BC Supreme Court upholds civil resolution tribunal decision that strata’s move-in fees were unreasonable and significantly unfair


6 February 2018

By Kevin Zakreski

In an appeal from a decision of the civil resolution tribunal, the British Columbia Supreme Court has upheld the tribunal’s conclusion that “certain $100 moving fees charged by the Strata Corporation pursuant to its Bylaws 36 and 4(8) were not reasonable and were significantly unfair.” The supreme-court decision contains comments on:

  • the standard of review for tribunal decisions;
  • applying the tests for reasonableness and significant unfairness to a strata-corporation bylaw;
  • whether the tribunal has jurisdiction to remedy a significantly unfair act or decision of a strata corporation.

In The Owners, Strata Plan BCS 1721 v Watson, 2018 BCSC 164, the respondent was:

a tenant who occupies a rented unit in the Strata Corporation with two roommates. [The respondent] brought the claim before the CRT to dispute two $100 moving fees charged by the Strata Corporation for the move out of his former roommate in 2013 and the move in of his girlfriend in 2016. They each used the elevator to move their personal effects, but did not move any furniture in or out of the unit.

The tribunal found that the fees violated section 6.9 of the Strata Property Regulation and that “the two $100 moving fees charged in this case were significantly unfair, as were the Strata Corporation’s actions in waiting two and a half years to levy the fees, and then cancelling the respondent’s current roommate’s fob access without notice in order to obtain payment. The strata corporation obtained leave from the supreme court to appeal this decision.

The supreme court’s decision on appeal delved in considerable detail into the standard of review applicable to tribunal decisions. This examination was necessary, as the court noted, because the Civil Resolution Tribunal Act

does not incorporate the statutory standards of review legislated under ss. 58 and 59 of the Administrative Tribunal Act, SBC 2004, c. 45. Accordingly, the common law regarding the standard of review applies.

After noting the leading cases, which presumptively call for review on the reasonableness standard, and examining four contextual factors (“the presence or absence of a privative clause; the purpose of the tribunal as determined by interpretation of its enabling legislation; the nature of the question at issue; and the expertise of the tribunal”), the court concluded that reasonableness was the appropriate standard of review:

In this case, where the CRT interpreted and applied its own statute and the SPA, a statute closely connected to its function, the presumptive standard of review is reasonableness. Weighing all of the relevant factors, I find that on balance, the contextual analysis does not indicate that the legislature intended the standard of review to be correctness. While the jurisdiction of the CRT is not protected by a strong privative clause, the tribunal’s purpose, its specialized jurisdiction for the economical resolution of strata property claims and the particular questions at issue on this appeal all weigh in favour of the reasonableness standard of review.

In applying this standard to the tribunal’s decision, the court determined that it couldn’t fault the tribunal’s application of the test of unreasonableness for a bylaw concerning fees to use common property:

The tribunal member applied both branches of the De Vuyst test on an objective standard.

Regarding prevailing market conditions, the tribunal member accepted the appellant’s evidence that the fee range for move ins and move outs was between $50 and $200 month and found that the fees set out in Bylaw 36 fell within that range.

The CRT then observed there was no evidence on whether other strata corporations applied their moving fees in situations where no furniture was moved. As the tribunal member noted, it was the application of the fee in that situation that Mr. Watson disputed.

On the second branch of the test, the tribunal member considered the appellant’s estimate of the costs it incurred for move ins and move outs. Those costs totalled $138.81 for 5.25 hours at the building manager’s regular time rate of $26.44 per hour.

Nor could the court fault the tribunal’s decision on significant unfairness:

In my view, the CRT’s findings on significant unfairness, and more particularly, on the significantly unfair manner in which the Strata Corporation levied the fees are defensible on the standard of reasonableness, and would survive a review for correctness. The manner of imposition of the moving fees 2 1/2 years after the departure of Mr. Watson’s former roommate and the move in of his current roommate, together with the cancellation of the current roommate’s fob access in order to compel payment was burdensome, unjust and inequitable, and constituted significantly unfair action on the part of the Strata Corporation.

Finally, the court ruled that a drafting error in section 48.1 (2) of the Civil Resolution Tribunal Act (since corrected) wasn’t enough to take away the tribunal’s jurisdiction to consider cases of a significant unfairness:

The words “section 3.6(2)(e) to (g)” render section 48.1(2), as it was in force at the time of the proceedings before the CRT, manifestly absurd. The legislature clearly did not intend to confer power on the CRT to make orders with respect to claims excluded from its jurisdiction.

***

Here, there was a manifest absurdity, a traceable error and an obvious correction, which the legislature has since made. To the extent it is necessary for the disposition of this appeal, I would adopt and apply the same correction to the manifest clerical error in s. 48.1(2) as it was originally enacted as the legislature has now made.

In the result, the court dismissed the appeal.


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