Date Issued: April 12, 2023

File: ST-2022-003144

Type: Strata

Civil Resolution Tribunal

Indexed as: Greene v. The Owners, Strata Plan BCS 3495, 2023 BCCRT 296

Between:

JASON GREENE

Applicant

And:

The Owners, Strata Plan BCS 3495

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This strata property dispute is about an alleged chargeback and missing tools.

2.      The applicant, Jason Greene, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS 3495 (strata). Mr. Greene was employed by the strata as the “facility manager” from September 2019 to December 2020. Mr. Greene says that after his employment ended, the strata denied his request to retrieve personal tools he had stored in a secured common property room. He says the strata still has his tools or they have since gone missing while in the strata’s possession, and he claims $2,000 for their value.

3.      The strata says that Mr. Greene collected his personal belongings from a common property locker, in February 2021. The strata says that Mr. Greene never indicated that any personal tools were missing at that time. The strata says it does not have Mr. Greene’s tools and denies they were ever in its possession. It requests that this claim be dismissed.

4.      Mr. Greene also says the strata imposed a $36,057.41 chargeback against his strata lot account for strata property that Mr. Greene allegedly did not return after his employment ended and other expenses the strata alleged he was responsible for. Mr. Greene says the strata did not properly inform him about its decision to impose the chargeback, and he seeks an order for the strata to do so. Mr. Greene also seeks an order that the strata reverse the alleged “false” chargeback.

5.      The strata denies that it ever imposed the alleged chargeback on Mr. Greene’s strata lot account. Further, the strata says the subject of the alleged chargeback relates to Mr. Greene’s employment with the strata, not his status as an owner, and so this is not a strata property claim within the jurisdiction of the Civil Resolution Tribunal (CRT). The strata says the CRT should refuse to resolve this claim.

6.      Finally, Mr. Greene also claims $5,073.06 as reimbursement of legal fees he incurred to respond to the strata’s allegations relating to the chargeback.

7.      Mr. Greene is self-represented. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

8.      These are the CRT’s formal written reasons. 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 economically, accessibly, quickly, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness. It must also recognize any relationships between dispute parties that will likely continue after the CRT process has ended.

9.      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. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and written submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

10.   Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues. Further, under CRTA section 11(1)(b), the CRT may refuse to resolve a request for resolution that does not disclose a reasonable claim.

11.   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.

12.   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.

Strata council hearing

13.   The strata says that Mr. Greene did not request a council hearing about his allegedly missing tools, as required under section 189.1 of the SPA. Mr. Greene denies this and says a hearing was held on July 14, 2021. He provided a copy of his hearing request and an audio recording of the hearing. However, I find that Mr. Greene did not mention the alleged missing tools in his request for a hearing, or at the hearing itself. Rather, I find the request and hearing dealt solely with Mr. Greene’s termination as facility manager and the alleged chargeback for missing strata property.

14.   Section 189.1 of the SPA says a strata lot owner may not ask the CRT to resolve a strata dispute unless the owner requested a council hearing under SPA section 34.1, or the CRT waives the hearing requirement by request under section 189.1(2)(b).

15.   On the evidence before me, I find Mr. Greene did not request a hearing specifically about his missing tools. However, I find that by Mr. Greene’s conduct in proceeding with this dispute, it can be implied that he has requested that the CRT waive the requirement for a council hearing: see The Owners, Strata Plan VR320 v. Day, 2023 BCSC 364. Further, given the parties’ tone on the audio recording of the July 14, 2021 hearing and their documented history of conflict, I find it unlikely a hearing would have helped them reach an agreement and would have effectively been pointless. I also find that to refuse to resolve this claim and refer the matter back to facilitation, or obtain further submissions from the parties, would be wasteful of the CRT’s resources. Under the circumstances, I find it is appropriate to waive the requirement for a hearing about the missing tools claim.

Additional remedies

16.   In submissions, Mr. Greene asks for several additional remedies that were not included in the Dispute Notice. Those remedies include:

a.    An order for a forensic financial audit and for the strata to report the results of any misallocated funds and unapproved expenditures to the owners.

b.    An order that any unapproved and missing funds be reimbursed to the owners.

c.    An order for the strata to produce all legal invoices relating to the issues in this CRT dispute, from November 1, 2020 to the present.

d.    An order to discontinue all unapproved and unauthorized legal actions against Mr. Greene, his strata lot, and his tenant, TR.

e.    Orders to reimburse Mr. Greene’s strata lot for its share of legal expenses the strata incurred for:

                              i.        Contesting Mr. Greene’s and TR’s council eligibility,

                            ii.        Pursuing the false chargeback at issue in this dispute,

                           iii.        Seeking the removal of TR as a council member, and

                           iv.        Defending Mr. Greene’s and TR’s CRT and other legal claims.

f.     An order to record an explanation about the false chargeback in the strata’s meeting minutes.

g.    An order for an additional $2,408.89 in compensation for a tablet Mr. Greene alleges is in the strata’s possession.

h.    An order for $50,000 in punitive damages against the strata.

17.   The purpose of a Dispute Notice is to define the issues and provide notice to the respondents about the claims against them and remedies sought, so that they have an adequate opportunity to respond. Many of the additional remedies relate to entirely new issues and claims. While Mr. Greene made a request to amend the Dispute Notice at the end of the facilitation process, he later withdrew that request and chose to proceed with the decision process. CRT rule 1.17 says that the Dispute Notice will only be amended after the dispute has entered the CRT decision process in exceptional circumstances.

18.   I find there are no exceptional circumstances here that would justify adding new claims or remedies at this late stage of the CRT process. I also find the strata did not have an adequate opportunity to respond to the additional requested remedies, and so I find it would be procedurally unfair to consider them in this decision. Therefore, I have not addressed any claims or remedies that were not in the Dispute Notice.

ISSUES

19.   The issues in this dispute are:

a.    Is the strata responsible for the replacement cost of Mr. Greene’s allegedly missing tools?

b.    Is Mr. Greene’s claim about the alleged “false” chargeback within the CRT’s jurisdiction over strata property claims?

c.    If so, did the strata properly impose the chargeback against Mr. Greene’s strata lot account?

d.    Must the strata reimburse Mr. Greene for any legal expenses?

BACKGROUND, EVIDENCE AND ANALYSIS

20.   In a civil proceeding like this one, the applicant Mr. Greene must prove his claims on a balance of probabilities (meaning “more likely than not”). I have reviewed all of the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

21.   The strata was created under the Strata Property Act (SPA) in 2009. It was built in 3 phases and consists of 3 high-rise towers, with a total of 642 strata lots.

Is the strata responsible for Mr. Greene’s alleged missing tools?

22.   As noted, the strata employed Mr. Greene as its full-time facility manager for a term beginning on September 1, 2019. The strata says Mr. Greene’s employment term was scheduled to end on August 31, 2021, though it is undisputed that the strata terminated Mr. Greene’s employment on December 21, 2020. I find the circumstances leading to Mr. Greene’s termination are not relevant to this dispute, and so I will not address them in these reasons.

23.   Mr. Greene says that he called the strata manager several times between December 2020 and February 2021 to recover personal items he had stored in a common property locker. The evidence shows that on February 6, 2021, Mr. Greene emailed the strata council directly to ask for its assistance with this matter. The strata responded and requested a list of items Mr. Greene wanted to retrieve from the locker. Mr. Greene provided that list on February 11, 2021 and arranged for TR to collect the items on his behalf the following day.

24.   Mr. Greene admits that TR retrieved all the items on his list from the locker on February 12, 2021. However, he says that the list he provided was not exhaustive and that he also had personal tools in a locked common property storage room that the strata refused to open. Mr. Greene says the strata still has these tools and it has refused to return them despite multiple requests. He provided a list of various tools and their replacement cost totalling $2,141.50. As Mr. Greene claimed only $2,000 for his tools, I find his claim is limited to that lower amount, though nothing turns on this given my ultimate conclusion below.

25.   The strata says the first time it became aware that Mr. Greene alleged his personal tools were missing was when he filed this CRT dispute. The strata says Mr. Greene never mentioned that he had any tools in a storage room. The strata also says it has been unable to locate any tools belonging to Mr. Greene since it became aware of this claim.

26.   I find it is not entirely clear that this claim falls within the CRT’s jurisdiction over strata property claims. Mr. Greene is essentially claiming that the strata improperly held his tools, and that the strata either still has them or that they have gone missing while in the strata’s possession. While Mr. Greene did not specify the legal basis of his claim, I find that the law of bailment or the torts of conversion or detinue likely apply.

27.   As noted, the CRT’s jurisdiction over strata property claims is set out in section 121(1) of the CRTA. It is limited to claims that are “in respect of the SPA” concerning any matters set out in CRTA section 121(1)(a) through (g). Contrary to Mr. Greene’s submission, I find that just because a claim is between a strata corporation and an owner, does not necessarily mean it is a claim in respect of the SPA. However, I find that this claim may be interpreted as being in respect of the SPA on the basis that it involves an action or decision by the strata to improperly prevent Mr. Greene from accessing a common property storage room. In any event, I find this claim also falls within the CRT’s small claims jurisdiction over damages, which has a $5,000 monetary limit, and so I find it is appropriate to resolve it.

28.   The main difficulty for Mr. Greene is that regardless of whether this claim is analysed under the CRT’s strata property jurisdiction or small claims jurisdiction, I find he must prove that he had his tools stored on common property, and I find he has failed to do so. While Mr. Greene says he told the strata manager about his stored tools multiple times by phone, his later emails to the strata mentioned only his personal items stored in the locker. He did not explain why he failed to ask for everything all at once. There is also no evidence he advised the strata any items were unaccounted for after he retrieved his other personal belongings on February 12, 2021. Further, as noted above, Mr. Greene did not mention the alleged missing tools at the July 14, 2021 council meeting. I find there is simply no supporting evidence that Mr. Greene ever notified the strata he had tools in a storage room, or that he requested access to the storage room at any time.

29.   Given the detailed list of allegedly missing tools Mr. Greene prepared for this dispute, I would have expected him to advise the strata about them immediately, or at least during the council hearing and before starting this CRT dispute. Given the lack of any evidence that Mr. Greene raised the issue of missing tools with the strata, I find Mr. Greene’s claim that he stored his personal tools in a common property storage room is not credible.

30.   As Mr. Greene has not proven his personal tools were in the strata’s possession, I find his claim that the strata dealt with them improperly or failed to return them is unproven. I dismiss Mr. Greene’s claim about missing tools.

Is Mr. Greene’s claim about the alleged “false” chargeback within the CRT’s jurisdiction?

31.   On June 13, 2021, the strata manager sent Mr. Greene a letter with the subject line: “Chargeback of Expenses Items not Returned to the Strata”. It set out an itemized list of strata-owned items that the strata said Mr. Greene had not returned after his employment was terminated, with invoices totalling $10,671.13. It also set out several expenses the strata said it incurred due to Mr. Greene’s actions after he was terminated, with invoices totalling $25,386.28. The evidence indicates the expenses included third-party security the strata hired to cover Mr. Greene’s duties. The strata also alleged Mr. Greene was responsible for having all common locks re-keyed because he failed to return relevant keys and fobs, and that Mr. Greene damaged or disconnected wiring, resulting in investigation and repair costs.

32.   The strata argues that its dispute with Mr. Greene about the alleged missing strata property and expenses relates to Mr. Greene’s employment relationship with the strata. So, the strata says this dispute is not in respect of the SPA and falls outside the CRT’s jurisdiction to decide strata property disputes. In contrast, Mr. Greene says this claim is between a strata corporation and an owner about alleged missing or damaged strata common property or common assets, and so it is a strata property dispute within the CRT’s jurisdiction.

33.   I agree with the strata that the basis of its allegations that Mr. Greene failed to return strata property or assets and caused the strata to incur various expenses are solely related to his employment relationship with the strata. In other words, the fact that Mr. Greene is an owner in the strata is essentially irrelevant to the strata’s allegation that he owes the strata the amounts set out in its June 13, 2021 letter. So, I find Mr. Greene’s claim about the “false” chargeback does not fall within the CRT’s jurisdiction over strata property disputes. As the amount is over $5,000, I find it also does not fall within the CRT’s small claims jurisdiction. For these reasons, I refuse to resolve this claim under CRTA section 10(1).

34.   Even if this claim was within the CRT’s jurisdiction over strata property disputes, I still would refuse to resolve it. My reasons follow.

35.   The June 13, 2021 letter did not make any demands about the alleged missing items or expenses. It also did not refer to any strata bylaws and did not specifically state that the amounts indicated would be charged back to Mr. Greene’s strata lot account. Following the July 14, 2021 council hearing, the strata sent Mr. Greene a July 19, 2021 email advising him that it would take his presentation into consideration and determine the course of the complaint process in due course.

36.   Email evidence shows that Mr. Greene followed up with the strata regularly for a decision. While the council meeting minutes show the strata discussed the proposed chargeback at its August 25, 2021 meeting, there is no indication that the strata made any decision about how it intended to proceed. The evidence also suggests that the strata discussed the issue at other meetings and may have obtained a legal opinion about the matter, but I find there is no evidence the strata decided to pursue a chargeback against Mr. Greene at any time after it sent the June 13, 2021 letter.

37.   The also strata provided a copy of Mr. Greene’s strata lot account ledger dated December 5, 2022 showing no chargeback has been applied and that he had a $0.00 balance. Mr. Greene says his account balance may not be accurate. He provided an August 29, 2022 email from the strata’s new strata management company that states because the strata failed to set up an accounts receivables and accounts payables system, it is unclear what people owe to the strata or for how long they have owed it. However, I find that statement is insufficient to establish that the strata imposed the alleged chargeback against Mr. Greene’s account or that his account ledger is inaccurate.

38.   Overall, I accept the strata’s evidence that it has not imposed any chargeback against Mr. Greene relating to the allegations in the June 13, 2021 letter, as there is no evidence to the contrary. So, I find the order Mr. Greene has sought for the proposed chargeback to be reversed is premature. For that reason, I find Mr. Greene’s request does not disclose a reasonable claim.

39.   I refuse to resolve Mr. Greene’s claim about the alleged chargeback.

Must the strata reimburse Mr. Greene for any legal expenses?

40.   Mr. Greene claimed reimbursement of $5,073.06 in legal fees. Legal fees are generally only recoverable as “costs” or dispute-related expenses, not as damages: see Voyer v. C.I.B.C., 1986 CanLII 1226 (BC SC). The invoices Mr. Greene submitted were for legal services that entirely pre-date this CRT proceeding. So, I find they are not dispute-related expenses because they do not relate directly to bringing this CRT dispute. In any event, CRT rule 9.5(3) says the CRT will not order reimbursement of a lawyer’s fees for strata disputes unless there are extraordinary circumstances, which I find are not present here. For these reasons, I dismiss Mr. Greene’s claim for reimbursement of legal fees.

CRT FEES AND EXPENSES

41.   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. As Mr. Greene was unsuccessful, I dismiss his claim for reimbursement of CRT fees. The strata did not pay any fees and neither party claimed any expenses.

42.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Greene.

ORDERS

43.   I refuse to resolve Mr. Greene’s claim to reverse the alleged $36,057.41 chargeback under CRTA sections 10(1) and 11(1)(b). I dismiss Mr. Greene’s other claims, and this dispute.