Date Issued: October 19, 2023

File: ST-2022-002561

Type: Strata

Civil Resolution Tribunal

Indexed as: Rowbotham v. The Owners, Strata Plan VIS5996, 2023 BCCRT 890

Between:

DANNY BERTRAND ROWBOTHAM

Applicant

And:

The Owners, Strata Plan VIS5596

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr, Vice Chair

INTRODUCTION

1.      This dispute is about meeting procedure. Danny Bertrand Rowbotham owns a strata lot in the strata corporation, The Owners, Strata Plan VIS5596 (strata). Mr. Rowbotham alleges that the vote for the 2022 budget was illegitimate because the meeting chair declared the vote had passed without allowing anyone to vote against it. He claims $4,000, which he says is the additional amount he had to pay the strata under the illegitimate budget. He also asks for an order that the strata hold a special general meeting (SGM) to revote on the 2022 budget. Finally, he wants an order that the strata acknowledge it intentionally acted on the 2022 budget when it knew the budget was invalid. Mr. Rowbotham is self-represented.

2.      The strata says that the 2022 budget passed with a majority of voters in favour at a properly convened annual general meeting (AGM), as required by the Strata Property Act (SPA). The strata says its bylaws allow owners to request a precise count, but no one at the AGM did so, including Mr. Rowbotham. So, the strata says the chair’s declaration that the budget passed is determinative. The strata asks me to dismiss Mr. Rowbotham’s claims. It is represented by a council member.

3.      Mr. Rowbotham brought a Civil Resolution Tribunal (CRT) small claims dispute against the Otter Bay Owners Corporation (OBOC), which leases the strata’s land and subleases it back to owners. That dispute contains similar allegations about OBOC’s voting process at an AGM. I have issued a separate decision for that dispute as it involves different parties.

JURISDICTION AND PROCEDURE

4.     These are the CRT’s formal written reasons. 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.

5.     The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, 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.

6.     The CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in court.

7.     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.

ISSUES

8.      The issues in this dispute are:

a.    Was the strata required to allow owners to vote against the 2022 budget after it had determined that a majority of eligible voters approved it?

b.    If so, what remedy is appropriate, if any?

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, Mr. Rowbotham as the applicant must prove his claims on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

10.   The strata consists of 33 strata lots. It was created in 2006. Mr. Rowbotham has co-owned his strata lot since 2008.

11.   The strata has filed several bylaw amendments in the Land Title Office since it was created. None of the bylaws filed at the time of the 2021 AGM changed the Standard Bylaw 27, which is about voting at general meetings, other than the numbering. Standard Bylaw 27(2) (the strata’s bylaw 27(3)) says that voting at an AGM is decided on a show of voting cards, unless an eligible voter requests a precise count. The next bylaw says that the meeting chair decides how to conduct the precise count. The next bylaw says that the chair must announce the outcome of each vote, but only needs to announce the number of votes for and against if a precise count is requested. Neither the Standard Bylaws nor the strata’s filed bylaws at the time explicitly say anything about whether the chair may announce the outcome of a vote after counting the yes votes.

12.   I note that in March 2022, the owners passed new bylaws governing electronic general meetings and voting. Since the 2021 AGM took place before this, I find that these new bylaws do not apply to Mr. Rowbotham’s claim.

13.   The 2021 AGM was held on November 28, 2021, via Zoom. The meeting minutes are not before me, but the relevant events are undisputed. The strata council president chaired the meeting with the strata’s manager acting as a moderator. The first substantive order of business was the budget. There was a discussion, and then the president called the vote. After counting the yes votes, the strata manager advised the president that a majority had been reached, so the president declared the budget had passed. The president then moved onto the next item in the agenda.

14.   Mr. Rowbotham says that he twice privately messaged the president on Zoom asking that the vote be completed. He wanted the opportunity to vote against the budget, even though the vote would only have symbolic value. The president said in a later email that they did not notice Mr. Rowbotham’s messages because they were not monitoring their direct messages on Zoom. In the AGM notice the strata provided before the AGM, owners were directed to message the strata manager during the meeting with any issues.

15.   The day after the 2021 AGM, Mr. Rowbotham emailed the president about the vote for the budget. He said that the strata manager should have called for votes against the budget and abstentions. He said that this meant that some owners were deprived of an opportunity to participate. Mr. Rowbotham did not allege that the strata manager’s vote count was inaccurate and does not allege that here. The next day, the president emailed Mr. Rowbotham that the strata believed the vote was properly conducted.

16.   Mr. Rowbotham alleges that the strata’s failure to call for the no votes breached the SPA, the strata’s bylaws, and Robert’s Rules of Order. While neither the SPA nor the strata’s bylaws say anything about calling for no votes after a resolution has received enough yes votes to pass, I agree that the right to vote on resolutions includes the right to vote against a resolution that would pass anyway. Some owners may attach symbolic or principled importance to the recording of their no vote, as Mr. Rowbotham clearly does.

17.   The question is whether this technical breach warrants invalidating the budget and paying Mr. Rowbotham damages. Mr. Rowbotham characterizes the strata’s breach as significant, arguing that failing to allow no votes undermined the strata’s democratic function. He suggests that owners will lose faith in the strata if it puts outcomes ahead of procedural integrity. He also argues that allowing the budget vote to stand would be the first step in a gradual erosion of proper strata governance.

18.   I disagree that the strata’s breach is as meaningful as Mr. Rowbotham suggests. The purpose of robust and transparent procedures is to ensure fair and democratic results. The procedure is not an end in itself. Unlike issues of inadequate notice, for example, it is obvious here that the procedural breach had no impact on the vote’s outcome. The CRT will generally not intervene where a voting issue has clearly not impacted the vote’s outcome. See, for example, Marsh v. The Owners, Strata Plan 2006, 2023 BCCRT 777. In other words, I find that the strata’s breach was purely technical. I find that the impact on Mr. Rowbotham’s voting rights was minimal and inconsequential.

19.   In Abdoh v. The Owners, Strata Plan KAS2003, 2014 BCCA 270, the BC Court of Appeal said at paragraph 24 that the courts are not bound to enforce strict compliance with statues or bylaws when the contravention is trifling or when remedying the contravention would be harsh or pedantic. I find those principles apply here. I find that it would be unreasonable to force the strata to revote on the budget. General meetings take time for volunteer strata council members to set up. To the extent that Mr. Rowbotham wanted an opportunity to formally register his disapproval of the 2021 budget, this decision makes that clear. In any event, those present at the 2021 could see his lack of support for the budget because he did not raise his hand to vote yes. I also note that there is a risk that a revote would lead to a different result or include different voters, undermining the democratic choice of the owners who attended and voted at the 2021 AGM.

20.   Also, the 2022 fiscal year has come and gone. The strata has collected strata fees and paid expenses under that budget. Invalidating it would be pointless. This is because if Mr. Rowbotham is entitled to a refund, the other owners are too. Since each owner would have to contribute to those refunds, the outcome would be a net-zero result for everyone. The CRT has declined to invalidate budgets in similar circumstances. See Primeau v. The Owners, Strata Plan VR 141, 2023 BCCRT 523.

21.   For these reasons, I dismiss Mr. Rowbotham’s claims about invalidating the 2021 budget and paying Mr. Rowbotham damages. Given my conclusion, I find it unnecessary to address the parties’ arguments about Robert’s Rules of Order or Mr. Rowbotham’s claimed damages.

22.   Mr. Rowbotham also wants an order that the strata acknowledge it intentionally acted on the 2022 budget knowing the budget was invalid. While I have found that the strata should have provided an opportunity for dissenting owners to vote, the evidence does not support this allegation. I find that the strata relied on the 2021 budget vote in good faith. I find that there is no evidence that the strata intentionally ignored the SPA’s requirements. I dismiss this claim.

TRIBUNAL FEES AND EXPENSES

23.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. While Mr. Rowbotham was partially successful in his legal argument, I find that he was substantially unsuccessful given the remedies he requested. In the circumstances, I dismiss his claim for CRT fees and dispute-related expenses. The strata did not claim any dispute-related expenses.

24.   The strata must comply with the provisions in section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Rowbotham.

 

DECISION AND ORDER

25.   I dismiss Mr. Rowbotham’s claims, and this dispute.