天易网

 找回密码
 注册
123
返回列表 发新帖
楼主: 郭国汀

the case of breach of contract

[复制链接]
 楼主| 发表于 10/19/2019 13:55:14 | 显示全部楼层
McVean v. Lunan
Collection
Small Claims Decisions
Date
2019-05-15
Neutral citation
2019 BCCRT 586
File numbers
SC-2018-008163
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/405895/1/document.do][/url]





Date Issued: May 15, 2019
File: SC-2018-008163
Type: Small Claims
Civil Resolution Tribunal
Indexed as: McVean v. Lunan, 2019 BCCRT 586
BETWEEN:
Hannah McVean
APPLICANT
AND:
Kayleen Lunan
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair
INTRODUCTION

1.      This dispute is about a used car sale. On October 7, 2018, the applicant, Hannah McVean, bought a 1998 or 1999 Toyota Rav4 from the respondent, Kayleen Lunan, for $2,500. The car broke down on the day the applicant bought it and the applicant says it needs a new engine. The applicant wants a refund of the $2,500 purchase price, plus $376.48 for additional costs to register, insure, and transfer the car.

2.      The respondent denies liability and says she never misrepresented the car and the engine’s failure is not her responsibility, given the car’s age, mileage, and known oil leak problem. The parties are each self-represented.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

5.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.      Under tribunal rule 9.3(2), 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 tribunal considers appropriate.

ISSUE

7.      The issue is whether the respondent seller is responsible for the car’s engine failure, and if so, what is the appropriate remedy.

EVIDENCE AND ANALYSIS

8.      In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision. I have no placed any weight on the parties’ efforts to settle the matter, given the dispute proceeded for adjudication and this decision.

9.      The respondent’s Craigslist ad listed the car for $2,800 and that it had 260,000 kilometers. The respondent described how the timing belt had been “done” at 250,000 kilometers, “runs and drives great”, and that the car had just had new spark plugs and leads. The respondent noted the car needed tires soon. It is uncontested the respondent reduced the price to $2,500 to account for the need for new tires and that the car “burns a bit of oil”.

10.   On October 8, 2018, the day the applicant picked up the car and drove it from Mission, BC back to Squamish, BC, the car made a “deafening knocking noise”, stalled, and was difficult to re-start. I accept this evidence, which is not particularly disputed.

11.   The applicant had the car towed to Good 2 Go Tirecraft in Squamish (Tirecraft), who the applicant says told her the car needed a new engine. The applicant says Tirecraft told her it could not locate a replacement engine, but that it would cost more than $2,500. However, the applicant did not provide evidence from Tirecraft to this effect.

12.   The applicant texted the respondent right after the car stalled on her way home, after driving it for 2 hours. She texted again after she spoke to Tirecraft. The respondent texted back that she had no idea that the motor was bad and would never have sold it knowing that. The respondent wrote the car was “running great when you left” and that she was very confused because she had no issues with the car.

Fraudulent misrepresentation claim

13.   While the applicant alleges the respondent fraudulently misrepresented the car, I find she has not proved this. The case law is clear that due to the associated stigma, an allegation of fraud requires “clear and convincing proof”.

14.   If a seller misrepresents the condition of a vehicle, the buyer may be entitled to compensation for losses arising from that misrepresentation. A “misrepresentation” is a false statement of fact made during negotiations or in an advertisement that has the effect of inducing a reasonable person to enter into the contract.

15.   Fraudulent misrepresentation occurs when a seller makes a false representation of fact and the seller knew it was false or recklessly made it without knowing it was true or false. Negligent misrepresentation occurs when a seller fails to exercise reasonable care to ensure representations are accurate and not misleading. The misrepresentation must reasonably induce the purchaser to buy the item.

16.   As discussed below, what matters is whether the applicant has proved that the respondent misrepresented the vehicle and the applicant reasonably relied on such misrepresentation, and, whether the applicant has proved the respondent breached any applicable warranty.

17.   The respondent says that at the time she sold the applicant the car the ad’s statements were true to the best of her knowledge. The respondent says all known defects were disclosed.

18.   The applicant argues the respondent must have known about the engine issue. I find this is not established. Even if the respondent had said the noise was “probably the tailpipe”, that does not prove the respondent knew the engine was about to fail. There is simply no evidence before me to support a conclusion the respondent knew the engine was faulty.

19.   The respondent says during the parties’ test drive there was no knocking or stalling. The applicant says there was a sort of knocking noise and the respondent said it was probably the tailpipe, which the respondent disputes. Nothing turns on this, because there is no suggestion the respondent was mechanically knowledgeable or that the applicant ever believed her to be. By the applicant’s own evidence, she heard knocking during the test drive and chose to buy the car anyway, without a professional inspection.

20.   The respondent provided a November 16, 2018 email from Tirecraft that she obtained. Tirecraft stated the problem was “catastrophic failure of the engine”, due to metallic particles in the oil. I accept this undisputed evidence.

21.   I agree with the respondent that either the engine problem was a patent defect, in which case the applicant could have discovered it on a professional inspection, or, it was a latent defect that the respondent did not know about. There is nothing in Tirecraft’s message to the respondent that would suggest the engine problem was knowable to a lay driver like the respondent.

22.   Next, the respondent had said she had the car mechanically tested in the months prior to selling it. The evidence shows when the applicant texted her after the car broke down the respondent indicated the number for the mechanic was in the glove box. The applicant says that number was incorrect. Nothing turns on this, as there is no evidence that the prior mechanical work was about the engine or that the respondent ever suggested it was. I say the same about the respondent’s alleged references to the car’s prior owner being “lady driven” and the applicant’s assertion the prior owner was male. In other words, even if the respondent did misrepresent the car’s driver history or misled the applicant about the mechanic’s information (which I find the applicant has not proved in either case), neither were reasonably relied on by the applicant in causing her to buy the car. To the extent the applicant asserts the respondent was trying to conceal the car’s mechanical history, the context of her offering the mechanic’s contact information in the glove box simply does not support such a conclusion.

23.   On balance, I find the applicant has not proved the respondent misrepresented the car’s condition, fraudulently or otherwise.

Warranties under the Sale of Goods Act (SGA)

24.   In a used car sale, where there has been no misrepresentation, the principle of ‘buyer beware’ largely applies. This means that the implied warranties of fitness for purpose and saleability under section 18 of the SGA do not apply.

25.   However, the implied warranty for durability in section 18(c) does apply to private car sales. In particular, the car must be durable for a reasonable period of time having regard to the use to which they would normally be put and considering all the surrounding circumstances of the sale.

26.   The parties dispute what the respondent said about how much she drove the car. I accept the respondent mostly drove relatively short distances of around 40 kilometers per trip. Contrary to the respondent’s assertion, the shorter-distance of her regular driving is not the proper measure of “the use to which the car would normally be put”. I find that would put too fine a point on the analysis. Driving the car on a highway for 2 hours and around 130 kilometers, as the applicant did, falls within ‘normal use’.

27.   However, it may be that the longer drive contributed to the engine failure happening at that time, but I have no mechanic’s evidence about that and so this is speculation. Nothing turns on it. The real question is whether the car was durable for a reasonable period in all the circumstances.

28.   Like the applicant in Singh v. Janzen, 2019 BCCRT 335, the respondent here relies on Sugiyama v. Pilsen, 2006 BCPC 265 as well as several prior tribunal decisions, such as Samzadeh v. Bain, 2018 BCCRT 475. In Sugiyama, the Court considered the implied warranties in section 18 of the SGA. There are a number of factors to consider when determining whether a vehicle is durable for a reasonable period of time, including the age, mileage, price, the use of the vehicle, and the reason for the breakdown.

29.   As in Singh, the facts in Sugiyama are somewhat similar to the facts of this dispute. In Sugiyama, the claimant bought an 8 year old car with over 140,000 kilometers on the odometer. After driving it for only 616 kilometers, the car broke down. The Court determined that the car was roadworthy and could be safely driven when it was purchased. There were no apparent defects in the car. Therefore, even though the car broke down after very little driving, the Court found that it was durable for a reasonable time.

30.   I find that the same reasoning applies to this dispute. The 1998 or 1999 car, almost 20 years old, had very high mileage at 260,000 kilometers and no apparent significant issues when the applicant purchased it, apart from burning oil. I find it is unknown whether that known oil issue was related to the engine breakdown. The applicant chose not to have a professional inspection done, which as noted above may have revealed an engine problem.

31.   Like in Sugiyama, the car broke down after relatively little driving, but it was roadworthy and could be safely driven when the applicant purchased it. In particular, the applicant test drove the car and while there is a dispute about whether the respondent said knocking was “probably the tailpipe”, it is undisputed the applicant was satisfied with the car after the test drive. There is simply no evidence the respondent knew the car’s engine was going to break down and no evidence that the engine breakdown was not a result of normal aging. In all of these circumstances, I find that the respondent did not breach the implied warranty of durability. This conclusion is consistent with the court’s decision in Wanless v. Graham, 2009 BCSC 578, which as noted by the respondent endorsed the statement that people who buy old used cars with high mileage “must expect defects in such cars will come to light at any time”. That quote came from a 2004 New Brunswick decision Dunham v. Lewis, [2004] N.B.J. No. 310, where the 1996 car bought for $4,200 broke down within 2 days of purchase and would not start.

32.   The conclusion is also consistent with a recent tribunal decision in Penny v. Earthy, 2018 BCCRT 851, where a 1999 truck, bought for $2,500, had its engine seize after a 303 kilometer drive home. While I am not bound by that decision, I agree with its conclusion and apply it to this case: The applicant has not proved the vehicle was not reasonably durable, in all of the above circumstances.

33.   In summary, the applicant has failed to prove a misrepresentation or a breach of an implied warranty. I dismiss the applicant’s claims.

34.   The applicant was unsuccessful. In accordance with the Act and the tribunal’s rules, I find the applicant is not entitled to reimbursement of tribunal fees.

ORDER

35.   I order the applicant’s claims and this dispute dismissed.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 13:58:54 | 显示全部楼层
Rae v. The Owners, Strata Plan BCS 3372
Collection
Small Claims Decisions
Date
2019-05-09
Neutral citation
2019 BCCRT 553
File numbers
SC-2018-009218
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/405565/1/document.do][/url]





Date Issued: May 9, 2019
File: SC-2018-009218
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Rae v. The Owners, Strata Plan BCS 3372, 2019 BCCRT 553
BETWEEN:
Jodi Rae
APPLICANT
AND:
The Owners, Strata Plan BCS 3372
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair
INTRODUCTION

1.      This small claims dispute is about vehicle damage resulting from alleged negligence in maintaining a ceiling ventilation fan (fan). The applicant, Jodi Rae, says that on November 3, 2018 she found the fan had fallen from the parkade ceiling of the respondent strata corporation, The Owners, Strata Plan BCS 3372 (strata), and damaged her parked car. The applicant claims $1,523.32 for car repairs.

2.      The respondent denies liability and says it was not negligent in its maintenance of the fan.

3.      The applicant is self-represented. The respondent is represented by a strata council member. For the reasons that follow, I find the applicant’s claims must be dismissed.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under tribunal rule 9.3(2), 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 tribunal considers appropriate.

ISSUE

8.      The issue is whether the respondent strata was negligent in maintaining the parkade fan, and if so, whether it should reimburse the applicant $1,523.32 for the cost of her car repairs.

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

10.   It is uncontested that the fan fell from the parkade ceiling onto the applicant’s car, damaging it. The applicant provided a photo of the fan sitting on the parkade floor below where it fell from the ceiling. The fan and its surrounding metal cage is large, covering the width of a parking space, and its height reaches the bottom of the driver’s window in an adjacent parked car. The photo appears to show thin metal straps attached to the exterior case of the fan, which appear to have broken loose.

11.   The applicant says the straps holding the fan in place were insufficient, particularly given the vibration of the fan over time effectively worked out the screws, which allowed the fan to fall on her car. I accept the straps breaking is likely why the fan fell, which is not particularly disputed.

12.   I also accept that those metal straps were an inadequate installation method, as set out in a February 2019 email from an HVAC company Modern Niagra (MN), which the applicant contacted after the fan fell. It appears the applicant thought MN’s predecessor company had installed the fan, but MN says this was not the case. In any event, MN stated it had reviewed photos of the fan and was clear that it had not been installed properly and that the “hanger straps” were insufficient.

13.   MN also stated that if the fan was vibrating excessively due to lack of maintenance, other issues could arise that would produce a similar result (the fan dislodging and falling). The applicant says the fan vibrated every time it stopped and started, though the strata denies excessive vibration. While I accept the fan vibrated, I have insufficient evidence before me that there was excessive vibration, and no evidence that the strata knew or ought to have known there was excessive vibration. In particular, there is no negative or adverse inspection report about the fan.

14.   MN stated that a visual inspection of the entire unit is part of a service so a technician may have noted it was installed improperly. There is no such ‘incorrect installation’ note in evidence before me. MN also added, “that being said, generally we assume equipment is installed properly and passed by an inspector”.

15.   I turn to the relevant legal analysis. To prove negligence, the applicant must show the strata owed her a duty of care, that it breached the relevant standard of care, and that the strata’s breach foreseeably caused her loss.

16.   I find it is clear the strata owed the applicant a duty of care to reasonably secure the safety of parkade users. It is also clear the strata’s fan falling on her car caused the applicant’s loss. I further find the fan was an obvious hazard given its apparent weight and size and its location suspended over the parking stalls. Thus, the damage was reasonably foreseeable.

17.   This dispute turns on the applicable standard of care and whether the strata breached it. For the reasons that follow, I find that the applicant has not proved a breach.

18.   The respondent strata exists under the Strata Property Act (SPA). While the strata’s bylaws were not filed in evidence, I find it is uncontested that the parkade and the fan were common property and a common asset, which the strata had an obligation to repair and maintain, as set out in section 72 of the SPA.

19.   Here, the question is whether the strata was negligent in handling its repair and maintenance obligations with respect to the fan, either by unreasonably not doing anything or by unreasonably relying on others’ actions or opinions. I note the same ‘reasonableness’ standard applies under the Occupier’s Liability Act. In other words, was the strata’s maintenance schedule for the fan reasonable?

20.   The standard is not perfection (see Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74). Rather, the strata must act reasonably in all of the circumstances. Significantly, the strata may rely on the advice and guidance of the professionals it reasonably retains to assist with repairs. If the strata has several reasonable options available for undertaking necessary repairs or maintenance, it may not be faulted for taking a more cautious approach or for taking an approach that in hindsight turned out to be a less preferable course of action, as long as the option it chose was reasonable in the circumstances at the time (see Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784).

21.   The strata’s first argument is that the fan required no maintenance, because the only downside if it stopped working was that the fan was not operational. The strata submits that it was reasonable to defray the maintenance costs and if needed, replace the fan. I disagree. Given the obvious hazard presented by the fan’s location relative to the cars and drivers below, an indefinite “no maintenance” approach would have been unreasonable.

22.   However, the strata’s relatively new council member later located maintenance logs for the fan from March 2018 onwards. The strata submits its maintenance contractor D.M.S. Mechanical Ltd. (DMS) did maintain the fan “in line” with the quarterly or twice a year service recommended by MN, since December 2015 when the strata hired DMS. I accept the DMS log book as accurate, and reject the applicant’s speculation that it was “highly suspect”.

23.   The DMS log book sets out its scope of work and includes a term that the log book will be filled in after each service. The scope of work states that “all equipment” was to be “inspected and tested as per checklist” 4 times per year, and “fans 2 times per year”.

24.   The applicant says at most the fan was “checked”, in that on a visual inspection it was found operating, and that the fan was not actually serviced after March 2014. However, the applicant does not explain how she determined what “checked” meant on the DMS log. In any event, again MN’s evidence is that while a technician “may” have noted improper installation, the technician would also generally assume proper installation. That may be problematic in terms of standard of care for a technician, but here the issue is whether the strata reasonably relied on DMS’ logs that showed no concerns.

25.   From an email the applicant sent to the strata’s property manager on November 3, 2018, it appears the applicant determined that the last service date was March 10, 2014 based on a photo of the fan. However, the applicant did not provide a photo or any other evidence showing a last service date of March 10, 2014. I infer the March 10, 2014 was something noted on the fan itself, such as on a sticker. Since DMS took over maintenance in December 2015 and used a log book system to record maintenance, I find the weight of the evidence does not show the fan’s last “service” was March 10, 2014.

26.   DMS’ log shows that on March 7, July 19, and September (date unspecified), 2018, the parkade exhaust fan was “checked”. The “checked” description is similarly used for other items, though a pressure reading was noted in equipment where pressure was relevant. However, other entries for other types of equipment read “tested”.

27.   Significantly, MN’s email about improper installation did not address what would have been appropriate at the time the fan was installed. The parties’ evidence is not clear about the installation date, but the applicant suggests it might have been 2009 when the building was built. I have no evidence before me about what was required in 2009. I note the applicant stated in her email to MN that “it may have been ok then as it would have had to pass an inspection”.

28.   On balance, I find the strata reasonably hired a contractor (DMS) to maintain the fan. There is no evidence that twice yearly was insufficient. Nothing turns on the fact that the particular council member initially was unaware of the DMS contract, which had been in place since 2015.

29.   The issue here is the original installation was inappropriate, at least according to current standards. Based on the evidence before me, I cannot conclude the strata is responsible for the original incorrect installation. Rather, the question is whether the strata failed to properly identify it through maintenance. DMS never noted any concerns about it, which MN suggests is not unreasonable as it is usual to assume the installation was approved. While the applicant questions DMS’ qualifications, she has not provided any evidence that would allow me to conclude the strata ought to have determined DMS was unqualified. The strata says DMS has been in the HVAC business since 2003, and its journeyman are certified, bonded, and insured. There is no evidence to the contrary. While the fan in question remains out of service, that does not mean DMS is incompetent but rather that the strata has not yet given instructions to re-install it.

30.   I find the applicant failed to prove the strata was negligent, because I find the strata met the applicable standard of care. It reasonably relied on its contractor to maintain the fan. I do not agree that the strata ought to have ‘second-guessed’ DMS as to what “checked” entailed on its log books. If DMS had identified a problem, I find it likely would have alerted the strata to it. As referenced above, while the particular strata council member dealing with the applicant about this issue did not originally realize the logs existed, I find that does not show that the strata breached the standard of care with respect to the fan’s maintenance.

31.   The applicant was not successful in her claim. In accordance with the Act and the tribunal’s rules, I therefore dismiss her claims for reimbursement of tribunal fees. I note that under sections 167 and 189.4 of the SPA, an owner who sues the strata is not required to contribute to the strata’s expense of defending the suit (or tribunal proceeding, as the SPA applies to the tribunal).

ORDER

32.   I dismiss the applicant’s claims and this dispute.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 14:02:02 | 显示全部楼层
Saunders v. 443602 B.C. Ltd. DBA Old Town Bay Marina
Collection
Small Claims Decisions
Date
2019-04-23
Neutral citation
2019 BCCRT 488
File numbers
SC-2018-008123
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/400447/1/document.do][/url]





Date Issued: April 23, 2019
File: SC-2018-008123
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Saunders v. 443602 B.C. Ltd. DBA Old Town Bay Marina,
2019 BCCRT 488
BETWEEN:
Paul Saunders
APPLICANT
AND:
443602 B.C. Ltd. DBA Old Town Bay Marina
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Julie K. Gibson
INTRODUCTION

1.      The applicant Paul Sanders said he was asked to leave his boat slip at the respondent 443602 B.C. Ltd. DBA Old Town Bay Marina three and a half months before his slip rental was due to end. He claims a refund of the remaining $1,234.50 slip rental.

2.      The respondent agrees that the applicant had a one-year contract to rent a slip at the marina. The respondent says it asked the applicant to leave after 9 months, because he damaged the marina’s sign with his car and was living on the boat, in breach of the moorage contract.

3.      The applicant is self-represented. The respondent is represented by its president Todd Kyllo.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act. The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute amounts to a “he said, he said” scenario with both sides calling into question the credibility of the other. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me.

6.      Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I decided to hear this dispute through written submissions.

7.      Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUE

8.      The issue in this dispute is whether the applicant is entitled to the claimed refund of $1,234.50 he paid to moor his boat at the respondent marina.

EVIDENCE AND ANALYSIS

9.      The applicant bears the burden of proving his claim on a balance of probabilities.

10.   I have reviewed all of the evidence and submissions, but only refer to them below to the extent necessary to explain my decision.

11.   The applicant rented a boat slip from the respondent for 12 months.

12.   Both parties signed a Boat Storage Agreement on September 29, 2017, which I also refer to as a moorage agreement.

13.   The agreement provides that the applicant will store his boat at the marina from November 1, 2017 to October 31, 2018 for $336 per month, or $2,116.80 total.

14.   The agreement says the boat storage charges are prepaid at the time of signing the agreement and are “non-refundable”.

15.   The agreement says that:

a.    the boat must not be used as living quarters at any time,

b.    the applicant indemnifies the respondent for any damage caused by him to the marina, and

c.    the respondent the absolute right to cancel the agreement “at any time, without cause or reason”.

16.   If the respondent terminates the agreement, the agreement says the respondent is entitled to retain any balance of boat storage charges as “liquidated damages.”

17.   Based on the agreement, signed by the applicant and filed in evidence, I find that he agreed that the respondent could cancel the agreement at any time. I also find that the applicant agreed that the moorage fees paid were non-refundable.

18.   The respondent says that the applicant was asked to leave the marina before the end of the agreement because he was living on his boat. The applicant did not address this issue in his submissions. Because the applicant chose not to address this central issue, I find that the applicant was living on the boat, contrary to the terms of the moorage agreement.

19.   The respondent also says that the applicant drove his truck into a marina sign, causing damage to it. In his submissions, the applicant does not directly address the allegation of damage to the sign but says any repair expense should have been put through his insurance. I find that the applicant damaged the marina’s sign.

20.   The respondent says the applicant also damaged the boat beside his. The applicant says he was asked to leave because of this accident, but that there was no evidence that he was responsible for hitting the other boat. The respondent says that a witness observed the applicant hitting and damaging the boat moored beside him. However, no documents were filed about this incident.

21.   I have found that the $2,116.80 paid by the applicant was non-refundable. I have also found that he breached the agreement by living on his boat and damaging the marina’s sign. Regardless of whether he was responsible for damaging the boat next to his, he is not entitled to a refund.

22.   The applicant has not met the burden of proving that he is entitled to a refund of his moorage fees.

ORDER

23.   I dismiss the applicant’s claims and this dispute.

Julie K. Gibson, Tribunal Member





 楼主| 发表于 10/19/2019 14:05:11 | 显示全部楼层
Zhen v. The Owners, Strata Plan BCS 1772
Collection
Strata Property Decisions
Date
2017-10-03
Neutral citation
2017 BCCRT 87
File numbers
ST-2017-00140
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/sd/en/235642/1/document.do][/url]





Date Issued: October 3, 2017
File: ST-2017-00140
Type: Strata
Civil Resolution Tribunal
Indexed as: Zhen v. The Owners, Strata Plan BCS 1772, 2017 BCCRT 87
BETWEEN:
Yan Juan Zhen
APPLICANT
AND:
The Owners, Strata Plan BCS 1772
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Maureen Abraham
INTRODUCTION

1.         The applicant is an owner of a strata lot in the 178-unit strata corporation at issue and is represented by Zsolt Kiss.

2.         The respondent (strata) is represented by strata council president Ms. V.

3.         The applicant alleges gross misconduct and negligence on the part of the strata council and its property manager with respect to governance of the strata and maintenance and repair of the building.

JURISDICTION AND PROCEDURE

4.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

6.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.         The applicable tribunal rules are those that were in place at the time this dispute was commenced.

8.         Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make one or more of the following orders:

a.     order a party to do or stop doing something;

b.     order a party to pay money;

c.      order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.         The issues in this dispute are:

a.     Did the strata act improperly in hiring or paying a contractor to complete building exterior work in 2015?

b.     Did the strata fail to provide documents or information as required under the Strata Property Act (SPA)?

c.      Did the strata fail to hold a special general meeting as required under the SPA?

d.     Did the strata council or the strata’s property manager fail to act in the best interests of the owners or otherwise act improperly or in bad faith?

BACKGROUND AND EVIDENCE

10.      The strata is approximately 10 years old and has 27 floors. Three warranty reports were done for the strata building when it was at two, five and ten years old. Since at least 2014, the strata has been assisted by a property manager (the manager).

11.      Since the requirement to obtain a depreciation report brought into force under the SPA in 2013, the owners have voted by a very high majority at their annual general meetings (AGM) to waive getting a depreciation report. The strata has been undertaking proactive maintenance, and was able to obtain a lower annual insurance rate as a result.

12.      By 2013, the strata had obtained a building exterior services report from contractor X, who had previously done some work on the strata’s common property. The report included a quote to provide a wide scope of exterior work at a cost of approximately $360,000. Some of the owners in the strata were reporting water ingress issues, and there were some cracks in the building’s exterior and at some caulked areas.

13.      In addition to representing the applicant in this dispute, Mr. Kiss is the applicant’s common law spouse and also holds her power of attorney.

14.      Mr. Kiss’s involvement in the strata began in or about 2011, when he moved into the building with the applicant owner and since that time, he has represented the applicant with respect to strata matters as her authorized agent. Given Mr. Kiss’ relationship to the applicant, I accept that Mr. Kiss’s actions represented those of the applicant at all material times.

15.      The strata says that Mr. Kiss immediately breached the strata rules and bylaws by failing to make any arrangements for his move-in and by repeatedly violating parking bylaws. Evidence in the form of photographs and correspondence were provided in support of this assertion. By June 2014, Mr. Kiss presented an unsolicited proposal to take over as the strata’s resident caretaker. No evidence with respect to a need to replace the current caretaker was apparent.

16.      In August 2014, the strata requested proposals for some exterior building work from three contractors for some of the services covered by X’s 2013 report.

17.      It did not request a quote from X. The strata provided evidence that X had previously failed to respond to requests for service from the strata, and had failed to provide information and declined warranty coverage for past work. The strata also says X was not agreeable to providing a quote for a reduced scope of work than it had set out in its 2013 report.

18.      At the strata’s AGM held August 13, 2014, the owners duly approved an expenditure from the strata’s contingency reserve fund for exterior building work to be done.

19.      Upon receipt of the quotes for that work, the strata council reviewed them and decided that contractor R would be hired, as it had a lower price for the greatest scope of work and the strata had obtained positive references from third parties about the quality of R’s work. R was the same company through which the strata’s caretaking services were provided. Evidence that R had Worksafe BC coverage and commercial liability insurance was provided by the respondent, although Mr. Kiss asserts that this coverage does not exist.

20.      The applicant says that R did not have a business license. The respondent says that R was licensed with the municipality where R’s office was located, and that it also obtained a business license from the strata’s municipality because of Mr. Kiss’s objection.

21.      By March 2015, the strata council was receiving complaints from its caretaker that Mr. Kiss was harassing its worker, his spouse, council members and others. Work had commenced on the exterior by R, and the strata says its contractors were also subject to threats and harassment by Mr. Kiss. The strata council wrote Mr. Kiss and demanded that he cease contact with the contractors and others. Correspondence evidencing that Mr. Kiss continued to photograph and follow contractors and the caretaker in July 2015 was provided. A police complaint was filed against Mr. Kiss by the individual resident caretaker, who then resigned and was replaced by another individual.

22.      Around this same time, Mr. Kiss made complaints about R and the caretaker to the Fraser Health Authority and WorkSafe BC. He also made a complaint about the manager to the Real Estate Council of British Columbia. The applicant says the subcontractor used by R violated WorkSafe BC rules and his complaints had merit. He has provided copies of WorkSafe reports indicating that they reviewed the working conditions at the strata from 2015 – 2017. His evidence indicates that, with the exception of a direction to put written safety procedures in place, better ear protection for workers doing power-washing, and to institute a policy to address bullying and harassment, the complaints were closed.

23.      R completed the exterior building work by the end of September 2015, and was paid. In October 2015, Mr. Kiss wrote the property manager and strata council members critiquing the work done and demanding documents and information about the project and contractor. The manager responded by providing Mr. Kiss the information and documents he had requested.

24.      On July 5, 2016, Mr. Kiss emailed the manager five times demanding documents and information and critiquing what was provided to him. Most of his requests were the same as ones that he had made (and which had been responded to by the strata) in October 2015. Nevertheless, each email was responded to promptly by the manager with the requested information and documents, along with copies of the October 2015 responses. Mr. Kiss requested and received a list of all strata owners within one week of making a request. This did not satisfy Mr. Kiss, who then refused to deal with the manager and demanded further responses from the managing brokers of the manager’s firm the following week. In his correspondence to them, he accused the manager of deliberately misunderstanding his requests, and referred to him as a “con artist” and “scam artist” to the managing brokers.

25.      By late July 2016, the strata received complaints from owners that Mr. Kiss was going door-to-door with a petition to replace the property manager and caretaker. On July 25, 2016, an owner emailed the property manager advising that Mr. Kiss had approached her mother advising that he was the property manager’s representative and required her signature on a document, which she declined to provide.

26.      On August 10, 2016, the strata received a petition signed by 48 owners demanding that a special general meeting be called for the purpose of firing the property manager and R and removing the strata council members (petition).

27.      The strata says it immediately began to consider whether it could move up the AGM scheduled for September 2016 and hold it along with a special general meeting to avoid the need to hold more than one meeting. It says it learned then that many of the owners who signed the petition did not read English and did not know what they were signing, but thought it was a document the strata council members were endorsing. On August 12, 2016, the strata council sent a letter to the owners explaining that they were not involved with the petition and alleging the difficulties they said they had with Mr. Kiss. As a result, on August 14, 2016, 18 of the owners who had signed the petition revoked in writing their request for a special general meeting.

28.      The strata said that even though they were not obligated to hold a special general meeting, the council decided hold an information session to discuss the issues raised by Mr. Kiss in the petition, in advance of the AGM. Many of the owners attended the session, and Mr. Kiss attended and was provided an opportunity to present his concerns to the owners directly.

29.      Mr. Kiss provided a video excerpt from the information session as part of his evidence, along with a report dated August 29, 2016 from X stating that it had inspected R’s work and that the work done had a lower value than what was paid by the strata. He says that the video evidences the manager and council member’s negative attitude towards him and that the manager made misleading statements to the owners generally about the building.

30.      Shortly thereafter, prior to the scheduled AGM, Mr. Kiss retained a lawyer who wrote the strata council detailing Mr. Kiss’s various complaints (which are the same as the position he has taken in this claim). The strata’s lawyer responded promptly, and provided further explanation for the council’s decision not to continue with X for exterior building work.

31.      The strata’s AGM went ahead September 13, 2016 (2016 AGM). At the 2016 AGM, the strata council president reported to the owners that the council and others felt harassed by Mr. Kiss and reviewed the council’s actions, decisions and the rationale for their decisions with respect to maintenance and repair. The owners then voted unanimously to ratify the strata council’s actions with respect to “building governance” actions. A majority also voted to again waive the requirement for a depreciation report.

32.      Throughout the material time, Mr. Kiss was invited to attend strata council meetings to discuss his concerns, but failed to respond to those invitations. Although not on the agenda, Mr. Kiss was permitted by the strata council to make presentations critical of the council members, property manager, contractors and caretakers directly to the owners at an AGM and the information session. Mr. Kiss made representations to the effect that R was qualified only to provide janitorial services and that the work done to the building was incomplete, too expensive and shoddily done.

33.      No action was taken by the owners following his presentations, who then voted to ratify the strata council’s actions at the 2016 AGM. After the 2016 AGM, Mr. Kiss engaged a lawyer, and correspondence echoing the positions of the parties in this dispute was engaged through their respective lawyers. Mr. Kiss also submitted a complaint to the strata alleging that the building caretaker was breaching the strata’s parking bylaws. The strata provided evidence that it investigated the complaints and found them without merit, and that the complaints were about cars which were not R or the caretaker’s vehicles.

POSITION OF THE PARTIES

34.      The applicant argues that:

•           The strata hired an unqualified, unlicensed, uninsured contractor who they overpaid for incomplete work on the strata’s exterior, and the strata should have first obtained a depreciation report in order to do exterior work;

•           Strata council members and the strata’s property manager misled owners at their meetings, annual general meeting, an information session and in correspondence about the work being done and Mr. Kiss’s role;

•           Strata council members and the property manager refused to disclose documents and information upon his request; and,

•           Strata council members and the property manager failed to act in the strata’s best interests and instead acted negligently and in bad faith.

35.     The applicant requests that I order:

(a)   the respondent not use contractor R for building envelope Work;

(b)   the respondent to confirm that the applicant’s strata lot is covered under warranty;

(c)    the respondent to recover the $88,000.00 paid to contractor R who completed building exterior work in 2015;

(d)   the Respondent to hire a qualified contractor to repair the building envelope, at an approximate cost of $30,000.00 and sue R for the cost of that work; and,

(e)   the Respondent to terminate its relationship with its property management firm.

36.      The respondent argues that:

•           The necessary work to repair and maintain the strata’s exterior building envelope is complete and a warranty has been provided by the contractor;

•           The strata had surveyed the owners various times to obtain information about water ingress and other maintenance issues both before and after the exterior work, and since the work has been done no further water ingress has been reported;

•           The applicant was provided with all documents and information upon request and the strata has been open, honest and transparent;

•           The applicant, through Mr. Kiss, has been harassing the council members, property manager, strata caretaker and contractors and has caused expense, delay and inconvenience to the strata as a result;

•           The applicant’s representative is motivated by self-interest and personal financial gain.

37.      The respondent requests that I dismiss the applicant’s claim. It also requests that the tribunal fine or sanction the applicant, as well as an order prohibiting Mr. Kiss from ever applying for employment with the strata.

ANALYSIS

Did the strata act improperly in hiring or paying a contractor to complete building exterior work in 2015?

38.     A strata corporation operates through its strata council. Each council member is obligated to act honestly and in good faith with a view to the best interests of the strata, and to exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances.

39.     If repair or maintenance that usually occurs less than once per year is needed for the common property, the strata must use money from its contingency reserve fund, rather than its operating fund. In order to spend money from the contingency reserve, the SPA generally requires the strata to first hold a vote amongst the owners to get permission. Unless at least 75% of the owners approve the expenditure amount and purpose, the strata cannot spend the money.

40.     The evidence is that by 2013, exterior work was needed to repair cracks in the exterior and caulking which were causing leaks. X had provided a report detailing a wide scope of work which could be done. The council recommended that the owners prioritize some of it in order to address the leaks. Over 75% of the owners approved the work to be done and the money to be spent from the contingency reserve. The council had the authority to then go ahead and hire a contractor and pay the contractor to the work.

41.      The strata council members obtained three quotes and reviewed them. They obtained and checked references with respect to quality of work. They decided to proceed with a contractor who was licensed and insured, and who offered to do a wider scope of work for a price less than the other bidders. I find that a reasonably prudent person in similar circumstances would have done just what the strata council members did in this case, and that the strata did not act improperly in hiring R to do the exterior work.

42.      The applicant says that X’s report shows that the sealant work done by R was substandard and that it should have cost less. He says that the competing bids were shams and the bidders likely do not exist or were manufactured. No evidence to prove the non-existence of those companies has been provided, and so I do not accept that the competing bids submitted were manufactured by the strata.

43.     X’s report indicates that it was not done until a year after the work by R had been completed, and was done with limited review of the property. The strata says that X had previously been responsible for exterior maintenance and had failed to sufficiently do the work at first instance, which led to the need for some of the exterior work. After the work was done, no further water ingress has occurred. It also provided an excerpt from an engineer’s review of the building setting out that sealant work must be reviewed and maintained annually. In light of this evidence and the passage of time between the work and X’s report, I cannot accept that X’s report is sufficient evidence of substandard work being done in 2015.

44.     I find that the strata did not act improperly in hiring and paying R to undertake the exterior building work, and that the applicant’s claims of substandard work and overpayment are without merit.

Did the strata fail to provide documents or information as required under the Strata Property Act (SPA)?

45.      The evidence provided by the parties shows that Mr. Kiss requested and was provided information and documents in October 2015 and July 2016 in a prompt manner, and within the 2-week time limit set out in the SPA.

46.      I find that the applicant’s complaint in this respect is without any reasonable basis.

Did the strata fail to hold a special general meeting as required under the SPA?

47.      Under section 43 of the SPA, a strata must hold a special general meeting within four weeks after receiving a written demand signed by at least 20% of the owners. On August 10, 2016, Mr. Kiss provided his petition to the strata council members, which was signed by 48 owners. This was approximately 26% of the owners. Under the SPA, the special general meeting would have had to be held by September 11, 2016. An AGM was already scheduled for September 13, 2016.

48.      On August 14, 2016, 18 of those owners rescinded, in writing, their request for a special general meeting. This left 30 owners who had signed the petition, or approximately 16% of the owners. This was not a sufficient number to require the strata to hold a special general meeting.

49.      The SPA is silent on whether or how a request for a special general meeting can be revoked by an owner. The applicant has not provided any evidence to explain how the original signatures were obtained, and so I find their signatures were not validly obtained and the 20% threshold was not met.

50.      In the circumstances, the strata was not obliged to hold a special general meeting, and did not breach the requirements of the SPA.

Did the strata council or the strata’s property manager fail to act in the best interests of the owners or otherwise act improperly or in bad faith?

51.     The applicant has not provided evidence of bad faith or improper motivation on the part of the property manager or council members. Although the video excerpts he has provided show that some council members were frustrated with him, it also demonstrates that he was provided an opportunity to make his case to the owners and that they were aware of his position and were prepared to consider whether his allegations were true.

52.     The applicant has not established that the contractor R was negligent or unqualified, or that the strata failed to comply in any way with its obligations under the SPA. The various complaints detailed by the applicant’s representative have been addressed by the strata and property manager, with the evidence indicating that both the council and property manager have acted quickly and in a transparent, cooperative and straightforward manner as his complaints and demands were received by them.

53.      The correspondence indicates that Mr. K, in particular, has acted with a great deal of patience and restraint in the face of very serious allegations against him. I find that the applicant’s continuous allegations of bad faith and misconduct are entirely without merit.

54.      The evidence submitted by both parties suggests that it is Mr. Kiss who fundamentally misunderstands the obligations and duties of the strata council and property manager. It indicates that he has resorted to any possible avenue to challenge or interfere with work being done to the strata building and the strata’s governance. When he has raised these concerns to the owners, they have considered his position and ultimately disagreed with him. This is reflected in the owners’ unanimous ratification of the council’s conduct at the 2016 AGM.

55.      Mr. Kiss’s motivation is unclear, and it may be that he is genuinely concerned about the strata’s conduct. The strata suggests that he was acting in bad faith, and that his actions have been aimed at gaining control of the strata in order to obtain the contract as resident caretaker. I do not find it necessary to make any finding on Mr. Kiss’s motivations. He is not a party to this dispute in his personal capacity, and I decline to make any order against him personally.

56.      I find that the strata council and property manager have not failed to act in the strata’s best interest and have acted appropriately throughout this dispute.

DECISION AND ORDERS

57.      I order that the applicant’s claims are dismissed.

Maureen Abraham, Tribunal Member




 楼主| 发表于 10/19/2019 14:11:29 | 显示全部楼层
Dullaert v. The Owners, Strata Plan VIS 6296
Collection
Strata Property Decisions
Date
2019-05-31
Neutral citation
2019 BCCRT 656
File numbers
ST-2018-006710
Decision type
Final Decision





Date Issued: May 31, 2019
File: ST-2018-006710
Type: Strata
Civil Resolution Tribunal
Indexed as: Dullaert v. The Owners, Strata Plan VIS 6296, 2019 BCCRT 656
BETWEEN:
Mary Dullaert
APPLICANT

AND:
The Owners, Strata Plan VIS 6296
RESPONDENT

Mary Dullaert
RESPONDENT BY COUNTERCLAIM
REASONS FOR DECISION
Tribunal Member:
Darrell Le Houillier
INTRODUCTION

1.      The applicant and respondent by counterclaim, Mary Dullaert (owner), owns strata lot #24 (strata lot) in the respondent and applicant by counterclaim, The Owners, Strata Plan VIS 6296 (strata). The strata lot has an associated parking spot, #42, which is limited common property assigned to the strata lot, as shown on the strata plan.

2.      The owner raises four issues in her dispute: the adequacy of parking spot #42; a lack of appropriate communication from the strata council; harassment by a member of the strata council, HC; and the adequacy of the strata council’s response to odour complaints the owner made in 2018. The owner asks me to order the strata to provide her with a different parking spot or compensate her for the inadequacy of parking spot #42, communicate promptly and responsively to her, and more effectively respond to her odour concerns. The owner also asks that I order HC to stop harassing her. She also asks for $5,000 in damages, related to her parking spot and HC’s reported harassment.

3.      By way of counterclaim, the strata says the owner is abusing legitimate complaint processes with frivolous matters and is harassing the strata council members and the strata’s property manager. The strata asks that I order the owner to stop doing so and to provide a financial guarantee to insure that she obeys my order.

4.      The applicant is self-represented. The strata is represented by a member of the strata council.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 121 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and must recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Under section 123 of the Act and the tribunal rules, in resolving this dispute the tribunal may make order a party to do or stop doing something, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.      The issues in this dispute are whether:

a.    parking spot #42 is inadequate and, if so, what remedy is appropriate;

b.    the strata has failed to communicate with the owner and, if so, what remedy is appropriate;

c.    HC harassed the owner and, if so, what remedy is appropriate;

d.    the strata inadequately responded to the owner’s odour complaints and, if so, what remedy is appropriate; and

e.    the owner harassed the strata’s representative or engage in an abuse of process and, if so, what remedy is appropriate.

BACKGROUND AND EVIDENCE

General Comments

10.   I have not summarized all the evidence provided with respect to this dispute. While I have considered all the accessible evidence that was submitted, I have only summarized that which is required to give context to my decision and reasons.

11.   There was video evidence that each party referenced, but which I was unable to review. The parties did not submit the video to the tribunal, but rather both sent hyperlinks to webpages that I could not access, but which the parties said contained the video (the video was reportedly the same, except the strata’s version was in one part and the owner’s was split into two parts). The tribunal requires that evidence be submitted to the tribunal and instructs parties to contact the tribunal if they have difficulty doing so. The parties in this case did neither.

12.   Each party described how the video helped their case. The strata says that the video showed council’s efforts to resolve the owner’s complaint about parking spot #42 and that the owner was dissatisfied. The owner says that the video shows the solution proposed by the strata council, particularly insofar as loading a walker into her car, was unreasonable given her disabilities. Both parties have described their positions in sufficient detail that I do not consider it necessary to review the video to address those points.

13.   Additionally, both parties had a reasonable opportunity to present evidence. They were told how to present evidence and were told to contact the tribunal if they were having difficulties. It would have prolonged the decision-making process significantly if I obtained that evidence and I did not consider this to be a reasonable use of the tribunal’s time and resources. I concluded that I was able to fairly decide this dispute without the video evidence referenced by both parties.


Before the Owner Moved In

14.   In June 2007, plans for the strata’s building were filed with the British Columbia Land Title Office as part of the process to create the strata. Parking spaces were to be oriented 90 degrees from the direction of travel of lanes within the parking lot. The lanes were to be 7.71 metres-wide.

15.   The plans called for parking spot #42 to be 6 metres-long. The front of the spot was defined by a wall with a door opening into an electrical room. One of the spots adjoining parking spot #42, parking spot #41, was in an identical situation with respect to access to a mechanical room.

16.   No amendments to the plans for the strata’s building were filed with the British Columbia Land Title Office. Contrary to the plans, the doors providing access to the electrical room and the mechanical room open outward, into parking spot #41 and #42, however.

17.   According to the owner, the electrical room door is 36 inches across. Also according to the owner, clearance for the electrical room door, if it opened into the electrical room, would need to be roughly 33 inches.

18.   On August 18, 2017, Ms. No, a family nurse practitioner, wrote a letter to the owner, stating the owner had several undefined medical conditions and should have a parking spot near the main door of an unspecified building.

19.   On October 26, 2017, the owner was in the process of purchasing the strata lot. The strata’s property manager completed a questionnaire that was later appended, as Form B, to the owner’s contract to purchase the strata lot. The Form B indicates the strata lot has an assigned parking spot that constitutes limited common property. The Form B does not include any questions about restrictions or limitations on parking spots. It does not indicate whether there were any restrictions or limitations on parking spot #42.

20.   On October 27, 2017, the owner’s realtor emailed a strata council member asking where the owner might park her electric scooter, as parking it at the front of the spot would restrict access to the building’s electrical room.

21.   On October 30, 2017, the strata council president, TG, forwarded the owner’s email to the rest of the strata council, including HC.

22.   On November 11, 2017, HC and the owner exchanged several emails. HC asked owner about her mobility challenges and offered the owner the chance to park her scooter in one of his unused parking spots until permanent storage for her scooter could be arranged. HC suggested the owner may need to charge her scooter in her strata lot and provided advice on public roads that may not be suitable for travel via scooter.

23.   The owner provided details to HC about her mobility challenges. In the second email exchange, the owner told HC, “Keep your parking spot. I thought you were a kind and considerate person.”

24.   The owner subsequently complained to the property manager that the strata did not allow her to store her scooter in the bicycle storage locker, putting it at greater risk of being stolen.

25.   On November 19, 2017, the owner emailed HC, asking if she could put a pet enclosure for her cat on her balcony and asking why her scooter could not be stored securely in the parking lot. She did not think it was a good idea to have her scooter inside the building and suggested she could charge it at an electric car charging station.

26.   Also on November 19, 2017, HC responded, pointing out there were no charging stations in the building’s parking garage. He recommended the owner keep her cat tethered while on her balcony.

27.   On November 20, 2017, the owner wrote to HC, enclosing pictures of her cat and scooter to better explain her concerns. The owner raised concerns about the strata’s smoking bylaw and recommended a lawyer review by the bylaws to ensure that they were legal and enforceable.

28.   Also on November 20, 2017, HC responded, thanking the owner for the pictures but not addressing the balance of her email.

After the Owner Moved In

29.   On December 14, 2017, the owner moved in to the strata’s building. On the same day, the property manager created a welcome letter for the owner. The letter provided information related to the strata and encouraged the owner to register with the property manager’s website. The website was also discussed in an attachment to the letter. There was no mention of intercom access in the letter or attachment.

30.   On December 19, 2017, the owner emailed HC to thank him for telling her when the next strata council meeting was taking place. HC responded on the same day.

31.   Later on December 19, 2017, the owner emailed HC and said she wanted 48 hours’ notice if anyone wanted access to parking spot #42, with a specific time indicated. The owner also wanted a member of the strata council present. She stated she was allowed to park right up to the door in parking spot #42 and this would probably invalidate the building’s insurance. The owner demanded that strata council resolve the issue with her by the next day and provide her with an indemnity agreement to protect her car from any damage from anyone trying to access the electrical room.

32.   HC responded by urging the owner give the benefit of the doubt to her new neighbours and to attend a strata council meeting the next day. HC noted that accommodating the owner’s scooter-charging needs was on the agenda for the meeting.

33.   According to TG, on December 31, 2017, the owner knocked on the door of his strata lot and asked why intercom service had not been connected for her. The president asked if the owner was registered with the property manager’s website and she told him she was. He stated that she offered to show him and he accompanied her to her strata lot, where she showed him on her computer that she had registered with the website. The president called someone who volunteered to set up all new residents on the intercom system and he did that for the owner on the same day.

34.   According to TG, the owner criticized the strata’s bylaws, the strata council, the noisiness of her neighbours, snow removal on the property, and HC at length. She reportedly stated she was going to set the strata straight, then told the president he knew nothing and she was going to “...take this Strata down”.

35.   On January 2, 2018, the owner emailed the property manager and sent a copy to HC. The owner stated she received a document package from the property manager on December 22, 2018. She stated she was left without intercom access for 15 days, and was worried about whether she could be reached by emergency medical services if need be. She found it stressful that she did not have access to secure parking for her scooter despite a history of break-ins. The owner asked for a copy of the requirements to get intercom access and a date for a hearing with the strata council.

36.   Later on January 2, 2018, HC wrote an email back to the owner, stating that he understood the intercom issue and the scooter storage issues to be resolved. He noted the owner had complained about parking spot #42 and described how he parked his vehicles, including one large truck.

37.   According to the owner, she registered with the property manager’s website on January 3, 2018 and, once she proved to the strata that she had registered, she was granted access to the intercom. She stated this followed 15 days without access to the intercom, including without access to emergency services.

38.   On January 3, 2018, the owner received an automated email from the property manager confirming she had registered with the property manager’s website.

39.   On January 8, 2018, the owner wrote to HC, stating that she had not received documents from property manager about the intercom until the previous Wednesday (January 3, 2018) and she found the requirements for intercom access confusing. She wrote that she had previously lived in buildings where not all residents had computers and she expressed doubt that the strata could make everyone register online as a prerequisite for intercom access.

40.   On January 12 and 13, 2018, the owner and HC exchanged numerous emails, discussing parking options in parking spots #41 and #42. The owner raised concerns about a large vehicle not fitting in parking spot #42. The emails discussed how various residents of the strata’s building managed their parking needs and HC recommended the owner park farther back in parking spot #42. He stated there was enough room for access to the electrical room to be maintained and for her to fit her car within the bounds of the parking spot.

41.   By January 25, 2018, the strata council sent the owner a letter through a lawyer. According to the letter, the strata council had arranged for the owner to store and charge her scooter in the bicycle storage area. The letter also addressed concerns the owner raised with respect to intercom access, parking, tree spiralling, snow removal, and pathway accessibility. The letter directed the owner to correspond with the property manager via email in the future, noting the owner had threatened to go through the strata’s bylaws carefully and bring all problematic bylaws to the attention of the strata council.

42.   On January 31, 2018, the owner replied. She asserted the strata was bound by the Form B, which should have described the electrical room access issue. The owner wrote that she had asked for an indemnity from the strata, in case anyone damaged her car while accessing the electrical room. Since this was denied, she intended to park her car to prevent access to the electrical room so that she could be called and be present whenever access was required.

43.   On March 16, 2018, the owner emailed the property manager, asking for a diagram or list showing the assignment of parking spots and spots that were “apparently” rentals. The owner asked how parking spots had been assigned and why the strata lot had a lesser quality parking spot. The owner stated she wanted unspecified documents and answers to her questions.

44.   On March 20, 2018, the property manager responded, enclosing a strata plan and asking if the owner had any other outstanding requests.

45.   On March 20, 2018, the owner replied to the property manager that she wanted to know which parking spots in the building were rented out. The owner suggested she trade parking spot #42 for a rental spot until a different parking spot could be assigned to her permanently.

46.   On April 3, 2018, the owner emailed the property manager, stating that another strata lot owner (she indicated to the tribunal that this was HC) told her she would not fit in around the building if she used parking spot #42 as she liked. The owner summarized the historical difficulties she perceived with intercom access, scooter storage, and parking access. She stated she felt discriminated against.

47.   Later on April 3, 2018, the property manager responded to the owner’s email. The property manager thanked the owner for her email and stated she would forward it to the strata council.

48.   Later still on April 3, 2018, the owner sent another email to the property manager, questioning whether strata fees considered each suite’s number and quality of parking spots. The owner asked the question be forwarded to the strata council. The property manager responded that she would forward the matter as requested.

49.   On April 6, 2018, the owner emailed the property manager and complained that the minutes from the strata council meeting in March 2018 had not been distributed within a two-week timeframe, as required. The property manager responded on the same day, that the minutes would be distributed on April 9, 2018.

50.   On April 7, 2018, the owner emailed the property manager and asked her to identify the bylaw which required strata lot owners to register with the property manager’s website before intercom service would be connected. The owner also followed up on the minutes from the March 2018 strata council meeting.

51.   On April 9, 2018, the property manager responded and stated there was no such bylaw. She explained that an issue in her office was responsible for the delay in distributing the strata council meeting minutes, but they would be out “imminently”. There was no further correspondence related to the March 2018 strata council meeting minutes.

52.   On May 7, 2018, the owner emailed the property manager, complaining that the minutes from the strata council meeting in April 2018 were not distributed within the two-week timeframe permitted for distribution.

53.   On May 9, 2018, the property manager responded to the owner’s inquiry and stated that the minutes from the strata council’s April 2018 meeting had been distributed. There was no further correspondence related to the April 2018 strata council meeting minutes.

54.   On July 16, 2018, the owner and property manager exchanged several emails. The owner indicated she wanted to change some electrical fixtures and outlets in her suite and asked if there was someone the building retained for such work. The property manager and owner debated whether the owner needed to obtain permission from the strata council.

55.   On July 17, 2018, the owner emailed the property manager and described an upgrade she wished to do to her flooring. She also complained about a strong smell of perfume in the elevator, stating she was allergic to perfume.

56.   Later on July 17, 2018, the property manager emailed the owner and stated she would forward the owner’s perfume complaint to the strata council.

57.   On July 18, 2018, the owner wrote to the property manager and described having a strong reaction as a result of perfume exposure. She asked that signs be posted about perfume use or that a bylaw addressing the issue be passed.

58.   Later on July 18, 2018, the property manager responded that she had forwarded the owner’s concern to the strata council. The property manager stated the strata could do little but post notices.

59.   In a separate email on July 18, 2018, the property manager informed the owner that the changes to her electrical fixtures did not require permission so long as the wires in any walls were unaffected. The property manager stated she would forward the request for a flooring upgrade to the strata council for its consideration.

60.   On July 20, 2018, the owner emailed the property manager, stating that an existing bylaw could be used to deal with the perfume issue. The owner stated she noticed a strong odour in the elevator the previous day. The owner complained that the strata council had not done anything to address her complaint and she wanted signs posted the same day.

61.   Also on July 20, 2018, the property manager emailed the owner and stated that the bylaw could only be enforced if a person responsible for the nuisance was identified. The property manager added that the strata council was preparing notices for distribution to building residents and for posting. A notice was emailed to strata residents on the same day, asking for residents to be courteous toward other residents who were susceptible to strongly scented products.

62.   On July 26, 2018, the property manager wrote to the owner and advised that the owner’s request to upgrade her flooring was approved. The property manager also stated that the strata council would be putting up posters addressing fragrance sensitivities.

63.   According to the owner, no discussion of the perfume issue appeared in the minutes of the strata council meeting from July 2018. No minutes of that meeting where provided to the tribunal, however.

64.   On August 2, 2018, the property manager sent the owner a letter, advising her that another strata lot owner had complained that the owner parked her car in such a way that blocked access to the electrical room. The property manager advised that the owner could face fines if she continued to block access to the electrical room.

65.   On August 7, 2018, TG sent out a regular bulletin to residents. Included in his bulletin was a reminder for residents to be mindful of how fragrances can affect their neighbours.

66.   On August 8, 2018, the owner attended a meeting of the strata council to discuss her parking stall. A further meeting was scheduled between the owner and members of the strata council on August 14, 2018, to explore possible solutions to the owner’s concern. Video recordings were to be taken of that meeting.

67.   On August 8 and 9, 2018, the owner and the property manager exchanged several emails. The owner asked how hearings before a strata council could be time-limited. The property manager advised the chair of the meeting could set time limits for discussions.

68.   On August 9, 2018, the owner emailed the property manager to complain that someone named Fran had told her she was not wanted in the building and needed to move out because she was causing too much trouble.

69.   On August 10, 2018, the property manager emailed the owner back and asked who Fran was. There is no record of any response from the owner.

70.   On August 15, 2018, the owner emailed the property manager, complaining that HC’s truck was protruding too far out of his parking spot. She described this as a violation of the strata’s nuisance bylaws.

71.   On August 17, 2018, the owner wrote an email to the property manager and a member of the strata council, complaining about other incidents involving excessive perfume smell. The owner demanded that signs be posted, describing the nuisance bylaw and associated fine. The owner stated she was parked in a designated disabled parking space and would not move her car for several hours so that the elevator could “air out a bit” first. The owner also asked for a decision on the parking issue.

72.   On August 20, 2018, the property manager emailed the owner and stated there was little more the strata could do without knowing who was responsible for the perfume. The property manager asked the owner if she had any suggestions for actions the strata could take.

73.   On August 21, 2018, the owner emailed the property manager, advising she had not been provided with a decision on the parking issue, as required under the Strata Property Act (SPA). The owner reiterated her request that the strata post information related to the nuisance bylaw and that the strata pass a bylaw at the next annual general meeting, designating the building as scent-free. The owner also suggested that the building be aired out when conditions outside were not smoky.

74.   Later on August 21, 2018, the property manager responded via email, again asking for suggestions on what the strata council could do without knowing who was responsible for the perfume scent. There is no record of any reply from the owner. In a separate email on the same day, the property manager advised she would not be returning the owner’s calls. She wanted all correspondence in writing and she would consider all correspondence before sending any reply.

75.   On August 22, 2018, the owner and property manager exchanged several emails discussing whether a response from the strata on the parking issue was still outstanding. The exchange of emails ended with the property manager telling the owner that she could expect another letter shortly.

76.   On August 22, 2018, the strata’s property manager emailed and mailed the owner a letter. The letter asked that the owner to write to the property manager rather than to members of the strata council. The letter acknowledged that owners were entitled to receive minutes of strata council meetings within two weeks and the strata was working toward that goal. The letter indicated the owner was able to load her walker into the back seat of her car and she should continue to use parking spot #42; the strata council could not reassign another one or give her one of the building’s designated disabled parking spots.

77.   On August 26, 2018, the owner emailed the property manager and asked for the date the strata plan was registered and the date of the first strata council meeting, when the council took over from the developer.

78.   On August 27, 2018, the property manager answered the owner, providing the date of registration of the strata plan. The property manager did not address the question about the first strata council meeting.

79.   From August 27, 2018 to September 5, 2018, the owner exchanged numerous emails with a bylaw enforcement officer in the municipality in which the strata’s building was located. By the end of the email chain, the bylaw enforcement officer stated that, as far as the municipality was concerned, the owner had a valid parking spot, regardless if some portion was unusable so that the electrical room could remain accessible.

80.   On August 29, 2018, the strata council held a meeting. According to the meeting minutes, the strata council had received numerous pieces of correspondence from the owner and would not be responding. The strata council also decided to remove the fragrance postings that it had previously put up.

81.   According to the owner, part of what she had sent to the strata council was the information she had obtained from the municipal bylaw enforcement officer.

82.   On August 31, 2018, the owner emailed the property manager, requesting a decision on the parking issue. The property manager responded on September 4, 2018, reminding the owner that all communication was to be in writing. Decisions would be communicated via meeting minutes.

83.   On September 4, 2018, the owner emailed the property manager asking if a final decision on the parking issue had been made.

84.   Later on September 4, 2018, the property manager reiterated that the owner needed to send all correspondence to her. The property manager would forward that correspondence to the strata council for consideration, and the owner could see their decisions in the strata council meeting minutes.

85.   On November 22, 2018, the strata held an annual general meeting. The strata council proposed that the building be designated as scent-free but the motion was defeated.

86.   The strata’s representative provided to the tribunal an undated letter signed by HC. In the letter, HC summarized his interactions with the owner. He described frequently reaching out to the owner, listening to her complaints, and offering advice.

87.   HC stated that, if anyone had engaged in bullying or harassment, it was the owner. He described the owner deliberately blocking access to the electrical room, requiring the strata to threaten to impose a fine. In response, the owner began using a designated disabled parking space.

88.   HC stated that three members of the strata council spent an hour in the parking lot trying to resolve her concerns about loading her walker into the back seat of her car. Afterward, the owner agreed that suspending a tennis ball from the ceiling above her parking space would be a good way to help her know how deep into her parking spot she should park. HC stated that he did this work. The owner later telephoned the police and accused him of harassment, despite her earlier agreement to the tennis ball solution.

89.   HC stated he also used his pickup truck to illustrate that the owner could extend the back bumper of her car out of her parking spot by the same amount of space necessary to provide access to the electrical room. The owner then complained that HC’s truck was interfering with another resident’s ability to park. HC stated he moved his truck to his other space and contacted the resident that was allegedly inconvenienced, only to discover the owner had not spoken to him/her.

POSITION OF THE PARTIES

90.   The owner says that parking spot #42 is the subject of a size-reducing restriction that the strata either unlawfully placed on the space or that the strata should have disclosed before she purchased the strata lot. The owner seeks assignment of a different parking spot for her strata lot or that the strata compensate her for the decreased value of her strata lot, given the restriction on parking spot #42.

91.   The strata says it has no ability to reassign parking spots. The strata also says it should not have to compensate the owner for any reduction in the value of her strata lot associated with having parking spot #42 assigned to it.

92.   The owner says the strata has not communicated with her as required. Specifically, it denied her access to the building intercom for 15 days after she moved in to her strata lot, making her feel cut off from emergency services. It denied her secure storage for her scooter until another strata lot owner intervened on her behalf. It provided minutes of strata council hearings later than permitted and did not answer her inquiries and document requests. She seeks an order that the strata council must answer her questions, provide accurate information, respond in a timely fashion, and distribute strata council minutes as required by the SPA.

93.   The strata says the strata council works with the property manager to report to all owners in a timely manner but each of the owner’s communications may not be responded to.

94.   The owner says HC made her life as a disabled person difficult in a number of ways: sending her letters, confronting her about her parking spot and how she could use it, and forcing her to demonstrate getting her walker into her car while filming her, which made her feel humiliated. She seeks an order that HC cease harassing her and that the strata cease making her life as a disabled person difficult. She also seeks financial compensation.

95.   The strata denies that HC harassed the owner.

96.   The owner says there were strong odours in the elevator of the building and the strata did not adequately address the issue. She seeks an order that the building be designated scent-free and that the strata be ordered to create bylaws saying so.

97.   The strata says it cannot make the building scent-free without an appropriate resolution passed at a general meeting.

98.   In its counterclaim, the strata says the owner exploited legitimate complaint mechanisms for her frivolous complaints and harassed members of the strata council and the property manager with excessive correspondence and demands. The strata also noted that the owner had previously brought a different strata corporation before the tribunal and her claims were dismissed. The strata asks that I order the owner to stop engaging in harassment and abuses of process, and to surrender $1,000, to be placed in trust and returned to the owner if she abides by my orders for one year.

99.   Each party requests that I dismiss the claim/counterclaim of the other party.

ANALYSIS

Is parking spot #42 inadequate and, if so, what remedy is appropriate?

100.      Parking spot #42 has been designated on the strata plan as limited common property associated with the owner’s strata lot. Section 1 of the SPA defines limited common property as common property designated for the exclusive use of the owner(s) of one or more strata lots. No restriction or limitation has been registered on her ability to use parking spot #42. This suggests that no one but the owner can use parking stall #42.

101.      The right to exclusive use is modified, however, by section 77 of the SPA. That section states that an owner with rights to use limited common property must allow the strata corporation reasonable access to that property to exercise its powers and fulfill its duties. There is no limitation on how often the strata may access the property or what it may do to exercise its powers and fulfill its duties.

102.      Section 6.3 of the British Columbia Fire Code requires that fire alarm and detection system components shall be accessible for inspection or maintenance. This means that there must be sufficient room to open the door providing access to the electrical room. As a result, roughly 91 centimetres of the parking spot must be kept clear to allow the electrical room door to swing outward.

103.      Because parking spot #42 provides the sole point of access for the electrical room and because parking spot #42 is limited common property, the strata must ensure compliance with section 6.3 of the British Columbia Fire Code. It is a duty of the strata to ensure that the electrical room is accessible at all times, which is permitted under section 77 of the SPA.

104.      The strata did not have to tell the owner about the effect of section 77 of the SPA. Nothing on Form B asked for such information and the owner has not provided a convincing explanation why the strata should have provided such information. Section 59 of the SPA requires the strata to respond to inquiries in a prescribed form, the Form B, but not to volunteer additional information not specifically requested in that form.

105.      The owner is not entitled to a different parking spot. She had the opportunity to assess the parking spot before she purchased the strata lot. As indicated by her realtor’s email of October 27, 2017, she was aware of the access issue. If she did not notice or appreciate the implications of the outward-opening door to the electrical room, that is no fault of the strata. For the same reason, the strata is not required to compensate the owner for any decreased value of her strata lot, when compared to other strata lots that are not as affected by the operation of section 77 of the SPA.

106.      I recognize that the electrical room door opens outward into parking spot #42, rather than inward, as indicated on the strata plan. The requirements of a strata plan are listed in section 244 of the SPA and section 14.4 of the SPA regulation.

107.      Section 244 of the SPA does not require any detail about access to common areas or how a building or parking lot is to be constructed. Generally speaking, the strata plan is to show property boundaries, the exterior of buildings, the size and layout of strata lots, and survey information.

108.      Section 14.4 of the regulation lists many requirements for the form of strata plans and information they must contain, but does not require the plans to contain the directions in which doors open, the means by which any areas are accessed, or details related to the construction of parking lots, interior walls, common property, or limited common property.

109.      Sections 244 of the SPA and section 14.4 of the SPA regulation describe a significant number of requirements for strata plans. I consider that a strata plan must be accurate in the areas required by those sections. As the effect of the strata plan, as set out in section 239 of the SPA, is only the creation of strata lots, the strata is not bound by any aspects of the plan beyond those required by section 244 of the SPA, section 14.4 of the SPA regulation, or that informs the creation of strata lots.

110.      I also appreciate that the owner has argued that it is unfair that her parking spot is less desirable than all other parking spots save one. Section 160 of the SPA, read in conjunction with section 121 of the Act, allows a strata owner to seek a remedy from the tribunal on any decision made by a strata council that is significantly unfair to that owner.

111.      The case Chow v. Strata Plan LMS 1277, [url=https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc335/2006bcsc335.html]2006 BCSC 335 (CanLII) (Chow) contains a description of what sorts of decisions meet the threshold of significant unfairness. At the very least, such a decision must be oppressive and unfairly prejudicial. An oppressive decision is “burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith”. A decision is “unfairly prejudicial” if it is unjust and inequitable. In Ernest & Twins Ventures (PP) Ltd. v. Strata Plan LMS 3259, 2004 BCCA 597 (CanLII), the British Columbia Court of Appeal noted that some strata owners may be treated unfairly without meeting the threshold of significant unfairness.

112.      In this case, I find that it is unfair that the owner has one of the two parking spaces that can only be used subject to maintaining accessibility, but it is not significantly unfair. Once the owner raised the issue to the strata council, it needed to consider whether to change the operation of the electrical room door, to bring it into conformity with the strata plan. This is the only decision made about the parking issue that affected the owner. The strata needed to balance the interests of the owner with the interests of the strata as a whole.

113.      Fixing the electrical room door would only potentially improve the parking issue, not resolve the issue altogether, as some degree of access to an inwardly-opening door would still be required. Based on the information the owner provided to the tribunal, this would reduce the amount of parking spot #42 that would need to remain clear to provide access to the electrical room from 36 inches to roughly 33 inches. The strata did not address this issue. Consequently, I conclude that changing the direction the door opened would provide only 3 additional inches of usable space within parking spot #42. Given this limited benefit, I do not consider the strata to have acted in a way that was obviously oppressive or unfairly prejudicial on its face. No evidence has been presented to show that this decision was oppressive or unfairly prejudicial as defined in Chow. Accordingly, while the access requirements to which parking spot #42 are subjected are unfair to the owner, they are not significantly unfair.

114.      I recognize that the usable area of parking spot #42 is less than the size of parking spots as required under the municipality’s bylaws. The municipality’s bylaws, however, are a matter between the bylaw and the strata. The owner raised the issue with a bylaw enforcement officer, who indicated the municipality was of the position that the parking spot #42 remained valid under the bylaws, notwithstanding the need for constant access to the electrical room. The owner has not provided a convincing argument why I should come to any other conclusion or to subject the strata to a stricter standard of bylaw enforcement than the relevant municipality.

115.      I also recognize that the owner considered parking far enough back in parking spot #42 was unreasonable. The information she provided to the tribunal seemed to suggest that parking far back in the spot would make it awkward or difficult for her to load her walker into and remove her walker from the back seat of her car, although she was able to do so if she needed to.

116.      The owner’s evidence establishes that she used her walker when going to and from her car, but she was able to load her walker into the car before entering it. She was able to get out of her car and unload her walker herself. The owner did not describe why she could not leave her walker behind and to the side of parking spot #42, reverse her car out some distance if she needed to, then get out to load her walker into the back seat of her car before resuming her trip. I do not consider this to be an unreasonable burden for her and she did not provide sufficient evidence to support that conclusion.

117.      The only evidence the owner provided about her disability beyond asserting that she was disabled was the note from Ms. No, which pertained to an unspecified building before the owner bought the strata lot. The owner has not met her burden to prove her case with respect to this issue.

118.      For the reasons already provided, I find that the parking spot #42 is not inadequate.

Has the strata failed to communicate with the owner and, if so, what remedy the owner should be given?

119.      I have reviewed the communications between the owner and HC, who was acting on behalf of the strata council before the owner moved in to her strata lot on December 14, 2017. HC responded promptly to the emails from the owner and her realtor. His responses addressed the concerns and questions raised in those emails. I consider that HC’s emails were respectful and were intended to be helpful.

120.      The welcome letter provided to the owner by the property manager lacked information about how she could obtain access to the intercom. When the owner complained to TG that she did not have intercom access on December 31, 2017, he ensured that she obtained access the same day. While the welcome letter from the property manager left something to be desired in terms of the information it provided, the issue was remedied promptly once the owner made a member of the strata council aware that there was a problem.

121.      I recognize that the owner reported that she only gained access to the intercom on January 3, 2018. She provided an automated email indicating that she was registered with the property manager’s website by that date; however, she also stated she moved in to her strata lot on December 14, 2017 and was without intercom access for 15 days. The owner’s accounts are internally inconsistent and, accordingly, I find the dates provided by TG to be more persuasive.

122.      For the same reason, I conclude that the owner invited TG to verify that she had registered with the property manager’s website on December 31, 2017 and he accepted that offer. I do not accept that TG required the owner to prove that she had registered with the property manager’s website.

123.      Between the owner’s move-in date on December 14, 2017 and January 25, 2017, the strata council or the property manager had responded to concerns raised by the owner on secure storage of her scooter, a charging station for her scooter, intercom access, parking, tree spiraling, snow removal, and pathway accessibility. In the months that followed, the owner raised concerns about the distribution of strata council minutes, improvements to electrical fixtures and flooring in her strata lot, odour in common areas of the strata building, being harassed by someone named Fran, and objecting to the conduct of HC. The property manager and/or members of the strata council provided a reply on each of those issues.

124.      While the owner stated that she did not receive any response on the question of secure storage for her scooter until another strata owner intervened, she did not provide additional detail. I do not find her bare assertion in this regard to be persuasive. It is unclear whether the owner meant that nothing was done until HC intervened, although HC was the designate from the strata council who responded to the owner’s concern about storage of her scooter. Based on the information before me, I consider the strata council to have been responsive without the intervention of a third party.

125.      The owner also raised a concern about the strata’s bylaws generally and the smoking bylaw specifically to HC on November 20, 2017; however, the vague concerns described by the owner do not require a response. The owner was free to raise more specific concerns but she did not. She was free to suggest amendments to or additions to the strata’s bylaws at the annual general meeting but she did not.

126.      With respect to the owner’s parking-related concerns, the strata council provided a substantive answer to the owner’s request for reassignment of another parking spot to her. The strata council attempted to assess the owner’s needs and suggested a solution to try to address her concern.

127.      With respect to the owner’s odour-related concern, the strata council posted notices in the building. It emailed notices to all residents and TG recommended considerate use of fragrances in his bulletin on August 7, 2018. The strata council also proposed a bylaw to designate the building as scent-free, as the owner requested, although that measure was ultimately defeated in the annual general meeting. While the owner made some suggestions to address her concern, the strata was not obligated to do as she wished. The strata was not obligated to “air out” the building, to threaten fines for those wearing excessive fragrance, or do the other specifics demanded by the owner. I conclude that the actions undertaken by the strata with respect to the owner’s odour complaints were reasonable and responsive.

128.      With respect to what the owner described as requests for documents, I find that those requests were all met, insofar as the strata’s obligations to meet them were concerned. The owner repeatedly raised concerns about strata council minutes being released late and, on each occasion, the property manager seems to have distributed the minutes in due course. The late distribution of strata council minutes does not seem to be an ongoing problem and the owner seems to have been provided with all requested minutes.

129.      The other requests made by the owner did not take the form of requests for specific documents, but rather for information. The strata and the property manager are not under an obligation to comb through historic documents and provide answers for the owner. The owner did not request specific meeting minutes or the strata plan, yet the property manager attempted to discern what document would provide the information the owner wanted and provide it to her. On March 20, 2018, the property manager even followed up to ask if the owner had other outstanding requests. If the owner wants to know whether the strata fees are differentiated based on the number and quality of parking spots assigned to each strata lot, she can request relevant documents from the strata or from the Land Title Office, which should describe the calculation of strata fees.

130.      While the owner also requested information about which parking spots are associated with which strata lots, that information appears in the evidence presented to the tribunal. Similarly, the strata plan contains information about how parking spot #42 came to be assigned to her strata lot. As such, the owner has access to that information at the issue is moot.

131.      The owner also provided information to the property manager and/or the strata council about HC reportedly telling her she would not fit in if she used parking spot #42 as she wished and about her communications with a municipal bylaw enforcement officer. Absent requesting specific action from the strata council or complaining about a violation of a specific bylaw, it is unclear what further communication the owner might wish. The property manager and/or strata council acknowledged receipt in each case. There was no follow-up but it is not clear what follow-up is requested or needed. I conclude that the strata was not deficient in communication on those issues.

132.      Lastly, I find that having a lawyer or property manager handle communications from the owner was a reasonable step for the strata council to take. The owner sent a large volume of emails and members of the strata council found her needs to be overwhelming. I do not fault the owner for the amount of correspondence she sent but the strata is free to run its affairs as it sees fit, provided it acts fairly toward the owner. I have seen no indication that the strata has shirked its responsibilities by designating the property manager and/or a lawyer to deal with the owner. I have seen no indication of unfairness toward the owner in this delegation either.

133.      I appreciate that the property manager and strata council were not perfect in all aspects of communication. In some cases, the owner did not receive replies. On other issues, there may have been delays in communication. The SPA does not subject a strata council member acting on behalf of a strata to a standard of perfection, however.

134.      Section 31 of the SPA requires strata council members to act honestly and in good faith with a view toward the best interests of their strata corporation, and to exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances. This is the same requirement as exists for the property manager who fulfills some of their obligations on their behalf. I conclude that the property manager and the strata council met the burden imposed by section 31 of SPA, insofar as communicating with the owner is concerned.

135.      My conclusion on this point recognizes that this case involves a great number of communications from the owner, whose correspondence verges on confrontational and hostile at times. The owner demands immediate responses and has raised numerous concerns and inquiries without any apparent regard for the fact that the members of the strata council are volunteering their time to serve the other owners within the strata.

136.      Based on the circumstances of this case, I conclude that any communication failures on the part of the strata have been resolved. I conclude that the owner should not be given any remedy.

Did HC harass the owner and, if so, what remedy the owner should be given?

137.      I have considered the conduct of HC as revealed through the evidence provided to the tribunal and I find that he did not harass the owner. I consider HC’s questions about the owner’s mobility needs and scooter to have been reasonable inquiries made in an attempt to accommodate her needs. It was through the efforts of HC that the owner obtained secure parking for her scooter. Additionally, HC worked to resolve the owner’s concern about her parking space through emails and by attending the parking lot with her in August 2018, to try to problem-solve around her using her car while maintaining access for the electrical room.

138.      HC’s attempts were not baseless demands for information or efforts to make the owner’s life more difficult. He offered the owner use of his parking stall for her scooter, despite being under no obligation to do so. While that may not have addressed all the owner’s concerns, such an offer is inconsistent with the owner’s allegations of harassment. So too was HC’s subsequent conduct. For example, the owner acknowledged that HC helped her by telling her about a strata council meeting in December 2017, when she wanted to raise issues of concern to her.

139.      The owner did not provide evidence to indicate that she expressed any reservations about being filmed accessing her car while being filmed at the time. This strategy seemed to have been decided by unanimous agreement at the August 2018 strata council meeting. It is unclear why the owner felt humiliated by the experience or why the fault was ascribed to HC. In any case, the owner has not established that HC harassed her. The owner’s assertion that HC had told her she would not fit in, devoid of any context, is insufficient.

140.      For the reasons already provided, I find that HC did not harass the owner.

Did the strata adequately respond to the owner’s complaints about odours and, if not, what remedy the owner should be given?

141.      As I have already indicated, the strata responded to the owner’s complaints about odours with a variety of actions. They posted signs advising requesting moderation in scent use within the building. They emailed notices to all residents to the same effect. TG included a similar request in his next bulletin sent to strata owners. At the request of the owner, the strata council proposed a bylaw at the next annual general meeting, that the building should be designated “scent-free.” Even if the odour complaint was not discussed in the July 2018 strata council meeting, the strata council responded to the owner’s complaints.

142.      The property manager canvassed with the owner what more she would like done to avoid having bothersome fragrances used in the building. The owner asked that the nuisance bylaw be enforced to deal with the situation.

143.      As the property manager repeatedly communicated to the owner, in order for a bylaw to be enforced, the strata must be able to identify who contravened the bylaw. Enforcement of bylaws is described in sections 129 of the SPA. The strata may remedy the breach of a bylaw and may enforce conformity to the bylaw through fines or the denial of access to recreational facilities. The latter two enforcement mechanisms require the identification of a person who violated an applicable bylaw.

144.      No such information is available here. I consider the strata to have taken reasonable steps to address the owner’s concerns. The strata was not obligated to post or distribute notices, nor to keep posted notices up for a certain period of time. The strata did not need to threaten bylaw enforcement, which could limit their discretion to not enforce the bylaw in subsequent, particular circumstances. They introduced a “scent-free” bylaw as the owner requested, but that proposed bylaw was voted down. No enforcement processes were available to the strata and, as a result, I consider that the strata met its obligations with respect to the owner’s complaint of odours in common areas of the building.

145.      For the reasons already provided, I conclude that the strata adequately responded to the owner’s complaints about odours.

Did the owner harass the strata’s representatives or engage an abuse or process and, if so, what remedy the strata should be given?

146.      The strata says that the worker has excessively corresponded with and made demands of the strata, either through the strata council or the property manager. The strata also stated that the owner abused legitimate complaint mechanisms to advance complaints that the strata thought were baseless.

147.      After reviewing the various statements describing the interactions between the owner and various representatives of the strata, and after reviewing all correspondence provided to me, I do not think that the owner was engaging in harassment or an abuse of process. The owner complained frequently and strongly about a range of subjects. She also adopted a threatening posture at several points, including when emailing HC on December 19, 2017, speaking with TG on December 31, 2018, writing to the strata council on January 31, 2018, and writing to the property manager and strata council on August 17, 2018, but there is insufficient evidence to conclude that she did so with an improper motivation.

148.      The strata presented evidence that the owner told TG she intended to “take down” the strata and would go through the bylaws with a fine-tooth comb and bring forward any of concern to her. The owner raised a number of issues in the first months after moving in. Later, however, she seemed focused on her parking spot and on the odour issue she observed in the building. She wrote and spoke to representatives of the strata frequently on those issues, but she had some legitimate concerns. I note that her concern about odours, for example, is not dismissed because it had no merit, but rather because there is no viable method of enforcement of the bylaws given the limited information available.

149.      As a Vice Chair of the tribunal noted in Mellor v. The Owners, Strata Plan KAS 463, 2018 BCCRT 1 (CanLII), it will be a rare circumstance where an owner’s document requests of his or her strata will be found to be frivolous or vexatious. I consider the same general principle to apply in cases where an owner raises concerns about bylaws or complaints to the strata. So long as there is some basic level of legitimacy to an owner’s complaints and concerns, I am reluctant to conclude that they were frivolous or vexatious. In this case, I find there to be some legitimacy to the owner’s complaints and concerns. This is particularly so with respect to the issues about which she most frequently communicated with the strata’s representatives, the issues she raised in this dispute.

150.      I have also reviewed the previous tribunal decision referred to me by the strata. That decision was anonymized for reasons that are not clear to me. Because this decision is not anonymized and the owner is the same in each case, I will not refer to that decision by name.

151.      The owner was unsuccessful in her previous dispute brought before the tribunal. That case has nothing to do with the present dispute, however.

152.      For the reasons I have already provided, I conclude that the owner did not harass the strata’s representatives or engage in an abuse of process.

TRIBUNAL FEES AND EXPENSES

153.      Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses.

154.      In this case, both parties were unsuccessful. I do not consider it appropriate for either party to pay the expenses of the other party in this case. I therefore make no order for the reimbursement of tribunal fees.

155.      As set out in 189.4 of the SPA, the strata must not charge dispute-related expenses against the owner, unless the tribunal orders otherwise. I do not order otherwise.

DECISION AND ORDERS

156.      I dismiss the owner’s complaint and the strata’s counterclaim.

Darrell Le Houillier, Tribunal Member




 楼主| 发表于 10/19/2019 14:22:54 | 显示全部楼层
Bourque et al v. McKnight et al
Collection
Strata Property Decisions
Date
2017-06-08
Neutral citation
2017 BCCRT 26
File numbers
ST-2016-00019
Decision type
Final Decision
Decision status
Appeal / Judicial Review





Date Issued: June 12, 2017
File: ST-2016-00400
Type: Strata
Civil Resolution Tribunal
Indexed as: Bourque et al v. McKnight et al, 2017 BCCRT 26
BETWEEN:
Joseph (Wayne) Bourque and Anne Lloyd
APPLICANTS
AND:
Wendy McKnight and The Owners, Strata Plan VIS 2963
RESPONDENTS
AMENDED REASONS FOR DECISION
Tribunal Member:Shelley Lopez, Vice Chair
INTRODUCTION

2)        The strata is a duplex as it has only 2 strata lots. The applicants, Joseph (Wayne) Bourque and Anne Lloyd, own Lot B. The respondent owner Wendy McKnight owns Lot A.

3)        That the strata is a duplex is at the core of this dispute, because under the Strata Property Act (SPA) and the applicable bylaws, both owners are council members and both must agree before the strata can do anything. In particular, for several years the parties have been deadlocked on a variety of issues related to the repair and maintenance of both common property and of Lot A. Broadly stated, the applicants say the respondent owner has left the property, including the Lot A side of an oceanfront seawall, in an unsightly and potentially unsafe state. In contrast, the respondent owner says her approach has been reasonable.

4)        The applicants are self-represented by Mr. Bourque and the respondent Ms. McKnight is represented by legal counsel, Andrew Broadley. Given the circumstances, the strata is represented separately by each council member, namely Mr. Bourque and Mr. Broadley on behalf of Ms. McKnight, and the strata’s submissions were provided in the form of further submissions from each council member.

5)        Bearing in mind the tribunal’s mandate, it is in the best interests of these deadlocked parties for me to give specific reasons and orders to the extent possible. My doing so has lengthened this decision significantly.

JURISDICTION AND PROCEDURE

6)        These are the formal written reasons of the tribunal. The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act[1] (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness. The tribunal also recognizes any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7)        The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate. The burden of proof is on the applicants and the evidence must be established on a balance of probabilities.

8)        The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I heard this dispute through written submissions because I find there are no significant credibility issues or other reasons that might require an oral hearing.
9)        Under section 48.1 of the Act, in resolving this dispute the tribunal may make one or more of the following orders:
a)     order a party to do something;
b)     order a party to refrain from doing something;
c)      order a party to pay money.

10)     Section 48.1(2) of the Act further provides that the tribunal may make an order directed at the strata, the council or a person who holds 50% or more of the votes, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights.

ISSUES
11)     The issues in this dispute are:
a)     What repairs, if any, should be made to the Lot A side of the seawall and at whose cost?

b)     What professional inspection of the Lot A residence, if any, should occur to address the applicants’ concerns about mould and hoarding, and what remedy, if any, should be ordered?

c)      Has the respondent owner improperly used and caused “unsightly conditions” on the Lot A yard and on common property, which the applicants say have caused a nuisance and interfered with their right to enjoy the property? What remedy, if any, should be ordered now?

d)     Should the tribunal provide an order to provide for revisions to the strata’s bylaws, in particular to establish maintenance standards and a dispute resolution process?

e)     Should the respondent owner reimburse the applicants $225 in tribunal fees?
BACKGROUND AND EVIDENCE
12)     The duplex is a one-storey oceanfront building. The applicants bought Lot B in 1994, shortly after the strata plan was filed in 1993. In 2008, the respondent owner became the 4th owner of Lot A.

13)     To date, the strata has operated informally without complying with the SPA and the applicable bylaws. In particular, there have been no regular strata council meetings, no regular annual general meetings, no strata fees collected, no contingency reserve fund, and no strata bank account. The Lot B owners were unaware of the SPA until these disputes arose in 2010 and up to that point had amicably resolved any issues with the previous owners of Lot A informally. Such agreements included replacement of an electrical line pole on the common property and roof repairs in 2007.

14)     The strata plan shows Lot B is to the north of Lot A, with waterfront yards to the west, side yards at the outer north and south boundary edges, and front or street-facing yards to the east. The parties agree that these “private yards” on the strata plan form part of the respective strata lots, as identified on the strata plan. There is an oceanfront seawall that runs the length of the entire strata property. Apart from certain parts of the duplex building itself, the only common property is a paved driveway to the building from the street to the east, which serves to divide the two strata lots, along with an area at the top of the driveway in front of both strata lots. There is no limited common property designated on the strata plan.

15)     The strata has never adopted bylaws that replace or amend the Schedule of Standard Bylaws under the SPA. Thus, the Schedule of Standard Bylaws (bylaws) applies. The relevant bylaws may be summarized as follows (my bold emphasis added):

a)     Bylaw 2: An owner must repair and maintain the owner’s strata lot, except for repair and maintenance that is the strata’s responsibility under the bylaws.

b)     Bylaw 3(1): An owner must not use a strata lot or the common property in a way that i) causes a nuisance or hazard to another person, or ii) unreasonably interferes with the rights of other persons to use and enjoy the common property or another strata lot.

c)      Bylaw 3(2): An owner must not cause damage, other than reasonable wear and tear, to the common property or to those parts of a strata lot which the strata must repair and maintain.

d)     Bylaw 5: An owner must obtain the strata’s written approval before making an alteration to a strata lot that involves: the building structure or exterior, doors, windows or skylights on the building exterior or that front common property, or common property located within strata lot boundaries.

e)      Bylaw 6: An owner must obtain written approval from the strata before making an alteration to common property, and the strata may require as a condition of approval that the owner agree in writing to take responsibility for any related expenses.

f)       Bylaw 7: An owner must allow a person authorized by the strata to enter the strata lot at a reasonable time, on 48 hours’ written notice, to inspect, repair or maintain common property and any portions of a strata lot that are the strata’s responsibility to insure or repair and maintain. The notice must include the date and approximate time of entry, and the reason for entry.

g)     Bylaw 8: The strata must repair and maintain: common property, the structure and exterior of a building, exterior doors, windows and skylights in a strata lot, and fences, railings, and similar structures that enclose yards.

h)      Bylaws 9, 16 & 18: If the strata plan has fewer than 4 strata lots, all owners are on the strata council. Here, as the 2 owners are the only 2 council members, all council decisions require both council members to vote in favour.

i)       Bylaw 29: A dispute among owners, the strata, or any combination, may be referred by consent of all disputing parties to a dispute resolution committee that consists of an owner or any number of persons consented to by all disputing parties. The committee must attempt to help the disputing parties to voluntarily end the dispute.

16)     There is nothing in the bylaws that specifically addresses how alleged unsightly conditions may be determined and whether or at what point they cause a nuisance or an interference with the use and enjoyment of property.

17)     In broad terms, the facts of this case somewhat resemble those in Andrews v. Leno, 2003 BCSC 431 in which the court described the stratified duplex owners as having been at war. In the present case, the parties have maintained civility, whereas in Andrews, the parties’ relationship had deteriorated to the point the court felt an administrator was necessary. Nonetheless, the applicants here have tried, largely unsuccessfully, to communicate with the respondent owner in 2010-2011 and since 2015 to seek cooperation in terms of upkeep to Lot A, to the common property, and to the seawall. In response, for the most part the respondent owner has either ignored the applicants or claimed they are improperly harassing her without any legal basis, in that she says she has acted reasonably. She also argues there is nothing the strata can compel her to do under the bylaws because any action requires both council members to agree. Yet, she also says the owners are not permanently deadlocked, but also that mediation is unlikely to resolve their disputes.

18)     I mention this backdrop at the outset given the nature of the claims advanced, and in particular the applicants’ particular request that the tribunal create revised bylaws and provide for a dispute resolution mechanism. I will say more on this below. For ease of reading, I have grouped the issues related to inspection and unsightly conditions.
Seawall

19)     The seawall was in place when the applicants first bought Lot B in 1994. The original seawall was made of interlocking large concrete blocks, two rows high for a total height of 1.5 metres. The seawall runs north to south along the harbor edge, across the entire lengths of both Lot A and B. In 2010, some repairs were done to the seawall with more extensive repairs being done on the Lot B side. At issue now is whether the Lot A side of the seawall has since then sustained significant further erosion and if it should be repaired to the same extent as the Lot B side. The relevant detail follows.

20)     In early 2010, the applicants were concerned that erosion was destabilizing the seawall and at their expense they obtained an expert assessment from S.W. Moore, P. Geoscientist, with C.N. Ryzuk and Associates Ltd. In his March 22, 2010 report, Mr. Moore concluded the seawall was vulnerable and recommended certain repairs. Summaries from Mr. Moore’s 2010 report follow (my bold emphasis added):

a)     Storms can attack the foreshore to the west of the seawall and there is a strong current in a northeasterly and southwesterly direction associated with tidal exchange. The foreshore, a sand and gravel beach, is in a state of sediment deficit.

b)     While the seawall is mostly vertical, there is one area [on the Lot A side] where it has rotated forward slightly and noticeably leaning outwards. At the top of the seawall, there is a noticeable separation between the backside of the top block and adjacent backfill, again indicating the seawall had rotated forward. There is a significant void along the front or toe of the seawall, extending back beneath much of it, for almost the entire seawall length.
c)      “Further erosion along the base of the seawall should be expected unless mitigative measures are undertaken.” The length of time to de-stabilize the seawall is difficult to predict. The seawall could collapse if an extreme storm occurred at high tide.
d)     The seawall backfill was easily probeable with “considerable organic material”.

e)     Suggested mitigation to improve stability: i) underpin the seawall by removing beach sediment and excavating down into the hard clay by a depth of about 150mm or 6” (done in stages, with each stage in-filled with concrete), with a new concrete foundation as the result, ii) excavation behind the seawall to replace the existing materials with free draining material, so that hydrostatic pressures against the backside of the seawall is avoided, and iii) “Silt abatement measures should be in place as required”.

f)       The foreshore is under the jurisdiction of the Federal Department of Fisheries and Oceans (DFO) which recommends work be done between June 15 and September 15, with appropriate advance notice to DFO. No work to be done during high tide.

21)     The parties produced many photos of the seawall, spanning from early 2010 before any repairs were done through to January 2017. I find the 2010 pre-repair photos show the following: weeds growing on the Lot A lawn 12” or so behind the seawall, a relatively groomed lawn behind the Lot B side of the seawall, a broken block in the lower seawall row that was lying flat on the Lot A side of the beach, land subsiding behind the entire seawall on the yard side, a gap beneath most of the seawall, and blocks somewhat sagging and separating. I understand from the parties that the weeds on Lot A are scotch broom. Photos at high tide appear to show the water very close to the seawall, and one marked “with 40K winds” shows water spraying over onto Lots A and B.

22)     After Mr. Moore’s assessment, the parties agreed to the recommended repair of the entire seawall. However, the respondent owner then disputed the scope of work proposed by a contractor Aklark Industries (Aklark), which was somewhat broader than as outlined by Mr. Moore, as further discussed below. Aklark’s May 31, 2010 jobsite works proposal stated it specialized in construction contracting and its qualifications have not been disputed, although as discussed below I acknowledge the respondent owner’s submission Aklark exaggerated the condition of the seawall.

23)     Ultimately, given the respondent owner’s objection, in 2010 Aklark repaired the Lot A side of the seawall only to its “original as built” design. At the same time, Aklark repaired the Lot B side of the seawall more completely, according to its proposal as detailed below. As shown in one photo, the applicants note that Aklark’s proposed method was used by a property north of the strata, which the applicants say has never shown any destabilization since at least 1994. This evidence is not disputed.

24)     Aklark’s May 31, 2010 proposal had quoted $20,400 for the recommended seawall repairs on both Lot A and Lot B, with work to start on June 26, 2010 at low tides. In particular, Aklark noted that erosion around the seawall was “extensive and ongoing” and that the seawall footing was not placed deep enough and thus had begun to move and fall. Aklark recommended three steps to stabilize the seawall:

a)     Remove the concrete blocks, excavate below 18” into native soils (clay), and in replacing them include a new third row of concrete blocks below grade.

b)     Replace the broken block in the existing seawall.

c)      Place drainage media behind the seal and wrap the media with filter fabric. This backfilling reduces any hydrostatic force and increases the dynamic backpressure relief while maintaining a barrier to siftable media.

25)     Aklark’s proposal and subsequent invoicing was amended to allow for the more limited repairs on the Lot A side. The respondent owner objected to the full repairs because the hardpan clay was deeper than expected and thus the third row of blocks could not be embedded in it as anticipated by Mr. Moore, in that he expected digging would be only to 6” below the surface. She submits that as this “primary recommendation” could not be achieved, the remaining proposed work, such as the addition of filter fabric, was “unnecessarily expensive” and of “questionable long-term value”. She also objected that Aklark’s proposal was a replacement rather than a repair, and included work to improve aesthetics rather than the seawall stability, such as using slimmer blocks.

26)     Other than her own observations, the respondent owner did not provide any evidence to refute Mr. Moore’s or Aklark’s opinions regarding the seawall’s stability. At the end of the day, in 2010 the applicants paid about $11,000 to have the Lot B side of the seawall upgraded to its current state. At the same time, the Lot A side was repaired to its original state, with no backfill/filter fabric and no third row of blocks. Ultimately, for the Lot A side of the seawall repairs done in 2010, the respondent owner paid about $5,000 after a May 2011 mediation.

27)     Photos taken four months after the 2010 repairs show the Lot A side of the seawall in similar distress as before the 2010 repairs, whereas the Lot B side shows a new seawall that looks stable with no signs of erosion. There has been no structural assessment of the seawall since the 2010 repairs.

28)     After the May 2011 mediation, the applicants say disputes over the use and maintenance of the respondent owner’s strata lot and the common property continued, but formal action was not pursued until 2015 when the applicants wanted to sell Lot B.

29)     Photos taken in April 2015 show tall scotch broom growth in a trench behind the seawall on the Lot A side. The applicants say this growth aggravates the erosion, whereas the respondent owner says it slows down the erosion. I have no expert evidence before me either way, other than Mr. Moore’s reference to easily probeable materials behind the seawall. Generally, these April 2015 photos show there has been further erosion to the Lot A side of the seawall, both in the void below and on the yard side behind.

30)     Citing the Invasive Species Council of BC, the applicants say scotch broom is an invasive plant species that also obstructs their view. Based on the photos, I agree the scotch broom impacts the ocean view from Lot B.

31)     Photos taken in late 2016 and January 2017 show further erosion behind the seawall of Lot A, somewhat increased since the 2015 photos. The photos show no erosion behind the Lot B side. In particular, the Lot A side of the seawall is rotating outwards towards the water, more so than in the older photos. One photo shows crushed pea-sized gravel deposited in a patch on the Lot A yard side of the seawall, which the respondent owner says is a reasonable approach to address erosion. Another photo shows the erosion appears to be slightly encroaching, just past the “jog”, onto the Lot B side of the seawall.

32)     The respondent owner says her January 2017 photos indicate how the scotch broom has acted to prevent erosion and stabilize the ground. I cannot agree. The photos only show scotch broom, about 2 to 3 feet tall, with a large gap or trough measuring about 12” between it and the seawall. It is also unclear what erosion is taking place under the scotch broom branches. In any event, the trough shows significant erosion behind the Lot A side of the seawall.

33)     As for the seawall’s location, the applicants say the seawall sits within the strata plan, noting a survey post located about 2.5 m inland from a large tree leaning out over water, with the strata plan showing the northwest corner of the “present and natural boundary” extends outwards towards the sea another 12 meters from that survey post that still is in place. On the southwest end of the seawall, the strata plan notes that there was a survey marker 12.25 meters from the present and natural boundary; however, based on the evidence before me it appears that survey marker no longer exists. The applicants say these measurements indicate the seawall sits within the strata property.

Inspection and unsightly conditions

34)     In 2015, the applicants’ realtor told them that potential purchasers of Lot B may require an inspection of Lot A, of anything falling under the strata’s obligation to repair, maintain, or insure. The applicants in particular want an inspection because they are concerned there may be mould and hoarding inside the Lot A residence. While bylaw 7 permits the strata to do the inspection, the respondent owner has refused and in her council member role blocked the strata from acting. In addition, the realtor described various “unsightly” conditions on the Lot A yard and on the common property that put off potential buyers. Those conditions have in part caused the applicants’ suspicion of hoarding in Lot A, along with “significant piles of clutter” the applicants saw inside the Lot A residence when they spoke with the respondent owner at her door. The relevant details follow.

35)     Why do the applicants suspect possible mould in the Lot A residence? First, in February 2015 the applicants learned from a roof warranty contractor that a skylight over Lot A had condensation and mould and a photo appears to confirm this, which is undisputed. In late March 2015 however, in the roof area over Lot A the roofing company replaced two skylights (including the one photographed in February 2015) and a steel vent, and conducted a visual attic and roof inspection and no concerns were reported. The building’s common property roof is multifaceted, and while the entire roof had been replaced in 2007 after a storm, since 2010 each strata lot owner has essentially looked after the roof area over their strata lot.

36)     Second, the applicants suspect mould because for years the respondent owner has not used an air exchange system that the applicants have used, among other methods such as added bathroom and kitchen exhaust fans, to control moisture in their Lot B residence. The respondent owner says she prefers to use a dehumidifier as the air exchange unit did not work well, and says she has not experienced moisture problems.

37)     It is undisputed the building was designed with mechanical air exchange systems, one for each strata lot. They are not common property. The applicants say it is not clear a dehumidifier is adequate and they note the strata is required to insure the air exchange systems, as set out in section 142 of the SPA and in the definition of fixture in the SPA Regulation. As such, the applicants say the strata should be permitted to inspect.

38)     The applicants also claim the strata has the right to inspect common property and those areas of the building the strata has the responsibility to repair and maintain, such as the roof, skylights, exterior windows and doors. There is also one central wall dividing the duplex building into Lot A and Lot B. The applicants cited the Canada Mortgage and Housing Corporation (CMHC) “Moisture and Air Guide” and in particular that mould can occur with the “inadequate exchange of air in the home with outdoor air”, perhaps due to the absence of kitchen and bath exhaust fans, air exchanger or heat recovery ventilators. The applicants say they are concerned that any excessive moisture in Lot A could spread to Lot B, causing health concerns and structural and finish damage to the building. The applicants say that damage caused by wet rot, fungi, or spores is not covered by the strata’s insurance policy and so the strata is responsible for any repairs due to mould.

39)     As for the suspected hoarding in Lot A, the applicants cite the International OCD[2] Foundation, which in a document “What is Compulsive Hoarding” describes symptoms and effects of hoarding. The potential harm is only generally described as structural damage, fire, or death. It does not explain how hoarding leads to those outcomes. Generally, hoarding is defined in that document as the collection and storage of a large number of items, including those that appear useless or of little value, with disorganized clutter resulting. The applicants say they believe the situation in the Lot A yard “may be an extension of a hoarding situation inside the building”.

40)     The applicants also rely upon a 2007 District of Sooke Bylaw No. 296, “Unsightly Premises and Objectionable Situations Bylaw”. In 2015, the applicants raised their hoarding concerns with the Bylaw Officer for the District of Sooke, but were told that the strata would have to resolve the matter as the SPA governed the strata property.

41)     Since 2010, the applicants say they have disputed increasing amounts of materials deposited by the respondent owner throughout her yard and on the common property. In attempts to document their concerns and address them with the respondent owner, including through legal counsel, the applicants took numerous photos at different points of time between 2010 and December 2016, which were provided to the tribunal. The respondent owner also provided some photos. Many if not most of the items on Lot A generally appear to be useless or of little value. More recent January and March 2017 photos are discussed further below.

42)     I turn then to the evidence of unsightly conditions. While I have looked at all of the photos, I will not describe each one in detail. Unless noted otherwise in this decision, I find the applicants’ descriptions of the photos to be accurate. Based on the photos, until around the end of December 2016 I find that there was a significant clutter of a wide variety of disorganized items collected in and around Lot A, particularly in the area immediately adjacent to the residence entrance and near or on the common property driveway, but also in the yard facing the street and some unused fencing left lying on the waterfront yard.

43)     Without limitation, these items have over time included: broken or unused fencing, piping, rolls of wire mesh (there for years according to the applicants), various buckets and bins often in apparent need of repair or disposal, wood and metal pieces, bricks, what is said to be a washing machine, and some old furniture. It is undisputed that used cat litter was included in the clutter, although I cannot discern this from the photos. A worn children’s plastic playground set is also on the Lot A front yard. The applicants say it is broken down and unsafe because: its padding is worn, it is not anchored and could tip, and the mats below it present a tripping hazard. The applicants say it is a lure to neighbourhood children, and they say the respondent owner does not have children and only once in two years have they noticed her with a child at the playground.

44)     In the pre-2017 photos, the cluttered items on Lot A were not tucked away out of sight. At times, the clutter appeared to impede access to the Lot A front door. Some photos of certain parts of the Lot A yard indicate the clutter had expanded and worsened over time up until around January 4, 2017 when the respondent owner made a significant effort to clear out most of the clutter and organize what was left.

45)     I agree the January 1 and 4, 2017 photos provided by the respondent owner show little moss on her side of the roof and a relatively uncluttered yard. In the latter respect, the applicants say this improvement was done just after she saw the recent photos taken by the applicants. A more recent March 2017 photo provided by the applicants shows some of the clutter has returned to the Lot A entry way and in front of the respondent owner’s garage. The applicants say this has been the pattern: when the clutter is removed, later it is replaced with other items.

46)     The pre-2017 photos also show the Lot A shrubbery was generally overgrown and the address standard at the Lot A side of the common property street entrance was dirty and covered in green mildew or algae, as compared to a clean address standard on the Lot B side and relatively groomed shrubbery. The applicants also say the respondent owner had laid down wood debris on the common property without permission, which attracts wasps and small rodents. They also say the respondent owner’s “burn pile” in the middle of her yard is too large and that “hog fuel” should be removed. The 2017 photos do not particularly show the current condition of these areas, save for there is still a burn pile of some size.

47)     I acknowledge some photos produced by the respondent owner show a corner area of the Lot B yard that appears somewhat unkempt, such as blue tarps or a pile of yard waste, which the applicants explained represented isolated build-up in July and December 2015 and January 2017. They say each instance was limited to a few weeks, quickly cleaned, and never the subject of complaint by the respondent owner. This is not disputed. Having reviewed all of the photos, I find these examples of some clutter in a less visible corner of the Lot B yard are far less significant than the pre-2017 cluttered and unkempt Lot A yard.

48)     Other photos show a clothesline the respondent owner bolted to a common property electrical pole that the applicants and a former owner had replaced earlier, which the applicants say was done without their permission. Similarly, the applicants say the respondent owner has without permission altered common property: removed shrubbery, sloppily placed a layer of crushed rock near the driveway, haphazardly erected a fence, and pulled up a water line leaving the broken pipe on the ground. It is unclear to what extent these issues remain.

49)     Other photos show that in early 2016 the respondent owner repainted the exterior stucco of the west-facing Lot A side of the building, which did not match. That she did so without permission is undisputed. After a complaint by the applicants, on March 15, 2016 the respondent owner’s lawyer wrote to the applicants saying they were harassing her, but also noted that the respondent owner had repainted the stucco with a better matched paint. However, the applicants say she painted over mould without cleaning it first. The respondent owner has also erected fencing on common property, adjacent to the paved driveway, without permission. The applicants had also complained in March 2016 that the respondent owner had damaged the soffits near her garage entrance by inserting 2 rusty “floor vents” and they asked that the soffit be replaced. It is unclear to what extent these issues remain.

50)     As for the roof, the respondent owner says she has acted reasonably and it is the applicants who improperly damaged the roof with “aggressive moss removal”. The evidence from the shingle manufacturer and the roofing contractor is that the roof performs best when free of moss and that in severe cases moss can cause moisture damage or even leaks. They say moss should be gently removed. While the Lot B side of the roof appears free of moss, most photos appear to show moss growth on the Lot A side of the roof, as noted by the realtor. However, the 2017 photos of the Lot A side show less moss than previous photos.

51)     The applicants say the neighbours take pride in their properties and take considerable effort to maintain them. Photos of several neighbouring properties show groomed yards and well-kept homes. The applicants say that the respondent owner’s unsightly conditions are a breach of the “social code” of the neighbourhood, noting that prior owners of Lot A had properly maintained the property.

52)     The applicants say they have repeatedly asked the respondent owner to stop parking on the common property driveway, because the noise of the car disrupts their sleep as their bedroom window is close by. The respondent owner has not disputed that despite this request she continued to park there.

53)     Since March 2015, the applicants say they have demanded a professional inspection of Lot A, including through legal counsel. At the same time, the respondent owner was advised of the moisture concerns and general state of disrepair. The respondent owner refused to cooperate in March and May 2015. Similar repeated efforts were made by the applicants to address the issues, at times through legal counsel, through 2015 and 2016, and for the most part the respondent owner did not respond at all, although at least one letter was sent through a legal representative that did not propose any particular resolution or offer any agreement.

54)     On May 3, 2015 the applicants obtained a market analysis from a realtor. There is no contrary realtor opinion before me. The applicants’ realtor wrote that the sale of Lot B was hampered by the lack of maintenance on Lot A. In particular, the realtor identified the “overgrown gardens, debris build-up, moss on the roof, and overgrown weeds” on Lot A would be “hard to ignore for any potential buyer” coming to look at the Lot B property. The realtor wrote that these matters would greatly affect the buyers even wanting to put in an offer. During the summer of 2015 when Lot B was listed for sale, the applicants say there were only 4 showings and 3 “drive-bys” from potential purchasers. The realtor further advised she had spoken with the potential buyers’ realtors who advised that the buyers were “put off” by the condition of Lot A as being “very unkempt” with a lack of roof maintenance, ‘garbage and refuse ... all over the lawn” and that no buyer would want “to move next to that”. The realtor stated that the 3 drive-bys did not make appointments to view the inside of Lot B because they were not prepared to live next to someone who had no pride of ownership. The realtor stated she believed the state of Lot A was a contributing factor as to why Lot B did not sell during its listing. Because Lot B could not be sold due to these issues, the applicant Mr. Bourque assumed half ownership from his brother who needed to move away. Land Title Office documents indicate the property value for Lot B was around $285,000.

Revised bylaws and dispute resolution mechanism

55)     The history of the specific issues is summarized above, as is the impact of the “duplex deadlock” and the strata’s inability to enforce any bylaws or take any action without unanimous agreement between the two council members.

56)     In around October 2015, the applicants asked legal counsel to draft revised bylaws that would permit the strata to exercise its duties under the SPA. Generally, the proposed

bylaws are more specific in maintenance standards and allow for the objecting owner to remedy the situation, at the offending owner’s expense, if the offending owner does not do so themselves.

57)     In late 2015, the applicants were unsuccessful in having the bylaws considered or approved at a special general meeting they called, at which the respondent owner ultimately sent a proxy. The applicants shortly thereafter decided to pursue dispute resolution with the tribunal.

58)     The respondent owner objects to the proposed new bylaws, saying that effectively such new bylaws could unfairly give the applicants unilateral power. In turn, the applicants say that their several claims have only come to the tribunal because the respondent owner has to date acted unilaterally, in that she has exercised a veto power preventing the strata from acting to enforce the existing bylaws.

59)     The applicants say “falling short of asking the courts to appoint an administrator” or applying to the tribunal each time there is a dispute, they ask that I order that the bylaws be amended, possibly through mediation between the respondent and the applicants. In addition to objecting to any revision that gives the applicants any ability to act without her agreement, the respondent says mediation is unlikely to assist, although elsewhere she says the strata is not permanently deadlocked.
POSITION OF THE PARTIES

60)     The applicants want the respondent owner to pay for seawall repairs on the Lot A side, necessary due to ongoing erosion, which they say should have been done in 2010 as they were then done to the Lot B side. The respondent owner says that she has acted reasonably, the expert opinion from 2010 is no longer valid, and the seawall condition is currently reasonable.

61)     The applicants say the respondent owner has caused unsightly conditions on the Lot A yard and on common property. The applicants also are concerned about mould and hoarding within the Lot A residence and they want a professional inspection. The respondent owner denies unsightly conditions currently exist and says an inspection is not warranted or appropriate.
62)     The applicants want the bylaws amended to set specific maintenance standards and to set out means for an owner to remedy a bylaw violation at the expense of the offending owner. The respondent owner disagrees with any bylaw amendments that could give the applicants unilateral power, and instead wants to keep the existing bylaws that do not permit the strata to enforce a bylaw or act unless the Lot A and Lot B owners both agree.
ANALYSIS AND DECISION

63)     It is undisputed that since 2010 the applicants have spent thousands of dollars in professional and legal assistance in numerous unsuccessful attempts to resolve these disputes with the respondent owner. It is also undisputed that the respondent owner has refused to permit the strata to act because she has never agreed to the applicants’ requests, which requests I find reflected a reasonable and fair reading of the bylaws. As noted above, repair and maintenance issues have been addressed ad hoc, and after the respondent owner became the Lot A owner in 2008 with much dispute. I find it is clear the informal arrangement has not worked well for these particular parties.

64)     The respondent owner inconsistently argues both that the parties are not permanently deadlocked and also that the current bylaws she desires unchanged do not permit any enforcement against her with further mediation unlikely to be successful. She further argues that the applicants have wrongly harassed her over the years about the property conditions, although there was no counterclaim filed. I have reviewed the evidence, including notes and letters given to the respondent owner. Nothing in them amounts to harassment. Overall, I find the applicants have acted more than reasonably in their communications with the respondent owner.

65)     Broadly speaking, the strata is responsible for managing and maintaining common property for the benefit of the owners, as set out in sections 3 and 72 of the SPA and bylaw 8. The powers and duties of the strata must be exercised and performed by a council, as set out in section 4 of the SPA, which includes the enforcement of bylaws, as set out in section 26 of the SPA. Of course, to date none of this has in practice happened with this strata.

66)     Strata ownership is different than ownership in a detached home. Strata lot owners must live cooperatively and respectful of their neighbours, as outlined in the strata bylaws. Here, I find the trouble has clearly arisen because the democracy in a duplex has resulted in the respondent owner’s refusal to permit the strata to enforce its bylaws. The applicants are entitled to have their claims adjudicated and section 48.1 of the Act permits me to make appropriate orders that override SPA provisions that otherwise require strata council approval.

67)     The strata’s obligation to repair and maintain under the SPA includes making an article good, whether or not it was sound or good before (Taychuk v. Owners, Strata Plan LMS 744, 2002 BCSC 1638 at para. 29).

68)     As set out in Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784, paras. 28 and 29, the strata’s duty to repair and maintain can include replacement rather than repair, if that is reasonable. There can be “good, better or best” solutions to each repair issue. A strata may consider the cost for each approach and its impact on owners, and implement needed repairs within a budget that the owners as a whole can afford. The reasonableness test requires balancing competing interests.

69)     After the strata was added as a respondent, the respondent owner cites section 32 of the SPA, which requires that a council member with a direct or indirect interest in a matter “must” abstain from voting. The respondent owner submits that this means there can be no vote at all in a duplex, and that any changes to the SPA or the standard bylaws must be left to the legislature.

70)     I find that section 32 of the SPA does not override my ability to make orders, which are permitted under section 48.1 of the Act. Further, section 32 appears to address conflicts of interest where the strata council member may benefit from the outcome of the vote and must in that instance not vote. I do not read section 32 as prohibiting a complainant council member from voting simply because they brought the complaint. Section 136 of the SPA is what is relevant here: if a complaint is made about a council member, that council member must not participate in the vote except where, as here, all owners are on council.

71)     The respondent owner also relies upon bylaw 22 that states a council member who acts in good faith cannot be liable for any omission in the performance of the duties of the strata council. This argument is not relevant, since any orders against the respondent owner directly arise from her conduct as a strata lot owner. In other words, I make no order against the respondent owner that she take action or pay money because of her decisions as a council member to refuse to enforce the bylaws against herself or to direct repairs to property. All orders arise because of her conduct as a strata lot owner.

72)     Neither party has sought the appointment of an administrator, which is a matter outside the tribunal’s jurisdiction. With the tribunal’s mandate in mind, to the extent possible this decision will break the deadlock for the substantive issues arising in this particular dispute. It may be that if the parties continue to be unable to cooperate, an administrator may be an appropriate but expensive solution for the parties.

Seawall

73)     The applicants say that the Lot A side of the seawall is in a more distressed situation than it was in 2010. They say the seawall provides protection to both strata lots, but that the Lot A side of the seawall has deteriorated to the point that damage could occur to Lot B. In contrast, the respondent owner says she acted reasonably in 2010 and further that the Lot A side of the seawall is currently in reasonable condition in the circumstances. The applicants seek an order for full repairs of the Lot A side of the seawall, to be done at the respondent owner’s expense.

74)     There is no quote before me for the requested current work to the Lot A side of the seawall, but based on Aklark’s 2010 invoice and the circumstances then present, it could be around $10,000, which is roughly what the applicants paid for the Lot B side. That I do not have a precise quote is not a reason to refuse to order repairs.

75)     I will first address the seawall’s location, noting the parties’ submissions have varied on this point. I find the seawall is located across both strata lots, which I note is historically how the parties treated it. My reasons are set out below.

76)     I acknowledge there is no survey identifying the seawall nor is it identified on the strata plan. The respondent owner now submits it is unknown whether the seawall sits on common property or on the strata lots, or, whether it sits on land owned by the Province. To that end, the Province owns the foreshore, as per section 18 of the Land Act. The respondent owner submits that the addition of the seawall did not change the legal boundary of the property. Thus, she submits the uncertainty of the seawall’s position makes the strata’s responsibility to repair and maintain it uncertain.

77)     First, based on the strata plan, the private yards are part of each strata lot as defined on the strata plan. Each private yard wraps around the building to the shoreline. The parties agree the private yards on the strata plan are part of each strata lot.

78)     I find the waterfront yards are part of the respective strata lots with the dividing line between the two yards being the solid line from the building to the shoreline as shown on the strata plan. The private waterfront yards owned by each strata lot end at the “present and natural boundary”, as noted on the strata plan. Thus, the seawall either sits within the strata lots, or, it sits outside the strata lots and strata property entirely. In other words, the seawall is not common property.

79)     In accordance with the definition of “natural boundary” in the Land Act, I find the “present and natural boundary” to be the current visible high water mark, which I find is currently on the water side of the seawall. I find the seawall sits on the strata lots’ side of the high water mark, spanning both Lot A and Lot B. The evidence regarding the survey post and its location in the applicants’ photo and the markings on the strata plan support this conclusion. Despite this finding of fact, nothing in this decision determines actual ownership of the seawall. For clarity, if it is otherwise properly established that the Province of British Columbia owns the seawall, the parties are free to revisit the issue of the repair and maintenance of the seawall.

80)     Next, I find that the seawall constitutes a yard enclosure falling within the meaning of bylaw 8(d)(v). As such, the strata must repair and maintain it.

81)     I turn then to the central question of what seawall repairs are required. The respondent owner wants nothing done. She submits there is no expert evidence to properly rely upon at this point as Mr. Moore’s 2010 assessment could not be carried out as recommended and it is no longer relevant due to the passage of time. In contrast, the applicants’ say Mr. Moore’s report remains just as valid today, with the photos showing how after Aklark’s work in 2010 the erosion stopped on the Lot B side and continued on the Lot A side. As further explained below, I agree with the applicants.

82)     First, I find that the photos showing pre-2010 work and since, make it clear the seawall was not particularly stable and that significant erosion has occurred on the Lot A side since the 2010 repairs. Further, I find the respondent owner’s submission that the seawall was stable in 2010 to be inconsistent with Mr. Moore’s report identifying a “significant void along the front or toe of the wall ... and in fact is in a state of sediment deficit ...” Nor is it consistent with Aklark’s observation that there was “extensive erosion”. I prefer Mr. Moore’s and Aklark’s more qualified opinions to the respondent owner’s own observations and assessment.

83)     Second, the respondent owner submits that Mr. Moore’s recommendations did not include replacement of the wall or the inclusion of filter fabric and that the risk of collapse was limited to an extreme storm event coupled with a high tide. She relies upon these assertions as the basis to now argue that there was no support in 2010 for Aklark’s proposed full repairs and that there is none now. I disagree. I find Mr. Moore’s point was that “at present” the wall could collapse in an extreme storm event. He clearly stated that “further erosion could be expected to de-stabilize the wall over time”. While Mr. Moore’s proposal did not anticipate a third new row of blocks, it did envision digging down and adding a concrete base. I find the new row of blocks reasonably accomplished the same goal. The case law is clear that reasonable repair may include replacement and that repair may include making it better than the original. Mr. Moore’s report also called for “silt abatement measures as necessary”, which I find reasonably includes the filter fabric and backfill.

84)     Overall, Mr. Moore’s and Aklark’s goals were essentially the same, even though Aklark found deeper digging was required and Aklark used a third row of blocks rather than concrete infill. I do not consider the associated expense to have been unnecessarily expensive in 2010 or now, nor do I consider it to have been of questionable long-term value. I say this given the parties’ initial agreement to having the full repairs done and given the cost relative to the strata lots’ property value. Certainly, the photos of the Lot B side over time show the value.

85)     Third, the respondent owner expressly acknowledges the Lot A side of the seawall has “experienced ongoing erosion as expected from the observations in the engineering report”. She says that she used the erosion “as an opportunity” to fill the eroded area with crushed gravel.

86)     This statement shows the respondent owner recognizes ongoing erosion processes were expected on the Lot A side given that she refused to have the more complete repairs done. Her essential response here is that she has adequately addressed the expected erosion with gravel. The difficulty is that there is no expert opinion to suggest that her chosen approach is adequate. Rather, the existence of Mr. Moore’s and Aklark’s recommendations leads to the contrary conclusion. Moreover, the photos do not indicate the gravel backfill has halted any erosion process.

87)     Fourth, I do not agree with the respondent owner that Aklark unreasonably exaggerated Mr. Moore’s assessment. Contrary to the respondent owner’s submission, I find that the photos support both Mr. Moore’s and Aklark’s opinions.

88)     Fifth, I find that the Lot A side of the seawall portion has significantly eroded both on the water side underneath the concrete blocks and on the yard side with a large void between the yard and the seawall. I come to this conclusion based on the photos, which span from early 2010 to January 2017. Contrary to the respondent owner’s submission, I do not find the Lot A side of the seawall to be currently in “sufficiently stable condition”. At the same time, based on these same photos and the 2010 expert evidence describing signs of instability, I find the Lot B side of the seawall has not eroded over time and it does appear relatively stable. This is relevant because I find that the method used to repair the Lot B side of the seawall was successful and reasonable.

89)     It is true that with cost efficiencies in mind, the “best” solution is not required and that a “good” solution may be good enough. However, I cannot agree with the respondent owner’s suggestion that keeping the “as built” design, with the exposed foundation rather than the embedded third row of blocks, was or is a “good solution”. The expert evidence and the photos before me simply do not support that argument. Danger of imminent collapse is not the threshold test before me. The test is what must the strata do to reasonably repair and maintain the seawall. Waiting for signs of actual collapse would be unreasonable. I accept that there are signs of continuing significant erosion, as shown over the years since 2010, and I find that this erosion is sufficient to require repairs to stabilize the Lot A side of the seawall.

90)     Overall, I find that Mr. Moore’s and Aklark’s opinions are not inconsistent and are as relevant today as they were in 2010, in terms of the Lot A side of the seawall. If anything, the passage of time has provided the opportunity for photographic proof of that conclusion. There is notably no expert evidence to the contrary.

91)     In summary, I find the Lot A side of the seawall must now be repaired in the same manner as was done on the Lot B side in 2010. I acknowledge that Aklark had used slimmer blocks that may have had only an aesthetic benefit. Nonetheless, at this point, using Aklark’s proposal, including the slimmer blocks, makes the most sense and direction to repair the Lot A side of the seawall substantially “the same” also avoids potential future areas of dispute in this highly conflicted strata. I also agree with the applicants that a further assessment would be unnecessary duplication and an unreasonable further expense and delay.

92)     Next, I turn to who must bear the cost of the seawall repairs I have ordered. First, I find that the entire seawall ought to have been repaired in 2010 based on Aklark’s proposal as it was the only reasonable solution at that time, including the filter fabric and a third row of blocks.

93)     Ordinarily each strata lot in a duplex would share half the strata’s common expenses. However, here the applicants already paid entirely for the appropriate seawall repairs on the Lot B side, without any contribution from the respondent owner to that portion. As permitted by section 48.1(2) of the Act, I find the respondent owner must bear the entire expense of repairing the Lot A side of the seawall now. I say this because in 2010 the respondent owner made a decision to risk a lesser repair on the Lot A side, a decision that I find was unreasonable and which has proven insufficient. I recognize that my order means the $5,000 the respondent owner paid in 2011 towards the seawall repairs then is now essentially money thrown away. Nonetheless, overall, I find it would be significantly unfair to assess any of the Lot A side seawall repairs to the applicants.

94)     As for the scotch broom, the applicants say it had been controlled on the strata property until the respondent owner moved in. The respondent owner says scotch broom helps stabilize the seawall area and prevents further erosion. I have no expert evidence before me to support this assertion nor do I have any that specifically says it is harmful. However, while he did not specifically refer to weeds, I have Mr. Moore’s assessment that referred to easily probeable organic material behind the seawall, which contributed to the erosion concerns.

95)     Based on the photos, I find the erosion on the Lot A side of the seawall has continued despite the scotch broom. I find that the scotch broom has done little, if anything, to resolve the erosion issue and may well have aggravated it. The issue of unsightly premises is also a factor and I accept that the scotch broom impedes the applicants’ ocean view. In any event, given its invasive nature, which is undisputed, I find the scotch broom in the seawall area should be removed and controlled in future. I further order that no party may plant scotch broom or any other similar weeds in that area, without consent of all parties. My detailed orders are set out at the conclusion of this decision.

Inspection and unsightly conditions

96)     The respondent owner’s essential position is that the applicants’ claims amount to “years of historical grievances” against the respondent owner “that offer no current basis for the relief sought”.

97)     In particular, the respondent owner argues the standard is reasonableness not perfection, and that she has met that standard. The respondent owner submits the January 2017 photos show Lot A as being reasonably maintained. She does not deny the historical descriptions that I have summarized above. The respondent owner says there is no current basis to suspect mould or hoarding within the Lot A residence and so an inspection is not warranted.

98)     I turn then to the substantive submissions. First, it is up to the District of Sooke to investigate and enforce its own bylaws and nothing in the SPA or in this decision prevents it from doing so. That said, nothing prevents the strata from enforcing its existing bylaws in a manner consistent with the District’s bylaws that prohibit unsightly premises, which I find would be appropriate. Having reviewed the photos, I also accept the applicants’ undisputed evidence about the well-kept nature of the neighbouring properties and the condition of the strata property before the respondent owner took occupancy. The challenge is in how to specifically identify what must be done now.

99)     Second, neither the applicants nor I am a qualified health professional to diagnose the respondent owner with obsessive compulsive disease or anything else, which the applicants acknowledge. However, the absence of medical evidence does not lead to the dismissal of the claim. Given the undisputed definition of hoarding, I am able to conclude that the cluttered Lot A yard conditions until at least December 2016, as summarized above, indicated some signs of hoarding. The question remains whether hoarding in the Lot A yard, or even the piles of clutter the applicants saw inside the respondent owner’s entryway, is a basis for an inspection inside the Lot A residence. I find that the answer to that question is no. I say this because the evidence before me does not sufficiently establish that any hoarding inside Lot A is reasonably likely to cause harm to common property or to other strata lot owners or the property. The OCD document summarized above is simply too general in nature. Thus, an inspection of Lot A is not presently warranted on the basis of suspected hoarding. However, that is not the end of the inspection issue.

100)  The roof is common property, which the strata must repair and maintain along with exterior windows and skylights. The strata is also responsible for the repair of the interior wall dividing Lot A and Lot B, as per bylaw 8(d)(i) and section 69 of the SPA. Section 149(1)(d) of the SPA also requires the strata to insure fixtures, although I recognize that responsibility to insure does not necessarily mean responsibility to repair. The SPA Regulation defines fixtures to include things attached to a building, including plumbing fixtures. I find the air exchange systems are fixtures, even though each strata lot may have its own. As noted above, the systems are not common property. Based on the CMHC documentation before me, an air exchange system is an important tool to control moisture, and there is no evidence before me that a dehumidifier is adequate, other than the respondent owner’s preference and statement she has no moisture problems. Overall, I find that it may be that the air exchange units in both Lot A and Lot B should be maintained and used by the respective strata lot owners, in order to comply with bylaw 2(1). I find whether that is so is best left to an appropriately qualified inspector to decide.

101)  Further, it is not disputed that where there has been a leak moisture can collect and over time mould can grow along with wood rot and structural decay. While I accept that the leaking skylight over Lot A was replaced in Lot A in March 2015, it is unknown whether there may be other perhaps unknown moisture problems in either strata lot that may fall within common property. Bylaw 7 expressly contemplates inspections. An annual inspection by a qualified home inspection professional is a relatively small interference that I consider justified to protect the combined interests of both strata lot owners. In fairness, both strata lots should be inspected as the same common property considerations apply to both.

102)  My detailed orders are at the end of this decision. However, I will briefly explain here that the expenses associated with any remedies are in some cases to be shared by the parties. This applies to the common property roof, windows, skylights, and to the interior wall dividing Lot A and Lot B. I say this because there is insufficient evidence before me that any damage that is found to those areas is properly the sole responsibility of the respondent owner, in that I cannot conclude she has willfully permitted damage to occur in those areas, although I accept that she has prevented an inspection. I also find the expenses for any necessary repairs to the air exchange units, if the home inspector concludes they should be used, should be borne by the respective strata lot, given the difference in the owners’ respective use and maintenance of them and because they are not common property. I consider the above to be the most fair overall solution. As for the cost of the inspections themselves, I find each strata lot should bear the expense associated with their own strata lot, which given the history I consider to be the appropriate order, as permitted under section 48.1(1) and (2) of the Act.

103)  I turn then to the issue of unsightly conditions, which the home inspector will also address. The applicants argue the unkempt yards on Lot A and common property (the driveway top area in front of the residences) are a nuisance and interfere with their rights to use and enjoy the property. I recognize that the line where property changes from “sightly” to “unsightly” is not necessarily a clear one. However, based on the historical photos between 2010 and at least December 2016, and the realtor’s opinion, I find the evidence is clear the property was unsightly and I agree with the applicants’ submission here.

104)  The challenge is that in January 2017 the respondent owner did a significant clean-up of her yard, which given the history and that timing I accept was done in response to this tribunal proceeding. I also accept that in March 2017 the respondent owner allowed the clutter to somewhat build up in her yard again, at least based on the one photo provided of the area around her entryway, although the clutter was certainly not as significant as it had been in early January 2017 or prior. Nonetheless, I find that there remain some items that amount to clutter which at least appear to be a nuisance or unreasonably interferes with the applicants’ use and enjoyment of their strata lot, and without limitation here I include the worn children’s playground. Further, I also find that given the

respondent owner’s pattern of behaviour in failing to keep the property maintained, my orders must go further and address future maintenance standards.
105)  I pause at this point to address the respondent owner’s arguments to the effect there is no ability to address unsightly conditions. The respondent owner argues that nuisance is not defined by the SPA, and she submits aesthetic appearance alone would not provide a sufficient basis to support a nuisance claim “without further support of statute” (citing Christensen v. District of Highlands, 2000 BCSC 196, at paras. 13 to 16).

106)  Christensen was not a strata property dispute. I find the laws of private nuisance are not necessarily determinative here. Rather, the SPA governs this dispute and bylaw 3 clearly prohibits a party from causing a nuisance or interfering with another owner’s right to use and enjoy their property. Further, the respondent owner’s conduct in leaving the property in an unsightly state was significantly unfair, because it was burdensome, lacked in fair dealing, and was more than a mere prejudice or trifling unfairness (Reid v. The Owners, Strata Plan LMS 2503, 2001 BCSC 1578). The respondent owner’s conduct meets that threshold. Aesthetic appearance, including the unreasonable obstruction of a view, may well be relevant and in this case I find it is, particularly given the photos and the realtor’s opinion. That the District of Sooke’s bylaw exists supports this conclusion as does the applicants’ inability to sell their property. I also accept the applicants’ undisputed evidence about the social standard in the neighbourhood.

107)  The respondent owner also argues that any consideration of reasonableness should also consider the condition on Lot B, and the strata’s duty to enforce bylaws under sections 26 and 31 of the SPA requires even and fair enforcement. I agree, but as noted above I do not find the isolated historical circumstances on Lot B to be particularly problematic, bearing in mind that the respondent owner never complained, they were isolated in time, and were far less significant in their unkempt appearance as compared to Lot A. That said, my orders below set the same standard for both strata lots.

108)  The applicants recognize it would be difficult to assess what materials need to be removed or stored and to what standards the yards should be maintained. Generally, they ask for an inspection of Lot A and common property and then a professional company to implement the recommendations, all at the respondent owner’s expense. I agree, except that below I have addressed the inspection of the entire property by the professional home inspector.

109)  In addition to setting out the scope of the issues to be addressed and making recommendations for necessary repairs, without limitation the inspection and recommendations should canvass the following: the air exchange units, the common property electrical pole following the removal of the clothesline, fencing on common property, any yard clutter, the building exterior, and the roof and how moss removal should be handled. I have addressed the seawall above, as I expect a different qualified professional will be required for that project, which is also more time sensitive.

110)  My orders regarding the unsightly conditions are detailed at the end of this decision, which will also include my orders for the inspection of the property. My specific orders do not limit any other recommendations that the professional home inspector may make and which should be carried out by the parties as applicable, unless they both agree otherwise.

Bylaw revision and future dispute resolution process
111)  The applicants want the bylaws revised so that ongoing deadlock can be avoided, whereas the respondent owner says the SPA requirements effectively require the current status quo, which is that no decision or enforcement can be made at all without agreement by both council members.

112)  The applicants ask the tribunal to order amendments to the current bylaws, or that I possibly order the parties to obtain mediated assistance in adopting new bylaws, that would set clearer maintenance standards, annual inspections, and a mechanism for one owner to remedy another owner’s bylaw contravention if the offending owner refuses to do so.

113)  I find the respondent owner wants the strata to remain unable to act without her agreement, even where she may be in violation of the bylaws. On the one hand, the respondent owner disagrees the strata is permanently deadlocked and states she is concerned about the upkeep of her home and has a “strong interest” in maintaining and repairing it, as shown by the roofing, seawall repair, window replacement, painting, landscaping and other work she has done on the property. Based on my conclusions above, I cannot agree that the respondent owner has demonstrated a strong interest in the upkeep of her home. Based on the respondent owner’s own submissions, I have serious reservations about whether the parties are not permanently deadlocked.

114)  I also do not agree with the respondent owner’s submission that her interactions with the applicants over the last 7 years amounted to a “pattern of abuse” of the bylaws with the applicants improperly claiming authority of the strata. Overall, I find the applicants acted reasonably in the circumstances.

115)  The respondent owner submits that increasing the binding obligations on the strata owners would only serve to increase the number of grounds of dispute. I disagree. The status quo, which effectively gives the respondent owner a veto power before the strata can take any action, is untenable and the lengthy history of the disputes culminating in this tribunal hearing is clearly evidence of that conclusion.

116)  The question then is, what now? There has been some further regression in terms of unsightly conditions, as shown in the one March 2017 photo produced by the applicants of the respondent owner’s entryway, although that condition is vastly superior to its former state and on its own likely would not cause me to make any sort of prospective order. The challenge here is the history between these parties, in that I accept that the January 2017 cleanup was in response to this dispute and there has been the regression. On a balance of probabilities, based on the existing bylaws alone I find the respondent owner cannot be relied upon to properly maintain “sightly conditions”.

117)  So, do the bylaws need to be amended, to enable the strata to act? I find the answer is no, at least not at this point. First, I do not find a mediator would likely assist the parties, given that mediation is a voluntary process. The respondent owner expressly submits she does not expect mediation to be successful.

118)  Second, while I find that bylaw 29 is inadequate because it is essentially voluntary dispute resolution or mediation that has already proven unsuccessful, I find bylaw amendments are presently unnecessary. Rather, to address the dispute resolution mechanism problem, I order the strata to become a member of the Condominium Homeowners Association (CHOA). Upon referral by a complaining owner, if the parties agree, the parties should follow CHOA’s opinion if CHOA provides one, which should address any associated costs. An alternative, if the parties agree in a particular dispute, is for the parties to together choose a third party to provide a decision in a dispute referred by a complaining owner. Here, my intention is for a less formal process than is described in sections 175 to 189 of the SPA. Again, the goal is for an informal but practical solution for day-to-day disputes that may arise. The parties should follow the third party’s decision. Finally, given my conclusions above, I find it should be clear to the parties that unsightly conditions may constitute a nuisance and interfere with an owner’s right to use and enjoy the property, within the meaning of bylaw 3. I do not find that bylaw amendments are presently further required in that respect. My detailed orders are set out below. For clarity, nothing in this decision prevents a party from referring a dispute to the tribunal or the court, and in particular, any opinion from CHOA or a third party is not binding on the tribunal or a court.

Tribunal fees

119)  The applicants want the respondent owner to reimburse them the $225 they paid in tribunal fees. The respondent owner wants this claim dismissed. The applicants have been successful in this dispute and in accordance with the tribunal’s rules, I find the respondent owner should reimburse the applicants the $225.

ORDERS
120)  Seawall:

a)     The strata must repair the Lot A side of the seawall in substantially the same manner as was done on the Lot B side in 2010 (the seawall repairs).

b)     The strata must make every reasonable effort to have the seawall repairs done in the summer of 2017, within the DFO guidelines, during which process the respondent owner must arrange for the scotch broom removal at her expense.

c)     In arranging the seawall repairs, unless the parties agree in writing otherwise, the strata must obtain 3 quotes. The quotes must be from suitable qualified contractors, such as Aklark and similarly qualified contractors. If the parties cannot reasonably agree on a contractor within 14 days of receiving 3 quotes, the applicants may select a contractor to do the seawall repairs, with cost efficiencies in mind, with all correspondence to be copied to the respondent owner.

d)     I order that the respondent owner must bear the entire expense of the seawall repairs.

e)     I order the respondent owner to maintain control of any weed regrowth on her strata lot in the seawall area.

f)       No party may plant, or allow to be planted, any weeds in the seawall area, without written consent of all parties.

g)     If the seawall repairs are not completed in 2017, I order:
a)    The strata must have the seawall repairs completed in 2018, within DFO guidelines, in the manner described above.
b)      By September 15, 2017, the respondent owner at her expense must remove the scotch broom, and control any regrowth.
c)       By September 15, 2017, at the respondent owner’s expense, the strata must either

i.           hire a qualified company to install a non-intrusive erosion control method to prevent further erosion to Lot B, If the parties cannot reasonably agree on a qualified company by September 1, 2017, the applicants may select the contractor to install the non-intrusive erosion control method, with cost efficiencies in mind, with all correspondence to be copied to the respondent owner or,

ii.          when the seawall repairs are completed in 2018, pay for any necessary repairs to the Lot B side of the seawall due to encroaching erosion from Lot A.

121)  Inspection and remedies:

a)     Unless the parties agree in writing otherwise, the strata must arrange for annual inspections of each strata lot’s residence and yard, to be completed by an appropriately qualified professional home inspector in accordance with bylaw 7 notice requirements.

b)     In his role as council member, the applicant Mr. Bourque must in writing consult with the respondent owner regarding the hiring of the home inspector, but if they cannot reasonably agree within 14 days of consultation, Mr. Bourque may act on behalf of the strata to hire the inspector and set the inspection dates, in accordance with bylaw 7 notice requirements.

c)      The inspection reports should provide detailed recommendations for repair and maintenance, bearing in mind the District of Sooke’s bylaw, including the care of the building, the air exchange units, shrubbery and lawn, address standards at the property entrance, and removal of any excessive yard clutter or unsafe or broken equipment.

d)     The first inspections should take place on or before July 31, 2017, or at some other date if the parties all agree in writing, and then annually thereafter within 14 months of the last inspection.

e)     The strata must provide the inspection reports for each strata lot to both the Lot A and Lot B owners.
f)       Each strata lot will bear the expense associated with the inspection of their strata lot.

g)     Within 30 days of receiving the inspection reports, the strata must retain an appropriately qualified contractor to implement the remedies recommended by the home inspector, unless otherwise agreed by the parties in writing.

h)      In his role as council member, the applicant Mr. Bourque must in writing consult with the respondent owner regarding the hiring of the contractor, but if they cannot reasonably agree within 14 days of consultation, Mr. Bourque may act on behalf of the strata to hire the contractor and set the dates for work to be done, including work on Lot A, although bylaw 7 notice requirements must be followed.

i)       The expense of any remedies recommended by the home inspector are to be borne as follows:

a)      Any Lot A yard maintenance is solely at the expense of the respondent owner.

b)        Any Lot B yard maintenance is solely at the expense of the applicants.

c)      Each strata lot bears the expense of any necessary repairs to their air exchange unit, which unit is to be repaired, maintained and operated by the strata lot owner if that is the recommendation of the inspector.

d)     The expense for any necessary repairs to all common property, including the driveway and roof (including moss removal), windows, skylights, is to be shared equally by the applicants and the respondents, as is the expense for any necessary repairs to the interior wall dividing Lot A and Lot B.

j)       Without limiting the possible recommendations of the inspector, I order the applicants and the respondent owner to maintain their respective yards free of excessive clutter and garden overgrowth, in accordance with both the bylaws and the District of Sooke’s bylaw.

k)      I order the respondent owner to immediately remove, at her expense, any fencing she has placed on common property, unless the parties otherwise agree in writing.

l)        I order the respondent owner to immediately remove the clothesline from the common property electrical pole, and if the inspector identifies any repairs are reasonably required to the pole, the respondent owner must bear the expense of those repairs.

m)    I order the parties to immediately stop parking any vehicles on common property and further order that both parties must stop any guest or other resident from doing so in future.

n)      I order the parties to immediately bring any “burn piles” within legal limits of the District of Sooke and to keep them within legal limits in future.

o)      I order the respondent owner to immediately remove any used cat litter from the Lot A yard and I further order that in future she must dispose of it properly in the garbage on a regular basis.

122)  Bylaws:
a)     I dismiss the applicants’ claim for bylaw amendments.
b)     I order the strata to become a member of the Condominium Homeowners Association (CHOA), with the owners to share the membership cost equally.

c)      I order that a complaining owner may refer a dispute to CHOA and if the parties agree, the parties should follow CHOA’s opinion if one is provided, which should address any associated costs.

d)     Any party may use CHOA as a resource for the selection of professional inspectors or contractors.

e)     I order that, if in a particular dispute the parties agree in writing, the parties may together choose a third party to provide a decision in a dispute referred by a complaining owner.

f)       Nothing in this decision prevents a party from bringing a dispute to the tribunal or a court, and any opinion from CHOA or a third party is not binding on the tribunal or court.

123)  Tribunal fees: The applicants were substantially successful in this dispute. In accordance with the tribunal’s rules, I order the respondent owner to pay them the $225 in tribunal fees, within 30 days.

124)  Orders for financial compensation can be enforced through the Provincial Court of British Columbia. However, the principal amount must be within the Provincial Court of British Columbia’s monetary limit for claims under the Small Claims Act (now $35,000). Under section 58 of the Act, the applicant can enforce this final decision by filing in the Provincial Court of British Columbia a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.

125)  Under section 57 of the Act, a party can also enforce this final tribunal decision by filing, in the Supreme Court of British Columbia, a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia.

Shelley Lopez, Tribunal Vice Chair




您需要登录后才可以回帖 登录 | 注册

本版积分规则


站内文章仅为网友提供更多信息,不代表本网站同意其说法或描述,也不构成任何建议。本网站仅为网友提供交流平台,对网友自由上传的文字和图片等,本网站
不为其版权和内容等负责。站内部分内容转载自其它社区、论坛或各种媒体,有些原作者未知。如您认为站内的某些内容属侵权,请及时与我们联络并进行处理。
关于我们|隐私政策|免责条款|版权声明|网站导航|帮助中心
道至大 道天成

小黑屋|手机版|Archiver|联系我们|天易综合网 (Twitter@wolfaxcom)

GMT-5, 12/13/2019 04:05 , Processed in 0.233675 second(s), 11 queries , Gzip On.

Copyright 天易网 network. All Rights Reserved.

© 2009-2015 .

快速回复 返回顶部 返回列表