Date Issued: May 23, 2023

File: ST-2022-004157 and ST-CC-2022-006983

Type: Strata

Civil Resolution Tribunal

Indexed as: Jongema v. The Owners, Strata Plan XXX, 2023 BCCRT 426

Between:

MELISSA JONGEMA

Applicant

And:

The Owners, Strata Plan XXX

Respondent

And:

MELISSA JONGEMA

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.      This strata property dispute is about alterations in a strata lot.

2.      Melissa Jongema owns strata lot X (SLX) in a strata corporation, the Owners, Strata Plan XXX.

3.      Mx. Jongema is the applicant in the primary claim, and the respondent in the counterclaim. The strata is the respondent in the primary claim, and the applicant in the counterclaim. Mx. Jongema is self-represented in this dispute. The strata is represented by a strata council member.

4.      Mx. Jongema says SLX’s previous owner put about 2 inches of concrete on the floors, which raised the floor level and covered the vents. Mx. Jongema says the concrete’s weight was a safety hazard, as the floors could have collapsed. Mx. Jongema says the strata knew about this work, but did not stop it or require the previous owner to reverse it. Mx. Jongema requests reimbursement of $4,000 for the expenses she incurred in removing the concrete and fixing the floors.

5.      The strata says Mx. Jongema changed the flooring and pipes in SLX without permission as required under strata bylaws. The strata also says there was unreasonable noise during construction. The strata says it was unaware of the concrete in SLX at the time Mx. Jongema purchased it, and is not responsible for any repair costs.

6.      In its counterclaim, the strata requests orders that Mx. Jongema:

•         Allow 2 strata council members and the strata’s chosen contractor to inspect SLX to determine what alterations were made.

•         Sign and follow an agreement to take responsibility for any expenses relating to the alterations, or alternatively return SLX to its prior condition.

•         Obtain a report from a licensed structural engineer confirming no structural damage to SLX.

•         Pay $2,800 in bylaw fines for unapproved alterations and noise.

7.      For the reasons set out below, I dismiss Mx. Jongema’s claim, and allow the strata’s counterclaims in part.

JURISDICTION AND PROCEDURE

8.      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.

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. 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 which includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice and fairness.

10.   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.

11.   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.

12.   In her submissions, Mx. Jongema requested additional remedies, including orders against individual strata council members and the strata manager. However, none of these individuals are parties to this dispute, so I cannot make orders against them. Also, I find it would be procedurally unfair to decide claims that were not set out in the Dispute Notice or in an amended Dispute Notice. In addition, some of these claims are for alleged breaches of council members’ duty of care under Strata Property Act (SPA) section 31. The BC Supreme Court confirmed that the CRT has no jurisdiction to decide section 31 claims in Williams v The Owners, Strata Plan NW 1340, 2021 BCSC 2058 at paragraph 66. Finally, as explained below, I dismiss Mx. Jongema’s claim on its merits.

13.   For all these reasons, I have not addressed Mx. Jongema’s additional remedy requests in this decision.

Anonymization Request

14.   Mx. Jongema requested anonymization of the published version of this decision, due to her safety-sensitive occupation. The strata objected, citing the need for transparency and the open court principle discussed in Lipton v. The Owners, Strata Plan VIS 4673, 2022 BCCRT 1010.

15.   Mx. Jongema did not specifically explain how publishing her name would create risk, and she did not respond to the strata’s submission about transparency and the open court principle. In the circumstances, and considering the open court principle, I find it is appropriate to anonymize only the strata’s name and the strata lot number, in order to remove geographic identifiers. I have done so in the published version of this decision.

ISSUES

16.   The issues in this dispute are:

a.    Must the strata reimburse Mx. Jongema $4,000 for floor remediation?

b.    Did Mx. Jongema breach strata bylaws by failing to get written permission for strata lot alterations?

c.    Must Mx. Jongema pay any fines for breaches of the strata’s noise bylaw? If so, how much?

REASONS AND ANALYSIS

17.   In a civil claim like this one, Mx. Jongema, as applicant, must prove her claim on a balance of probabilities (meaning “more likely than not”). The strata must prove its counterclaims to the same standard. I have read all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

18.   The strata was created in 1996. The strata plan shows that SLX is a 2-storey strata lot with a basement.

19.   The strata repealed and replaced its bylaws by filing new bylaws with the Land Title Office in December 2001. The strata filed further bylaw amendments after that, which I find are not relevant to this dispute. I discuss the relevant bylaws in my reasons below.

Must the strata reimburse Mx. Jongema $4,000 for floor remediation?

20.   It is undisputed that a previous owner installed concrete on top of the existing flooring or subfloor on SLX’s main floor, and then installed new flooring on top of the concrete. This is confirmed by photos provided in evidence.

21.   Mx. Jongema says the concrete was a safety hazard because of its weight, and because it blocked vents in the floor. She says strata council members knew about the concrete, which was an unapproved alteration under the strata bylaws. Mx. Jongema says the strata acted negligently and unfairly because it did not make the previous owner remove the concrete and did not disclose it when Mx. Jongema bought SLX. As remedy, Mx. Jongema requests an order that the strata reimburse her $4,000, which is part of what she spent to remove the concrete.

22.   For the following reasons, I dismiss Mx. Jongema’s claim.

23.   First, and most significantly, I find Mx. Jongema has not proved it was necessary to remove the concrete. Mx. Jongema asserted in her June 21, 2022 dispute application that the concrete “was a significant damage to the unit” and was unsafe. However, there is no expert evidence before me, such as a report from a contractor or engineer, saying that the concrete created any problems or potential problems in SLX. Mx. Jongema says the concrete was likely poured in 2015, and there is no evidence indicating any structural or functional problem in SLX or elsewhere in the strata due to the concrete.

24.   Also, in a January 31, 2023 email to the strata, Mx. Jongema wrote that the weight of the concrete “never came close to exceeding the weight limit of the floor”. She wrote that there were no leaking pipes, and the “structure was never at risk”. Based on these statements, and the lack of evidence to the contrary, I find Mx. Jongema has not proven that the concrete was a safety risk or that it damaged SLX.

25.   Based on the photos in evidence, I accept that some floor vents were blocked before the concrete was installed. However, there is no evidence before me about what the floor vents connect to, if anything, or what purpose they serve. Despite Mx. Jongema’s assertions, there is also no evidence indicating that blocking the floor vents had any effect in SLX, such as limiting heat flow or ventilation. And, in her January 31, 2023 email, Mx. Jongema wrote that there “was no damage to the air ducts or anything”.

26.   For these reasons, I find Mx. Jongma has not proved there was any damage or defect in SLX, or any need to remove the concrete. So, I would deny her claim on this basis alone.

27.   Second, I find the strata was not required to make the previous owner remove the concrete.

28.   Mx. Jongema says the concrete was installed on top of the main floor’s existing flooring or subfloor. Based on the strata plan and SPA section 68, which explains the boundaries of strata lots, the main floor’s flooring and floor structure are fully within SLX. This means the flooring is not common property. Under the SPA and strata bylaw 2(a), an owner, and not the strata, is responsible to repair and maintain a strata lot. There is nothing in the SPA or the strata’s bylaws that makes the strata responsible to repair or maintain the interior of SLX. The strata is responsible to maintain and repair common property, including the structure of a building. But, as noted above, there is no evidence that the concrete affected the building’s structure.

29.   Mx. Jongema relies in part on SPA section 133, which says a strata corporation may remedy a bylaw breach by doing work on a strata lot, and may charge the costs of the work to the person who may be fined for the bylaw breach. However, the language SPA section 133 is discretionary rather than mandatory. Section 133 says the strata may remedy the breach, but it does not say the strata must do so. And again, in any event, there is no evidence of structural damage or functional problems related to the concrete. And, as explained in paragraphs 41-42 below, changing the flooring was not work that required written strata permission, so there was no clear bylaw breach by the previous owner.

30.   Third, Mx. Jongema says the concrete was a latent defect the strata should have disclosed when she purchased SLX. I disagree. First, as explained above, she has not proven that the concrete was a defect, rather than a cosmetic issue. Second, it is the seller’s duty to disclose latent defects within a strata lot, not the strata’s. The strata was not part of the sale contract.

31.   For all of these reasons, I dismiss Mx. Jongema’s claim for reimbursement of concrete removal expenses.

Did Mx. Jongema breach strata bylaws by failing to get written permission for strata lot alterations?

32.   Strata bylaw 6(a) says an owner must obtain the strata’s written approval before altering or adding to a strata lot in a way that involves, among other things, the building’s structure, common property located within the strata lot, and parts of the strata lot the strata must insure under SPA section 149. Bylaw 6(b) says that as a condition of approving an alteration, the strata can require an owner to agree in writing to take responsibility for any expense relating to the alteration.

33.   Email correspondence in evidence shows that on April 19, 2022, Mx. Jongema emailed the strata manager, SL, and said she was going to remove the polybutylene (Poly B) pipes from SLX, fix the drywall afterwards, and replace some of the main floor’s flooring. SL replied by asking Mx. Jongema to fill out and return attached forms requesting approval for the work, including the name of the contractor and a copy of their WorkSafeBC and liability insurance. SL said they would then forward the documents to council for approval.

34.   The evidence shows that Mx. Jongema did not fill out the forms, and did not otherwise request or obtain written permission for any strata lot alterations. Instead, on June 13, 2022, SL emailed Mx. Jongema, stating that there had been complaints about construction noise from SLX. SL said there was no signed indemnity agreement or request for strata lot modifications as required under the bylaws, and requested a reply within 24 hours. Mx. Jongema replied that she was not modifying her strata lot, and said she was “doing some things myself”. She also said the noise was over.

35.   On June 14, 2022, SL emailed Mx. Jongema about further noise complaints and a construction worker observed working in SLX. SL directed Mx. Jongema to stop all work. SL set out the text of bylaw 6(a) and bylaw 3(a), the strata’s noise bylaw. The letter said failure to comply with these bylaws could lead to actions including fines. In a separate email, SL again sent Mx. Jongema documents to fill out requesting approval for the work.

36.   Mx. Jongema replied that she “had a guy come look at” her pipes because Poly B pipes in other strata lots had burst. She said she would fill out a form if the strata required one, and close the doors to reduce noise. In a June 15, 2022 email, SL told Mx. Jongema that changing plumbing required a completed indemnity agreement. On June 16, 2022, Mx. Jongema replied that she would not sign an indemnity form.

37.   In a June 17, 2022 letter, SL wrote that Mx. Jongema had admitted to replacing the Poly B pipes. SL requested access to SLX for strata council members to confirm what alterations had been performed. After a chain of correspondence, Mx. Jongema ultimately refused to permit access.

38.   On June 22, 2022, SL sent Mx. Jongema a letter again citing bylaws 6(a) and 3(a). The letter said there were complaints of construction noise between June 12 and 16, 2022. The letter gave Mx. Jongema an opportunity to answer the complaints within 14 days, including a hearing if requested. SL said the strata might impose fines up to $200 for each contravention. SL sent another letter dated September 23, 2022, stating that the strata had decided to fine Mx. Jongema $200 per week, starting July 21, 2022, for violating bylaw 6(a). I return to this letter later.

39.   In her submissions, Mx. Jongema admits to removing the flooring concrete and replacing the Poly B water pipes in SLX. In her submissions, she says this work occurred in May and June 2022. She says she refused to sign an indemnity agreement for the work because she planned to sue the strata for failing to disclose the concrete when she bought SLX.

40.   As noted above, under bylaw 6(a) an owner requires advance written permission for strata lot alterations involving the structure of a building, common property within the strata lot, and parts of the strata lot the strata must insure under SPA section 149.

41.   As discussed above, I find the concrete flooring alteration did not involve the building’s structure, or common property. SPA section 149 says the strata must insure fixtures in a strata lot that were installed by the owner developer as part of the original construction. It is undisputed that the concrete was not installed by the owner developer. For these reasons, I find that removing the concrete does not fit within the categories of work set out in bylaw 6(a). So, Mx. Jongema did not require written permission to remove it.

42.   However, I find Mx. Jongema did require advance written permission to replace the Poly B pipes. I find that removing the water pipes and replacing them with a different type of pipes is an alteration or addition, for the purposes of bylaw 6(a). The evidence indicates that the Poly B pipes were installed by the owner developer when SLX was built. Section 9.1(1) of the Strata Property Regulation defines “fixtures” as “items attached to a building, including…electrical and plumbing fixtures”. Based on the photos in evidence, I find the water pipes were attached to the building, and so are fixtures which required written permission to replace. Since Mx. Jongema did not obtain this permission, she breached bylaw 6(a).

Significant Unfairness

43.   Mx. Jongema argues, among other things, that it was significantly unfair for the strata to require written permission for the Poly B pipe alteration when the strata permitted other owners to make alterations without written permission.

44.   In Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, the BC Court of Appeal confirmed that significantly unfair actions are those that are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust, or inequitable. In applying this test, the owner or tenant’s reasonable expectations are a relevant factor but are not determinative. The use of the word “significant” means that the impugned conduct must go beyond mere prejudice or trifling unfairness. In applying this test, the owner or tenant’s reasonable expectations are a relevant factor, but are not determinative. 

45.   I find it was not significantly unfair for the strata to require Mx. Jongema to request written permission to change SLX’s pipes. The strata manager warned of this requirement when Mx. Jongema first raised the issue, and provided the necessary forms. Contrary to Mx. Jongema’s argument, I find the fact that she had a disagreement with the strata over liability for the concrete flooring did not change the bylaw 6(a) requirement for written permission for the pipe replacement.

46.   While Mx. Jongema asserts that other owners have performed work without written permission, I find this is unproven. She mentions other Poly B pipe replacements, and an AC unit, but there is no evidence confirming that this work occurred, and that no written permission was obtained. Mx. Jongema notes that the previous SLX owner installed the flooring concrete without written permission, but as explained above, that work did not fall within the categories of work requiring written permission under bylaw 6(a).

47.   For these reasons, I find it was not significantly unfair for the strata to require written permission for the SLX pipe replacement.

Remedies

48.   As remedy for the bylaw 6(a) breach, the strata requests an order that Mx. Jongema allow 2 strata council members and the strata’s chosen contractor to inspect SLX to determine what alterations were made, and obtain a report from a licensed structural engineer confirming no structural damage to SLX.

49.   There is no evidence before me suggesting any potential structural damage to SLX or other parts of the strata. So, I find it would be unreasonable to order an engineering report. However, the evidence shows Mx. Jongema refused to allow the strata to inspect SLX. Bylaw 8 says, among other things, that an owner must allow a person authorized by the strata to enter a strata lot at a reasonable time, on 48 hours’ written notice, to inspect parts of the strata lot the strata is required to insure under SPA section 149, and to ensure compliance with bylaws.

50.   Based on bylaw 8, and the fact that Mx. Jongema altered SLX without written permission, I order her to permit 2 strata council members and a contractor to enter and inspect SLX. The strata may set the time and duration of the inspection, and must give Mx. Jongema 48 hours’ written notice. The strata may select the individuals who will attend the inspection.

51.   The strata also requests an order that Mx. Jongema sign and follow an agreement to take responsibility for any expenses relating to the alterations, or alternatively return SLX to its prior condition. I find it would be unreasonable, and likely contrary to the Building Code, to order Mx. Jongema to re-install Poly B pipes. However, bylaw 6(a) permits the strata to require an alteration agreement as a condition of its consent to alterations, and the work occurred without strata consent. So, I find it is reasonable to order Mx. Jongema to sign and follow the indemnity agreement uploaded as evidence in this dispute, titled “Example Indemnity Agreement”.

52.   Finally, the strata requests an order that Mx. Jongema pay $3,400 in fines for her breach of bylaw 6(a). I find the strata is not entitled to payment, because it did not meet the procedural requirements of SPA section 135.

53.   Specifically, SPA section 135(2) says the strata must give the owner written notice of its decision to impose fines “as soon as feasible”. The evidence before me shows that while the strata warned Mx. Jongema about potential fines on June 22, 2022, it did not send the letter informing her that fines had been imposed until September 23, 2022. In that letter, SL wrote that fines of $200 per week had been imposed, staring on July 21, 2022.

54.   I find that this letter does not meet SPA section 135(2) requirements. The 3 month delay between the strata’s letters is unexplained, particularly since the June 22, 2022 letter gave Mx. Jongema only 14 days to respond. Also, 2 months elapsed between the time the fines were imposed and the time Mx. Jongema was notified of the fines. I find this does not meet the SPA section 135 requirement for notice “as soon as feasible”. In Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449, the BC Court of Appeal said SPA section 135 must be strictly followed, or fines will be invalid.

55.   Based on Terry, I find the fines for the bylaw 6(a) breach are invalid because the strata did not give notice as soon as feasible, as required under SPA section 135. So, I dismiss the strata’s claim for payment.

Must Mx. Jongema pay fines for breaches of the strata’s noise bylaw?

56.   Bylaw 3(a) says, in part, that an owner must not use a strata lot in a way that causes unreasonable noise. The strata says the construction in SLX caused unreasonable noise, in breach of bylaw 3(a). As remedy, the strata requests payment of $1,200 in bylaw fines.

57.   I find it is not necessary to determine whether Mx. Jongema breached bylaw 3(a), because I find the strata did not meet the SPA section 135 requirements in imposing the fines.

58.   SPA section 135 says the strata may not fine a person before providing written particulars of the complaint. In paragraph 28 of Terry, the court said a person being fined must be given particulars sufficient to call the person’s attention to the contravention at issue.

59.   I find that none of the strata’s warning letters specifically say when the alleged noise violations occurred. In a September 8, 2022 letter, SL wrote that the strata council had decided to impose 6 fines of $200 each. However, the letter does not clearly say what the fines are for, or when the alleged bylaw violations took place. The strata lot account ledger shows that the $1,200 in fines was for “Noise 6 x”, but that information is not stated in any letter, and it is unclear when Mx. Jongema received a copy of the ledger. So, I find the strata did not provide sufficient particulars for the purpose of SPA section 135.

60.   Also, even if the strata had given sufficient particulars, incidents of nuisance are not continuous or continuing contraventions when observed on different dates: The Owners v. Grabarczyk, 2006 BCSC 1960. So, in order to impose a series of fines for repeated noise incidents, the strata must provide notice for each fine: see Grabarczyk at paragraphs 43-44. The strata did not provide notice for each noise bylaw fine, and did not say on which dates the 6 noise violations allegedly occurred. So, I find the fines for bylaw 3(a) breaches are invalid, and I dismiss the strata’s claim for payment.

CRT FEES AND EXPENSES

61.   Mx. Jongema was unsuccessful in this dispute, and the strata was partially successful. Under the CRTA and the CRT’s rules I find the strata is entitled to reimbursement of half its CRT fees, which equals $62.50. Neither party claimed dispute-related expenses, so I order none.

62.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to Mx. Jongema.

ORDERS

63.   I order that:

a.    Mx. Jongema must sign and follow the “Example Indemnity Agreement” provided as evidence in this dispute.

b.    Mx. Jongema must permit 2 strata council members and a contractor to enter and inspect SLX. The strata may set the time and duration of the inspection, and must give Mx. Jongema 48 hours’ written notice. The strata may select the individuals who will attend the inspection.

c.    Within 30 days of this decision, Mx. Jongema must reimburse the strata $62.50 for CRT fees.

64.   I dismiss the strata’s remaining counterclaims. I dismiss Mx. Jongema’s claims.

65.   The strata is entitled to postjudgment interest under the Court Order Interest Act, as applicable.

66.   Under CRTA section 57, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under CRTA section 58, 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.