Date Issued: November 24, 2023

File: ST-2022-007210

Type: Strata

Civil Resolution Tribunal

Indexed as: Balachanoff v. The Owners, Strata Plan BCS 2196, 2023 BCCRT 1021

Between:

COLE BALACHANOFF

Applicant

And:

The Owners, Strata Plan BCS 2196

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about a window. The applicant, Cole Balachanoff, co-owns strata lot 70 (SL70) in the respondent strata corporation, The Owners, Strata Plan BCS 2196 (strata). Mr. Balachanoff says that a floor plan or blueprint shows one of his windows was originally intended by the owner developer to be operable or openable. He seeks orders for the strata to pay to alter the window to be operable. Alternatively, he seeks a reduction of strata fees equal to $10,000.

2.      The strata disagrees. It says the developer installed the window in 2007. It submits the window was not defective at the time and is currently in good condition. The strata also says the floor plan that Mr. Balachanoff relies on says that the building may not be exactly as shown on each floor. It says Mr. Balachanoff seeks to unnecessarily upgrade the window at the strata’s expense. It submits that that it would be more proper for him to make an alteration request to change the window at his own cost.

3.      Mr. Balachanoff represents himself. A strata council member represents the strata.

4.      For the reasons that follow, I dismiss Mr. Balachanoff’s claims.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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

9.      The issue in this dispute is whether the strata breached any obligation it has about the window, and if so, what remedies are appropriate.

BACKGROUND, EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, Mr. Balachanoff 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.

11.   The strata plan shows the following. The strata was created in January 2007. SL70 is located on the 10^th floor of a high-rise tower. A title search shows that Mr. Balachanoff became the co-owner of SL70 in February 2021.

12.   The strata’s bylaws and amendments are registered in the Land Title Office. The strata agrees, and I find, that it must repair and maintain the window at issue under the bylaws. The bylaws are otherwise not relevant to this dispute.

13.   The parties provided copies a floor plan that they say the owner developer used during construction and planning of the strata’s building. The floor plan was labelled as “lower typical floor plan” for floors 4 through 10. Mr. Balachanoff circled the window at issue. The floor plan shows that the window could swing open.

14.   Mr. Balachanoff exchanged several emails with the strata manager from January 2022 to September 2023. The emails show the following. At the time the strata was replacing Mr. Balachanoff’s windows with new ones. Mr. Balachanoff wrote that it appeared the builder or owner developer had mistakenly installed a window that did not open, unlike windows in a similar position on the floors below. Mr. Balachanoff asked the strata to replace the window with an operable one.

15.   As stated in the emails, in July 2023 the strata council decided not to upgrade the window. The strata manager explained that the council found the price was too high. They forwarded to Mr. Balachanoff a June 10, 2022 quote for $17,514 to do the upgrade work. They also denied liability because the window lacked operability at the time of purchase.

16.   I turn to the legal analysis. The strata’s obligation to repair and maintain property is measured by the test of what is reasonable in all circumstances and can include replacement when necessary. The standard is not one of perfection. The strata has discretion to approve “good, better or best” solutions. The CRT will not interfere with a strata’s decision to choose a “good”, less expensive, and less permanent solution although “better” and “best” solutions may have been available. See Ricci v. The Owners, Strata Plan LMS 3940, 2021 BCCRT 755 at paragraph 40, citing The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363 and Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784.

17.   The starting point for the analysis is deference to the decisions made by the strata council as approved by the owners. See Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784 at paragraphs 23 to 32. Similarly, an owner cannot direct the strata how to conduct its repairs. See Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241 at paragraph 51.

18.   I find it likely that the strata acted reasonably and fulfilled its obligation to repair and maintain the window. Mr. Balachanoff did not provide any photos or inspection reports that said the window required repairs or replacement. As stated earlier, he bears the burden to prove his claim.

19.   Consistent with my conclusion, the strata says that its contractor determined the window at issue did not require replacement as it was in a state of good repair and its seal was intact. While the contractor provided no evidence in this dispute, Mr. Balachanoff admits that the strata paid to replace 17 other windows in SL70. I find this shows the strata likely attended to the windows that required repairs or replacement and did not otherwise neglect the windows.

20.   I also find the strata reasonably concluded that the cost of replacing the window with an operable one would be unreasonable in the circumstances, given the very high quote and the fact that the current window functions, even if it does not open. I find this is a situation which clearly favours deference to the strata’s decision to choose the less expensive option of leaving the window alone at this time.

21.   Mr. Balachanoff relies on the owner developer’s floor plan. However, I find it does not bind the strata. CRT decisions have previously held that the owner developer and the strata are different legal entities. The owner developer does not have authority to bind the strata in contracts to which the strata was not a party. See, for example, Stehle v. The Owners, Strata Plan KAS 2617, 2023 BCCRT 935. Similarly, the strata corporation is not an insurer and need only act reasonably in discharging its responsibilities. See Basic v. Strata Plan LMS 0304, 2011 BCCA 231 at paragraph 13. Mr. Balachanoff’s claim, if accepted, would essentially turn the strata into an insurer for the owner developer’s work, which is certainly not its role.

22.   As I find the strata has not breached any of its obligations, I dismiss Mr. Balachanoff’s claims for the replacement window or, alternatively, a reduction in strata fees.

CRT FEES AND EXPENSES

23.   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. Balachanoff’s claims for reimbursement of CRT fees. The parties did not claim any specific dispute-related expenses.

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

ORDER

25.   I dismiss Mr. Balachanoff’s claims and this dispute.