Date Issued: November 14, 2023

File: ST-2022-009116

Type: Strata

Civil Resolution Tribunal

Indexed as: Constantini v. The Owners, Strata Plan BCS 161, 2023 BCCRT 981

Between:

BEVERLY CONSTANTINI

Applicant

And:

The Owners, Strata Plan BCS 161

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.    This dispute about snow clearing in a strata corporation.

2.    The applicant, Beverly Constantini, owns strata lot 20 (SL20) in the respondent bare land strata corporation, The Owners, Strata Plan BCS 161 (strata). Ms. Constantini says the strata’s contractor regularly uses a common property vehicle turnaround next to SL20 to pile snow cleared from the strata’s streets during the winter months. Ms. Constantini says that the snow piles damage the common property and leave behind excessive rocks and gravel in the spring, requiring maintenance and repair. From 2018 to 2020, the strata undisputedly paid Ms. Constantini’s gardener each spring to repair and clean up the area around the common property turnaround. In 2022, the strata declined to pay Ms. Constantini’s gardener for such work. Ms. Constantini also says the snow piles prevent her from accessing her hot tub at the rear of SL20 during the winter months.

3.    Ms. Constantini claims the following:

a.    $367.50 for reimbursement of her gardener’s invoice to clean up the turnaround area in 2022.

b.    An order that the strata include $500 in its annual budget for spring repair and maintenance in the common property turnaround.

c.    $4,600 for loss of use of her hot tub, hot tub maintenance costs, expenses incurred to move her hot tub, and significantly unfair treatment for unreasonably interfering with her right to use a common property path to access her hot tub.

4.    The strata says it is not obligated to reimburse Ms. Constantini for common property repair and maintenance that she chose to undertake. The strata acknowledges that it previously agreed to pay for Ms. Constantini’s gardener to do some spring clean up work, but says this was based on its and its strata manager’s misapprehension of the common property boundary. The strata says its past payment does not mean it is obligated to continue paying for that work. The strata also says it is not obligated to clear a path on common property for Ms. Constantini to access her hot tub. It says Ms. Constantini is responsible for her inability to access the hot tub through her own strata lot.

5.    Ms. Constantini is self-represented. The strata is represented by a strata council member.

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.

SPA section 189.1 hearing

10. The strata says that Ms. Constantini is not entitled to seek a remedy in relation to the alleged loss of use of her hot tub because she did not request a hearing with the strata council about this issue. Section 189.1(2)(a) of the Strata Property Act (SPA) says that before an owner can request that the CRT resolve a dispute about a strata property matter, the owner must have requested a hearing before the strata council.

11. Ms. Constantini says that she raised the hot tub issue at the hearing held about reimbursing her gardener’s invoice. I find this is supported by the evidence, including the strata council’s minutes from the November 14, 2022 hearing, which specifically referred to Ms. Constantini’s submissions about accessing her hot tub and costs related to relocating the hot tub. So, even though Ms. Constantini’s request for a hearing did not specifically refer to the hot tub issue, I find that she addressed it at the hearing, the strata was aware of this claim, and the hearing did not resolve Ms. Constantini’s dispute about hot tub access.

12. For these reasons, I find that Ms. Constantini complied with SPA section 189.1(2)(a) in relation to her claim about hot tub access, and so I have considered this issue below.

New issues not in the Dispute Notice

13. In her submissions, Ms. Constantini raised issues unrelated to the issues in this dispute, including that the strata has failed to collect strata fees, strata council members have bullied her, and the strata has failed to schedule its annual general meetings according to the timing set out in the SPA. These issues were not included as claims in the Dispute Notice, and Ms. Constantini did not request any remedies related to them. Therefore, I find these allegations are not properly before me, and I make no findings about them.

Late evidence

14. While the strata was uploading its evidence and arguments, it advised the CRT that it was unable to open 21 pieces of Ms. Constantini’s evidence. The strata says that by the descriptions of the evidence, they appeared to be photos that were already uploaded as evidence, and so the strata completed its response submissions without reviewing those items. The CRT then gave Ms. Constantini the opportunity to re-submit the evidence that the strata was unable to open. In response, Ms. Constantini uploaded 34 pieces of evidence, and advised that she had encountered difficulty when initially uploading and organizing her evidence several weeks earlier but had run out of time to resolve the matter by the CRT’s evidence deadline.

15. The strata objects to Ms. Constantini’s late evidence. It says some of the evidence is entirely new, some consists of different versions of existing evidence items, including some where Ms. Constantini had added her own notations, and that Ms. Constantini relabeled several items to support her arguments. The strata says that only 2 of the 34 pieces of late evidence appear to correspond with any of the 21 items it was initially unable to open.

16. I agree with the strata that Ms. Constantini should have advised the CRT at the time she was having trouble uploading her evidence, so that the problem could have been addressed before the strata was required to upload its own evidence and arguments. However, the CRT has permitted parties to provide late evidence in a variety of circumstances, consistent with its mandate for flexibility, particularly when a party is not represented by a lawyer. I find it is appropriate to do so here, as I find the evidence is generally relevant to this dispute. In any event, I find there is no actual prejudice to the strata by admitting the evidence, given my ultimate decision below to dismiss Ms. Constantini’s claims.

ISSUES

17. The issues in this dispute are:

a.    Must the strata reimburse Ms. Constantini $367.50 for cleaning up and repairing the turnaround area?

b.    Should I order the strata to include $500 in its annual budget for spring clean up in the turnaround area?

c.    Has the strata treated Ms. Constantini in a significantly unfair manner by refusing to provide access to her hot tub through common property?

d.    Is Ms. Constantini entitled to any compensation related to her hot tub access claim?

EVIDENCE AND ANALYSIS

18. In a civil proceeding like this one, Ms. Constantini as the applicant must prove her claims on a balance of probabilities (meaning “more likely than not”). I have read all of the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

19. The strata was created in 2002 and consists of 26 bare land strata lots. It is located in Whistler, BC.

20. The strata filed bylaw amendments in the Land Title Office (LTO) in 2002, 2019, and 2022. I find the strata’s bylaws are the Standard Bylaws under the SPA, together with the filed amendments, though I note none of the amendments are relevant to this dispute. I discuss the relevant bylaws where necessary below.

21. The strata plan filed in the LTO shows the strata has a dead-end common property road running through it, with strata lots of various shapes and sizes on both sides of the road. The evidence shows the road is called Tynebridge Lane. The strata says that there is a 3-meter strip of common property along either side of Tynebridge Lane before the boundary to each strata lot. Ms. Constantini does not specifically dispute this submission, and I find it is supported by the evidence. The parties refer to the strip of common property between Tynebridge Lane and the strata lots as “the verge”.

22. SL20 is on the north side of Tynebridge Lane. As shown on the excerpt from the strata plan below, there is an area designated as common property directly west of SL20, between SL20 and SL21. The north ends of SL20 and SL21 wrap around the north end of this common property area, and the boundary between SL20 and SL21 is at approximately the middle of the north end of the common property area.

23. The evidence shows that the common property area between SL20 and SL21 was largely developed into a short dead-end road, which the parties refer to as the “hammerhead” or fire truck turnaround. I will refer to it as the turnaround in this decision.

24. As noted, this dispute concerns the strata’s snow clearing practices. Given the strata’s location, I accept that it is subject to heavy snowfall events in the winter months. Ms. Constantini says the strata’s snow clearing contractor inappropriately uses the turnaround to dump snow that is cleared from Tynebridge Lane. She says this leads to significant damage and debris accumulation in the turnaround area.

25. I find that until Ms. Constantini filed this CRT dispute, she took the position that only the turnaround roadway was common property, and that any snow pushed up over the curb on the east half of the turnaround was on SL20. However, the parties now agree that, as with the verge along Tynebridge Lane, there is also a strip of common property between 3 and 5 meters wide on the east, north, and west sides of the turnaround, before the boundaries with SL20 and SL21. I find this is supported by the evidence, including a 2016 survey and various arial images and maps from the Resort Municipality of Whistler showing the strata lot boundaries in relation to the turnaround. So, I find that the strata likely does not pile any snow directly on Ms. Constantini’s strata lot. Rather, the snow is piled on the common property turnaround and the sides and rear of the turnaround, which are also common property.

26. The photographic evidence shows the common property surrounding the turnaround is landscaped with various trees, plants, large landscape boulders, grass, and dirt. There is also a stone path on the common property behind the turnaround, which essentially leads from the west side of SL20 to the northeast part of SL21 that wraps around the back of the turnaround. It is not entirely clear who initially installed each of these landscaping features on common property, though I find it was likely owners rather than the strata or the strata’s owner developer. More on this below.

27. Ms. Constantini provided photos that show substantial gravel and sand covering the landscaped common property at the rear of the turnaround after the snow melts in the spring. This is not disputed. Ms. Constantini also provided photos showing a broken rock in the stone path and a broken tree branch on the ground, which she says are examples of typical damage caused by the snow clearing activities in the turnaround each winter.

28. Ms. Constantini seeks reimbursement of a July 10, 2022 invoice from Heike Designs Inc. (Heike) for $367.50, which she paid for clean up of the turnaround area. Heike’s invoice stated it was for removing gravel, pruning, raking, and “clean up of damage after snow clearing”.

Must the strata reimburse Ms. Constantini for the turnaround clean up?

29. Ms. Constantini says she initially raised the issue of the excessive rock and gravel in the turnaround area with the strata management company, WRM, in 2018. She says WRM inspected the area and agreed the damage and mess was “excessive”. The evidence shows that WRM paid Heike’s invoices to clean up the turnaround area in 2018 ($383.25), 2019 ($417.90), and 2020 ($420).

30. Ms. Constantini did not address the strata’s submission that its agreement to pay for the clean up was based on a misunderstanding about the strata lot boundaries. In a July 8, 2020 email, WRM advised the strata council president that Ms. Constantini’s strata lot boundary abutted the curb in the turnaround, and so the area requiring maintenance was not common property. As noted, that is not the case, as there is at least 3 meters of common property surrounding the turnaround road. So, I find the strata likely agreed to pay Heike’s invoices based on the incorrect understanding that snow had been piled on and damaged Ms. Constantini’s strata lot.

31. I note that Ms. Constantini says she neglected to submit Heike’s 2021 invoice to the strata, in error. She provided no evidence that she incurred any clean up expenses that year, and she does not make any claim for such expenses in this dispute.

32. In any event, Ms. Constantini says the strata unreasonably refused to pay Heike’s 2022 invoice. She says the strata is responsible for cleaning up the common property each spring according to its repair and maintenance obligations under the SPA and the bylaws.

33. It is undisputed that the strata is responsible for repairing and maintaining common property under section 72 of the SPA. This obligation is also set out in bylaw 8(b). It is well established that the standard the strata is held to in the exercise of this duty is reasonableness, not perfection.

34. The strata says that its obligation to repair and maintain common property does not require it to pay for raking gravel off the verge or the common property surrounding the turnaround. It says the gravel is not “damage”, and so no repairs are required. Rather, the strata says such gravel is a “normal state of affairs” in a mountain community like Whistler. It also says that removing the gravel from the turnaround area would effectively benefit only Ms. Constantini.

35. Part of the issue is that it appears the strata has not historically enforced bylaw 6(1), which says that an owner must obtain the strata’s written approval before making an alteration to common property. The strata provided a statement from WM, who has been an owner in the strata since 2012 and on the strata council since 2016. WM stated they were the only owner living in the strata on a full-time basis in 2012, and only 10 of the 26 strata lots were developed at that time. WM stated that there was also no strata council yet, and common property issues were dealt with informally, on a consensus basis. WM stated that owners generally planted trees and gardens up to the curb on Tynebridge Lane without any express permission to do so, despite the 3-meter common property verge. I find the evidence shows this practice has generally continued to the present date.

36. With respect to SL20, WM stated SL20’s previous owner had a garden that extended onto the common property between SL20 and the turnaround, and that the existing stone path had fallen into disuse and was overgrown when Ms. Constantini first moved in. Ms. Constantini does not deny this, and so I accept it is likely true.

37. Overall, I find the evidence show that owners, including Ms. Constantini, have voluntarily installed and maintained various gardens and other landscaping on common property. While these may constitute unapproved alterations to common property under bylaw 6(1), I find that does not mean the strata is obligated to repair and maintain the gardens and landscaping that owners have installed contrary to the bylaws. Rather, I find that the strata’s roads were likely specifically constructed with the 3-meter verge and the strip of common property around the turnaround to provide areas for the strata to place snow cleared from the roads in the winter. In other words, I find the intended purpose of the verge and the subject turnaround area was likely snow storage. So, I agree with the strata that if owners decide to install landscaping features and gardens in those areas of common property, it is not the strata’s responsibility to maintain or repair any damage caused by its snow clearing activities.

38. Ms. Constantini argues that if the strata refuses to pay the clean up expense, it is essentially offloading common property maintenance onto owners. I disagree. A strata corporation does not have a duty to repair or maintain common property according to the requirements of a specific owner: see Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241 at paragraph 51. I find there is insufficient evidence to support Ms. Constantini’s submission that the gravel makes the stone path in the turnaround area slippery and unsafe, noting that the ground appears quite level. While the verge and turnaround area might be more aesthetically pleasing if the gravel and sand are cleaned up in the spring, I find that such maintenance is within the strata’s discretion to undertake. That is, I find there is nothing unreasonable about the strata’s decision to not pay to clean up the gravel off the verge and turnaround area each spring.

39. Ms. Constantini is correct that the strata cannot generally require owners to repair and maintain common property, other than perhaps where an owner has signed an indemnity agreement about an alteration to common property. That is undisputedly not the case here. However, I find the strata is not requiring owners such as Ms. Constantini to maintain the common property verge or the turnaround area. Rather, I find they are choosing to do so voluntarily.

40. Further, an owner cannot unilaterally spend money to repair or maintain common property and then expect the strata to reimburse them: see Garry v. The Owners, Strata Plan EPS2501, 2021 BCCRT 409, citing Swan. I find that is what Ms. Constantini is asking the strata to do here. As noted, I find the strata’s past payment of the turnaround clean up expenses was based on a misunderstanding about the common property boundaries, and so I find there is no valid precedent that binds the strata to continue paying this expense.

41. For all these reasons, I dismiss Ms. Constantini’s claim for reimbursement of Heike’s $367.50 invoice to clean up the turnaround area.

Should I order the strata to specifically budget for cleaning the turnaround area?

42. As noted, Ms. Constantini requests an order that the strata include $500 in its annual budget to clean up the turnaround area each spring. I find that is something within the strata council’s discretion to include in its budget, should it so choose, and subject to a majority of owners approving the budget. Ms. Constantini may propose an amendment to whatever budget the strata council presents at an annual general meeting under SPA section 103(4), which would also be subject to a majority vote approval. Alternatively, Ms. Constantini may consider calling a special general meeting and proposing a resolution for the owners’ consideration under sections 43 and 46 of the SPA.

43. However, for the reasons set out above, I find the strata is not obligated to undertake clean up in the turnaround area, and so I decline to order the strata to budget for such maintenance.

Hot tub access

44. Ms. Constantini says that the large amount of snow the strata dumps at the end of the turnaround impeded her ability to access her backyard and hot tub during the winter months. Ms. Constantini says the strata’s decision to continuing using the turnaround area to pile snow, despite her repeated requests not to, was significantly unfair. Ms. Constantini claims $4,600 for the expenses associated with moving and replacing her hot tub, and her loss of use and enjoyment of the common property.

45. As background, it is undisputed that SL20 is subject to a covenant that the home must include a suite for employee housing. Ms. Constantini installed a basement suite to comply with the covenant, which cut off access to her hot tub on the basement level behind her house. While her initial tenant allowed her to access the hot tub through their suite, new tenants in May 2021 did not agree to that arrangement. So, Ms. Constantini says she had to exit her front door and use the common property stone path behind the turnaround to access her backyard.

46. Ms. Constantini says that the large amount of snow the strata dumps at the end of the turnaround impeded her ability to access her backyard and hot tub during the winter months. She also says the tiny pea gravel left after the spring melt is pushed onto an adjacent steep rock slope on SL20, which she says creates a safety risk. I infer that descending the slope is the only available route to access the backyard, and Ms. Constantini says her hot tub maintenance company refused to go that way due to the gravel hazard. As the strata continued to pile snow in the turnaround area, Ms. Constantini says she ultimately decided to crane her hot tub out of the backyard in November 2022, and replace it with a smaller hot tub that fits on her upstairs deck.

47. The CRT has authority to make orders remedying a strata corporation’s significantly unfair acts or decisions under CRTA section 123(2). In Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, the court confirmed that significantly unfair actions or decisions are those that are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust, or inequitable. In applying this test, the owner or tenant’s objectively reasonable expectations are a relevant factor but are not determinative.

48. The test for assessing an owner’s reasonable expectations is from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCS 44, summarized as follows:

a.    What was the owner’s expectation?

b.    Was that expectation reasonable?

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

49. I find that Ms. Constantini expected the strata to stop using the turnaround area to pile and store snow in the winter, so that she and her family could use the common property stone path to access their hot tub in their backyard.

50. I agree with the strata that this expectation was not objectively reasonable. While Ms. Constantini submits that the strata could pile the snow in other locations, the strata says there are already many common property areas with large snowbanks and snow piles throughout the strata, and that it also uses undeveloped strata lots for snow storage, when available. Overall, I accept the strata’s evidence that it is not only using the turnaround area to pile snow, and I find that it likely has limited options for snow storage given the layout of the strata. Further, as noted above, I find the turnaround area was likely specifically designed for the purpose of piling snow in the winter. I find there is insufficient evidence the strata has other reasonable locations available to pile snow.

51. Ms. Constantini says that the strata has respected other owners’ requests not to dump snow in certain locations. However, I find the evidence shows those requests related to piling snow directly onto strata lots, not common property. There is no evidence that the strata has agreed not to pile snow on common property at an owner’s request. So, I do not accept that the strata is treating Ms. Constantini differently from other owners by declining her request not to use the turnaround for piling snow.  

52. Further, I agree with the strata that Ms. Constantini is responsible for her own inability to easily access her hot tub. I find she would have been aware of her obligation to create a suite in her home, and she did not explain why she would place a hot tub where it likely could not be accessed through SL20 once the suite was installed. I find it is unreasonable to expect the strata to create or maintain a path through common property so that Ms. Constantini can access the backyard in SL20.

53. I also note that the common property stone path that Ms. Constantini says she must use, leads into SL21. In other words, Ms. Constantini not only expects to use common property, but also must first enter part of SL21 before crossing back onto SL20 to access her backyard. I find her expectation that the strata facilitate her ability to use such a route to her backyard was objectively unreasonable.

54. For all these reasons, I find it was not significantly unfair for the strata to continue using the turnaround area to pile snow in the winter months. I dismiss Ms. Constantini’s claim as it relates to her inability to access her hot tub.

CRT FEES AND EXPENSES

55. 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. As Ms. Constantini was unsuccessful, I find she is not entitled to any reimbursement. I dismiss her claim for CRT fees and $17.47 in photocopy costs.

56. The strata did not pay any fees or claim dispute-related expenses, so I make no order.

57. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the Ms. Constantini.

ORDER

58. I dismiss Ms. Constantini’s claims, and this dispute.