CRT Roundup—finances, bylaw enforcement, governance, and more
May 31, 2018
BY Kevin Zakreski
Sections and types—types—availability—geothermal heating
Schultz v The Owners, Strata Plan KAS 3313, 2018 BCCRT 148, involved a dispute over “certain utility expenses [the applicant strata-lot owners] say they should not have to pay because the related system, a central geo-exchange system for heating, cooling, and domestic hot water heating (central geothermal system) does not service their units.”
The disputed involved a strata property that the tribunal described as:
[a] 111-unit strata is a phased residential complex in Kelowna, with 92 apartments and 19 townhouses. A 4th phase is near completion, if it is not already completed, which is made up of an additional 65 apartments.
In 2013 the strata corporation approved a bylaw establishing “four strata lot types”:
- Townhouse type that are connected to and use the central geothermal system
- Townhouse type that are not connected to and use the central geothermal system
- Apartment type that are connected to and use the central geothermal system
- Apartment type that are not connected to and use the central geothermal system.
In 2017 the strata corporation replaced this bylaw with a bylaw that said “[t]he strata is comprised of 2 ‘types of strata lots,’ namely the ‘Apartment’ and the ‘Townhouse’ types, for the purpose of allocating ‘expenses which relate to and benefit only one of these types of strata lots.’ ”
The applicant owners asked the tribunal to order “the strata to re-adopt a bylaw that enables assignment of utility fees for the apartment-style and townhouse units, based on whether they are each serviced by the central geothermal system by creating 4 types of strata lots (4-type bylaw).”
After noting that the “central geothermal system also services an amenity building, which benefits all strata lot owners, including the applicants,” the tribunal concluded that the a types bylaws on the model proposed by the applicants isn’t available in this case:
My conclusion is supported by the BC Court of Appeal’s decision in Ernest & Twins Ventures (PP) Ltd. v. Strata Plan LMS 3259, 2004 BCCA 597 (CanLII). Expenses which benefit more than one type, albeit to different degrees, must be paid by all strata lots. In Ernest, the BC Court of Appeal dismissed an argument that where an expense benefits one type of strata lot disproportionately the strata must allocate the expense according to the benefit derived by each type. This is exactly the sort of argument the applicants advance: because they only benefit from the 10.5% used by the amenity building, it is disproportionate for them to equally share in the entire central geothermal system expense. I am bound to follow Ernest. The court held that section 6.4(2) of the Regulation does not provide for any greater apportioning of expenses among types of strata lots. As worded, section 6.4(2) burdens the owners of one strata lot type with an item of expense from which they derive “the only benefit.” For clarity, expenses that benefit different types of strata lots disproportionately must be paid by all strata lots.
Therefore, I agree with the strata that the SPA prohibits the 4-type bylaw desired by the applicants.
I also note the case law that indicates a “types” bylaw can only be based on character or form of structure (see Smith v. G.C. (Goldie) Read, 1993 CanLii 2149 (BCSC). Defining the bylaw based on connection to the central geothermal system is not based on character or form or structure. Nothing turns on the fact that the Smith decision considered the SPA’s predecessor legislation, the Condominium Act. In particular, I do not agree that the requirement for a type bylaw, which arose with the SPA, changes anything. I also agree that the more recent decision in Lim v. Strata Plan VR 2654, 2001 BCSC 1386 (CanLII), found a “type” includes “a class of things having common characteristics.” However, I do not find that the Lim decision materially changes the framework set by the Smith case, which was noted and relied upon by the court in Lim.
In any event, the determinative point here is that the central geothermal system is at least partly used by everyone, given the amenity building. Thus, it is not an expense that is exclusive to only one strata lot type. Further, because the apartments and at least some of the townhouses use the central geothermal system, it is not an expense associated with only one type of strata lot, as defined in the proposed 4-type bylaw.
Finances—common expenses—water taxes and tolls
Huck v The Owners, Strata Plan KAS1565, 2018 BCCRT 172, involved a dispute over “the calculation and collection of water taxes and tolls by the respondent on behalf of the Okanagan Falls Irrigation District (OFID).” The OFID “is an ‘improvement district’ created by letters patent under the Local Government Act,” which is “empowered to regulate the distribution of water and establish bylaws that impose tolls and other charges on water users.”
The dispute took place in “a bare land strata corporation created under the (former) Condominium Act in January, 1995.” The applicant strata-lot owners “say water taxes and tolls are common expenses while the respondent [strata corporation] says they are not.”
The tribunal began by noting that “[s]ection 1 of the SPA states that common expenses are either expenses ‘relating to common property and common assets’ or they are expenses required to meet a ‘purpose or obligation’ of the strata corporation.”
Since OFID bylaw 281 was passed in 1992 the respondent strata corporation, not individual strata lot owners, has an “obligation” to pay water taxes and tolls to the OFID.
The OFID’s characterization of strata corporations’ responsibility to collect water charges and remit them as a “procedure,” does change the respondent’s SPA obligations under the bylaw. Nor does it change their obligation to pay common expenses under s. 91 of the SPA and, further, to comply with establishing strata fees and apportioning them by unit entitlement (ss. 92 and 99 of the SPA).
Finally, the respondent’s argument that because the collection of taxes has not changed in 19 years and therefore “overrides” an interpretation that water is a common expense is without legal foundation. The SPA and municipal or district bylaws, along with the strata corporation’s bylaws are the source of authority for the actions of strata councils, not past practice.
I conclude the payment of water taxes and tolls is a common expense of the respondent strata corporation.
Finances—cost allocation—common asset—dock
The Owners, Strata Plan KAS 2827 v Couchman, 2018 BCCRT 186, involved a “dispute . . . about repairs required to a shared dock.” The dock was a “a common asset of the strata.” The strata property was made up of only 2 strata lots,” each located in a separate building. The size of the strata property required both owners agree to a plan to repair the dock. They were unable to reach agreement.
On the issue of allocating costs for repairs, the tribunal found:
I find the dock is a common asset of the strata and the respondent must contribute to the costs of constructing the new dock and demolishing and disposing of the old dock equally according to the unit entitlement of each strata lot.
In the result, the tribunal ordered that a detailed set of steps be taken to carry out replacement of the dock.
Finances—legal fees—authorization to pay expenses—audit—access to records
In Corner v The Owners, Strata Plan K 833, 2018 BCCRT 189, the applicant strata-lot owner asked the tribunal for a number of orders related to her concerns about the finances and governance of the respondent strata corporation:
The owner seeks orders that the strata council members repay the improper expenses made by the strata council, reimbursement of legal fees charged to her, a financial audit of the strata’s books and accounts, and that the strata council members be held personally liable for their actions.
The tribunal found had improperly charged the owner for the strata corporation’s legal fees in respect of a hearing that the owner had requested:
I find the strata has mistakenly confused the legal fees for the hearing with the legal fees for the small claims dispute. I do not accept the strata’s statement that the $99.38 credit related to the small claims hearing and that the amount was incorrectly calculated and replaced by the $135.02 credit. The strata has not explained why it would describe a credit as being about a court action if it, in fact, related to a council hearing.
The bulk of the owner’s remaining claims were dismissed. The tribunal found that the strata corporation hadn’t acted improperly with respect to the employment of a caretaker and that it was authorized to pay legal fees in connection with the forced sale of another strata lot. The tribunal also declined to order an audit of the strata corporation or to find that strata-council members had failed to act honestly and in good faith with a view to the best interests of the strata corporation.
In Bhrany v Section 2 of The Owners, Strata Plan BCS 3495, 2018 BCCRT 150, the applicant strata-lot owner asked the tribunal to cancel fines “because he says there is no evidence the noise in question came from his tenant, and because the section has acted unfairly in assessing fines against him.”
The tribunal found that “the noise complaints at issue in this dispute were a response to actual noise coming from SL 90 that was caused, or allowed to be caused, by the tenant.” But the tribunal also found that the section lacked the authority under the Strata Property Act and the bylaws at issue to levy the fines:
The section relied on bylaws 2.3(1) and 7.1 in the notices of complaint. The language of each of those bylaws is different. Bylaw 2.3(1) directly prohibits actions by the owner or tenant. Bylaw 7.1 refers to the owner’s obligations only, and makes an owner responsible for noise created by “occupants.” Owners, tenants and occupants are not defined in the bylaws.
Subparagraph 194(2)(f) of the SPA grants a section of a strata corporation the same rights as the strata corporation to enforce bylaws and rules with respect to a matter that relates solely to the section (see Yang v. Re/Max Commercial Realty Associates (482258 BC Ltd.), 2016 BCSC 2147 (CanLII) at para. 91). The only bylaws that relate solely to the section are the bylaws in Part 7. Therefore, I find the section does not have the authority to enforce bylaw 2.3(1). That leaves bylaw 7.1.
In the circumstances, I find that the reference to “occupant” in bylaw 7.1 does not mean “tenant.” The terms have different meanings in the SPA. Therefore, given that the bylaws do not define “occupant” or “tenant,” I conclude that “occupant” and “tenant” have the same meanings in the bylaws as in the SPA and refer to different categories of people. Since I have earlier found the noise in this dispute was caused or permitted by the tenant, I find the section is not entitled to rely on bylaw 7.1.
In the result, the tribunal “order[ed] that the section immediately cancel all fines imposed on the applicant for noise complaints at SL 90 before December 30, 2017.”
Bylaws—enforcement—fines—spreading herbicide—feeding wildlife—nuisance
In The Owners, Strata Plan KAS 2660 v Brooks, 2018 BCCRT 162, the applicant strata corporation asked the tribunal for an order that the respondent strata-lot owner “pay 3 fines for alleged bylaw breaches.” The strata corporation claimed breaches of its bylaws in relation to the owner and the owner’s tenant “spraying chemicals on the trees located on the strata property, causing them to die” and two instances of “feeding ducks on the strata property, causing them to be a nuisance.” The owner argued that “is actions were not breaches of the bylaws.”
The tribunal rejected the owner’s argument regarding spraying herbicides:
The owner argues that the plants sprayed were weeds and that his actions were justified. I reject this argument. Bylaw 4(1)(q) expressly prohibits an owner or tenant from causing damage to trees or plants. Whether the owner thought the plants were weeds is irrelevant if damage was caused. I conclude the bylaw prohibits the activities of the June 26, 2015 fine.
The tribunal also found that feeding wildlife created a nuisance in this case:
Bylaw 4(1)(a)(i) states that an owner or tenant must not do anything on the strata property that causes a nuisance. A nuisance is defined as something that causes inconvenience or annoyance. I find that attracting numerous ducks or other birds to the strata property constitutes a nuisance for the purpose of the bylaw. I conclude that the bylaw prohibits the activities of the June 29, 2015 and February 4, 2016 fines.
In the result, the tribunal held, “[w]ithin 30 days of this decision, I order the owner to pay to the strata a total of $531.19, broken down as follows: (a) $300.00 in fines for breaches of the strata bylaws; (b) $6.19 in pre-judgment interest under the [Court Order Interest Act]; and (c) $225.00 in tribunal fees.”
Bylaws—enforcement—charge backs—fines—dryer-vent cleaning—short-term accommodation
to recover costs it incurred because the owner did not make the unit available for dryer vent cleaning on several occasions (chargebacks). The strata also wishes to recover fines it imposed for the owner’s contravention of its rental bylaws. Finally, the strata asks the tribunal for an order requiring the owner to stop renting her unit on a short-term basis.
Since the respondent strata-lot owner did not respond to the charge-back claim, the tribunal found that “liability may be assumed, much like a default decision.” It granted the strata corporation its requested order.
Regarding the bylaw fines, the tribunal found that:
the short-term accommodations in this matter were licences to occupy rather than rentals for the purposes of Part 8. The owner maintained legal possession of the unit when providing short-term accommodations to her guests. I find that the strata could not use the rental limitation bylaws (which specifically reference sections 141 to 148) to prohibit the owner from offering short-term accommodations to guests.
The strata may rely on other bylaws to stop owners from licencing their units to short-term guests. The strata has attempted to do so with the illegal use bylaw and the short-term accommodation bylaw.
In the result, the tribunal ordered that “within 30 days of this decision, the owner must pay the strata $1,364.47, which includes the following amounts: (a) $124.88 for the chargebacks; (b) $1,000 for the fines; (c) $14.59 for prejudgment interest on the above two amounts pursuant to the Court Order Interest Act (COIA); and (d) $225.00 for the tribunal fees.”
Bylaws—enforcement—charge back—water leak
In The Owners, Strata Plan VR 2266 v 228 Chateau Boulevard Ltd, 2018 BCCRT 198, the applicant strata corporation asked the tribunal for orders against the respondent strata-lot owner in a dispute over
a leak from a water tank (water leak). Damage occurred in 3 locations: in the owner’s strata lot, on common property, and in a strata lot in the commercial section. The strata made repairs then charged the repair costs back to the owner. The owner disputes those charges.
The tribunal found that the owner was responsible for the damage:
The “cause” of the damage is not disputed: it is the owner’s ruptured water tank. The water tank is the owner’s property and the owner’s responsibility. Being “responsible” need not mean being negligent . . . . As found in Strata Corporation LMS 2723 v. Morrison, 2012 BCPC 300 (CanLII), an owner is responsible for what happens in that owner’s strata lot. It does not matter if the owner was absent at the time.
I find that the water leak was caused by the owner’s property, for which the owner is responsible. The owner caused damage to the common asset and the common property, in breach of bylaw 3(2). The owner also created a nuisance or hazard to other people from the water leak in the owner’s strata lot, in breach of bylaw 3(1).
But the tribunal had also found that the strata corporation had failed to comply with the statutory procedure for enforcing its bylaws:
I find that the strata violated SPA section 135 by charging the owner’s account before the owner had an opportunity to respond. I also find that the strata took steps to cure the violation of SPA section 135 by giving the owner a hearing then providing its decision in writing. I further find that the strata did not fully cure the violation of SPA s. 135, which would involve reversing the charges relating to the water leak that were registered in June and July 2016, and then re-registering them on or after the date of the council’s written decision, May 26, 2017.
In the result, the strata corporation’s claims were dismissed.
In Fraser v The Owners, Strata Plan K 6, 2018 BCCRT 160, the applicant strata-lot owner “raised complaints about construction noise in the adjacent unit, off-leash dogs in his car port and front yard, and improper bylaws,” and argued “the strata has not responded adequately to his concerns.” The applicant asked the tribunal for various orders related to the enforcement of strata-corporation bylaws.
The tribunal declined to order the strata corporation to levy fines against a former strata-lot owner:
While there is evidence that the off-leash Bylaw was violated by the dog owner, suggesting the strata council might have taken more definitive action than it did, I decline to make an order requiring the strata to fine dog owner. I make this decision because the strata had discretion to impose a fine. Further, such an order will have no practical impact, given that the dog owner no longer lives in the strata.
The tribunal also declined to make an order in relation to a noise complaint, which was well-documented but ultimately withdrawn:
Contrary to the strata’s submission, I find the applicant documented the noise on several occasions. Further, renovation noise continuing until 8pm may well be unreasonable, and worthy of sanction by strata council. Strata council could have imposed a fine if the noise continued under its bylaws and had an obligation to do so as set out in section 26 of the SPA. The strata was not correct in its interpretation that it could do nothing because of a “legal right” to renovate. Strata council may have confused the bylaw infraction issue here by providing inaccurate information about the obligations of owners. The bylaws empower the strata to impose a fine where unreasonable noise is established, regardless of its source.
Having said that, the applicant withdrew his complaint about the noise from unit 97, and the renovations there are now complete. I therefore decline to make an order requiring the strata to impose a fine against unit 97.
In Esfahani v The Owners, Strata Plan BCS 2797, 2018 BCCRT 176, the applicant strata-lot owner “claim[ed] that the strata bylaw limiting the size of pets, and in particular of his dog, is unenforceable because it is too vague.” The case took place in a “strata corporation consisting of 82 strata lots in North Vancouver.” The bylaw at issue read “one small dog or cat is permitted; small being defined as an animal that can comfortably be picked up and carried.”
In considering the issue of vagueness, the tribunal drew on case law applying the concept to municipal bylaws. Using the standards set out in that case law, the tribunal found that the bylaw at issue was vague and unenforceable:
The difficulties in interpreting the pet bylaw are highlighted by the steps taken by the strata council. Its letter of October 17, 2016 admitted that the dog was compliant with the pet bylaw at that time, but set out its view that this would change as the animal matured. On December 22, 2016, a determination was made that the dog, which had been compliant 2 months earlier, no longer met the pet bylaw requirement. However, this letter does not state why the strata made this determination. Did it apply one of the definitions of golden retriever provided in this dispute? The letter does not say so. Did it apply some other criteria which is not specified in the decision letter? It is not possible to tell.
Applying the literal meaning of the words, there is evidence that the applicant can pick up and carry the dog. Comfort is a very subjective factor, but there were no signs of distress shown by the applicant when he was holding the dog in his arms. It is true that the dog squirmed when being held up in the air and this might mean that it was not under control. But control is not a component of the pet bylaw definition. The application of the literal meaning is an illustration of the difficulties with the language of the pet bylaw.
I next consider whether a reasonably intelligent person would be unable to determine the meaning of the bylaw that governs his conduct. In the present dispute, I find that there are sufficient uncertainties in the language of the pet bylaw that a reasonably intelligent person would not be able to determine the meaning. There is no objective criteria to determine if a dog is or is not in compliance with the bylaw. There may be cases where a golden retriever weighs less than 35 pounds, in which case it would be a small dog by the American Kennel Club definition. This may be because of age, condition or perhaps breeding. The December 22, 2016 letter from the strata does not say which criteria was applied, although it appears to be related to their views about the breed.
Common property—duty to repair and maintain—pond
In Dickson v The Owners, Strata Plan K 671, 2018 BCCRT 147, the applicant strata-lot owners’ asked the tribunal for “remedies in relation to a decorative pond located on common property in the centre of the strata complex.”
As the tribunal noted,
leaking of the pond liner was noted in strata documents in 2011, and the liner failed in April 2014. A portion of the liner was repaired, but it was later found to be irreparable. The pond has been empty since 2015.
The tribunal concluded that the strata corporation was under a duty to repair the pond:
The strata submits that it is prudent to allow the ownership the opportunity to consider if a pond is the right fit for the community. However, the strata already did this in January 2017. Moreover, it is always open to the strata to put another resolution to the owners to change the use of the pond by filling it in. Until such a resolution passes with the 3/4 vote required under section 71(a) of the SPA, the strata must meet its duty under section 72(1) to repair and maintain the existing pond. As stated by the British Columbia Supreme Court in Kayne v. The Owners, Strata Plan LMS 2374, 2013 BCSC 51 (CanLII) and Browne v. Strata Plan 582, 2007 BCSC 206 (CanLII), dissension among owners regarding the appropriate approach to repairs does not absolve the strata corporation from its duty to repair and maintain common property.
In the circumstances of this case, I am satisfied that there must be an order that the strata perform its statutory obligation to repair the pond.
The tribunal “order[ed] the strata to restore the pond to its original state by February 2019.” “To finance the pond restoration,” the tribunal ordered the strata “to issue a special levy to the owners in the amount of $80,000.”
Common property—parking stalls—lease—assignment
The applicant strata corporation . . . wants an order that the respondent . . . return 11 common property underground parking stalls (Stalls) to the strata, for allocation to residential owners.
[The respondent] owns strata lot 43, a commercial strata lot. Strata lot 43 operates as a marina. When [the respondent] bought strata lot 43, it paid the vendor for the assignment of the Stalls’ parking leases. [The respondent] says that even if the Stalls are common property, the strata is obliged to honour the parking lease assignment. The strata says the parking lease assignment is invalid and not enforceable.
The dispute took place in a strata property that was “comprised of 43 residential strata lots and 4 commercial strata lots.”
The tribunal found that it was bound by an earlier court decision in a case with a similar set of facts:
the court in Hill found the Condominium Act did not permit a developer to make arrangements with a particular owner for the exclusive use of common property. I find Hill is binding upon me and its conclusion applies to the facts of the present case. I find the developer had no right to sign a parking lease giving exclusive use of common property to one strata lot owner. The Stalls were not the strata lot 43 vendor’s to lease to [the respondent]. Further, [the respondent] knew or ought to have known that the Stalls were common property and not LCP for [the respondent’s] exclusive use. Again, this is because the Stalls were never designated as LCP, either on the strata plan or by a 3/4 vote.
The tribunal also found that the strata corporation’s proposed reassignment of the parking stalls would not be significantly unfair to the respondent:
I find [the respondent’s] reliance upon the parking lease assignment for the 11 Stalls was not a reasonable expectation. I say this because it knew, or ought to have known, that the strata was not a party to that lease. It ought to have known that the Stalls were designated as common property, and there had been no LCP designation in favour of strata lot 43.
At the same time, I find that it cannot be significantly unfair for the strata to allocate the 11 Stalls for residential use. Such use is consistent with the strata plan, the development permit and disclosure statements, and the City’s permit, which was all information available to [the respondent] at the time it purchased its strata lot 43.
Even if [the respondent’s] reliance upon the parking lease was a reasonable expectation, I find it would not be significantly unfair for the strata to say [the respondent] could not have exclusive use of the 11 common property Stalls, for the same reasons as set out above. I cannot conclude the strata’s allocation of the 11 Stalls to residential owners, in accordance with all of the plan and permit documentation, is wrongful or unfair. As noted above, without the 11 Stalls Townsite has at minimum the exclusive use of 5.5 stalls. Further, that the commercial strata lots have mutually agreed to equally share the 14 LCP stalls does not mean [the respondent] only has access to 5.5 stalls. Setting aside the commercial strata lots’ private agreement, [the respondent] has access to all 14 LCP stalls. Thus, on balance, I cannot find that [the respondent] has access to less than the 8 stalls required by the City.
In the result, the tribunal ordered that “the strata has control of the 11 common property Stalls to assign as it sees fit, including for residential use” and that “the commercial strata lot 43, owned by the respondent . . ., is not entitled to use the 11 Stalls.”
Common property—significant change in use or appearance—carpet—repainting
In Porcheron v The Owners, Strata Plan KAS 2716, 2018 BCCRT 161, the applicant strata-lot owners “seek remedies in relation to repainting and carpet replacement on common property in one of the buildings within the strata.” As the tribunal noted:
This dispute involves carpet replacement and repainting in one of three buildings in the strata (building 1). This 7 storey building contains 38 strata lots, as well as amenity rooms, connected by common property hallways. Its construction was completed in 2005.
The tribunal found that in replacing the hallway carpet and repainting the strata corporation had made a significant change in the use and appearance of common property:
Unlike the potted shrubs in Reid, the carpeting and paint are permanent and cannot be easily changed. Photographs provided by the parties show that new carpet tiles look different than the replaced carpet. The tiles are much darker than the old carpeting, and have a different colour and appearance. They also have a more pronounced pattern than the previous carpeting. The new carpet tiles are dark brown with a grey and blue pattern throughout. The previous carpeting was a single colour (oatmeal beige) with a darker “fleck” throughout. Based on the plain meaning of the word “appearance,” I find that that the carpet tiles look significantly different. Also, they are a different product from the previous carpeting, as they are carpet tiles rather than broadloom carpeting with underlay.
The tribunal also found that the strata corporation lacked authorization to make this significant change:
While the strata consulted with the owners by showing them a sample of the chosen carpet tiles, and by holding a vote on taking money from the [contingency reserve fund], the strata did not give owners any input on whether to reinstall wall-to-wall carpeting rather than switch to carpet tiles. The May 6, 2014 email to owners in building 1 simply stated that due to problems with staining, “the only proper fix is to replace the carpet with carpet tile.” The email said the carpet tiles were more expensive than the current carpet, but was more resilient and could be repaired if damaged.
This email confirms that the carpet tiles were different from the previous carpeting, and not simply a routine replacement as submitted by the strata. The strata did not pass the required 3/4 vote on whether to significantly change the appearance or use of common property by installing carpet tiles.
The tribunal granted the following remedy to the applicant owners:
Given the outcome of the May 2016 vote, and the cost of replacing the carpet tiles, I find it would it not be in the best interests of the strata to order the carpet tiles to be replaced. I adopt the view of the court in Foley that it is important for owners in a strata corporation to attempt to resolve their differences by following the procedures contemplated by the SPA and bylaws. That is, all owners should be afforded an opportunity to determine whether the building 1 alterations should be allowed to stand. For that reason, I order that within 6 months of this decision, the strata must propose a 3/4 vote resolution at an AGM or special general meeting (SGM) on whether to replace the carpet tiles with broadloom carpeting similar to that originally in the building, and a separate 3/4 vote resolution on whether to change the new paint in building 1.
In The Owners, Strata Plan BCS 983 v Muir, 2018 BCCRT 157, the applicant strata corporation asked the tribunal for “an order that the owner remove 8 inches from the west side of the canopy installed over his patio.” As the tribunal noted, the dispute was less about the facts of the case and more about the strata corporation’s powers under its bylaws:
The parties agree that the canopy is not set back from the privacy fence. The disagreement between the parties is about whether the strata had the power to require a setback.
The tribunal found that the strata corporation did have the power to impose conditions on granting approval to alter common property:
bylaw 7.1 says an owner must obtain written approval from the strata corporation before altering common property or limited common property. Under bylaw 7.1, the strata has a broad discretion to approve an alteration to limited common property as was proposed by owner. The bylaws do not set out any limiting conditions for canopy installations, as they do for other alterations such as gazebos and air conditioners. Therefore, I find the strata’s approval of the proposed canopy installation, including the setback requirement, was valid.
The finished canopy does not observe the setback which was a condition of the alteration being approved. For that reason, I find that the owner did not have the approval required under bylaw 7.1, and must remove 8 inches from the west side of the canopy as requested by the strata.
In Friedrich v The Owners, Strata Plan K515, 2018 BCCRT 184, the applicant strata-lot owner claimed “that the strata and their management company have singled her out and harassed her.” This claim turned on disputes over approval for painting the applicant’s exterior French door and for fencing off an area of common property for use as a garden. The dispute took place in a strata property described as “32 strata lots in three different buildings located in Penticton.”
With respect to the door, the tribunal found that the applicant couldn’t show approval for painting the door in a non-standard color:
I find on the evidence that the owner did not comply with the bylaws in painting the French doors a colour different than they were originally painted. The owner would be required under the requirements of the bylaws to obtain written approval from the strata prior to painting. I order the owner to comply with the bylaws and seek written approval from the strata for painting the French doors a different colour than the original. If the strata does not approve, then I order the owner to abide by the strata’s decision, which may include the owner having to return the doors to their original colour at her expense.
In a similar vein, the tribunal found that the applicant was unable to prove that she had approval to erect a fence on common property:
I conclude that the owner has taken over exclusive use of the common property and undertaken alterations to the common property, including installing a shed, installing a fence or perimeter plants, and planting a garden. The owner has done so without first obtaining the express written approval of the strata under its bylaw 5 and has done so without being granted exclusive use of the common property by the strata under section 76 of the SPA. I order the owner to apply to the strata for exclusive use of the common property at issue in this dispute. The owner is required to provide a detailed plan to the strata about of the use that she intends to make of the common property and must abide by the strata’s decision with respect to her request.
Common property—approval—patio cover
The strata seeks orders that the owners tie their patio roof drainage into the perimeter foundation drain system, and pay related bylaw infraction fines. By counterclaim, the owners seek an order that harassment against them stop, and that the strata pay their legal fees.
The tribunal found that the strata corporation’s request was reasonable in view of installation of a cover larger than the one that had been approved and granted the strata corporation several orders to allow it to be implemented:
I find that strata’s request that the owners tie their patio roof drain into the perimeter roof drain is reasonable in the circumstances, and is not contrary to any previous agreement because they never approved a roof larger than 10 by 13 feet. Accordingly, I order that within 4 months of this decision, the owners must have their patio roof drainage tied into the perimeter foundation drain system. This work must be done by a licensed and insured contractor, with WorkSafe BC coverage. I also order that up to two members of the strata council must be permitted to inspect the drainage tie-in before the area is buried.
The other aspects of the dispute were dismissed.
Strata lot—alteration—approval—ceiling-mounted lift
Boyer v Downey, 2018 BCCRT 156, concerned a dispute in a strata property that consisted “of a 3-storey wood-framed residential building, containing 86 strata lots.” The dispute was between two neighboring strata-lot owners and involved a ceiling-mounted lift:
[The respondent] installed ceiling-mounted tracks in her strata lot. The tracks support a lift used to transfer her physically disabled adult son out of bed, into his wheelchair, and in the bathroom. The [applicant] owner says the tracks were screwed into the floor joists of her strata lot, which broke the sound barrier between the lots and diminished the integrity of the floor joists by 16%. The owner seeks remedies from [the respondent] and the strata in relation to the ceiling tracks.
The tribunal found that strata-corporation approval was required for the lift:
Strata bylaw 7.1(a) says an owner must obtain the written approval of the strata corporation before making or authorizing an alteration to a strata lot that involves the structure of a building. I find that drilling lag bolts into the joists was an alteration of the building’s structure, particularly given that the engineering report indicated that the lag bolts reduced the bending capacity of the joists by approximately 16%.
Because of the noise transmission and structural problems with the ceiling tracks identified in the January 2016 engineering report, and because the engineering firm identified an alternative mounting system for the lifting apparatus (wall-mounting), I find that it is reasonable in the circumstances of this case to order [the respondent] to remove the ceiling tracks and repair the damage to the ceiling joists.
The tribunal also ordered the respondent “to provide, at her cost, a report confirming that the joists and any sound-proofing have been restored to their original levels of function.”
Strata lot—alteration—approval—unreasonable delay—parking stalls—move-in fees
In Zeng v The Owners, Strata Plan VR 55, 2018 BCCRT 190, the applicant strata-lot owner alleged that the respondent strata corporation “treated her unfairly” in connection with a renovation project, parking, and move-in fees:
- unreasonably delaying the approval of her renovations;
- continuing to demand that she obtain an electrical permit or sign a new assumption of liability agreement;
- failing to accurately record its decisions in the council meeting minutes;
- improperly revoking her parking stall for unit 201;
- failing to assign another parking space to her for unit 211 in accordance with the parking rules; and
- improperly charging her move-in fees.
The tribunal dismissed all but two of her claims.
The tribunal found no unreasonable delay on the part of the strata corporation:
I accept that the strata reversed its decision to approve the renovations based on its concern that there was new electrical wiring that had not been detailed in the renovation plan. The strata then took time to consult with a lawyer. Within a month of reversing its earlier decision, the strata once again conditionally approved the renovations. Accordingly, I find that the strata did not unreasonably delay in providing approval for the renovations and dismiss the owner’s claim in this regard.
The tribunal also found that it was reasonable to ask the applicant for an updated agreement assuming liability for the renovations.
The owner failed to provide the tribunal with evidence that moves involving family members should be exempted from the fee or that the fee was unreasonably out of line with prevailing market conditions or the costs incurred by the strata corporation.
The owner was successful in her claims related to parking stalls:
I accept the owner’s submission that she rented the parking stall assigned to unit 201 primarily for her own use, from February 2017 when she was first assigned the stall, to at least May 2017, when her tenants in unit 211 moved in and she started sharing the stall with them. As such, I find that parking rule 7 does not apply in this case, as the owner was not renting the parking stall on behalf of her tenants.
Given that the owner was not in contravention of parking rule 7, I find that the strata did not have a reasonable basis to revoke the parking stall assigned to unit 201. I order the strata to continue to allow her to use the same parking stall that is currently on “hold” for unit 201 pending the outcome of this decision.
The tribunal also found that the strata corporation had “failed to assign the next available parking stall to the owner when she was first on the waiting list, contrary to the parking rules.”
Strata lot—repairs and maintenance—patio
The sliding glass patio door, door frame and parts of the patio of SL4 need repairs and replacement. This dispute is about who is responsible for paying for the needed repairs and replacement, and in what amount.
The strata property at issue “was created in 1972 under the Strata Titles Act, a predecessor to the current Strata Property Act (SPA).” Determining responsibility for the repairs turned on an interpretation of the strata corporation’s bylaws.
The tribunal found that the applicant strata corporation was unable to prove that the respondent strata-lot was responsible under the bylaws:
The permanent repairs proposed in February 2016 included repairs to the patio door, the door frame and sill, and the wooden deck on the patio. Patios and decks are addressed by bylaw 7.2, but the bylaw refers to LCP. I do not find that bylaw 7.2 applies to the patio and wooden deck of SL4, as it is not LCP. The strata plan clearly indicates that the patio of SL4 forms part of the strata lot, not common property.
Bylaw 8 makes an owner responsible for the repair and maintenance of his strata lot, including windows and doors. Although the bylaw does not specifically refer to patios and decks, I find that it implies that an owner is responsible for any patio or deck that is part of his strata lot. This is particularly so, given that bylaw 8 refers to areas allocated to the exclusive use of a strata owner, which a patio is.
That being said, the strata has not established that either bylaw 7.2 or bylaw 8 was filed in the registry. The same is true of the other bylaws relevant to this appeal. Although under bylaws 7.2 and 8 the owner would be responsible for carrying out the needed repairs, the strata has not shown that the bylaws were in effect at the relevant time.
I have considered whether I ought to exercise my discretion under section 42(1)(c) of the [Civil Resolution Tribunal] Act and seek further information relating to the strata’s bylaws. Given that the strata has filed no evidence with the tribunal and is in the process of resolving this issue outside of the tribunal I have decided that it is not necessary to seek further information to make a decision on this dispute.
I find that the strata has failed to prove, in this dispute, that the owner is responsible for the needed repairs.
Strata lot—repairs and maintenance—negligence—washing machine
The owner says that a restoration company hired by the strata to investigate a leak moved her washer and broke it. She seeks reimbursement for a repair service call and a new washer.
The tribunal found that the applicant wasn’t able to prove that the strata corporation had been negligent:
In this case, even accepting that the Canstar was acting as the strata’s agent and owed the owner a duty of care, I find that the evidence is this case does not establish that the washing machine damage was caused when Canstar moved it.
I accept the owner’s evidence that the Canstar plumber did not use an air sled to move the washer, as there is no direct evidence on this point from the plumber, or from anyone else who was present at the time the washer was moved. However, there is no evidence to establish that the problems with the washer were caused by moving it. There is no report or other evidence from a plumber or appliance technician explaining what caused the washer’s tub to become dropped and loose, or connecting that problem with moving the washer. The fact that the washer stopped working after it was moved is not sufficient to establish that Canstar, or by extension the strata, damaged the washer through negligence while moving it.
In the result, the tribunal dismissed the applicant owner’s dispute.
Insurance—deductible—water leak—bathroom sink u-joint
In The Owners, Strata Plan BCS 354 v Liang, 2018 BCCRT 171, the applicant strata corporation asked the tribunal for “an order reimbursing it for the cost of repairing water damage allegedly caused by a faulty u-joint under the respondent’s bathroom sink.” The dispute took place in a strata property “consisting of a multi-story residential strata building located in Vancouver.”
The tribunal found that the source of the leak wasn’t on common property but rather from within the respondents’ strata lot:
While I am satisfied the pipes between unit 209 and 210 are common property, there is no evidence to suggest the leaking water originated there. Further, the u-joint is located on the respondent’s strata lot and is clearly not property that is intended for the use or enjoyment of another strata lot. The u-joint serves a function related exclusively to the operation of the respondents’ sink. I find the water leak did not originate from common property.
But liability for the damage caused by the leak, which was an amount less than the strata corporation’s insurance deductible, was to be determined by interpreting the applicant’s bylaws in light of the case law:
Bylaw 2.10(1) prohibits strata owners from doing anything deliberately or accidentally, that might result in an insurance claim by the strata corporation. Subsection (2) allows the strata corporation to charge strata owners for the costs of necessary repair resulting from an “act, omission, negligence or carelessness” that is not covered by insurance.
In considering whether an owner was responsible for reimbursing a strata corporation for an insurance deductible, the court in Strata Plan LMS 2446 v. Morrison, 2011 BCPC 519, found the expression “. . . act, omission, negligence or carelessness,” read as a whole, requires the strata corporation to prove the damage to property was caused by the negligence by the owner.
The tribunal concluded that the respondent owners weren’t negligent in this case:
I have no evidence before me suggesting the respondents knew about the leaking u-joint. Their comment about washrooms being “moist and wet” was in reference to the contractor’s findings, not their own. It is true that the photo in evidence shows a stained, sink cabinet floor and damage at the rear of the cabinet that might be readily attributed to water leakage. However the photo does not reveal significant or obvious staining in the foreground, i.e. at the front or center of the cabinet, where it might be easily seen. Further, I find it unlikely the cabinet was empty when the leaking occurred. I find it likely contained items that hid or obscured the water leakage. The items could easily prevent the respondents from seeing any damage at the rear of the cabinet. I also find it doubtful the applicants would have had reason to examine the u-joint, if it was visible at all. In short: I am unable to find the respondents had reason to suspect the u-joint was leaking water. Absent any reason to inspect the sink cabinet and/or u-joint and having no knowledge of the leak, no duty to repair arose.
I find the respondents are not responsible for the payment of the cost of repairing the damage caused by a leaking u-joint below their bathroom sink.
Strata fees—non-payment—enforcement—order for sale
In The Owners, Strata Plan KAS 1459 v Leonard, 2018 BCCRT 159, the applicant strata corporation claimed that “the respondent owes the strata for unpaid strata fees.” The applicant asked the tribunal for “the following orders”:
- an order that the respondent pay unpaid strata fees, penalties and other fees, plus interest;
- an order giving the strata conduct of sale of the respondent’s strata lot; and
- an order for reimbursement for the strata’s tribunal fees of $225.
The respondent strata-lot owner “refuses to pay the strata fees because of their concerns over the strata’s management, finances and governance.”
The tribunal dismissed the respondent’s concerns and found that she was liable to pay the fees:
Therefore, while I reviewed all of the evidence provided by the respondent, I find that the evidence related to the respondent’s concerns over the management, governance and finances of the strata is irrelevant to the issues in this dispute, given that the respondent did not file a claim against the strata.
I have reviewed the strata’s bank statements and am satisfied that the respondent paid their strata fees for January 2017, but not for February 2017. I find that the respondent did not pay strata fees between February 2017 and February 2018.
But the tribunal refused to grant an order for sale, noting that such an order isn’t within its jurisdiction:
Section 117 of the SPA gives a strata corporation the right to apply to the Supreme Court of British Columbia to force the sale of a strata lot where the strata corporation has a lien or judgment over the strata lot.
Therefore, I dismiss the strata’s claim for conduct of sale of the respondent’s unit.
Governance—strata council—duties—access to records—communication with strata council
Schuler v The Owners, Strata Plan BCS 4064, 2018 BCCRT 175, involved a strata property described as “a 105-unit, 10 storey, residential strata corporation located in Vancouver, British Columbia, created March 22, 2011.” The dispute “primarily” involved claims and counter-claims between an owner (and strata-council member) and a strata corporation concerning:
[the owner’s] allegations that the strata and council members are not complying with the Strata Property Act (SPA) and bylaws and that council members are engaging in improper conduct. They also involve the strata’s allegations that the [owner] is disrespectful, intimidating, and aggressive towards trades, staff, and strata council members.
[The owner] asks the Civil Resolution Tribunal (tribunal) for several orders, including that the strata comply with the SPA and bylaws, that strata council members act in good faith, and that certain strata council members and the property manager be replaced. The [owner] also seeks reimbursement of tribunal fees paid and dispute-related expenses.
The strata requests the tribunal order [the owner] to communicate by email through its property manager, act respectfully, and only attend council meetings by electronic means.
The committee rejected the bulk of the applicant’s claims concerning the strata corporation’s governance. But the tribunal did grant orders concerning access to documents and correction of the strata corporation’s records:
- Provide strata owners an option to receive strata documents other than by email, as set out in section 61 of the SPA.
- Provide [the owner] with a copy of the complaint letter about the strata’s concierge discussed at the April 12, 2017 strata council meeting upon his written request and receipt of the appropriate fee, which must not exceed $0.25 per page.
- Provide access for [the owner] to view all bank statements that are the subject of his written request within 2 weeks of receiving such request. [The owner] is entitled to obtain copies of any of the bank statements upon paying the appropriate fee, which must not exceed $0.25 per page.
- At its next strata council meeting, if it has not done so already, identify that the April 12, 2017 strata council meeting minutes were inaccurate in that:
- the reference to a bid being received from the then current plumbing contractor in was an error and that no bid was actually received, and
- the strata council discussed a complaint received involving the then concierge, and
- record the corrections in the minutes of the strata council meeting held where these corrections are made.
In respect of the strata corporation’s claims, the tribunal ordered the owner to:
- Refrain from intimidating and using derogatory language toward strata council members, and trades and staff while on the common property of the strata, and
- Communicate with the strata council only through its property manager, except in cases of emergency. At any time, the strata may advise [the owner] in writing that direct communication with strata council members can resume.
Governance—strata council—standard of care
In Townsend v The Owners, Strata Plan NW 2545, 2018 BCCRT 209, the applicants (a strata-lot owner and her son) asked the tribunal for a range of orders relating to the governance of the respondent strata corporation:
This dispute is about the strata’s standard of governance involving contract administration, warranties, strata expenses, and alleged violations of the Strata Property Act (SPA) and the strata’s bylaws.
The applicants say the quality of governance has been poor and that the strata council has failed to meet the standard of care expected of its members.
The applicants seek orders that the strata notify all owners of its SPA and bylaw violations, implement a system for recording quotations, contracts and warranties, and obtain a determination from the Canada Revenue Agency (CRA) on the classification of its resident caretaker.
The strata says the applicants’ claims are of a minor and trivial nature and more about discrediting the strata council, which is not expected to held to a standard of perfection and may occasionally make mistakes, given its members are volunteers. The strata asks that the tribunal dismiss the applicants’ claims.
The bulk of the applicants’ claims were dismissed. But the tribunal did make the following orders—in connection with finances, budgets, and meeting procedure—directing the strata corporation to
- follow the requirements of section 103(4) the SPA as it relates to approving budgets at AGMs,
- ensure it has proper authority to spend money from its operating fund consistent with section 96 of the SPA,
- act in accordance with its bylaws 22.4 and 22.5 with respect to allowing observers to attend strata council meetings, and
- propose a 3/4 vote resolution to approve the $53,550 expense for fountain repairs from the CRF to the owners at its next general meeting.
Governance—general meetings—right to be heard (1)
Woods v The Owners, Strata Plan KAS 2323, 2018 BCCRT 177, involved a dispute “about the strata’s handling of the annual general meeting (AGM) held in December 2016, at which revisions to the strata’s pet bylaw were approved,” in which the applicant owner argued that “the strata denied her the right to speak against those bylaw resolutions at that AGM.” The applicant asked for the bylaw to be “rescinded,” among other remedies.
The case concerned “a 40-unit residential ‘adult community’ complex located in Kelowna.” At the strata corporation’s 2016 annual general meeting, the strata corporation repealed its existing pet bylaw and replaced it with a bylaw that took a more restrictive approach to pets on common property.
The tribunal found that the applicant wasn’t able to prove that she had been treated unfairly at the annual general meeting by being denied the right to speak:
I find the applicant has not proven the AGM chair improperly found the applicant to be out of order or that he unreasonably refused to let her speak. I find the applicant’s notes from the December 2016 AGM are not sufficient to establish that the chair acted unreasonably in finding the owner out of order, to the extent he did so. Based on the totality of the evidence before me, including the owner’s evidence and the statements from other strata lot owners, I am not satisfied the owner did not have a reasonable opportunity to make her views known. In any event, given the history to date, I am not persuaded that the outcome would have been any different, so as to warrant disturbing the December 2016 AGM results.
In the result, the tribunal dismissed the applicant’s claim.
Governance—general meetings—right to be heard (2)
The applicant says the strata did not follow a fair or lawful process in denying his request to install the windbreak on his balcony. The applicant wants an order directing the strata to approve his windbreak request. He also wants a declaration that section 71 of the Strata Property Act (SPA) does not apply to his windbreak request and an order prohibiting the strata from referring his request to a 3/4 vote. Alternatively, if section 71 does apply to his request and a vote is held, the applicant wants an order restraining the strata’s behavior before and during a general meeting.
The tribunal found that the applicant wasn’t able to demonstrate unfairness:
Based on my review of the evidence, I find the applicant misunderstood what the property manager told him. The property manager said that before making its decision about his request, council needed to fully consult with the owners and the AGM would provide that opportunity for consultation. The property manager referenced section 71 in the context of telling the applicant that evidence of a full discussion at the AGM would insulate council (after it made its decision) from any later argument by an owner that the applicant’s request should have been submitted to the owners for a 3/4 vote.
The applicant’s proxy said the applicant thought the balcony glass replacement resolution on the AGM agenda was a voting resolution for the contractor balcony windbreak. She says it was a reasonable assumption because the property manager had led the applicant to believe there would be a vote. I find it was not a reasonable assumption as the contractor presentation is clearly listed on the AGM agenda under Item 15 – New Business. Further, there should have been no confusion for the applicant between these two items as he had been present at the town hall meeting when the balcony glass replacement capital project was discussed. I find these two separate items were distinctly identified on the AGM agenda.
I have concluded the evidence presented by the applicant to support his claim is not sufficient or reliable for me to conclude on a balance of probabilities that he was promised a voting resolution at the AGM.
The strata is required by law to act honestly and make its decisions in good faith and with a view to representing the interests of the strata and all owners. The property manager’s letter denying the applicant’s request stated that council received a strong message from the owners at the town hall and at the AGM that they did not agree with the applicant’s request.
I find the applicant has not proven his claim the respondent acted unlawfully or unfairly in its treatment of his request for a windbreak on his balcony. He was provided a full opportunity to present information about the contractor installation system to the owners and to seek their agreement and support for his request. The windbreak issue was canvassed at two meetings with the owners and the contractor was provided a full showcase opportunity to provide information about the system to all owners.
I find the respondent did not breach its duties owed to the strata and all owners when it denied the applicant’s request. The applicant was not promised or owed a resolution vote. The evidence established the respondent met with the applicant, learned about the contractor system and communicated that information to the owners for their views and opinions. The respondent facilitated the applicant and the contractor’s contact with the owners. I conclude the respondent made its decision after full and fair consideration of the applicant’s request.
In the result, the applicant owner’s claim dispute was dismissed.
Tribunal jurisdiction and procedure—summary decision—refusal to resolve dispute
The underlying dispute in Fisher v The Owners, Strata Plan VR 1420, 2018 BCCRT 151 was “about who must pay for unit 212’s exterior window replacement and a previous owner’s enclosure of unit 212’s balcony for use as a second bedroom.” The respondent strata corporation asked “the tribunal to refuse to resolve this dispute on the basis that it is too complex or impractical for the tribunal to case manage or resolve, and that it may be outside the tribunal’s jurisdiction.”
The tribunal noted that it viewed the dispute in this context:
In considering whether to refuse to resolve this dispute, it is important to bear the following points in mind. First, the claims in this dispute are the claims put forward by the owner and do not include the additional claims suggested by the strata. The Dispute Notice was issued on July 17, 2017, and the strata has not filed a counterclaim. Second, the owner’s claims are a direct result of the strata’s actions. Third, the strata’s proposed additional claims are not currently before the British Columbia Supreme Court. Fourth, the tribunal’s mandate is to provide dispute resolution services in a speedy and economical manner recognizing the relationship between parties that is likely to continue. Finally, prior to the tribunal’s creation, many strata property disputes were not resolved given the associated cost of seeking resolution in the BC Supreme Court.
The tribunal “accept[ed] the owner’s argument that the substance of her claims relate to matters that involve the interpretation of the SPA and strata bylaws, the determination of significant unfairness, and related remedies.” It rejected the strata corporation’s argument that “its claim for past and prospective enclosure repair costs is necessary in order to resolve the owner’s dispute.” It also rejected arguments based on the tribunal’s capacity to assess credibility and that “allowing the tribunal to hear this dispute would lead to inconsistent findings between the tribunal and court.”
In the result, the tribunal ordered “the strata’s request that the tribunal refuse to resolve this dispute dismissed.”
Tribunal jurisdiction and procedure—summary decision—refusal to hear dispute due to complexity
In Residential Section of The Owners, Strata Plan VR 1858 v High Plains Sales Agency Ltd, 2018 BCCRT 168, the respondent strata-lot owner asked “that the tribunal exercise its discretion to refuse to resolve this dispute on the basis that the British Columbia Supreme Court is a more appropriate venue.”
The underlying dispute in this case was “mainly about the respondent owner’s responsibility to participate in the section’s rental pool.” As the tribunal put it, “the substantive issue in the dispute is whether under the section’s bylaws the owner is required to place its strata lot in a rental pool operated by the section.”
The tribunal found that the applicant’s argument came down to characterizing the dispute as complex for the tribunal’s procedures, an argument that the tribunal declined to endorse:
I agree with the section. As it noted, the tribunal has interpreted various legal documents when resolving other strata property and small claims disputes. I find the court has provided some guidance on the complexity factor in the Yas decision. The main issue in Yas is whether the strata corporation’s bylaw is enforceable, which the court found was straightforward and not overly complex. The main issue here is the same, except with respect to the section’s bylaw. That the section’s bylaw references compliance with “municipal bylaws, regulations or other applicable restrictions,” does not make the issue in this dispute overly complex.
In the result, “[t]he respondent’s request that I refuse to resolve this dispute is dismissed.”
Tribunal jurisdiction and procedure—summary decision—application to withdraw dispute
In Knibbs v Kuan, 2018 BCCRT 152, the underlying dispute between strata-lot owners concerned allegations of harassment. The applicant asked for a summary decision granting “the tribunal’s permission to withdraw his dispute.” The respondents opposed this request, asking that “this matter proceed through the tribunal decision process.”
As the tribunal noted:
Disputes which are withdrawn can be refiled with the tribunal at a later date, subject to any applicable limitation periods. Disputes which are dismissed, as this one may be if it proceeds through the tribunal decision process, cannot be refiled with the tribunal, or another tribunal or court.
In requests of this nature, the tribunal observed that “[i]n exercising its discretion to permit an applicant to withdraw a dispute, the tribunal must balance the applicant’s interest in deciding whether and how to pursue a dispute with any prejudice to the respondent.” Further:
given the adversarial nature of the adjudicative process, it will usually be inappropriate for the tribunal to take jurisdiction over a dispute against the wishes of an applicant. A fair hearing depends on motivated parties providing the tribunal with a full factual record and submissions. Where the applicant does not want to pursue their dispute, this can unbalance the tribunal’s fact finding and decision-making functions, rendering the process unfair.
But, in this case, the tribunal found that “any prejudice to the respondents in this case does not outweigh the applicant’s interest in deciding whether to pursue his dispute,” noting especially the following considerations:
- The respondents have not paid any CRT fees;
- At the time of the applicant’s withdrawal request, the dispute was in the facilitation phase, and the parties had not yet submitted evidence or arguments as part of the tribunal decision process,
- There is no financial aspect to the applicant’s claim;
- The respondents raised jurisdiction limitations to the applicant’s claim; and
- Although not necessary for me to decide here, there is a suggestion that this dispute, or part of it, was finally resolved through a previous BC Supreme Court action or other tribunal proceeding.
In the result, the tribunal “order[ed] that the applicant’s dispute is withdrawn.”