Date Issued: July 21, 2023

File: ST-2022-004686

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Section 3 of The Owners, Strata Plan NW 2406 v. The Owners, Strata Plan NW 2406, 2023 BCCRT 608

Between:

Section 3 of The Owners, Strata Plan NW 2406

Applicant

And:

The Owners, Strata Plan NW 2406, Section 1 of The Owners, Strata Plan NW 2406 and Section 2 of The Owners, Strata Plan NW 2406

RespondentS

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.      This is a strata property dispute about the allocation of expenses in a strata corporation with separate sections.

2.      The applicant, Section 3 of The Owners, Strata Plan NW 2406 (commercial section) is a separate section comprised of the only non-residential strata lots, strata lots 26 (SL26) and 32 (SL32), in the respondent strata corporation, The Owners, Strata Plan NW 2406 (strata). The strata is comprised of 3 separate sections as defined under the Strata Property Act (SPA). The respondent, Section 1 of The Owners, Strata Plan NW 2406 (apartment section), is comprised of all of the apartment-style strata lots in the strata. The respondent, Section 2 of The Owners, Strata Plan NW 2406 (townhouse section), is comprised of all of the townhouse-style strata lots in the strata.

3.      Trinden Enterprises Ltd. (Trinden) owns strata lots 26 and 32. I infer the commercial section is represented by a section executive member who is also associated with Trinden. The strata is represented by a strata council member. The apartment section and townhouse section are not represented and did not provide Dispute Reponses, evidence or submissions. Technically, the 2 sections are in default as I discuss below.

4.      The commercial section says the strata council has wrongfully apportioned certain expenses to it of about $25,000, contrary to SPA section 195 and bylaw 13. The commercial section identified a list of expenses it says are dated between September 2019 and November 2022, and seeks an order that an independent 3^rd party review the disputed expenses and apportion them correctly.

5.      The strata denies the commercial section’s allegations and says it has complied with the SPA and its bylaws. The strata asks that the commercial sections’ claims be dismissed.

6.      For the reasons that follow, I refuse to resolve the commercial section’s claims and this dispute.

JURISDICTION AND PROCEDURE

7.      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.

8.      The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, email, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

9.      Under CRTA section 10, the CRT must refuse to resolve a claim or dispute that it considers is not within its jurisdiction.

10.   CRTA sections 11(1)(a) and (b) say, in part, that the CRT may refuse to resolve a claim or dispute within its jurisdiction if it considers the claim or dispute would be more appropriately resolved through another legally binding process, or if request for resolution does not disclosure a reasonable claim.

11.   Under CRTA section 61, the CRT may make any order or give any direction in relation to a CRT proceeding it thinks necessary to achieve the objects of the CRT in accordance with its mandate. In particular, the CRT may make such an order on its own initiative, on request by a party, or on recommendation by a case manager.

12.   Under section 123 of the CRTA and the CRT rules, 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.

 

 

Preliminary Matters

Sections 1 and 2 of the Strata

13.   As noted, the apartment section and townhouse section did not provide submissions or evidence and are technically in default. CRT rule 4.3(1) says that a party in default is generally presumed to be liable. However, at my request, CRT staff sought and obtained confirmation from the strata that the apartment and townhouse sections had adopted its submissions. Given this, I accept the strata’s submissions are also submissions of the 2 remaining section respondents and I decline to presume liability against the apartment or townhouse sections.

Additional Claims and Remedies

14.   In its submissions, the commercial section appears to add a number of claims and remedies. These include that the strata should return the alleged mis-apportioned money to the commercial section with interest, including funds spent on the elevators and hydro expenses discussed below. The commercial section also asks that the general ledger provided with monthly financial statements include relevant details for each journal entry, rather than simply stating “as per council”. The commercial section also submits it has not been able to elect a representative to the strata council, which has severely limited its ability to participate in the strata’s operation. Finally, both parties made submissions about income splitting from a rooftop lease between the strata and Telus, and other income generated from the rental of property within the strata.

15.   The purpose of the Dispute Notice is to define the issues and provide fair notice to the respondents of the claims against them. Procedural fairness requires that a party be notified of claims against it and have a fair opportunity to respond. Given the Dispute Notice was not amended, I find the additional claims and remedies are not properly before me and that it would be procedurally unfair for me to consider them. Therefore, I decline to consider any of the commercial section’s claims or remedies that were not included in the Dispute Notice.

Previous CRT Decision

16.   The commercial section refers to a prior CRT decision indexed as Trinden Enterprises Ltd. v. The Owners, Strata Plan NW 2406, 2020 BCCRT 807, where I ordered disclosure of certain documents, which the commercial section says have not been provided. I find the commercial section’s arguments about the lack of document production amount to enforcement of the order set out in 2020 BCCRT 807, which is outside the CRT’s jurisdiction. Part 6 of CRTA only permits enforcement of strata property disputes through the courts, so I decline to address it.

Commercial Section Reply Submissions and Requested Remedy

17.   By email to CRT staff, the strata objected to the commercial section’s final reply submissions stating the submissions included misinformation. I reviewed the strata’s objections and instructed CRT staff to provide the commercial section with a copy of the email. I decided not to obtain further submissions from the commercial section because I find the objections are not relevant to the substantive issue in this dispute, which is whether the CRT should order a third party to determine the apportionment of the disputed expenses.

18.   As noted, the commercial section does not ask the CRT to resolve its expense dispute with the strata. Rather it seeks an order that a third party be appointed to resolve the expense dispute. I considered if the parties were unclear on the CRT’s jurisdiction to resolve the expense dispute. Through CRT staff, I requested additional submissions on that matter, including whether the CRT should directly resolve the disputed expenses, which the parties provided.

19.   The commercial section submits the CRT has jurisdiction but maintains its request for the appointment of an independent third party to determine the proper apportionment of the disputed expenses. The strata submits the CRT does not have jurisdiction to apportion the expenses but does not state why. I find CRTA section 121(1)(a) clearly gives the CRT jurisdiction over a claim concerning the interpretation of the SPA, regulation, bylaw or rule, which includes how section expenses are apportioned. I note the CRT has adjudicated these types of claims in the past. See for example, Section 1 of The Owners, Strata Plan EPS1069 v. The Owners, Strata Plan EPS1069, 2022 BCCRT 89, Section 1 of The Owners, Strata Plan BCS 3495 v. The Owners, Strata Plan BCS 3495, 2021 BCCRT 1020, and Trinden.

20.   However, from the parties’ additional submissions, I find they do not want the CRT to adjudicate the disputed expenses. Therefore, I must determine if it is appropriate to order a third party to determine the apportionment of the disputed expenses.

ISSUE

21.   The sole issue in this dispute is whether the CRT should order a third party to determine the apportionment of the disputed expenses.

BACKGROUND, EVIDENCE AND ANALYSIS

22.   In a civil proceeding such as this, the applicant commercial section must prove its claims on a balance of probabilities. I have considered all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.

23.   The strata was created in June 1986 under the Condominium Act (CA) and continues to exist under the SPA. It consists of 128 strata lots in 3 buildings.

24.   On June 9, 2003, the strata filed bylaws at the Land Title Office (LTO) that repealed and replaced all previous bylaw amendments, the bylaws under Part 5 of the CA and I infer the Standard Bylaws under the SPA. Other bylaw amendments have also been filed at the LTO. On my review of the filed bylaws, there are none that are relevant to the issue in this dispute.

25.   I note that the parties refer to the strata as a “joint section” and strata expenses as “joint section expenses”. There is no such entity under the SPA or in the bylaws. In a strata corporation with sections, a strata corporation retains its powers and duties in matters of common interest to all the owners, while each section has the same powers and duties as the strata corporation, limited to matters that relate solely to the section: see SPA section 194. Therefore, I will not refer to the “joint section” in my decision, but will instead refer to the strata.

Should the CRT order a third party to determine the apportionment of the disputed expenses.

26.   I have considered the commercial section’s requested remedy. I find it unusual given the CRT has jurisdiction to determine how expenses should be apportioned in a strata with sections as I have noted. I find the commercial section has effectively chosen not to use the CRT’s resources for that determination, even though it was given an opportunity to do so. Instead, it asks for an order that the strata, and the other sections in the strata, be ordered to participate in another binding dispute resolution process outside the CRT. While the claim about how expenses have been apportioned appears reasonable, I find the requested resolution is both unreasonable and outside the CRT’s jurisdiction.

27.   CRTA section 121 sets out the CRT’s jurisdiction for strata property claims. I find it does not include ordering parties to participate in binding dispute resolution. So, on this basis, I refuse to resolve the commercial sections’ claims and this dispute under CRTA section 10, as noted earlier.

28.   Finally, I note the commercial section seeks a remedy that is likely already available to it under SPA sections 175 through 189. Those SPA provisions set out a mandatory arbitration process that results in a binding decision, provided a separate section has standing (legal authority) to commence such an arbitration.

FEES AND EXPENSES

29.   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 find the strata is the successful party in this dispute, but paid no CRT fees. I make no order for CRT fees.

30.   The commercial section claims $103.95 in dispute-related expenses but was not successful. The strata did not claim dispute-related expenses, so I order none.

DECISION

31.   I refuse to resolve the commercial section’s claims and this dispute under CRTA section 10.