It has been a long standing principle that a strata corporation (through its strata council) must enforce the strata corporation’s bylaws. That premise arises from s.26 of the Strata Property Act (the “SPA”) which provides as follows:
“26 Subject to this Act, the regulations and the bylaws, the council must exercise the powers and perform the duties of the strata corporation, including the enforcement of bylaws and rules.” [emphasis added]
That obligation was recognized early on by the Civil Resolution Tribunal (“CRT”) in Link et al v. The Owners, Strata Plan KAS 828, 2017 BCCRT 128 where it said:
48. Once it has been determined that a bylaw contravention has occurred, council does not have the discretion to choose not to enforce a bylaw, as having such discretion would destroy the predictability provided by giving notice to owners of the bylaws by filing them in the Land Title Office. Enforcement of bylaws is mandatory, as set out in section 26 of the SPA. The strata does have discretion as to the amount of a fine, up to the maximum set out in the strata’s bylaws.
While it has always been accepted that, where the breach is trivial, a strata corporation is not obligated to enforce a bylaw merely for the sake of doing so (see Abdoh v. Owners of Strata Plan KAS2003 2013 BCSC 817 affirmed 2014 BCCA 270), recent CRT decisions appear to be adopting that proposition more readily than in the past.
In Curtain v. The Owners, Strata Plan VIS4673 2018 BCCRT 100 the CRT held that the strata corporation acted reasonably in deciding not to enforce a bylaw that required “all exterior building work shall be completed within 24 months of the start of construction…” In support of its decision the CRT said the following:
51. Further, even if there is a clear breach of a bylaw, if the effect of the breach is unimportant or trivial to the strata owners in general, it is reasonable for the strata not to enforce it, provided the strata acted reasonably in doing so.
More recently in Berman v. The Owners, Strata Plan EPS2470 2019 BCCRT 179 the CRT applied those same principles to conclude “that the strata has the discretion to not enforce its parking bylaw”. Of significant importance to the CRT in that case was the fact that there was only one owner complaining about the breach.
In several decisions over the past year the CRT has cited and the applied the following test: “… the strata has discretion to not enforce its bylaws in limited circumstances. …in exercising its discretion, the strata must be reasonable, and consider the expectations of the owners with respect to prior enforcement of the bylaw. That is, if the strata has consistently enforced the bylaw, it might be unreasonable for the strata not to continue to enforce it. (Weinrauch et al v. The Owners, Strata Plan NW 3119 et al, 2019 BCCRT 257; Soong et al v. The Owners, Strata Plan NW 2583, 2019 BCCRT 879; Ireland et al v. The Owners, Strata Plan VIS6016, 2019 BCCRT 974).
Contrast those decisions, however, with several where the CRT has found that a strata corporation must investigate complaints and which emphasize an owner’s expectation that bylaws will be enforced.
In DW v. The Owners, Strata Plan BCSXXX 2017 BCCRT 107 the CRT held that a strata council does not have the discretion to elect to not enforce a bylaw once a violation has been established. Nor does it have the ability to refuse to address a complaint or take the position that it is an issue between two owners.
It has been recognized on more than one occasion that an owner has a reasonable expectation that the strata corporation will enforce its bylaws and that to not do so is significantly unfair to the complaining owner –see Fairburn et al v. The Owners, Strata Plan LMS1107 2019 BCCRT 595; Strata Plan LMS3259 v. Sze Holding Inc. 2016 BCSC 32; A.P. v. The Owners, Strata Plan ABC 2017 BCCRT 94. That includes an expectation of consistent enforcement (if that has been the case in the past) - Ding v. Kang et al, 2019 BCCRT 774.
In Ottens v. The Owners, Strata Plan LMS2785 et al 2019 BCCRT 997 the CRT confirmed that the strata council does not have the authority to grant exemptions to a bylaw outside of an obligation to accommodate an owner under the Human Rights Code.
A number of cases have gone so far as to impose an obligation on the strata corporation to take active steps to investigate bylaw complaints. Those have included a duty to investigate complaints regarding:
• An odour coming from another strata lot – Connell v. The Owners, Strata Plan BCS3438 2018 BCCRT 784
• Second hand smoke – Foulds Kennedy v. The Owners, Strata Plan LMS1495 2019 BCCRT 1098
• Noise, including that caused by hard surface flooring – Mastroianni v. The Owners, Strata Plan EPS2878 et al 2019 BCCRT 691; Torok v. Amstutz et al 2019 BCCRT
Reconciling these two competing lines of cases is perhaps not as hard as it may seem.
Strata councils must carefully assess each bylaw complaint and how they intend to deal with it. If a strata council determines that it should not enforce a bylaw it must ensure that its decision falls within the scope of criteria set out in Abdoh and similar cases for not doing so. In particular it must ensure that it is not treating the complainant owner in a manner that is significantly unfair. This last obligation is even more important given the decision in LeTexier v. The Owners, Strata Plan LMS284 2019 BCCRT 940 in which the strata corporation was ordered to pay an owner $1,000.00 as compensation for failing to properly enforce a bylaw. A decision not to enforce must therefore be a reasoned one.
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 shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
