot, so I accept that as true. Submitted photos show that although bathroom windows in several other strata lots are of various colours and styles, they all appear to be the same size. I find a photo of Ms. Colman’s replacement bathroom window shows it is clearly and obviously bigger, even to a casual observer, than the corresponding bathroom windows in other strata lots shown. I find it was not reasonable for Ms. Colman to expect approval of a noticeably larger bathroom window based on varying window styles and colours elsewhere in the strata, when such an enlargement resulted in a different appearance than other bathroom windows that all remain their original size.
25. Next, Ms. Colman says she expected the window enlargement to be approved because she says it increased the value of her strata lot and all other strata lots. Ms. Colman does not explain how she determined her window replacements, and in particular the bathroom window enlargement, increased any property values. There is no documentary evidence showing that any of the strata lots increased in value, or why. Further, I do not accept that it is necessarily unfair for the strata to reject an alteration request that would have increased property values if the strata had other valid grounds for doing so. So, I find Ms. Colman’s allegation of increased property values is unproven, and in any event her expectation of window enlargement approval on that basis is not objectively reasonable.
26. Next, Ms. Colman says she expected to be allowed a larger bathroom window because it would cure alleged ventilation issues in her bathroom. She refers to photos of an alleged home inspection report about the ventilation issue, and says the full report was available for review. However, as noted in the strata’s response to Ms. Colman’s submissions, Ms. Colman submitted no partial or complete home inspection report. Ms. Colman did not comment on the alleged home inspection report’s absence from the evidence in her final reply submissions to the strata’s response. So, I find Ms. Colman had an opportunity to submit the alleged home inspection report evidence, or to explain its absence, and chose not to. I find there is no documentary evidence before me supporting a ventilation issue in Ms. Colman’s bathroom, showing that an enlarged bathroom window would address alleged ventilation issues, or showing that no other ventilation solutions were more appropriate. I find Ms. Colman’s allegation that the enlarged window addressed ventilation issues is unproven, and her expectation that the strata approve the enlargement on that basis was not objectively reasonable.
27. Finally, as noted Ms. Colman admits that she ordered the enlarged bathroom window before she applied for strata permission to install it. Despite the strata’s denial of the size change, she installed the larger window anyway. I find it was objectively unreasonable to expect the strata to approve the enlarged window simply because Ms. Colman had chosen to order windows before receiving required strata approval.
28. For the above reasons, I find Ms. Colman’s expectations about being permitted to enlarge her bathroom window were not objectively reasonable, under the first element of the Dollan test. Further, for the following reasons I also find that the strata’s actions were not significantly unfair to her, under the second element of the Dollan test.
29. The courts have said that strata corporations often employ discretion when making decisions which affect various owners or tenants. A strata corporation’s duty to act in the best interests of all owners may at times conflict with the interest of a particular owner. However, courts (and as applicable the CRT) should only interfere with a strata corporation’s discretion if it is exercised oppressively or goes beyond mere prejudice or trifling unfairness (see Reid v. Strata Plan LMS 2503, 2003 BCCA 126 at paragraph 27, citing Gentis v. The Owners, Strata Plan VR 368, 2003 BCSC 120 at paragraph 28).
30. With that in mind, was it significantly unfair for the strata to withhold its discretionary approval of a bathroom window enlargement under bylaw 6?
31. In Baker v. The Owners, Strata Plan NW3304, 2002 BCSC 1559, the court found that a strata corporation reasonably withheld its approval of alterations under a similar bylaw based on, among other factors, changes to the building envelope and the building’s exterior appearance. The court in Baker noted that a strata corporation must balance the individual and collective rights of owners, and that aesthetic considerations were important.
32. I found above that the bathroom window enlargement was an obvious aesthetic change visible to anyone looking at Ms. Colman’s strata lot, and that it necessarily involved removing a portion of the building’s exterior. These are similar factors to those Baker relied upon. Further, as noted bathroom window sizes at the strata were consistent across strata lots, including non-original replacement windows, and under bylaw 6 alteration approvals may be withheld if they do not “maintain the scheme of the complex.” In the circumstances, I find the strata’s aesthetic scheme likely includes window sizes. I find the democratically elected strata council was well positioned to consider the aesthetics and other impacts of the bathroom window enlargement and related changes to the building’s exterior. Also, as noted, the window enlargement affected the building’s exterior, which I find is common property (CP) under SPA section 68. The strata is responsible for maintaining and repairing that CP under SPA sections 3 and 72. In the circumstances, I find the above factors amounted to a rational and reasonable basis for the strata rejecting the window enlargement request. I also find this means the strata did not unreasonably withhold its approval of the window enlargement under bylaw 6.
33. I find Ms. Colman has not identified any persuasive reasons why maintaining her original bathroom window size was unfair to her. I also find it is not unfair for Ms. Colman to bear the cost of returning her bathroom window to its original size, given that she installed the enlarged window without first receiving the strata’s required approval.
34. Finally, the strata says: enlarging the bathroom window would be a significant change in the use or appearance of CP. Under SPA section 71, absent imminent safety or property damage concerns, such a significant change to CP requires a resolution passed by ¾ ownership vote at an annual or special general meeting. There has been no such vote here. However, given my conclusion above that the strata did not act contrary to bylaw 6 or significantly unfairly in disapproving the bathroom window enlargement, I do not need to consider the SPA section 71 issue, including whether the enlargement was a significant change in use or appearance of CP.
35. For all of the above reasons, I find the strata did not act significantly unfairly to Ms. Colman,and did not unreasonably withhold its approval of the bathroom window enlargement under bylaw 6. Given that all of Ms. Colman’s requested remedies in this dispute are all based on the unproven assertion that the strata should have approved the window enlargement, I dismiss her claim entirely.
CRT Fees and Expenses
36. 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. Ms. Colman was unsuccessful in this dispute, and the strata paid no CRT fees. Neither party claimed CRT dispute-related expenses. So, I order no reimbursements.
37. The strata must comply with SPA section 189.4, which includes not charging dispute-related expenses against the Ms. Colman.
ORDER
38. I dismiss Ms. Colman’s claim, and this dispute.
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| Chad McCarthy, Tribunal Member |