Date Issued: September 20, 2023

File: ST-2022-009481

Type: Strata

Civil Resolution Tribunal

Indexed as: Clarke v. The Owners, Strata Plan LMS1257, 2023 BCCRT 799

Between:

JOHN RAYMOND CLARKE

Applicant

And:

The Owners, Strata Plan LMS1257

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This strata property dispute is about an owner’s request to install a heat pump on a balcony. The applicant, John Raymond Clarke, co-owns strata lot 27 (SL27) in the respondent strata corporation, The Owners, Strata Plan LMS1257 (strata).

2.      Mr. Clarke says that the strata unjustifiably withheld approval of his request to install the heat pump. He also says the cost of installing a heat pump has risen by $5,000 since his request. He seeks orders for the strata to provide him written permission for the installation plus $5,000 as compensation for expected increased costs and delay.

3.      The strata disagrees. It says it delayed approval in order to develop a comprehensive process for such requests. It says this is necessary given that heat pump installations affect the building envelope, total electrical draw for the building, and can create structural vibrations and noise. It also says that Mr. Clarke is free to use portable air conditions and fans in the meantime.

4.      Mr. Clarke represents himself. A strata council member represents the strata.

5.      For the reasons that follow, I dismiss Mr. Clarke’s claim.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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

10.   The issue in this dispute is whether the strata acted significantly unfairly when it denied Mr. Clarke’s request to install the heat pump, and if so, what remedies are appropriate.

BACKGROUND, EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Mr. Clarke as the applicant must prove his claims on a balance of probabilities. This means more likely than not. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision. Mr. Clarke provided no documentary evidence though he was given the opportunity to do so.

12.   A title search shows that Mr. Clarke became the co-owner of SL27 in September 2014. It is undisputed that he lives there with another family member.

13.   The strata filed a complete set of bylaws in the Land Title Office in June 2005. The strata filed subsequent amendments that I discuss below.

14.   As the name suggests, heat pumps transfer heat from one area to another. Mr. Clarke’s submissions focus on its ability to cool SL27. It is undisputed that the planned heat pump would affect the building envelope, which I find is common property (CP). See Browne et al. v. The Owners, Strata Plan 582, 2007 BCSC 206. So, I find bylaw 6, which is about CP, is relevant. It says that an owner must obtain the strata’s written approval before making an alteration to CP, including limited common property or common assets. Further, the strata will not approve the alteration unless the owner complies with bylaws 5(2), 5(3), and 5(4).

15.   Bylaw 5(2) says that the strata will not approve an alteration without certain listed documents. These include scaled plans and specifications, a list of materials and dates of commencement and completions for the alterations, true copies of all municipal or other governmental approvals and permits required for the alteration, a reasonable fee to cover the cost of reviewing the plans, and a security or damage deposit to be returned after the work is done.

16.   Bylaws 5(3) and 5(4) are about when the work can be carried out and indemnity conditions that favour the strata. They are not directly relevant to this dispute.

17.   The strata also filed bylaw 42 in July 2022. It adds requirements to the existing bylaws about approval of alterations to CP or strata lots for HVAC systems. The bylaw is lengthy, and I find it unnecessary to quote it here in full. I note for now that bylaw 42(3) contains a noise limit of 70 decibels for such systems. Bylaw 42(7) says that the owner must ensure that the building envelope is not adversely affected by the installation or penetration, the piping is not installed inside the walls unless permitted by council, the installation is painted to match the building exterior, and the exit duct is as close as possible to the strata lot.

18.   I mention these because they support the strata’s submission that owners have concerns about noise and effects on the building envelope from heat pump installations. I find this to be the case given that voters voted to adopt bylaw 42, as noted below.

19.   I now turn to the chronology. On December 15, 2021, Mr. Clarke emailed the strata council to have a mini-split heat pump installed in SL27. Mr. Clarke assured the strata that the contractor would meet all the bylaw requirements and he would provide documentation on request.

20.   The strata’s internal correspondence shows the following. In January 2022, it held a hearing with Mr. Clarke to seek further details about the proposed equipment and installation. Near the end of January 2022, the strata decided that it should not decide Mr. Clarke’s request until discussing the matter at the next annual general meeting (AGM). The strata asked its lawyer to draft a new indemnity agreement for such alteration requests. The lawyer provided it in May 2022.

21.   The June 16, 2022 AGM minutes show the following. The owners approved a ¾ vote resolution to add bylaw 42, noted above. After this, the strata did not directly decide Mr. Clarke’s request. Instead, it asked its lawyer to draft an indemnity agreement for alterations agreements under bylaw 42.

22.   The strata employs a strata manager. In July 2022, the strata manager emailed the strata council about some of their concerns. They advised that the strata should hire a contractor to install heat pumps or air conditioners for the entire building. It warned that allowing individual owners to do so would risk damage to the strata’s property.

23.   In July and August 2022, the strata emailed its lawyer for further legal advice about the conditions for approval of HVAC systems. The emailed advice was largely about ensuring that the strata did not approve an air conditioner or heat pump that was too noisy and could not be removed.

24.   On August 26, 2022, Mr. Clarke emailed the strata to verify if it had approved his request. The strata manager said the strata had not. They advised the strata needed to retain an engineer. Other documents, mentioned below, show that strata wished the engineer to develop HVAC installation recommendations for the building. The strata obtained a September 12, 2022 quote from Strata Engineering Inc. The starting fee was $3,450 and would increase with each strata lot reviewed.

25.   Internal correspondence indicates that the strata did not immediately hire the engineer as it lacked funds. In an October 10, 2022 letter, the strata told Mr. Clarke that his request was “on hold” pending further research. Mr. Clarke requested a hearing that the strata held on November 1, 2022. In a November 7, 2022 letter, the strata reiterated that his request was on hold.

26.   The strata held its next AGM on May 31, 2023. The owners passed a special resolution to spend up to $5,000 to hire an engineering company to, among other things, review feasible air conditioning options, prepare specific designs, and develop installation recommendations. The AGM notice says that at the time, only Mr. Clarke had requested installing a heat pump or air conditioner.

Did the strata act significantly unfairly when it denied Mr. Clarke’s request to install the heat pump?

27.   Mr. Clarke did not provide a specific legal basis for his claim. I find he relies on the law of significant unfairness. Section 123(2) of the CRTA gives the CRT the power to make an order directed at the strata, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights.

28.   Significantly unfair conduct must be more than mere prejudice or trifling unfairness. See Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. Significantly unfair means conduct that is oppressive or unfairly prejudicial. Oppressive is conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith, while prejudicial means conduct that is unjust and unequitable. See Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, aff’d 2003 BCCA 126.

29.   In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the BC Court of Appeal confirmed that an owner’s reasonable expectations continue to be relevant to determining whether the strata’s actions were significantly unfair.

30.   In considering an owner’s reasonable expectations the courts have applied the following test from Dollan:

a.    What was the owner’s expectation?

b.    Was the expectation objectively reasonable?

c.    Did the strata corporation violate that expectation with a significantly unfair action or decision?

31.   I note that in some strata corporations, the bylaws specify that the strata must not unreasonably withhold approval for alterations to a strata lot or CP. The filed bylaws in this dispute lack such language. The CRT has held that in such situations, the strata has authority under the bylaws to unreasonably withhold its permission to allow alterations to CP, so long as the decision is not significantly unfair. See, for example, the non-binding decision of MacPhee v. The Owners, Strata Plan LMS 2476, 2022 BCCRT 1128. I agree with this reasoning. So, I find that strata has considerable discretion to approve or deny Mr. Clarke’s request.

32.   I now turn to the test. I find that Mr. Clarke’s expectation was for the strata to approve his request under bylaw 6. I say this because bylaw 42 did not exist at the time of this request, and bylaw 42 adds further conditions without removing any.

33.   I find that Mr. Clarke ‘s expectation was unreasonable. Bylaw 6 and 5(2) obligate Mr. Clarke to provide documents about the heat pump. The strata says it is concerned that the installation could affect the building envelope, the total electrical draw for the building, and create structural vibrations. On its face, I find the strata’s concerns are reasonable and would likely be addressed by the documents outlined in the bylaws.

34.   As noted earlier, Mr. Clarke did not provide any evidence in this dispute. The strata provided little evidence about Mr. Clarke’s planned heat pump. For example, it uploaded a copy of a partial diagram Mr. Clarke sent it on September 1, 2022. I find it does not address the strata’s concerns and has essentially no evidentiary value. From my review of the correspondence, I find it unlikely Mr. Clarke sent the strata much more. And, as noted earlier, Mr. Clarke bears the burden to prove his claim.

35.   Given the lack of evidence, I find it unproven that the strata’s reasonable concerns could be addressed by the planned heat pump. I find Mr. Clarke’s expectation of approval was not objectively reasonable. I find this sufficient to dismiss Mr. Clarke’s claim. However, I find that even if Mr. Clarke’s expectation was reasonable, I would still conclude the strata did not act in a significantly unfair manner for the reasons that follow.

36.   First, the strata did not approve any other requests for heat pumps or air conditioners. So, there is no indication that the strata treated Mr. Clarke’s request any differently than others.

37.   Second, Mr. Clarke says he and a family member both live in SL27, and both are in their mid-seventies. He says they use multiple fans and portable air conditioners for cooling. He says this creates tripping hazards. I find this submission unpersuasive for several reasons.

38.   Mr. Clarke did not allege that the strata failed to reasonably accommodate any disability under the Human Rights Code. I note that in any event, proving a disability requires medical evidence. See Levesque v. Moodie and Kicking Horse Village Mobile Home Park (No. 2), 2005 BCHRT 120. Mr. Clarke did not provide any evidence of a disability, such as a medical diagnosis. As to the presence of tripping hazards, there is no evidence, such as photos, to support this submission. There is no evidence that the portable air conditioners and fans are insufficient to reasonably cool SL27.

39.   Third, I find the strata’s actions show it acted in good faith. These actions include, as noted earlier, adding bylaw 42 through an owner vote, consulting its lawyer and strata manager, and obtaining owner approval to hire an engineer. The internal correspondence also shows the strata council members attempted to grapple with the issues without animosity towards Mr. Clarke. While I would not characterize this process as speedy, I find the strata consistently made incremental progress in how to handle HVAC alteration requests.

40.   Finally, as noted above, I have found that the strata has considerable discretion in this matter. Given this discretion, and given that it continues to explore the matter, I find that the strata could deny or withhold permission without acting in a significantly unfair manner.

41.   In summary, I find that Mr. Clarke’s expectation was unreasonable and that in any event, the strata did not act in a signficantly unfair manner. I dismiss Mr. Clarke’s claim of significant unfairness, including his request for orders for written permission to install the heat pump and $5,000 as compensation for delay.

42.   I note that several CRT decisions have held that heat pumps and air conditioners can be a significant change that require approval by a ¾ vote under section 71 of the Strata Property Act (SPA). See for example, Matthews v. The Owners, Strata Plan BCS 3063, 2023 BCCRT 631 citing several cases at paragraph 35. As I have dismissed Mr. Clarke’s claim for other reasons, I find it unnecessary to make any findings about this.

CRT FEES AND EXPENSES

43.   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. I dismiss Mr. Clarke’s claim for reimbursement of CRT fees. The parties did not claim any specific dispute-related expenses.

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

ORDER

45.   I dismiss Mr. Clarke’s claims and this dispute.