The Strata Property Act (“SPA”) allows owners and tenants to request a hearing before the strata council in certain situations:
1. To answer an allegation that they have breached a bylaw of the strata corporation – s.135(1)(e) SPA;
2. To make a request for an exemption from a rental restriction bylaw – s.144(2)(b) SPA;
3. To address council on a particular topic. – s.34.1 SPA
4. Prior to proceeding with a Civil Resolution Tribunal (CRT) claim – s.189.1(2) SPA;
In all four cases the request for a hearing needs to be made in writing (email will suffice). In the case of a request for an exemption under s.144 it must set out the reason an exemption should be granted. In the case of a request under s.34.1 it must state the reason for the request (i.e. what will be discussed). In the case of a response under s.135, it should set out the reasons why the owner feels they are not in breach of the bylaws. (In The Owners, Strata Plan BCS 3625 v. Wiltsey et al, 2018 BCCRT 155 the CRT held that the proper time to present evidence in defence is when responding to the initial allegations).
The SPA also sets time lines within which hearings must be held. Both sections 34.1 and 144 require the hearing to be held within 4 weeks. Although s.135 does not specify a time frame, the four week provision of s.34.1 arguably applies. If a hearing is not held under s.144 the owner is automatically granted the right to rent their strata lot. Section 34.1 does not specify what happens when a hearing is not held in time. The absence of a provision similar to that found in section 144 would indicate that there are no automatic consequences. Rather the failure to hold a hearing (unless there is reasonable justification for not doing so) would likely be considered significantly unfair to the owner requesting the hearing and relief may be granted pursuant to s.164 of the SPA. In The Owners, Strata Plan NW2170 v. Broadbent 2017 BCCRT 114 the Civil ResolutionTribunal (“CRT”) dismissed fines that were imposed by a strata corporation without providing the owner an opportunity for a hearing.
Not every request for a hearing must be granted. In Macdonell v. The Owners, Strata Plan 1875 2018 BCCRT 11 the CRT determined that a hearing request can be denied where it is being used as a “forum to make demands with respect to the governance of the strata corporation invoking discussion and rebuttal”. In Hales v. The Owners, Strata Plan NW2924 2018 BCCRT 91 the CRT outlined the various circumstances in which a hearing could be refused. Those include where:
(a) The owner has not been fined nor penalized;
(b) The owner has made previous requests and was granted a hearing;
(c) The owner acted abusively at a previous hearing and the council could expect the same conduct at another hearing;
(d) The owner wished to discuss alleged contraventions by the strata; and
(e) The reasons for the requests were with respect to the governance of the strata and would be more properly addressed at a meeting of the owners, or by majority direction of the owners.
Regulations 4.01 and 7.2 of the SPA define “hearing” as “an opportunity to be heard in person at a council meeting”.
When it comes to the hearing itself, the strata council has the right to govern the process of its own meeting. This includes the manner in which the hearing will be conducted, the length of the hearing and whether or not to adjourn it. However, in making those decisions the council must ensure that it does not act in a manner which is significantly unfair to the owner or tenant pursuant to s.164 of the SPA. In other words, the length of time of a hearing should be reasonable. Dictating that an owner should only have five minutes for something when it could not possibly be explained within such a short period would not reasonable and would be significantly unfair.
A hearing is a council meeting and thus the quorum requirements set out in the bylaws must be met. The provisions of s.32 of the SPA should also be observed. Where a council member has a direct or indirect interest in the matter which would materially conflict with their duty as a council member, they should not participate in the meeting nor the decision. (Such a conflict can arise when they are the complainant).
Where the bylaws of the strata corporation allow for observers, they usually address whether observers can be present in relation to certain matters. Standard Bylaw 17(4) provides that observers cannot be present for certain matters, including a bylaw contravention hearing.
Given that a hearing is a council meeting, minutes of the meeting are to be kept and the votes recorded as required in Standard Bylaw 18(3). When preparing minutes of the hearing, the strata council must keep in mind its obligations under the Personal Information Protection Act to protect an owner’s personal information. To that end, the Privacy Guidelines for Strata Corporations and Strata Agents confirms the fact that minutes need only record decisions, not discussions. The Guidelines state that “strata councils should ensure that only the minimal amount of personal information required to provide an accurate and objective account of its decisions is recorded in the meeting minutes”. The Guidelines add that only strata lot or unit numbers should be recorded, not the names of owners or tenants. (The only time when the sharing of any personal information is strictly prohibited is in relation to a hardship application under s.144 of the SPA. In that case, only the fact that a decision was made to grant or deny the application should be noted).
Not only must minutes record the decision made but also the basis for having reached that decision. In Doig v. The Owners, Strata Plan VR 1712 2017 BCCRT 36 the CRT determined that the strata corporation acted in a significantly unfair manner when deciding that the owners had breached one of the strata corporation bylaws. The basis for the CRT’s conclusion lay in the fact that the strata council did not provide reasons for its decision after the owners had requested a hearing.
It was held that an adequate decision under s.34.1 of the SPA (which would apply equally to a hearing requested pursuant to s.135) should contain:
(a) a list of who is present at the meeting;
(b) who voted on its outcome;
(c) the process followed at the hearing;
(d) the facts the Council relied upon in reaching its conclusion;
(e) the reason why it reached its decision; and
(f) the outcome of the hearing (i.e. the decision reached).
While the decision needs to be recorded in the minutes, the details outlined in Doig could be recorded in a separate in camera set of minutes (although doing so is not mandatory; except in the case of a hardship request under s.144 of the SPA).
Once the council makes a decision not only does it need to be recorded in the minutes but it needs to be conveyed to the owner or tenant. Both s.34.1 and s. 144(4)(a)(i) require the decision to be conveyed to the owner in writing within one week of the hearing. In The Owners, Strata Plan LMS3442 v. Storzuk 2014 BCSC 1507 the court held that this requirement was not met by conveying the decision orally to the owner at the hearing. A failure to convey a decision to impose a fine means the fine is invalid. - Tantillo v. The Owners, Strata Plan NW1317 2018 BCCRT 54.
As can be seen from a number of CRT decisions procedure is of great importance. It is important to not only follow the procedural requirements but also to ensure that they are done in a way that is fair and transparent. Failure to do any of those things in relation to a hearing could put the decision in jeopardy.
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.