Date Issued: April 4, 2023

File: ST-2022-001099

Type: Strata

Civil Resolution Tribunal

Indexed as: D’Souza v. The Owners, Strata Plan KAS 3575, 2023 BCCRT 279

Between:

CELIA D’SOUZA

Applicant

And:

The Owners, Strata Plan KAS 3575

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      The applicant, Celia D’Souza, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan KAS 3575 (strata). Mrs. D'Souza says the strata did not hold its 2022 annual general meeting (AGM) within 2 months after the strata’s fiscal year-end as required by the Strata Property Act (SPA). She also says she could not hear what the chair and council members were saying at the AGM. Mrs. D'Souza says the strata has unfairly denied her requests for a council hearing about these issues. She wants an order that the strata hold a council hearing to discuss her concerns about the 2022 AGM. She also wants an order that the strata hold a new AGM to allow owners to hear clearly and ask questions, particularly about insurance and increased strata fees. Mrs. D'Souza represents herself.

2.      The strata says it followed its strata manager’s advice that it had 120 days after its fiscal year-end to hold its AGM. It now acknowledges that the advice was incorrect. The strata says if Mrs. D'Souza could not hear what was said at the meeting that is because she refused the strata’s suggestion that she move closer to the front of the room. The strata admits it refused Mrs. D'Souza’s requests for a council hearing but says there was nothing to be gained from a hearing. The strata is represented by a council member.

JURISDICTION AND PROCEDURE

3.      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.

4.      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. Based on the evidence and submissions provided, I am satisfied that I can fairly decide this dispute without an oral hearing.

5.      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 the parties and witnesses questions of and inform itself in any other way it considers appropriate.

6.      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.

Claims raised in submissions

7.      In her submissions, Mrs. D'Souza raises claims and remedies about snow removal and fire alarm testing. The Dispute Notice did not identify those claims. Normally, the CRT does not consider claims raised only in submissions because it can be procedurally unfair to the respondent. However, the strata responded to Mrs. D'Souza’s new claims in its submissions. Given that I dismiss the new claims, there is no prejudice to the strata. So, in light of the CRT’s mandate to be flexible, and to provide the parties with finality, I find it appropriate to resolve these claims. I address them below.

ISSUES

8.      The issues in this dispute are:

a.    Did the 2022 AGM comply with the SPA?

b.    Did the strata violate SPA section 34.1 by refusing to hold a council meeting?

c.    Did the strata fail to clear snow from its parking ramp or conduct appropriate fire alarm testing?

d.    What remedies, if any, are appropriate?

EVIDENCE AND ANALYSIS

9.      As the applicant in this civil proceeding, Mrs. D’Souza must prove her claims on a balance of probabilities, meaning more likely than not. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

10.   The strata was created in 2008 and includes 116 strata lots.

Did the 2022 AGM comply with the SPA?

11.   Section 40(2) of the SPA says the strata must hold its AGM no later than 2 months after the strata’s fiscal year end.

12.   The strata’s fiscal year end is February 28. The strata held its 2022 AGM on May 10, 2022, which is 10 days after the last day it could have held its AGM. The strata says it relied on its strata manager’s advice that the strata had an additional 2 months to hold its AGM. The strata now recognizes that the advice was incorrect. Section 17.23 of the Strata Property Regulation (regulation) grants a 2-month extension if a state of emergency declaration is in effect, but BC’s COVID-19 state of emergency declaration was no longer in effect after July 1, 2021. So, I find the strata did not hold the 2022 AGM within the time required by SPA section 40(2).

13.   Mrs. D'Souza says that owners are now “stuck with a burden of” paying increased strata fees with retroactive amounts owing from March to June, 2022. The strata fee schedule attached to the minutes shows that strata fees increased 12.9% effective March 1, 2022. Owners continued to pay the previous strata fees as set out in SPA section 104(2) until the new budget was approved. The shortfall for March through June 2022 was made up over July through September. Based on this information, I find the delayed AGM had no impact on strata fees. The owners had to make up the shortfall regardless.

14.   I find the strata’s non-compliance with SPA section 40(2) was relatively minor. It is undisputed that the strata has previously conducted its AGMs on time. There is also no evidence that holding the 2022 AGM 10 days earlier would have resulted in any different outcomes. I find that ordering the strata to conduct the AGM again, a year later, simply because of a 10-day delay would serve no purpose.

15.   Mrs. D'Souza also takes issue with how long it took the strata to provide the 2022 AGM minutes. However, I find nothing in the SPA or the strata’s bylaws requires the strata to give owners the AGM minutes within any particular timeframe. It is undisputed that Mrs. D'Souza received the minutes on June 8, 2022. I find a delay of less than one month was not unreasonable and there is no evidence that Mrs. D'Souza was prejudiced by the delay.

16.   I turn to Mrs. D'Souza’s allegations about the conduct of the 2022 AGM. Mrs. D'Souza attended in person. The meeting was held in a rented hall. Mrs. D'Souza says there was a lot of noise with chairs being shuffled and people talking to each other. She says “some guy” was passing around a device he was possibly trying to sell. The strata says, and I accept, that the person Mrs. D'Souza refers to was present at the AGM to address any questions about a new controlled access system the strata was considering installing.

17.   Mrs. D'Souza’s primary complaint about the AGM is that there was no microphone, and she could not hear what the meeting chair was saying. She undisputedly told the chair about this and was asked to move up front. She was in the third row so she moved to the second row, but she says she still had trouble hearing. However, she does not say that she was prevented from moving closer or that she told the chair she still could not hear.

18.   The strata says it did not anticipate needing a microphone since attendance is usually low. It says Mrs. D'Souza is the only owner who expressed any dissatisfaction with the meeting. The meeting chair, who is also the strata manager, provided a written statement. They said there were 26 people at the meeting, including council. They said Mrs. D'Souza was disruptive, spoke out of turn, and spoke loudly with others around her.

19.   Next, Mrs. D'Souza says the agenda item about insurance was never discussed. The strata does not specifically address this in submissions. The minutes say the strata manager provided an overview of the strata’s insurance coverage. Ultimately, I find nothing turns on this even if the strata inadvertently skipped this part of the agenda. I say this because Mrs. D'Souza does not, in this dispute or in her correspondence with the strata, raise any questions or concerns she had about the strata’s insurance coverage.

20.   Overall, I find Mrs. D'Souza has not established that the meeting was conducted in a way that prevented her or other owners from hearing what was discussed or from participating. In particular, there is no objective evidence, such as statements from other owners, that they could not hear the chair or other meeting participants. There is no evidence that other owners did not understand the resolutions they were voting on, or otherwise had concerns about the 2022 AGM. For these reasons, I dismiss this claim.

Did the strata violate SPA section 34.1 by refusing to hold a council hearing?

21.   In June 2022, Mrs. D’Souza made a written request for a hearing about the late AGM and alleged lack of clarity about strata fees. The strata manager responded that the strata denied her hearing request and she was “blocked from communication with the strata and many [strata management company employees].” The strata manager then gave short answers to her questions.

22.   The strata says it refused to give Mrs. D’Souza a hearing because it believed that a hearing would not be productive. The strata says Mrs. D'Souza has eroded the council’s patience with her demanding attitude, volume of questions, and critical comments that have no constructive purpose.

23.   SPA section 34.1 says if an owner or tenant requests a hearing in writing, stating the reason for the request, the council must hold the hearing within 4 weeks. Regulation 4.01 says that for the purposes of section 34.1, a “hearing” means an opportunity to be heard in person at a council meeting. Section 34.1 is mandatory. I find that the strata violated section 34.1 when it refused to hold a hearing for Mrs. D’Souza.

24.   The SPA does not set out any consequences for breaches of section 34.1. I find that a strata corporation’s decision not to hold a hearing can be significantly unfair to an owner or tenant. However, I do not have to determine that issue here. I say this because even if Mrs. D’Souza had proven significant unfairness, I would not grant her requested remedy that the strata hold the hearing about the 2022 AGM. I find that this CRT dispute has allowed Mrs. D’Souza to fully articulate her concerns about the 2022 AGM. Given that I found above that those concerns were generally without merit, it would serve no purpose to order the strata to conduct the hearing. I dismiss this claim.

25.   For clarity, had Mrs. D’Souza asked for a different remedy, I would have found that the strata’s decision not to hold the hearing was not significantly unfair to her based on the factors going to the “reasonableness” or fairness of a hearing refusal identified in Meybodi v. The Owners, Strata Plan EPS869, 2021 BCCRT 89.

Did the strata fail to clear snow from the parking ramp or conduct fire alarm testing?

26.   First, Mrs. D’Souza says the strata has failed to have the common property parking ramp properly cleared of snow. She says this makes it unsafe to drive in or out of the underground parking area. Her photos show light snow on the ramp. She requests that the CRT “see that these infractions are not repeated this year too.”

27.   I find Mrs. D’Souza argues that strata is breaching its duty to maintain the parking ramp. The strata does not dispute that it has an obligation to keep the ramp reasonably clear of snow. The strata says contractor staffing shortages, precipitation rates and times, and temperature changes all mean the ramp cannot always be clear of snow.

28.   I agree with the strata that it is not reasonably possible to maintain the parking ramp in a snow-free state at all times. The standard expected of a strata in repairing and maintaining common property is reasonableness, not perfection. It is undisputed that there have been no snow-related accidents on the ramp. The 2021-22 budget shows the strata spent over $29,000 on snow removal. I find the strata council is in the best position to evaluate whether its snow removal budget and contractors are meeting its needs. I find Mrs. D’Souza has not shown that the strata breached its duty to maintain the parking ramp, so I dismiss the claim.

29.   Next, Mrs. D'Souza alleges that fire alarm testing scheduled for December 14, 2022, did not happen, and it had not happened before that since October 2022. The strata says a contractor performed fire alarm testing every month, including on November 2 and December 14, 2022. While the strata did not provide documentation in support, I find nothing turns on this. I say this for 2 reasons. First, the SPA does not explicitly require strata corporations to conduct fire alarm testing. Second, to the extent that the strata’s duty to repair and maintain common property may include a duty to conduct fire alarm and fire suppression system testing, Mrs. D'Souza did not provide evidence, expert or otherwise, about how often such systems should be tested. So, I dismiss this claim.

CRT FEES AND EXPENSES

30.   Under CRTA section 49 and the CRT rules, as Mrs. D’Souza was unsuccessful, I find she is not entitled to any reimbursement of CRT fees. The strata did not pay any CRT fees and neither party claimed any dispute-related expenses.

31.   The strata must comply with SPA section 189.4, which includes not charging dispute-related expenses against Mrs. D'Souza.

ORDERS

32.   I dismiss Mrs. D'Souza’s claims and this dispute.