Date Issued: August 3, 2023

File: ST-2022-007861

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan KAS 1261 v. Malko, 2023 BCCRT 652

Between:

The Owners, Strata Plan KAS 1261

Applicant

And:

DAVID MALKO

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.      This strata property dispute is about bylaw fines.

2.      The respondent, David Malko (owner), co-owns strata lot 2 (SL2) in the applicant strata corporation, The Owners, Strata Plan KAS 1261 (strata).

3.      The owner is self-represented in this dispute. The strata is represented by a strata council member.

4.      The strata says the owner has not paid bylaw fines for 8 different bylaw breaches. The strata requests an order that the owner pay $800 in fines.

5.      The owner says his tenant denied all the alleged bylaw breaches, but the owner believes the allegations to be true. He says he warned the tenant that they would be evicted if they did not follow strata bylaws.

6.      For the reasons set out below, I dismiss the strata’s claim.

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). 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.

8.      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 I can 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 an oral hearing is not necessary in the interests of justice and fairness.

9.      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.

10.   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.

ISSUE

11.   Must the owner pay bylaw fines, and if so, how much?

REASONS AND ANALYSIS

12.   In a civil claim like this one, the strata, as applicant, must prove its claims on a balance of probabilities (meaning “more likely than not”).

13.   The owner was given opportunities to provide evidence and submissions in this dispute, but did not do so. I have read all the strata’s evidence and submissions, but below I only refer to what is necessary to explain my decision.

14.   The parties agree that at the time of the alleged bylaw breaches, SL2 was rented to tenants. The strata says there were numerous complaints about the tenants’ bylaw breaches, but it only imposed fines for 3 breaches in 2021, and for an additional 5 breaches in 2022. The strata says these fines were never paid. I accept this as true because there is no evidence otherwise.

15.   Strata Property Act (SPA) section 130(1) says a strata corporation may fine an owner for their own bylaw breaches, or breaches by the owner’s visitors or guests, or a breach by an occupant if there is no tenant. However, if the strata lot is rented to a tenant, the strata may not fine an owner or landlord for the tenant’s breaches. Rather, if the strata lot is rented, the strata may fine the tenant for the tenant’s bylaw breaches, but cannot fine the owner or landlord directly.

16.   SPA section 131(1) says if the strata fines a tenant, the strata may collect the fine from the tenant, the landlord, or the owner of the strata lot. But based on SPA section 130(1), the strata must first impose the fine on the tenant.

17.   As noted above, at the time of the alleged bylaw breaches, SL2 was rented to tenants. However, the correspondence in evidence shows that the strata fined the owner, not the tenants. The strata provided copies of all the letters imposing fines on the owner’s strata lot account. None of these letters indicated that the strata had fined tenants first. There is also no other correspondence in evidence showing that the tenants were ever fined. Rather, each of the letters specifies that the fine was “assessed to” the owner’s strata lot account.

18.   Based on this correspondence, I find the strata imposed the bylaw fines on the owner, and did not fine the tenants.

19.   Since SPA section 130(1) says the strata was not entitled to fine the owner directly for his tenants’ alleged bylaw breaches, I find the fines are invalid.

20.   The owner did not argue the strata did not comply with SPA section 130. However, I find I must decide whether the strata met those requirements to determine the validity of the bylaw fines. Before doing so, I considered seeking submissions from the strata on the question of SPA section 130. Procedural fairness generally requires that parties be made aware of the issues a decision-maker is considering and be given a fair opportunity to be heard on material issues (see Williams v. British Columbia (Civil Resolution Tribunal), 2023 BCSC 239). What is required to ensure the principles of procedural fairness are met in any particular situation varies according to the context (see Nova-BioRubber Green Technologies Inc. v. Investment Agricultural Foundation British Columbia, 2022 BCCA 247).

21.   Here, I find I did not need to seek an additional submission from the strata. First, SPA section 130 is mandatory, and a strata is simply not entitled to fine an owner directly for a tenant’s bylaw violations. Section 130 is not complex. Second, I find it clear from the strata’s correspondence that it fined the owner directly, rather than fining the tenant and then collecting the fine from the owner. Third, parties are instructed during the CRT’s facilitation phase to provide all relevant evidence. Fourth, proportionality considerations weigh against seeking the strata’s position on this point given the fines’ relatively low amounts. In these circumstances, I find it is procedurally fair todecide this dispute without seeking an additional submission from strata.

22.   I dismiss the strata’s claim for payment of bylaw fines.

CRT FEES AND EXPENSES

23.   Under CRTA section 49 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 owner is the successful party. He paid no CRT fees and claims no dispute-related expenses, so I award no reimbursement.

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

ORDER

25.   I dismiss the strata’s claim and this dispute.