Date Issued: April 26, 2023

File: ST-2022-006157

Type: Strata

Civil Resolution Tribunal

Indexed as: Eisner v. The Owners, Strata Plan LMS 2042, 2023 BCCRT 347

Between:

ALES EISNER

Applicant

And:

The Owners, Strata Plan LMS 2042

Respondent

REASONS FOR DECISION
Tribunal Member:	Sarah Orr

INTRODUCTION

1.      This strata dispute is about a bike storage room. The applicant, Ales Eisner, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan LMS 2042 (strata). Mr. Eisner says the strata removed his bikes and equipment from the bike room and disposed of them without proper notice. He claims $994 as the cost of replacing the items.

2.      The strata says it notified all owners of a bike room audit. It says the items Mr. Eisner claims in this dispute were either not permitted in the bike room or were not properly tagged and so the strata properly disposed of them. The strata says it does not owe Mr. Eisner anything.

3.      Mr. Eisner represents himself in this dispute. The strata is represented by a council member.

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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.

7.      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.

ISSUES

8.      The issues in this dispute are:

a.    Did the strata improperly dispose of Mr. Eisner’s belongings from the bike storage room?

b.    If so, is the strata required to pay Mr. Eisner $994 to replace his claimed items?

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, as the applicant Mr. Eisner must prove his claims on a balance of probabilities (meaning more likely than not). I have read all the parties’ submissions and evidence but refer only to what I find relevant to explain my decision.

10.   The strata was created in 1995 under the Condominium Act and continues to exist under the Strata Property Act (SPA). It consists of 52 residential strata lots in 2 buildings. The strata plan indicates that it has 1 common property bike storage room for both buildings in its underground parking area.

11.   On October 30, 2001, the strata filed a set of bylaws with the Land Title Office (LTO) which repealed and replaced all existing bylaws. Since 2001 it has filed various bylaw amendments with the LTO, none of which I find are relevant to this dispute. Bylaw 35(7) requires all bikes to be stored in the bike room. The bylaw does not say whether bike parts or equipment may be stored in the bike room. I discuss the other relevant bylaws below.

12.   It is undisputed that on December 21, 2020, the strata posted a notice to residents on its strata manager’s web portal of an upcoming bike audit (First Notice). The First Notice instructed residents to tie a ribbon on their bikes in the bike room or to mark them with their unit numbers by January 25, 2021. It said the strata would move any unmarked bikes to storage and any bikes not claimed by February 1, 2021, would be donated to charity.

13.   Mr. Eisner says that in response to the First Notice, he marked all his belongings in the bike room with a ribbon, including the following items that he claims in this dispute:

-        2 bikes

-       2 bike helmets

-       1 bike pump

-       1 bike frame

-       3 wheel rims

-       1 rat trap carrier

-       2 inner tubes

-       4 containers of lubricant

-       1 blue recycling box

(together, the claimed items).

It is undisputed that the claimed items remained in the bike room after February 1, 2021.

14.   It is undisputed that on February 16, 2021, the strata posted a second notice to residents on the strata manager’s web portal of an upcoming bike audit (Second Notice). The Second Notice did not refer to the First Notice. It stated that the bike room could not be used to store “spare parts, tools or liquids of any kind,” all of which residents were required to remove by February 28. As with the First Notice, the Second Notice instructed residents to tie a ribbon to their bikes or mark them with their unit number, this time by February 28, 2021. The Second Notice said the strata would move any unmarked bikes to storage and any unclaimed or unmarked bikes would be donated on March 1, 2021. The notice did not say what the strata would do with any spare parts, tools, or liquid left in the bike room. It is undisputed that the claimed items remained in the bike room after March 1, 2021.

15.   It is undisputed that on April 23, 2021, the strata posted a “Final Reminder to all Owners” about the bike audit on the strata manager’s web portal (Third Notice). The Third Notice did not refer to either the First or Second Notice, nor did it state that any specific items were not permitted to be stored in the bike room. The Third Notice again instructed owners to tie a ribbon to their bikes or to mark them with their unit number. It said the strata would move any unmarked bikes to storage and any bikes not claimed by May 7, 2021, would be donated to charity. It is undisputed that the claimed items remained in the bike room after May 7, 2021.

16.   Mr. Eisner says that on August 25, 2021, he discovered that the claimed items were missing from the bike room. On the same day he emailed the strata reporting what he believed at the time to be a theft. On August 31, 2021, the strata manager responded to Mr. Eisner stating that the bike room had been cleaned on August 23, 2021. The email states that owners are not permitted to store “parts, tools, or other items” in the bike room. It says any untagged “bicycles, parts, etc.” were recycled. The email says the previous notices about the bike audit stated that “anything not tagged or not in working order” would be removed from the bike room.

Did the strata improperly dispose of the claimed items?

17.   Mr. Eisner says that since the strata removed the claimed items from the bike room more than 3 months after the May 7, 2021, deadline in the Third Notice, the strata’s actions were unannounced and without proper notice. He also says there was no grace period, as provided in each of the 3 notices, to allow him time to reclaim any of the claimed items before the strata disposed of them. He says there has never been a rule limiting the number of bikes each owner may store in the bike room or requiring any stored bikes to be in working order.

18.   The strata says it conducted the bike room audit in response to multiple complaints that the bike room was “overflowing” and contained spare parts and partially dismantled bikes. It says it notified all owners of the bike audit and provided sufficient opportunity for owners to remove or tag their bikes. The strata does not deny removing the claimed items from the bike room, but says it had the authority to do so, for the reasons explained below. It also says Mr. Eisner cannot prove the value of the claimed items.

19.   I find the strata’s authority to conduct the bike room audit falls within its responsibility to repair and maintain common property in section 72 of the SPA. It is well-established that the standard a strata must meet in performing this duty is reasonableness. I find the notices all clearly state the dates by which bikes would be removed from the bike room and the dates by which those removed bikes would be donated to charity. Mr. Eisner says that since he had tagged the claimed items and they remained in the bike room after the May 7, 2021, deadline in the Third Notice, he did not think there would be any problem with the claimed items remaining in the bike room. I find it was reasonable for Mr. Eisner to conclude that after May 7, 2021, the strata had completed the bike audit and decided not to dispose of the claimed items. So, by removing the claimed items from the bike room in August 2021 without providing express notice that it would do so at that time, I find the strata did not act reasonably and breached its duty to maintain common property.

20.   However, my analysis does not end there. The strata relies on several bylaws to defend its actions. Section 133 (1) of the SPA allows a strata to do what is reasonably necessary to remedy a bylaw or rule contravention, including removing objects from common property. However, for the following reasons, I find the strata has not established that Mr. Eisner’s storage of the claimed items in the bike room was in breach of any bylaws or rules.

21.   The strata relies on bylaw 35(1), which states that an owner who leaves an item anywhere on common property does so at their own risk. However, I find the plain meaning of this bylaw is to absolve the strata of responsibility for the risk that an owner’s belongings left on common property may be lost, stolen, or damaged. I find bylaw 35(1) does not give the strata authority to remove or dispose of an owner’s belongings from the bike room without proper notice, particularly since bylaw 35(7) requires owners to store their bikes in the bike room.

22.   The strata also relies on bylaw 35(6)(b) which prohibits an owner from carrying out any oil changes, major repairs or adjustments to motor vehicles or other mechanical equipment on common property, except in the case of emergency. The strata says that given this bylaw, none of the accessories or lubricant Mr. Eisner claims in this dispute should have been stored in the bike room. However, I find this bylaw does not expressly prohibit the storage of any such items, so I find bylaw 35(6)(b) does not apply here.

23.   The strata submitted 3 undated photos showing spilled liquid on the bike room floor. The strata says this created hazardous and slippery conditions. Though the strata does not specifically refer to the bylaws on this point, I note bylaw 3(2)(a) prohibits an owner from using the common property in a way that causes a nuisance or hazard to another person. However, I find the photos on their own are insufficient to establish that Mr. Eisner caused the spill, the date on which the spill was created, or that the spill created hazardous conditions in the room. I find the strata has failed to prove that Mr. Eisner breached bylaw 3(2)(a).

24.   The strata says the bike room has only 32 stalls for 52 strata lots, and so it was created with the intention that only working bikes would be stored in it. Bylaw 3(2)(e) prohibits an owner from using the common property in a way that is contrary to a purpose for which it is intended as shown expressly or by necessary implication on the strata plan. However, I find there is nothing in the strata plan, bylaws or evidence before me to suggest that the bike room was intended only to store bikes in working order.

25.   In summary, I find the strata has failed to establish that Mr. Eisner breached any bylaws by storing the claimed items in the bike room.

26.   The strata says it would be unfair for the 51 other owners to reimburse Mr. Eisner for failing to comply with the “common rules and regulations.” The strata’s submissions imply that it has rules in place prohibiting owners from storing spare parts, tools, or liquids in the bike room and limiting the number of bikes each owner may store in the bike room. It says the bike room is not to be used as anyone’s personal storage or repair shop.

27.   Section 125(1) of the SPA allows a strata to make rules governing the use, safety and condition of common property. Section 125(3) of the SPA requires all rules to be set out in a written document capable of being photocopied. Section 125(4) of the SPA requires a strata to inform owners and tenants of any new rules as soon as “feasible.”

28.   Mr. Eisner says there has never been any rule limiting the number of bikes an owner can store in the bike room. I find there is nothing in the evidence before me to suggest that the strata ever had such a rule. While it could be argued that the prohibition on spare parts, tools, or liquids in the bike room in the Second Notice created a new rule, the strata does not specifically claim to have created a new rule at that time. Even if it did, I find the wording of the Second Notice does not make it clear that the strata created a new rule. When read together with the First Notice and Third Notice I find it is unclear whether such a rule was intended, or what the rule was given the notices were inconsistent with each other. So, I find that at the relevant time the strata did not have any rules in place under section 125 of the SPA with respect to the bike room.

29.   In its submissions the strata says it intends to propose bylaw amendments to specify a maximum number of bikes per strata lot allowed in the bike room and to clarify that no accessories or parts may be stored in the bike room. Nothing in this decision prevents the strata from doing so in accordance with sections 126 to 128 of the SPA.

30.   I note that Mr. Eisner says he did not see the Second Notice at the time it was posted. However, since I find the Second Notice did not create a new rule, and since the strata undisputedly did not remove the claimed items until several months after the Third Notice, I find nothing turns on this.

31.   I also note the strata says it only removed untagged items from the bike room in August 2021. However, since I have already found the strata breached its duty to maintain common property when it removed items from the bike room at that time without proper notice, I find it does not matter if the claimed items were tagged in August 2021.

32.   In conclusion, I find the strata has not established that Mr. Eisner breached any bylaws or rules by storing the claimed items in the bike room. I find the strata did not act reasonably when it removed the claimed items from the bike room more than 3 months after the removal date on the Third Notice. So, I find the strata breached its duty to maintain common property, and Mr. Eisner is entitled to compensation.

Is the strata required to pay Mr. Eisner $994 to replace his claimed items?

33.   Mr. Eisner claims $994 for the cost of replacing the claimed items, broken down as follows:

-       2 bikes for $430 total

-       2 bike helmets for $90 total

-       1 bike pump for $50

-       1 bike frame for $149

-       3 wheel rims for $130 total (2 front rims for $40 each, and one back rim for $50)

-       1 rat trap carrier for $25

-       2 inner tubes for $30

-       1 blue recycling box for $20

-       4 containers of lubricant for $70 total

34.   The strata says Mr. Eisner has failed to provide sufficient evidence of which items were removed from the bike room, and their value, such as receipts or proof of an insurance claim. However, in the circumstances I would not necessarily expect Mr. Eisner to have kept receipts for the claimed items. I find his August 25, 2021, email to the strata manager to be reliable evidence of which items were removed from the bike room and his estimate of their value. In that email, at which point Mr. Eisner believed the claimed items had been stolen, he listed all the claimed items and said their value was “on the borderline of $1000”. He said in the email that it may not be worth filing an insurance claim. I find this email is persuasive evidence that the strata removed all of the claimed items from the bike storage room in August 2021. Next, I must assess their value.

35.   Mr. Eisner submitted Craigslist ads with photos of used items to prove the value of the 2 bikes, 2 helmets, pump, frame, 3 wheel rims, and rat trap carrier. He submitted an Amazon.ca screenshot showing $30 as the cost of 2 new inner tubes. Although Mr. Eisner says all the claimed items were used, given the nature of inner tubes I find it more likely than not that the spare inner tubes Mr. Eisner kept in the bike room were new and usable. The strata does not specifically dispute any of the amounts claimed and did not provide its own valuation of any of the claimed items. Based on the ads, I find the amounts claimed for the 2 bikes, 2 helmets, pump, frame, 3 wheel rims, rat trap carrier, and inner tubes are reasonable in the circumstances.

36.   I note here that Mr. Eisner says a strata council member asked him to leave his bike pump in the bike room for everyone to use. The strata says it has no written record of such a request, but that as a good faith gesture it will purchase a bike pump for the bike room for all owners to use. However, I find that giving Mr. Eisner access to a communal bike pump does not give him the same benefit of owning his own bike pump. So, I find Mr. Eisner is entitled to the $50 claimed for the bike pump.

37.   As for the blue recycling box, Mr. Eisner submitted a screenshot from the Canadian Tire website showing $19.99 as the cost of a new recycling box. However, since the blue recycling box was undisputedly used to store containers of lubricant and other items, I find that awarding him the full replacement cost would put him in a better position than if he still had the recycling box, which is known as betterment. So, on a judgment basis, I find Mr. Eisner is entitled to $10 for the recycling box.

38.   Mr. Eisner claims $70 for 4 containers of lubricant but provided no actual evidence of the cost of replacing them aside from a list of the specific products with amounts next to them. Presumably these amounts are for new containers, and Mr. Eisner’s evidence is that the containers were used. To avoid betterment with respect to the containers, on a judgment basis I find Mr. Eisner is entitled to $35 for the 4 containers of lubricant.

39.   In total, I find the strata must pay Mr. Eisner $949 to replace the claimed items.

CRT FEES, EXPENSES AND INTEREST

40.   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. Since Mr. Eisner was generally successful, I order the strata to reimburse him $225 in CRT fees. He did not claim any dispute-related expenses.

41.   The Court Order Interest Act (COIA) applies to the CRT. Mr. Eisner is entitled to prejudgment interest on the $949 owing from August 23, 2021, the date the strata removed the claimed items from the bike room, to the date of this decision. This equals $7.14.

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

ORDERS

43.   I order that within 30 days of the date of this decision the strata must pay Mr. Eisner $1,181.14, broken down as follows:

a.    $949 for the replacement cost of Mr. Eisner’s claimed items;

b.    $7.14 in interest under the COIA; and

c.    $225 in CRT fees.

44.   Mr. Eisner is also entitled to postjudgment interest under the COIA.

45.   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.