Reading through Civil Resolution Tribunal (CRT) decisions can reveal certain trends. One of those trends is things which the strata corporations seem to do incorrectly on a regular basis. Understanding these common mistakes will hopefully help strata corporations to avoid unnecessary disputes and improve its chances of success should a matter reach the CRT.
The process for imposing a fine is set out in s.135 of the Strata Property Act (SPA). Strict compliance with those provisions is required in order for the fines to be validly imposed - Terry v. The Owners, Strata Plan NW309 2016 BCCA 449. A failure to do so will mean the fines are unenforceable and uncollectable.
The process is clearly laid our in s.135 itself:
1. Upon receipt of a complaint (written or not) the strata corporation must
(a) give the owner or tenant the particulars of the complaint, in writing, and
(b) give them a reasonable opportunity to answer the complaint, including a hearing if requested;
2. A decision to impose a fine must not be made until that step has been completed;
3. If a decision is made to impose a fine the person against which it is being imposed must be notified in writing of the decision.
Where it is the tenant who is alleged to have breached the bylaws, there are special provisions that must be followed. The initial letter must be addressed to tenant, not to the owner. However, the owner must be copied on the letter. When the fine is imposed it is imposed against the tenant (although it appears on the owner ledger) – s.130 SPA. Both tenant and owner must be notified.
In all cases notice is to be given in accordance with s.61 of the SPA. Email can only be used where it has been expressly given for that purpose.
These same requirements apply where the strata corporation intends to charge the costs of remedying a bylaw contravention under s.133 of the SPA.
S.36 of the SPA entitles an owner to the documents listed under s.35. Requests for those documents can often be annoying; even onerous. Strata corporations sometimes refuse requests when they shouldn’t or attach conditions they are not entitled to. Some key principles to keep in mind are:
• an owner is not required to justify their request or explain why they want certain documents - Francis v. The Owners, Strata Plan LMS2854 2020 BCCRT 1445.
• there is no limit to the number of times documents can be requested - Wang v. The Owners, Strata Plan LMS 2970, 2017 BCCRT 97.
• documents are not to be redacted to remove personal information. There is no authority under the SPA or PIPA to do so - Ottens et al v. The Owners, Strata Plan LMS 2785 et al, 2019 BCCRT 730. Nor can they be refused because they contain “private” information - Raitt v. The Owners, Strata Plan LMS 1087, 2022 BCCRT 279.
• inconvenience or significant time consumed in complying with a request does not mean that it is an unreasonable request – Francis v. The Owners, Strata Plan LMS2854 2020 BCCRT 1445.
• the strata corporation cannot charge any more than 25 cents per page for documents provided to an owner. It cannot charge strata management time or additional fees (i.e. online access charges) - Williams v. The Owners, Strata Plan LMS 1067, 2018 BCCRT 54; Bowie v. The Owners, Strata Plan VIS 5766, 2020 BCCRT 733; Drance v. The Owners, Strata Plan KAS 3625, 2021 BCCRT 725.
Many strata corporations are unsuccessful in their attempts to charge back costs to an owner. Those attempts are lost at the CRT because the strata corporation has failed to identify a proper basis for charging costs back to an owner.
In order to charge an item back to an owner, there must be a bylaw which permits the strata corporation to do so - Rintoul et al v. The Owners, Strata Plan KAS2427 2019 BCCRT 1007. The strata corporation cannot do so simply because it feels the owner is responsible or liable for the costs. However, the strata corporation can rely on s.133 of the SPA where no bylaw exists and the charge relates to remedying a bylaw contravention.
Where there is a chargeback bylaw, it must be correctly interpreted and applied. This problem commonly arises when it comes to bylaws allowing for the chargeback of insurance deductibles. Where the bylaw uses the term “responsible” the matter is quite straight forward since that phrase equates to a strict liability standard (i.e. if it started in the strata lot, the owner is liable). However, the bylaws can set a different standard - The Owners, Strata Plan BCS 1589 v. Nacht, 2019 BCSC 1785).
Where the bylaws establish a different standard from that of s.158(2), that different standard will be the one that applies – Strata Plan LMS2446 v. Morrison 2011 BCPC 519;
Depending on the words used, a different test is to be applied – The Owners, Strata Plan LMS2195 v. Leung 2021 BCCRT 260. For example:
• “act, omission, negligence or carelessness” equals negligence
• “act or omission that causes” equals a standard slightly lower than negligence and requires the strata to prove causation;
• “act, neglect or omission” set a standard lower than negligence without a need to connect the cause;
Not understanding what the applicable standard entails can mean not assembling the right evidence to support the chargeback. If negligence is not proven, time and money are wasted.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or email@example.com. He can be followed on Twitter @stratashawn.