Date Issued: October 30, 2023
Files: ST-2022-007499
and ST-2022-007500
Type: Strata
Civil Resolution Tribunal
Indexed as: Therrien Investments Ltd. v. The Owners, Strata Plan VIS 7041,
2023 BCCRT 931
Between:
THERRIEN INVESTMENTS LTD.
Applicant
And:
The Owners, Strata Plan VIS 7041
Respondent
REASONS FOR DECISION |
|
Tribunal Member: |
Nav Shukla |
INTRODUCTION
1. This decision is about 2 strata property disputes brought by the applicant, Therrien Investments Ltd. (Therrien). Therrien owns a commercial strata lot (SL1) in the respondent strata corporation, The Owners, Strata Plan VIS 7041 (strata). Since the 2 disputes involve the same parties, I have issued a single decision for both disputes.
2. In dispute ST-2022-007499, Therrien says the strata has unreasonably refused to approve its request to install an automatic door opener on one of SL1’s exterior doors. It seeks an order that the strata “approve installation of the requested automatic door opener”.
3. The strata says it has approved Therrien’s alteration request subject to the condition that Therrien provide a signed indemnity agreement, which it says Therrien has failed to sign. The strata says it has acted reasonably, in good faith, and in the best interests of the strata at all times.
4. In dispute ST-2022-007500, Therrien says the strata has acted significantly unfairly in refusing to allow it access to certain common property areas such as rooftop patios, bicycle storage facilities, elevators, areas where equipment servicing the businesses located in SL1 is located, and limited common property (LCP) parking stalls. It seeks an order that the strata provide keys and fobs to access the requested common property. Therrien further says the strata has enacted the Common Property Access Rule (CPA rule) which is in breach of the Strata Property Act (SPA) and the strata’s bylaws. It seeks an order that this rule be repealed.
5. The strata says that it has the right to restrict access to common property under the SPA and says it has not been significantly unfair to Therrien. The strata further says that the CPA rule is valid and enforceable.
6. In both disputes, Therrien is represented by its principal, Sylvia Therrien, and a strata council member represents the strata.
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). 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. The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Based on the evidence and submissions provided, I am satisfied that I can fairly decide these disputes without an oral hearing.
9. The CRT may accept as evidence information that it considers relevant, necessary and appropriate, even where the information would not be admissible in court.
10. Under CRTA section 123, in resolving these disputes 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.
ISSUES
11. The issues in these disputes are:
a. Has the strata acted contrary to its bylaws or significantly unfairly in refusing to provide Therrien written approval for its alteration request?
b. Is the CPA rule valid and enforceable?
c. Has the strata acted significantly unfairly in restricting Therrien’s access to certain common property areas?
EVIDENCE AND ANALYSIS
12. As the applicant in these civil proceedings, Therrien must prove its claims on a balance of probabilities (meaning more likely than not). While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.
Background
13. The strata plan in evidence shows the strata has 42 strata lots in 2 buildings, the Cook building, and the Sutlej building. SL1 is located in the Cook building and is the only commercial strata lot. The remaining strata lots are residential. SL1 is undisputedly divided into 5 commercial premises, each of which is tenanted. Mother Nature’s Market is the tenant of the portion of SL1 that is at issue in dispute ST-2022-007499.
14. The strata registered a complete set of the bylaws in the Land Title Office in July 2015. There are registered amendments, but I find the amendments are not relevant to these disputes. I discuss the relevant bylaws below.
ST-2022-007499
15. I turn first to dispute ST-2022-007499, starting with the relevant facts. In July 2022, Therrien asked the strata council for approval to install an automatic door opener on an exterior door to make Mother Nature’s Market’s store more accessible for its customers. At its August 17, 2022 meeting, the strata council approved the alteration subject to Therrien completing a “satisfactory alteration agreement”. The meeting minutes note that the strata would send Therrien “this form” for completion and the strata council would promptly review it upon its return.
16. In its August 18, 2022 letter, the strata council president, NG, informed Therrien of the strata council’s decision to conditionally approve the alteration and stated that the strata council agrees that “disabled access is important”. NG asked Therrien to complete the “Alteration Request form” that had already been sent to it so that “it will be clear exactly what is being asked for and what is involved in installing the device.”
17. On August 19, 2022, Ms. Therrien returned the signed document back to the strata manager. On August 25, 2022, Ms. Therrien followed up asking when Therrien could expect confirmation to move forward, and the strata manager replied that the strata council was waiting to hear back from its lawyer. Then, on August 27, 2022, NG emailed Ms. Therrien, thanking her for providing the request for alteration and attached a “final agreement” drafted by the strata’s lawyer. On August 31, 2022, Ms. Therrien said that she had reviewed the “2nd Alteration Agreement” and advised that Therrien did not agree to it. Therrien objected to, among other things, the strata’s inclusion of a term that Therrien be responsible for the legal costs the strata incurred in drafting the agreement. On September 1, 2022, after NG asked Ms. Therrien what specific terms Therrien objected to in the agreement, Ms. Therrien took the position that Therrien had already signed and provided an indemnity agreement on August 19, 2022. She further said that Therrien took issue with anything in the new agreement that was not specifically provide for in the bylaws.
18. Despite various discussions, the parties have ultimately been unable to agree on the terms of the August 27 alteration agreement. So, Therrien has brought dispute SC-2022-007499 seeking an order that the strata approve Therrien’s request to install the automatic door opener.
19. I turn now to the relevant bylaws. Bylaw 6(1) requires an owner to obtain the strata’s written approval before making an alteration to a strata lot that involves doors on the exterior of a building. Bylaw 6(2) says, in part, that the strata must not unreasonably withhold its approval under bylaw 6(1) but may require as a condition of its approval that an owner agree, in writing, to take responsibility for current and future expenses relating to the alteration.
20. Bylaw 7(1) says an owner must obtain the strata’s written approval before making an alteration to common property. Under bylaw 7(2), the strata may require as conditions of its approval, that an owner agree in writing to take responsibility for current and future expenses relating to the alteration. Lastly, bylaw 40 says the strata, strata council, and strata lot owners must not do anything to restrict or impair the use or operation of any business located in SL1.
Has the strata been unreasonable or significantly unfair in withholding written approval for Therrien to install the automatic door opener?
21. Therrien argues that the document it signed and returned on August 19, 2022, was an indemnity agreement that satisfies the strata’s conditional approval. It further says that the strata has no authority to require legal fees be reimbursed by an owner for the preparation of an indemnity agreement as the bylaws do not allow for it. Therrien says that since it has already provided a signed indemnity agreement, the strata is unreasonably withholding approval under bylaw 6 and the strata’s refusal to provide the written approval is also in breach of bylaw 40.
22. The document Therrien signed on August 19, 2022, is titled “Indemnity Agreement for Strata Lot and Common Property Alterations” and includes both a request for the strata council to approve Therrien’s proposed alteration and various terms that Therrien agreed to if the strata council approved the request. In particular, Therrien agreed to indemnify the strata from and against all costs, damage, loss, claims, among other things, resulting from or relating to the alteration. The document included a further term that said by submitting “this proposal” Therrien agreed “to be bound by all terms set out in the agreement and the Bylaws”.
23. The strata says, in essence, that while the document’s title suggests it is an agreement, it in fact considered the document to be an alteration request form that it intended to rely on to decide what form of alteration agreement would be appropriate. However, the strata’s subjective intentions or beliefs about whether it thought the document was a request form or an agreement are not relevant here. Rather, the question is whether an objective bystander, knowing the material facts, would believe the parties entered into a binding indemnity agreement (see Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2009 BCSC 1303, at paragraphs 322 to 325). Here, I find an objective bystander knowing that the strata had already approved the alteration request, subject to Therrien completing a satisfactory alteration agreement, would believe that the document Therrien signed on August 19, 2022, was the form of agreement that the strata found satisfactory and not an alteration request form as the strata asserts. The meeting minutes did not list any other conditions that Therrien must satisfy before the strata would provide its written approval. So, by signing the August 19, 2022 document, I find Therrien satisfied the strata’s requirement for a satisfactory alteration agreement.
24. The question then is whether the strata acted unreasonably or significantly unfairly in insisting that Therrien sign the 2nd alteration agreement it provided on August 27, 2022, before it would provide written approval for the alteration. I pause here to note that the strata is only required to acted reasonably for alterations to strata lots under bylaw 6(2). Bylaw 7 that applies to common property alterations contains no similar requirement.
25. The strata says that the proposed alteration is an alteration to common property so bylaw 7 applies, meaning that it does not need to be reasonable in refusing to provide approval. However, it says it has not unreasonably withheld approval in any event.
26. As noted above, the proposed alteration is to add an automatic door opener to an exterior door. SPA section 1 defines common property as including the part of a building that is not a part of a strata lot. The strata plan does not indicate that any exterior doors are part of SL1. So, I find the exterior door at issue here is common property (see Berke et al v. The Owners, Strata Plan NW 962, 2018 BCCRT 539 and Herr v. The Owners, Strata Plan KAS 1824, 2020 BCCRT 496 where the tribunal members in those decisions came to similar conclusions).
27. Therrien described the proposed alteration in the August 19 agreement as requiring a wireless push button to be fastened to the store’s front window’s frame, a header to be surface mounted inside the strata lot with screws penetrating the inside layer to the aluminum on the top of the door frame, and the arm assembly being mounted with screws through the inside layer of the aluminum at the top of the door. Based on this description and my finding above that the exterior door is common property, I find Therrien’s proposed alteration involves both common property and SL1. This means that bylaws 6 and 7 both apply. Since the automatic door opener cannot be installed without also making alterations to common property, I find the strata has authority under bylaw 7 to unreasonably withhold its approval, so long as the decision is not significantly unfair.
28. Under CRTA section 123(2), the CRT has jurisdiction to remedy a significantly unfair action or decision by a strata corporation. The court has the same authority under SPA section 164, and the same legal test applies (see Dolnik v. The Owners, Strata Plan LMS 1350, 2023 BCSC 113).
29. In Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, the BC Court of Appeal established a reasonable expectations test, restated in The Owners, Strata Plan BCS 1721 v. Watson, 2017 BCSC 763 at paragraph 28 as follows:
a. What was the owner’s expectation?
b. Was that expectation objectively reasonable?
c. If so, was that expectation violated by an action that was significantly unfair?
30. 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.
31. Therrien says that it reasonably expected the strata would approve its alteration request after it completed the August 19 agreement because this is the standard form alteration agreement the strata had used in the past. I find this expectation was objectively reasonable in the circumstances, especially since the strata provided no indication at anytime before providing this document to Therrien that it did not consider this document to be a “satisfactory alteration agreement” and was going to have its lawyer draft a new document.
32. I find that by insisting that Therrien sign a different and more onerous alteration agreement once Therrien had already signed the August 19 agreement, the strata’s actions were wrongful, since it already had a binding agreement, and lacking in fair dealing. It left Therrien in the inequitable position of either having to sign the more onerous 2nd alteration agreement or not obtain the strata’s written approval for an alteration that the strata explicitly agreed was an important alteration to make to ensure equal accessibility to Mother Nature’s Market’s store to all members of the general public.
33. For those reasons, I find the strata acted significantly unfairly by failing to provide its written approval for the alteration after Therrien signed the August 19 agreement.
34. Since I have found that Therrien has satisfied the requirements of the strata’s conditional approval by signing the August 19 agreement, which is binding, I find the appropriate remedy here is to order the strata to provide written approval to Therrien for the automatic door opener alteration.
ST-2022-007500
35. I turn now to dispute ST-2022-007500, starting first with the relevant background facts. As noted above, the strata is made up of 2 buildings. The Cook building and the Sutlej building are connected by an underground level that includes parking, storage, and mechanical rooms. The parking garage has an overhead gate that is open for public access during the day but may only be opened by fob access between 9 pm and 8 am. The strata plan in evidence shows several LCP parking stalls designated for SL1’s exclusive use located in the underground parking garage. The Cook building residents and the Sutlej building residents also have LCP parking stalls designated for their exclusive use, located behind separate overhead gates that are only accessible with fob access.
36. The evidence shows that since May 2022, Therrien has requested that the strata program fobs for its 2 principals and SL1’s 5 commercial tenants to access various common property areas. At first, Therrien restricted its request for it and its commercial tenants to be able to access the Cook building’s residents’ underground parking area so that SL1’s tenants can access equipment that is located there that Therrien says is “ancillary to the equipment within the businesses”. However, Therrien later requested access to all common property areas at the strata.
37. In an October 26, 2022 letter from the strata’s lawyer, the strata said that Therrien and its tenants were not entitled to unfettered access to common property. The letter said that the strata council was not denying access to any common property that is required for purposes related to SL1. The letter further indicated that the strata council had decided to approve the CPA rule.
38. At its February 1, 2023 meeting, the strata council passed the CPA rule. Under the CPA rule, an owner, tenant, occupant or visitor of a commercial strata lot must not, without prior written approval, access common property or common assets that are not related to the commercial strata lot’s use and occupancy, including but not limited to the buildings’ common property hallways that are not accessible to the public, the buildings’ common property rooftop areas, the buildings’ residents’ parking area, and the buildings’ residents’ bicycle locker.
39. The CPA rule also restricts the residential owners from accessing, without prior written approval, the common property hallways and rooftop area in the building they do not reside in. The Cook building residents also must not access the Sutlej buildings’ residents parking area.
Is the CPA rule valid?
40. SPA section 125(1) says that a strata corporation may make rules governing the use, safety, and condition of its common property and common assets. Bylaw 38(1) says each owner will comply with the rules established by the strata council which govern the use and enjoyment of common property.
41. Therrien alleges the CPA rule is invalid for a number of reasons. It argues that since SPA section 66 says that strata lot owners collectively own common property as tenants in common, all owners should have access to all common property. It further says that the CPA rule modifies the easement set out in SPA section 69 that gives each strata lot a right of entry to inspect facilities used in connection with the strata lot’s use and enjoyment. It says that the strata is restricting it and its tenants’ access to the Cook building’s residents’ parking area where refrigeration and heating/cooling equipment that is ancillary to SL1’s businesses is located, contrary to the SPA section 69 easement. So, it says the CPA rule is unenforceable under SPA sections 125(2) 121(1)(b).
42. The strata refers to the BC Court of Appeal’s decision in Nomani v. Strata Plan LMS 3837, 2008 BCCA 236 where the court held that the implied easement in SPA section 69 does not permit “an owner to claim free access to all common property” (see paragraph 26). In Nomani, the court stated that the rights granted by an easement are limited by what is reasonably required to permit the benefit granted without imposing an undue burden on the common property. In other words, the section 69 easement does not necessarily equal an unfettered right of access to common property. The strata also refers to the non-binding but persuasive decision of Creasy v. The Owners, Strata Plan BCS 4064, 2020 BCCRT 724, where a CRT vice chair considered whether a strata corporation is entitled to limit access to common property. In Creasy, the vice chair found that a strata corporation’s responsibility to manage common property under SPA section 72 includes providing or restricting access to it. So, the vice chair found that since the strata corporation was not expressly prohibited from restricting access to common property, it had the discretion to address common property access as it saw fit, subject to SPA section 71 (see paragraph 43). Based on Nomani and Creasy, I find Therrien is not entitled to free access to all common property at the strata and that the strata has the ability to restrict access to common property, for example, by implementing rules such as the CPA rule, as part of its duty to maintain common property under SPA section 72, so long as it does so lawfully.
43. Therrien argues that the CPA rule’s restrictions are not lawful because they are a significant change under SPA section 71. SPA section 71 says the strata must not make a significant change in the use or appearance of common property unless the change is approved by a 3⁄4 vote resolution or there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage. Since there was undisputedly no 3⁄4 resolution by the owners to change the use of common property as set out in the CPA rule, Therrien says the CPA rule is invalid and unenforceable.
44. Here, I find the CPA rule does not constitute a significant change for the following reasons. First, I find the evidence shows that neither SL1 nor the other owners previously had unfettered access to all of the common property areas now restricted by the CPA rule. Second, the CPA rule only restricts access to the extent that the access is not related to SL1’s use and occupancy and there is no evidence before me that Therrien was previously entitled to unfettered access unrelated to SL1’s use and occupancy. Further, and most notably, the CPA rule does not deny access altogether but rather only requires that SL1’s owner and tenants first obtain written approval before accessing common property and common assets that are unrelated to SL1’s use and occupancy. In other words, the CPA rule does not contain an absolute denial of access and instead still allows SL1’s owner and tenants to seek access to common property areas that they do not currently have access to. So, while the CPA rule imposes a change to the extent that written approval is first required, I find there is ultimately no significant change to the actual use of common property.
45. Next, Therrien refers to SPA section 125(5) which says that if a strata rule conflicts with a bylaw, the bylaw prevails. Therrien says that the CPA rule conflicts with bylaw 38(2). The relevant part of bylaw 38(2) says that all “common facilities” are for owners’, occupants’ and their accompanying guests’ use only. The term “common facilities” is not defined in the bylaws and the parties disagree about what the term encompasses. Therrien argues “common facilities” include things like the rooftop patios. I find I do not need to decide what the term was meant to include because I find no conflict between bylaw 38(2) and the CPA rule in any event. This is because, contrary to Therrien’s assertion, I do not find that bylaw 38(2) gives all owners, occupants and guests unfettered access to the “common facilities”. Rather, I find that bylaw 38(2)’s use of the word “only” means that common facilities are not meant to be used by anyone other than owners, occupants and guests. For example, owners and occupants cannot rent out the common facilities to others. Further, I agree with the strata that bylaw 38(1) recognizes that an owner’s use of common property can be limited by a rule. If the effect of bylaw 38(2) was such that the strata could not make rules about who could access common property (which presumably includes “common facilities”), bylaw 38(1) would serve little purpose.
46. In conclusion I find that Therrien is not entitled to unfettered access to all common property areas at the strata. I further find the CPA rule is valid and consistent with SPA section 125(1).
47. While I have found that Therrien does not have the right to unfettered access to common property, in its submissions, Therrien sets out specific common property areas where it says it is being denied access and being treated significantly unfairly by the strata. I address each of these areas in turn below.
SL1 Underground LCP Parking Stalls
48. As noted above, Therrien has several LCP parking stalls located in the strata’s underground parkade. It says, and I find the evidence shows, that it and its tenants previously had fobs programmed to allow them to access the SL1 underground LCP parking stalls between 9 pm and 8 am. However, Therrien has recently discovered that its fobs no longer allow access to the underground parking stalls when the overhead gate is closed and that some if its tenants’ fobs do not allow access to the Sutlej elevator which is needed to access the LCP parking stalls. Emails in evidence show that on March 22, 2023, Therrien asked the strata to reprogram the fobs to allow it and its tenants to be able to access the underground parking stalls between 9 pm and 8 am, but the strata refused.
49. The strata says that Therrien and the commercial tenants do not need to access the SL1 underground LCP parking stalls during the time the overhead gate is closed since SL1 also has external LCP parking designated for its exclusive use. However, it is undisputed that all other strata lot owners have 24-hour access to the area where the SL1 LCP parking stalls are located and that the fobs provided to Therrien and its tenants previously allowed access to this area between 9 pm and 8 am. I find Therrien’s expectation that it and its tenants continue to be allowed access to its underground LCP parking stalls is reasonable. While the strata refers to safety and security reasons for generally restricting access to common property, other than saying that Therrien and its tenants have outside LCP parking stalls that it can use instead of the underground LCP stalls, the strata has provided no reason to justify why Therrien and its tenants should be denied access to their underground LCP parking stalls. There is no evidence before me that allowing Therrien and its tenants 24-hour access to the SL1 LCP parking stalls would pose a safety or security risk. Further, I agree with the tribunal member’s non-binding but persuasive findings in The Owners, Strata Plan NES3135 v. T.R.F. Enterprises Ltd., 2021 BCCRT 271 at paragraph 51 that a strata corporation’s obligation to manage common property for the benefit of the owners does not mean that it can arbitrarily refuse to allow an owner or tenant to make reasonable use of common property. Given all other owners have access to their LCP parking stalls 24 hours a day and since Therrien and its tenants’ fobs also previously allowed the same access to SL1’s underground LCP parking stalls, I find the strata’s denial to program fobs that allow Therrien and its commercial tenants access to the SL1 underground LCP parking stalls to be arbitrary. I find this denial is also unjust and inequitable, and thus significantly unfair. So, I find it appropriate to order the strata to program 2 fobs for Therrien’s principals and 5 fobs for the SL1 tenants (one for each commercial tenant), as requested by Therrien, to allow 24 hour access to the SL1 underground LCP parking stalls. This includes access to any elevators or staircases, in addition to the overhead gate, as necessary for proper access to the SL1 LCP parking stalls.
50. Next, in its submissions, Therrien appears to seek an order that the strata provide it with 15 additional fobs with access to the SL1 underground LCP parking stall on the basis that it is entitled to lease out the parking stalls under the bylaws. The evidence shows that on April 5, 2023, the strata’s lawyer emailed Ms. Therrien about Therrien’s request for more fobs and asked her to answer various questions related to Therrien’s request. On April 13, 2023, Ms. Therrien said that Therrien did not intend to “rent out 17 parking stalls” and that she was unsure where that information came from. The strata says that it technically has not denied Therrien any additional fobs and that Therrien’s claim with respect to additional fobs is premature. I agree, especially given Ms. Therrien’s assertion that Therrien did not intend to “rent out 17 parking stalls”. While the evidence shows Therrien now intends to rent out at least 1 parking stall, it has not specifically asked the strata for a fob for that prospective tenant. On balance, I find it unproven that the strata has denied Therrien’s request for additional fobs and so I find it has not breached any bylaws or acted significantly unfairly.
Condensing Units and Refrigeration Equipment
51. Therrien says there are condensing units located in the Cook building residents’ parking area that are “ancillary to the equipment within the businesses operating in SL1”. In Therrien Investments Ltd. v. The Owners, Strata Plan VIS7041, 2022 BCCRT 538 (Therrien 2022), Therrien brought a CRT dispute seeking an order that the strata repair and maintain these condensing units because they were common property. The strata took the position that the condensing units were common assets that it could dispose of under SPA section 82(2) and so did not need to repair or maintain them as it was considering disposing them. In that decision, the tribunal member found it was unnecessary to decide whether the condensing units were common property or common assets because, either way, the strata was required to repair and maintain them under SPA section 72. However, the tribunal member did not order the strata to do any repairs and maintenance because Therrien did not show that the condensing units had fallen into disrepair.
52. Since Therrien 2022, the strata has located a May 16, 2013 indemnity agreement between the strata and SL1’s court appointed receiver at that time. Based on this indemnity agreement, I find that the receiver had asked the strata for approval to carry out common property alterations and agreed to be responsible for all costs relating to the alterations, including their repair and maintenance. The alterations appear to include the condensing units at issue here. The receiver also agreed to notify any subsequent SL1 purchasers that the repair and maintenance of the alterations was to be SL1’s owner’s responsibility.
53. As discussed above, bylaw 7 allows the strata to require an owner to sign an agreement taking responsibility for current and future expenses relating to an alteration as a condition of approval for alterations to common property. In addition, under SPA section 59(3)(c), a strata corporation must disclose to a prospective buyer, through a Form B Information Certificate, any agreements under which the owner takes responsibility for expenses relating to the common property, among other things. I agree with the non-binding but persuasive findings of the CRT tribunal member in The Owners, Strata Plan NW 2476 v. Jensen, 2023 BCCRT 623 at paragraph 21 that the combined effect of SPA section 59(3)(c) and a bylaw like bylaw 7 is that a purchaser may become a party to an indemnity agreement about common property as long as the indemnity agreement is properly disclosed on a Form B Information Certificate and includes language about binding future owners.
54. There is no evidence before me that the May 16, 2013 indemnity agreement was disclosed on a Form B Information Certificate at the time Therrien purchased SL1, nor is there any evidence that Therrien has otherwise agreed to be responsible for the condensing units. So, on the evidence before me and for the purposes of this decision, as the condensing units were undisputedly alterations to common property and do not form a part of SL1, I find the condensing units remain the strata’s responsibility to repair and maintain.
55. Therrien says that it is not seeking to repair or maintain the condensing units but rather that it requires access to the condensing units because the condensing units are ancillary to the equipment within the businesses operating SL1.
56. Therrien relies on a letter from KK, the owner of a company that services HVAC equipment located in SL1. In this letter, KK says that during the course of their duties, they will need access to the condensing units serving the air handlers mounted in the SL1 businesses “purely for troubleshooting purposes”. It is unclear what work would be required for these “troubleshooting purposes”. However, I infer such work would likely involve the condensing units which are the strata’s responsibility to repair and maintain. Under the circumstances, I find it reasonable for the strata to restrict Therrien’s access to the condensing units and consider granting access on a case by case basis. This will allow the strata to properly consider any request bearing in mind its duty to maintain and repair the condensing units. As there is no evidence before me that Therrien requires access to the condensing units for any purpose at this time, I find it unnecessary to make any orders with respect to this.
57. Therrien also seeks access to the Cook building’s residents’ parking area where it says a portion of some refrigeration equipment servicing one of its tenants, Poke Fresh, is mounted to the ceiling. It says Poke Fresh requires access to that equipment for regular servicing and in case of emergency. An email statement from JB, the owner of Triton Heating and Cooling who services the heating and cooling services for Poke Fresh, is in evidence. In this statement, JB says that Poke Fresh needs access to the condensing units at all times in case of emergencies with the walk-in cooler. JB says that without access, Poke Fresh may incur thousands of dollars in losses if any issue occurs and it is not able to access the refrigeration equipment in the Cook building’s parkade quickly.
58. While the Therrien 2022 decision did not address the refrigeration equipment, Therrien says that this equipment is another alteration that was included in the May 16, 2013 indemnity agreement. Therrien says that the refrigeration equipment belongs to Poke Fresh who repairs and maintains it and says the strata is not responsible for it because it is not common property. Therrien says that it is prepared to document its responsibility for the refrigeration equipment on the same terms as the May 16, 2013 indemnity agreement. However, it says that the strata provided an alteration and indemnity agreement that included additional equipment, so it has refused to sign it.
59. The strata says that if the refrigeration equipment is an unapproved alteration, it can remove it under SPA section 133 so long as it follows SPA section 135’s procedural requirements. I find it more likely than not that the ceiling-mounted refrigeration compressor referred to in Schedule A of the May 16, 2013 agreement is the refrigeration equipment at issue. So, I find the refrigeration equipment is not an unapproved alteration. However, as with the condensing units, I find the refrigeration equipment is a common property alteration that is the strata’s responsibility to repair and maintain. So, I find the strata is not obligated to grant Therrien or Poke Fresh unfettered access to it. In any event, the evidence before me does not show that Therrien or Poke Fresh currently require access to the refrigeration equipment for any maintenance and repair purposes relating to SL1’s business. So, I decline to make any orders about Therrien’s request for access to the refrigeration equipment.
Storage Rooms
60. Next, Therrien says there are commercial storage and wine rooms that the strata uses for general storage in the Cook building’s residents’ parking area. It says that residential owners each have designated LCP storage lockers but SL1 does not. Therrien says it requires a storage room for ladders and hand tools for maintenance and repairs in SL1. It argues that it should have the same access to storage space as all other owners. There is no evidence before me that the residential owners have unrestricted access to the storage and wine rooms that Therrien appears to be seeking access to. Further, the evidence before me also does not show that Therrien has made any specific requests to the strata for access to these rooms and been denied. So, I find it unproven that the strata has treated Therrien significantly unfairly with respect to the common property storage and wine rooms.
Electrical and Mechanical Rooms
61. Therrien says it also requires access to the strata’s common property electrical and mechanical rooms located in the Cook building’s underground area so that it can “monitor these areas as the strata council and the strata manager are experiencing challenges in monitoring.” SPA section 72 says the strata corporation must repair and maintain common property, and SPA section 4 says the powers and duties of the strata corporation must be exercised by the strata council. By seeking this access, Therrien appears to be trying to take over or supervise the strata’s duty to repair and maintain the electrical and mechanical rooms and systems, something I find it has no right to do under the SPA or the bylaws. I find as part of its duty to repair and maintain common property, the strata is entitled to impose access restrictions to these rooms. So, to the extent the strata has denied Therrien access, I find the strata has not treated Therrien significantly unfairly as I find it is not reasonable for Therrien to expect to have access to these rooms.
Recycling Room
62. Therrien says all residential owners have access to the recycling room, which is where they deposit their mixed recycling. It says it is unfair for it and its tenants to be treated differently. Therrien provided no explanation about where the recycling room is located but from blueprints in evidence, I find it is likely located in the Cook building’s residents’ parking area. The evidence before me does not show whether Therrien and its tenants have a recycling area, or that they previously had access to the recycling room. There is also no evidence that Therrien previously sought specific access to this room and that the strata denied that access. So, I find it unproven that the strata has treated Therrien significantly unfairly as there is no evidence that the strata has denied it or its tenants access to the recycling room.
Rooftop Patios and Bicycle Storage Rooms
63. As noted above, the CPA rule restricts Therrien’s access to the rooftop areas located in both buildings as well as the bicycle storage rooms. Based on the strata plan and blueprints in evidence, I find the bicycle storage rooms Therrien seeks access to are likely located in the SL1 parking area and next to LCP storage rooms located in the Cook building’s residents’ parking area. I infer the bike rooms require key access. Therrien says that its principles are cyclists and require access to the bike storage rooms to park their bicycles when they are conducting routine maintenance and inspections on SL1. It refers to bylaw 34(1) which requires bicycles to be stored in a storage locker or other prescribed areas and prohibits bicycles on common property.
64. Therrien says that both the rooftop patios and the bike storage rooms are “recreational facilities” that the strata has denied it access to, contrary to SPA section 134. SPA section 134 says a strata corporation can deny an owner the use of a recreational facility that is common property if the owner has contravened a bylaw or rule relating to the recreational facility. So, Therrien argues, in essence, that unless it has breached a bylaw or rule about the rooftop patios and bike storage rooms, it should otherwise be allowed unrestricted access to these areas.
65. I find it unnecessary to decide whether bike storage rooms and rooftop patios are recreational facilities that are the subject of SPA section 134 because regardless, I find that Therrien has misconstrued SPA section 134. Therrien appears to argue that SPA section 134 gives all owners the right to access recreational facilities unless they have breached a rule or bylaw relating to those facilities. However, I find SPA section 134 does not give such a right and also does not restrict the strata from making rules about who can access such recreational facilities. Section 134 is about a strata corporation’s bylaw enforcement options.
66. Again, other than generally referring to security and safety concerns as the reason for wanting to generally limit access to common property areas, the strata has provided no basis for its decision to restrict Therrien and the SL1 tenants’ access to the bike storage rooms and the rooftop patios. In particular, the strata has provided no reason why it feels the need to restrict a commercial owner or its tenants from accessing these common property areas, which I note are not designated as LCP on the strata plan for the residential strata lots’ exclusive use. As with the SL1 underground LCP parking stalls, I find the strata’s decision to restrict SL1’s access to the bike storage rooms and rooftop patios is arbitrary. As an owner of SL1, I find Therrien has an objectively reasonable expectation to be allowed access to the bike storage rooms and the Cook building’s rooftop patio, just as other strata lot owners in the Cook building are allowed. I find the CPA rule which restricts SL1 from accessing these areas without prior written approval, is unnecessarily burdensome on Therrien and inequitable since other owners are not required to obtain the same written approval.
67. So, I find the CPA rule is significantly unfair to the extent that it restricts Therrien and the SL1’s tenants’ access to the bike room in the SL1 underground parking area and the Cook building’s rooftop area. Accordingly, I order the strata to stop enforcing those parts of the CPA rule that restrict Therrien’s access to the bike storage room in the SL1 underground parking area and the Cook building’s rooftop area. I see no reason why Therrien would need access to the other bike storage area that is located behind the secured gate in the Cook building’s residents’ parking area, so I make no order for access to that bike storage room. In its written argument, Therrien seeks an order that the strata provide its 2 principals with keys to the SL1 LCP parking area bike storage room. As Therrien does not seek keys for the SL1 tenants to access the bike storage room, nor does it suggest the tenants require access, I order the strata to provide Therrien with 2 keys to the bike storage room located in the SL1 LCP parking area for its principals.
68. Despite arguing that SL1 is entitled to access the rooftop patios, in its written argument, Therrien does not seek an order that it or its tenants’ fobs be programmed to allow such access. So, I make no further orders about the Cook building’s rooftop patio.
CRT 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. Since Therrien was successful in dispute ST-2022-007499, I find it is entitled to $225 for its paid CRT fees. I find Therrien was only partly successful in dispute ST-2022-007500 so I find it is entitled to $112.50 for half its paid CRT fees. Neither party claims any dispute-related expenses.
70. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Therrien.
ORDERS
71. I order that:
a. within 7 days of this decision, the strata provide Therrien with written approval for the automatic door opener alteration.
b. within 14 days of this decision, the strata pay Therrien $337.50 in CRT fees.
c. within 7 days of this decision, the strata must program 2 fobs for Therrien’s principals and 5 fobs for the SL1 tenants to allow 24 hour access to the SL1 underground LCP parking stalls. This includes access to any elevators or staircases, in addition to the overhead gate, as necessary for proper access to the SL1 underground LCP parking stalls.
d. the strata must immediately stop enforcing those parts of the CPA rule that restrict Therrien’s and the SL1’s tenants’ access to the bike storage room located in the SL1 underground LCP parking area and the Cook building’s rooftop area.
e. within 7 days of this decision, the strata must provide Therrien’s 2 principals with keys to access the bike storage room located in the SL1 underground LCP parking area.
72. I dismiss the remainder of Therrien’s claims in dispute ST-2022-007500.
73. Therrien is also entitled to post-judgment interest under the Court Order Interest Act, as applicable.
74. Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.
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Nav Shukla, Tribunal Member |