Date Issued: May 25, 2023

File: ST-2022-004309
ST-CC-2022-007537

Type: Strata

Civil Resolution Tribunal

Indexed as: Kates v. The Owners, Strata Plan VAS2844, 2023 BCCRT 435

Between:

ANNE KATES

Applicant

And:

The Owners, Strata Plan VAS2844

Respondent

And:

ANNE KATES

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Eric Regehr, Vice Chair

INTRODUCTION

1.      Anne Kates owns 2 strata lots in the strata corporation, The Owners, Strata Plan VAS2844 (strata). The strata underwent a substantial building envelope remediation project between 2019 and 2021. I will refer to it as the BERP, as the parties have done. Mrs. Kates claims that the strata failed to restore her strata lots to their original condition after the BERP was complete, which she says was significantly unfair. Mrs. Kates initially asked for 2 orders: that the strata restore her strata lots to their pre-BERP condition and that the strata reimburse her $50,000 for expenses incurred repairing the damage. In submissions, Mrs. Kates says she has incurred or expects to incur $16,228.19 in expenses. I address the individual aspects of her claim below.

2.      The strata says that its engineers informed all owners before the BERP started that there would be exceptions to what would be restored after work was complete. The strata specifically says that it would not restore owner modifications, and that Mrs. Kates had made several such modifications. In general, the strata says it fulfilled its obligation to restore Mrs. Kates’s strata lots after the BERP, and asks me to dismiss her claims.

3.      The strata also counterclaims against Mrs. Kates for additional engineering costs it says it incurred because Mrs. Kates made unreasonable demands after the BERP was complete. The strata says it incurred an additional $23,973 in engineering costs, but in submissions reduced its claim to $15,000. Mrs. Kates asks me to dismiss the strata’s counterclaim. Mrs. Kates says that the strata mischaracterizes her actions as obstructive, when in fact she was simply protecting her property rights. In any event, she says there is no legal basis for the strata’s counterclaim.

4.      Mrs. Kates is represented by her daughter. A strata council member represents the strata.

JURISDICTION AND PROCEDURE

5.     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). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

6.     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 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.

7.     The CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

8.     Under section 123 of the CRTA and the CRT rules, in resolving this dispute the tribunal 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.

The Strata’s Counterclaim Submissions

9.     In its initial counterclaim submissions, the strata indicated that it had asked CRT staff to pause the submission process for the counterclaim until the arguments for the main claim were complete. It appears from the strata’s submissions that the CRT’s online portal for the strata’s counterclaim submissions closed before the CRT addressed this request. In other words, the strata did not make any substantive initial submissions. Instead, the strata made detailed submissions in reply, which it said were “sufficient”. I take this to mean that the strata was ultimately satisfied with its opportunity to make submissions about its counterclaim.

10.  In these circumstances, I agree with Mrs. Kates that it would be procedurally unfair for me to make a decision against her in the counterclaim without giving her an opportunity to respond to the strata’s reply submissions. However, since I have found in Mrs. Kates’s favour in the counterclaim, I find that there was ultimately no prejudice to her.

Strata’s New Claim      

11.  In its counterclaim reply submissions, the strata asked for an order that Mrs. Kates hire an electrician to repair alleged Building Code violations. The strata did not ask for this order in its Dispute Notice. The purpose of the Dispute Notice is to define issues and provide fair notice to the other party of the claims against them. I find that it would be procedurally unfair to Mrs. Kates for me to consider this new claim, as she did not have a reasonable opportunity to address it. So, I decline to address this new claim as I find it is not properly before me.

ISSUES

12.   The issues in this dispute are:

a.    Must the strata pay for any of the claimed repairs to SL2 and SL3?

b.    Must Mrs. Kates reimburse the strata for any engineering expenses?

BACKGROUND

13.  In a civil claim such as this, Mrs. Kates as the applicant must prove her case on a balance of probabilities, which means more likely than not. The strata must prove its counterclaim to the same standard. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

14.  The strata was created in 1990 and comprises 17 strata lots in a 7-story building. The strata filed consolidated bylaws in the Land Title Office on June 23, 2004. Bylaw 3.1 requires owners to repair and maintain their strata lots and limited common property (LCP) except to the extent the strata has taken responsibility elsewhere in the bylaws. Bylaw 11.1(a) makes the strata responsible for repair and maintenance of undesignated common property, which mirrors section 72 of the SPA. Bylaw 11.1(c) and (d) make the strata responsible for LCP and strata lot repair and maintenance if, among other things, it involves the structure or exterior of the building, patios, and exterior doors and windows.

15.  Bylaw 7.1 requires owners to obtain written strata approval before altering their strata lot if certain criteria are met. Bylaw 7.2 says that the strata may require as a condition of its approval that the owner agree to take responsibility for expenses relating to the alteration, including any future costs. Bylaw 8.1 requires owners to obtain written strata approval before altering common property, including LCP. Bylaw 8.2 allows the strata to require the owner to agree, in writing, to be responsible for all present and future maintenance, repairs and replacements of the alteration.

16.  Mrs. Kates owns strata lots 2 and 3 (SL2 and SL3), which are both on the strata’s second floor. She bought SL3 in 1992 and SL2 in 2017. As shown on the excerpt from the strata plan below, SL2 and SL3 take up the entire back side of the strata building. Because of the strata property’s slope, SL2 and SL3 both have limited common property (LCP) patios (marked with a “P”) at the back of the building that are at ground level. There is a common property patio behind the LCP back patios, which is accessible from the LCP patios. Beyond the common property patio is a public laneway. As originally built, the short wall created by the jog in SL3’s outer boundary (the 1.87-meter wall at the planter shown below) had a window looking onto the common property planter area.

17.  The following background is undisputed. The strata describes its building as a typical “leaky Vancouver condo” with a history of persistent water ingress issues. In 2011, Mrs. Kates filed a Human Rights Tribunal (HRT) complaint related to mold in SL3. She has respiratory issues that made the mold a particular problem for her. The parties settled that complaint in May 2012, with the strata agreeing to remediate SL3, which included replacing the window along the short wall along the common property planter area. Mrs. Kates calls the area inside this wall her “kitchen nook”.

18.  During remediation, the parties agreed to replace this window with a sliding patio door. In February 2013, the parties entered into a written agreement about the kitchen nook door. Among other things, the parties agreed that the kitchen nook door was common property that the strata was responsible for repairing and maintaining. Since the installation of the kitchen nook door, Mrs. Kates has used the common property planter area as an extension of her LCP patio.

19.   Between 2014 and 2016, the strata attempted to raise funds to remediate the building envelope, but repeatedly failed to obtain the required ¾ majority vote to pass the proposed resolution. Eventually, the strata obtained a BC Supreme Court order allowing the BERP to proceed. The BERP started in 2018 and was complete in December 2020.

20.   Mrs. Kates started another HRT complaint about mold in 2017. The parties settled that dispute in June 2019. Again, these background facts are undisputed.

Mrs. Kates’s Individual Claims

21.   As mentioned above, Mrs. Kates claims that the strata failed to restore SL2, SL3, and adjacent common property to its pre-BERP state, which she says was significantly unfair. As mentioned above, she claimed $50,000 in the Dispute Notice, but in her submissions she reduced her monetary claim to $16,228.19, broken down as follows:

a.    $2,244.12 to re-install exterior lights and electrical outlets outside SL2 and SL3

b.    $3,187.45 to restore the kitchen nook

c.    $1,116.03 to repair cut data wires

d.    $9,680.59 to replace motorized blinds

22.   Mrs. Kates also asks for an order that the strata pay to replace the new kitchen nook sliding door with a swinging door as recommended by her engineer. She also asks for an order that the strata replace her other patio doors with ones with lockable screens and opening windows.

23.   The parties made submissions about other disagreements between them. However, I will not address anything in this decision that does not relate to a specific remedy.

EVIDENCE AND ANALYSIS

The Applicable Law

24.   Mrs. Kates relies primarily on the law of significant unfairness. The CRT has authority to make orders remedying a significantly unfair act or decision by a strata corporation under section 123(2) of the CRTA. This provision contains similar language to section 164 of the SPA, which allows the BC Supreme Court to make orders remedying significantly unfair acts or decisions. The court recently confirmed that the legal test for significant unfairness is the same for CRT disputes and court actions: Dolnik v. The Owners, Strata Plan LMS 1350, 2023 BCSC 113.

25.   In Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, the court 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” reflects the reality that when making discretionary decisions, strata corporations must balance the interests of the owners, which will sometimes conflict. In other words, discretionary decisions will sometimes negatively impact a certain owner or group of owners, but that alone does not make the decisions significantly unfair: Gentis v. The Owners, Strata Plan VR 368, 2003 BCSC 120.

26.   I find that section 72 of the SPA is also relevant to this dispute. As mentioned above, section 72 requires the strata to repair and maintain common property. Individual owners are not entitled to dictate how the strata will fulfill this obligation. The strata is held to a standard of reasonableness, not perfection. In assessing the strata’s decisions, the starting point is deference to the strata council. This is because the strata must often balance competing interests between owners. It is not the CRT’s role to second guess the strata’s decisions unless they are unreasonable. See Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784, The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363, and Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241.

27.   It is well-established that absent a bylaw, the strata is only responsible for repair and maintenance of a strata lot if the strata corporation has been negligent in its own repair and maintenance obligations. See John Campbell Law Corp. v. The Owners, Strata Plan No. 1350, 2001 BCSC 1342. In this dispute, the bylaws make the strata responsible only for certain aspects of repair and maintenance of a strata lot.

28.   Finally, I find that Mrs. Kates’s arguments about her medical conditions implicitly raise the issue of the strata’s compliance with the Human Rights Code (HRC). I note that the parties have been engaged in at least 2 HRT disputes, so I find they are aware of how the HRC applies to the strata. Section 8 of the HRC prohibits, among other things, discrimination based on a physical disability in the provision of any accommodation, service, or facility customarily available to the public. A strata corporation has a duty to accommodate occupants’ disabilities unless the accommodation would cause the strata undue hardship. See Konieczna v. Strata Plan NW2489, 2003 BCHRT 38.

29.   With that, I turn to Mrs. Kates’s individual claims.

The Exterior Lights and Outlets

30.   It is undisputed that in the spring or summer of 2019, the strata’s contractor removed the roof of SL2 and SL3’s sunrooms to erect scaffolding as part of the BERP. Mrs. Kates says that she only allowed this because the strata had promised to replace 3 exterior patio outlets, 2 exterior lights, and a camera. Mrs. Kates says that the strata backed out of this agreement. The strata says it agreed to allow Mrs. Kates to reinstall them at her own cost, and agreed only to alter the exterior cladding accordingly.

31.   I find that the parties’ email correspondence supports the strata’s account. On June 24, 2019, the strata council president at the time, CJ, emailed Mrs. Kates that the strata’s contractor had discovered wires running through exterior walls from SL3, which they said was not Building Code compliant. I infer that these wires were for the outlets, lights, and camera at issue. CJ said that Mrs. Kates would need to ensure that they were Building Code compliant at her cost.

32.   On July 3, 2019, CJ emailed Mrs. Kates that “council is fine” with Mrs. Kates re-installing Building Code compliant outlets outside SL2 and SL3 at her expense. The strata agreed to bear the cost of “adjusting the cladding to fit”. After several more emails, on September 27, 2019, CJ emailed Mrs. Kates expanding its approval to also include 2 lights and a camera.

33.   Mrs. Kates relies on this September 27 email as proof that the strata accepted responsibility for installing the outlets, lights, and camera. In that email, CJ confirmed that its contractor would “cover the costs to incorporate” the exterior electrical components “including cladding changes and all waterproofing requirements to pass inspection”. In the context of the parties’ past communication, I find that CJ’s approval was clearly limited to the costs associated with adjusting the building’s cladding to accommodate the exterior electrical components, not the items themselves and not any reinstallation costs.

34.   Mrs. Kates relies on the law of significant unfairness. She says that she had an objectively reasonable expectation that the strata would bear the cost of replacing the exterior components because it had explicitly agreed to do so. I have found that the strata made no such agreement. Further, bylaw 8.1 allows owners to alter common property with permission but allows the strata to insist that the owner bears the cost of doing so. I find that this is essentially what happened here. The strata approved Mrs. Kates’s request to alter the new common property cladding by installing new exterior components. The strata agreed to bear the cost of the changes to the cladding itself, but not any other associated work. I find that this is consistent with the discretion bylaw 8.1 gives the strata when considering common property alterations. I see nothing unreasonable or unfair about the strata’s application of this bylaw to Mrs. Kates. I dismiss this claim.

The Kitchen Nook and Telus Lines

35.   Mrs. Kates says that the strata never restored SL3’s kitchen nook to its original state. It is undisputed that the strata’s contractor removed baseboards, window trims, a wall, and 2 sconce lights during the BERP. While Mrs. Kates’s submissions are not entirely clear on the scope of this claim, based on the invoice she provided, I find that it has essentially 2 components. First, she says that the strata’s contractor cut electrical and data cables and never repaired them. Second, she says that even though the strata addressed some of her concerns, it never fully restored the kitchen nook.

36.   I will first address the parties’ disagreement about whether the strata had approved the pre-BERP alterations to the kitchen nook. The strata says that Mrs. Kates installed a wall, added a sconce light, and reconfigured electrical and data wiring all without approval. In reply, Mrs. Kates says that the strata approved a “kitchen alteration” in 2009 and that she signed an assumption of responsibility agreement about that work. However, she did not provide a copy of that agreement and, more importantly, did not explain what alterations it covered. Also, the strata says that it never would have approved the new wall and associated electrical and data wiring alterations because the wall was too close to the window. The strata says that the wall hindered the strata’s access to the window framing, which in turn impacted its ability to fulfill its repair and maintenance obligations. A photo in evidence confirms this. I find that the strata’s explanation about why it would not have approved the wall addition makes common sense, and I accept that it is likely true.

37.   Also on this point, the strata sent Mrs. Kates an email on September 19, 2022, committing to repairing any original data wiring damaged during the BERP. The strata asked Mrs. Kates to provide more information about the data lines she says were cut. The strata said that Mrs. Kates had claimed there was damage to 3 data ports in the kitchen nook even though SL3’s original construction only included 3 data ports in the entire strata lot. Mrs. Kates never responded. I find that if she had a signed agreement approving of these alterations, she would have provided it to the strata at this time, or as evidence in this dispute. I find it more likely than not that the alterations in the kitchen nook were unapproved.

38.   I turn then to the primary basis for this claim, which is Mrs. Kates allegation that CJ verbally promised to completely restore the kitchen nook. Mrs. Kates’s husband, WN, provided 2 signed statements that he overheard this conversation. Mrs. Kates says that she never would have agreed to any work in her kitchen nook without this agreement.

39.   The strata denies that CJ promised Mrs. Kates anything. The strata argues that WN’s statements are contradictory. I do not agree that they are. While they use slightly different language, they both essentially say that he overheard Mrs. Kates and CJ’s conversation. Notably, the strata did not provide a statement from CJ. While I acknowledge that WN is not a neutral witness, I find the weight of the evidence establishes that CJ did agree on the strata’s behalf that it would restore the kitchen nook. I find that Mrs. Kates insisting on an explicit agreement is consistent with her history with the strata, which was marked by distrust and conflict. I also rely on the fact that the work in the kitchen nook was not strictly necessary for the BERP, but instead made the strata’s contractor’s work easier. So, I find that Mrs. Kates would have had some leverage to extract a promise. The question is the scope of the parties’ agreement.

40.   On that point, while I accept that CJ made some sort of promise on the strata’s behalf, I am not persuaded that CJ promised unconditionally to restore the kitchen nook to an identical state. I say this for several reasons. First, Mrs. Kates misinterpreted the strata’s promise about the exterior electrical components despite it being clear that CJ’s promise was explicitly limited to the building cladding. This self-serving argument makes me skeptical of Mrs. Kates’s evidence about the terms of the strata’s agreement about the kitchen nook. Also, the alterations in the kitchen nook would have been obvious to CJ, and I find it unlikely he would have agreed to restore or repair them. I find that the strata did not agree to pay to replace or maintain unapproved alterations.

41.   Having reached that conclusion, I find that Mrs. Kates did not have a reasonable expectation that the strata would restore unapproved alterations to SL3’s kitchen nook. I find that there was nothing inequitable, harsh, or otherwise unfair about the strata limiting its restoration efforts to exclude unapproved alterations to SL3’s electrical and data wiring.

42.   As for the other repairs, the strata never disputed its obligation to restore original features after the BERP was complete. Mrs. Kates provided a July 8, 2022 Protouch Painting invoice which included charges for installing ceiling wood, installing valence and pot lights, repairing drywall, reinstalling baseboards, and doing associated caulking, sanding, and painting. The strata points out that Protouch Painting is Mrs. Kates’s son’s business, which Mrs. Kates admits. I agree with the strata that this makes the invoice less credible. More importantly, Mrs. Kates provided no objective evidence about the state of the kitchen nook after the strata’s contractor had completed its work. I note in the fall of 2021, Mrs. Kates’s lawyer sent the strata a deficiency list, but she did not provide that list in evidence. Overall, I find that Mrs. Kates has not proven that any of the strata’s restoration work was deficient. I dismiss this claim.

Kitchen Nook Door

43.   As mentioned above, before the BERP there was a sliding door leading out of the kitchen nook onto a common property planter area, which connects to SL3’s patio. It is undisputed that the strata replaced this sliding door as part of the BERP. Mrs. Kates has never been happy with the new sliding door. She says that it lacks a lockable security screen, its threshold is too high, and its opening is too narrow. As a result, Mrs. Kates says that she cannot get through the door with her walker.

44.   It is undisputed that the new door is not compliant with the current Building Code. According to an email from Jak McCuaig, the principal engineer for the BERP, it was functionally impossible to make the sliding door Building Code compliant because of the threshold’s height and the kitchen nook’s small size. However, Jak McCuaig said the Building Code allows for some deviation for renovations where compliance would be too onerous. On that basis, the City of Vancouver approved the new sliding door in early 2023 despite its non-compliance with the Building Code. I accept Jak McCuaig’s evidence as expert evidence, which Mrs. Kate does not dispute.

45.   Mrs. Kates provided an April 7, 2021 report about the kitchen nook door from engineer Michael Lemm of Busque Engineering. Michael Lemm identified 4 building code violations: the door opening size is too small, there is only one step up to the door’s threshold, there is no landing at the top of the stair, and the step over the threshold was too wide. Michael Lemm recommended replacing the sliding door with a swinging door, with some associated modifications. I accept Michael Lemm’s report as expert evidence, which the strata does not dispute. The strata has refused to pay to replace the existing sliding door with a swinging door.

46.   I find that the fact that the door does not comply with the current Building Code does not necessarily mean that the strata’s decisions were unreasonable. The strata relied on advice from its engineer about how to reconstruct the sliding door. In general, strata corporations are entitled to rely on advice from professionals, given that strata councils are made up of lay volunteers who are not expected to have expertise in building construction. See Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74. Also, the configuration ultimately passed a municipal inspection despite its noncompliance with the Building Code. The engineers and municipal inspector all seem to agree that there is little else that could have been done to make the sliding door better given the kitchen nook’s constraints. I find that the strata made a reasonable decision given the information and advice it had received.

47.   That leaves the sliding door’s opening width, which I accept has a specific impact on Mrs. Kates due to her walker use. It is undisputed that Mrs. Kates’s walker does not fit through the new sliding door. The strata disputes that Mrs. Kates would ever use the kitchen nook door with a walker because of nearby stairs, but Mrs. Kates says that she uses the walker for respiratory issues, not balance or mobility, and has no difficulty navigating short stairs with it. With that, I accept her evidence that she would use the kitchen nook door if the walker fit through the sliding door.

48.   I find that this argument engages the strata’s obligation to accommodate Mrs. Kates’s disability under the HRC. However, I find that Mrs. Kates has not proven an adverse impact that gives rise to a duty to accommodate. I say this because the kitchen nook door is not the only door to Mrs. Kates’s patio. The evidence establishes that Mrs. Kates has another patio door a few meters away from the kitchen nook door, which leads to the same outdoor area. This is not a case like recent HRT cases Jacobson v. Strata Plan SP1773 (No. 2), 2020 BCHRT 170, or Testar v. The Owners, Strata Plan VR 1097, 2022 BCHRT 70. In those cases, the disabled strata lot owners were essentially trapped in their strata lots because of the configuration of strata property. Here, I find that Mrs. Kates has established nothing more than a minor inconvenience in how she accesses her outdoor area, which I find does not rise to the level of an adverse impact under the HRC. I therefore find that the strata has no duty to accommodate Mrs. Kates’s disability by ensuring she can use the kitchen nook door with her walker.

49.   For the same reasons, I find that the strata’s decisions about the door were not significantly unfair. Given the presence of other, accessible means to get onto the same patio area, I find that it was not burdensome or harsh for the strata to decline to replace the sliding door with a swinging door.

50.   I dismiss Mrs. Kates’s claim about the kitchen nook sliding door.

Skylight Blinds

51.   Mrs. Kates provided a November 2, 2021 estimate from Designer’s Resource Centre for $9,680.59 to install new blinds. Mrs. Kates claims this amount, but she provides little explanation for this claim. Her submissions focus on her allegation that the strata’s contractor cut one blind’s electric motor, but she explicitly does not seek damages for that act.

52.   Mrs. Kates relies on bylaw 11(d)(iv), which makes the strata responsible for skylights even if they are part of a strata lot. I do not agree that this bylaw applies to electronic blind systems, which I find are not part of the skylights themselves. Instead, I find that they are fixtures that Mrs. Kates installed within her strata lot. I find that the strata’s bylaws place the obligation on Mrs. Kates to repair and maintain her blinds, including skylight blinds.

53.   Mrs. Kates also says that it was significantly unfair for the strata to fail to replace her “skylight system”. She does not explain what that “system” included or what happened to it. I infer that it was necessary to remove blinds when the strata’s contractor replaced windows and skylights. The strata effectively acknowledges that Mrs. Kates will have to replace her skylights’ blinds because it says that the new skylights are a different size than the old ones. However, Mrs. Kates says that they are the same size, without explaining why then she needs new blinds.

54.   The CRT has consistently held that when a strata corporation intentionally damages a strata lot in carrying out its repair and maintenance obligations, it will be responsible for repairing the strata lot. See, for example, Manak v. The Owners, Strata Plan KAS 2116, 2020 BCCRT 567. While I agree with that general principle, I find it has Mrs. Kates has not proven that the strata destroyed her blinds. I dismiss this claim.

Patio Doors

55.   It is undisputed that as part of the BERP, the original patio doors in SL2 and SL3 were replaced. Mrs. Kates says that the strata failed to replace them with appropriate and comparable doors. In particular, she says that they lack a crucial component of her previous patio doors: lockable screens. She says that she has respiratory issues that require her strata lots to be well-ventilated, which the strata was aware of from their previous HRT disputes. So, she says she needs to be able to keep her patio doors open. And, because her patio doors are accessible from the public laneway, she says she needs lockable screens to keep her patio doors open safely.

56.   Mrs. Kates says that she told the strata to replace the patio doors with a slightly more expensive lockable version, but the strata refused. Again, because Mrs. Kates relies on her medical needs, I find that her argument engages the strata’s obligations under the HRC.

57.   However, I again find that Mrs. Kates has failed to prove that there is any adverse impact on her. First, as the strata points out, a simple security bar would allow Mrs. Kates to safely prop open her patio doors without risking intruders. I acknowledge that in her reply submissions, Mrs. Kates raises the possibility of rodents entering through a propped open, screenless door. However, she provided no evidence that rodents are a potential problem, so I find this concern speculative and unproven. I find that security bars would be an inexpensive and effective way for Mrs. Kates to prop her patio doors partially open for ventilation.

58.   Second, I find that the medical evidence before me does not support Mrs. Kates’s argument. She provided 2 letters from her doctors. The first is from her general practitioner 2016. It confirms that she needs “adequate” ventilation. The second is from a respiratory specialist in 2019. It suggests that it would be beneficial to “add additional ventilation” to SL3. However, these letters primarily focused on the presence of toxic mould in SL3, which was the underlying issue in both HRT disputes. There is no suggestion the mould is still present. There is no evidence that Mrs. Kates has a medical need for ventilation in the absence of toxic mould in her living space. There is also nothing in these letters to indicate what “adequate” ventilation is, and in particular, that adequate ventilation requires wide open patio doors. I therefore find that Mrs. Kates has not proven that the absence of lockable screen has an adverse impact on her.

59.   Mrs. Kates also argues that it was significantly unfair for the strata to install the patio doors she wanted because the penthouse owners got significant window upgrades at the strata’s expense. So, she says the strata’s treatment of her was inequitable and unjust. The strata acknowledges that there were significant cost overruns associated with the penthouses but says that these were because of an unanticipated issue that required moving structural beams. The strata says that the penthouse owners derived no benefit from these changes.

60.   Mrs. Kates provided no evidence to support her assertions about the penthouses’ new windows. I find it unproven that the strata gave any preferential treatment to the penthouse owners, or that the penthouse owners received any “upgrades” to their strata lots at the strata’s expense.

61.   I dismiss this claim.

The Strata’s Counterclaim

62.   It is undisputed that the BERP was substantially complete by the end of 2020, but that it did not receive final sign-off from the City until early 2023. It is also undisputed that the only substantive unresolved issue was the kitchen nook door. The strata says that $23,973 of its post-construction engineering costs are directly attributable to Mrs. Kates’s allegedly obstructive conduct and unreasonable demands about the kitchen nook door. As mentioned above, the strata reduced its claim in submissions to $15,000 “to end this matter with less animosity”.

63.   Mrs. Kates denies the strata’s characterization of her behaviour. She says that she did nothing more than vigorously defend her property rights as she saw them. However, she argues that even if she acted as the strata says she did, there is no legal basis for the strata to recover its engineering fees from her. She notes that the strata itself provided no legal basis for its claim.

64.   The CRT’s jurisdiction over strata property matters is restricted by the CRTA. Section 121 says that the CRT can only adjudicate claims “in respect of the SPA”. This means that the CRT has no authority under its strata property jurisdiction to consider common law or equitable claims. I note that the strata’s claim is well over the CRT’s $5,000 limit for small claims disputes. I will therefore only consider the strata’s claim under the SPA.

65.   The strata identified nothing in the SPA or its bylaws that would make Mrs. Kates responsible for the strata’s engineering costs. I find that there is nothing in the SPA or its regulations that could make Mrs. Kates responsible for the strata’s engineering costs, even if her conduct was unreasonable.

66.   It is possible that obstructing a strata contractor would be a breach of the strata’s bylaw 48(1), which says that owners must indemnify the strata “from the expense of any maintenance, repair or replacement rendered necessary to the common property as a consequence of the actions of the owners”. Section 133 of the SPA allows the strata to require owners to pay its reasonable costs to remedy a bylaw contravention. However, even assuming Mrs. Kates breached this bylaw, I find that the strata would not be successful in its counterclaim. This is because the strata failed to follow the SPA’s mandatory procedures under section 135 for recovering the costs of bylaw contraventions. When a strata corporation fails to strictly follow these procedures, it cannot enforce bylaw breaches. See Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449.

67.   Section 135 of the SPA requires the strata to give written notice of a bylaw complaint and a reasonable opportunity to respond to the complaint before requiring that owner to pay any costs of remedying the bylaw contravention. There is no evidence that the strata ever claimed its engineering costs from Mrs. Kates before starting its counterclaim. This means that it never notified Mrs. Kates that it had received a complaint about her conduct and never gave her an opportunity to respond. With that, I find it unnecessary to determine whether Mrs. Kates breached any bylaws because even if she did, the strata would not be able to recover its engineering costs.

68.   I dismiss the strata’s counterclaim.

TRIBUNAL FEES AND EXPENSES

69.   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. The parties were both unsuccessful in their claims, so I order no reimbursement of CRT fees or dispute-related expenses.

70.   The strata must comply with the provisions in section 189.4 of the SPA, which includes not charging dispute-related expenses against Mrs. Kates.

 

DECISION AND ORDERS

71.   I dismiss the parties’ claims, and this dispute.