One common theme which arises in many Civil Resolution Tribunal (CRT) decisions is the pronouncement that the process for properly imposing fines was not strictly followed. Where the procedure dictated by the Strata Property Act (SPA) is not strictly followed, the fines will be set aside and the offending owner will escape the consequences of their breach.
That pronouncement should not be surprising. On more than one occasion (most notably in Terry v. The Owners, Strata Plan NW309 2016 BCCA 449) the court reinforced the principle that the imposition of fines before providing the particulars of the alleged breach and an opportunity to respond makes the fines invalid.
The process for fining an owner is laid out in s.135 (1) and (2) of the SPA:
Complaint, right to answer and notice of decision
135 (1) The strata corporation must not
(a) impose a fine against a person,
(b) require a person to pay the costs of remedying a contravention, or
(c) deny a person the use of a recreational facility for a contravention of a bylaw or rule unless the strata corporation has
(d) received a complaint about the contravention,
(e) given the owner or tenant the particulars of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant, and
(f) if the person is a tenant, given notice of the complaint to the person.
(2) The strata corporation must, as soon as feasible, give notice in writing of a decision on a matter referred to in subsection 1(a), (b) or (c) to the persons referred to in subsection (1)(e) and (f).
In Terry the Court succinctly summarized that process as follows:
[28] In my view, an owner or tenant who may be subject to a fine must be given notice that the strata corporation is contemplating the imposition of a fine for the alleged contravention of an identified bylaw or rule, and particulars sufficient to call to the attention of the owner or tenant the contravention at issue. In addition, the owner or tenant must be given a reasonable opportunity to answer the complaint. What constitutes a reasonable opportunity to be heard in response is a case-specific inquiry that must take account of the nature of the alleged contravention, the context in which the violation is said to have occurred, and the time that might reasonably be required to gather information or evidence needed to answer it.
What constitutes “particulars” was also reviewed by the court in Terry. There the court said that particulars must be “sufficient to call to the attention of the owner or tenant the contravention at issue.” They need not be complex.
In The Owners, Strata Plan NW3075 v. Stevens 2018 BCPC 2 the court, when examining the requirements of s.135 made two additional observations. One, 14 days is generally a reasonable time to respond (although in Terry the court observed that time is flexible depending on the circumstances). Two, that there is no need to point out the right to request a hearing, just an opportunity to respond.
How that process can go awry in its application was illustrated in the CRT’s decision in Himmelmann v. The Owners, Strata Plan LMS 2064, 2018 BCCRT 426. In that case, the strata corporation received complaints that the applicant, a tenant in the respondent strata corporation, did not have his dog on a leash as required by bylaws. In response to those complaints, the strata manager wrote to owner of the strata lot. The first three times were as warnings and the last three threatened fines if the conduct continued. Although the last three letters offered an opportunity to respond and request a hearing, that offer was not extended directly to the tenant. The strata council, not hearing from the owner, decided to impose fines. The tenant, eventually having received word of the complaints through his landlord, paid the fines and wrote to the strata manager requesting a council hearing. A hearing was held and a decision was made not to reverse the fines.
In assessing the applicant’s objections to the fines the CRT made the following general observations about the process under s.135:
• a complaint made about a bylaw contravention can be made verbally and can be made by a strata council member;
• that providing particulars of a dispute does not mean providing copies of the complaint letters when writing to the owner;
• the payment of the fines does not constitute an admission of the bylaw contravention;
However, the CRT concluded that “the procedure followed by the strata in assessing fines created 2 fatal errors” that prevented it from being able to collect those fines from the tenant. Those errors were:
• a failure to give the tenant any written particulars of the complaint as it only wrote to the owner, contrary to section 135(e) of the SPA. (The fact that the owner may have notified the tenant does not relieve the strata from notifying the tenant directly).
• the fines were assessed before the tenant was given the opportunity to be heard. (The fact that the owner had been afforded that opportunity didn’t amount to compliance with s.135).
In addition to the mistakes identified in Himmelmann, there are other mistakes a strata corporation can make in imposing fines.
In The Owners, Strata Plan BCS 3625 v. Wiltsey et al, 2018 BCCRT 155 the council informed the owner on December 16 that a $500 fine had been imposed at the November 15 strata council meeting. That fine was in response to conduct that occurred on October 20. Since the strata supplied no evidence that it informed the owner of any alleged infraction that took place on October 20, the fine was determined to be invalid.
A failure to advise that fines have been imposed once the decision to impose them is made is also a failure to comply with s.135. In The Owners, Strata Plan VR 279 v. Morin, 2018 BCCRT 483 the strata corporation was unable to collect over $13,000 in fines because of a failure to advise the owner of council’s decision to impose fines.
The failure to comply with s.135 doesn’t just apply to fines. It also applies to the costs of remedying a bylaw contravention imposed under s.133 of the SPA. In Strata Plan VR 19 v. Collins 2004 BCSC 174 the strata corporation was not entitled to recover the costs of removing an unauthorized alteration because it did not comply with s.135. In fact, the act of posting charges to a ledger will be a breach of s.135 -The Owners, Strata Plan VR 2266 v. 228 Chateau Boulevard Ltd., 2018 BCCRT 198.
The good news is that if caught in time, these oversights can be corrected. In Himmelmann the CRT observed that, based on the decision in Cheung v. Strata Plan VR 1902, 2004 BCSC 1750, the procedural defects could have been cured if the strata had reversed the fines, given the tenant written particulars of the complaint(s), with a copy to the owner, and given the tenant a reasonable opportunity to respond before re-imposing them. Neither writing to the tenant nor granting a hearing after the fines were imposed could cure the problem. Only a full reversal and beginning the process again would have been effective.
However, not everything done after the fact will cure a lack of compliance. Exchanging correspondence regarding the fines and the breaches after the fact does not meet the requirements of s.135 to provide an opportunity to respond - Terry v. The Owners, Strata Plan NW309 2016 BCCA 449. Offering a hearing after the initial allegation letters without saying what the hearing relates to is not sufficient to comply with s.135 - The Owners, Strata Plan NW 2170 v. Broadbent, 2017 BCCRT 11. Nor is offering a hearing after having charged an amount to the owner - The Owners, Strata Plan VR 2266 v. 228 Chateau Boulevard Ltd., 2018 BCCRT 198,
Strata councils who want to ensure that fines will not be enforceable should make sure that they:
• write to the wrong party;
• don’t give a description of the conduct which breached the bylaw;
• decide to impose a fine without giving an opportunity to answer the allegations;
• not let the owner or tenant know that a decision to impose a fine was made;
• don’t immediately correct non-compliance when they realize it has happened;
Strata councils who want to ensure that fines and chargebacks are properly imposed, should, of course, do the opposite. As long as they:
• write to the tenant when there is one (copying the owner);
• give proper particulars of the alleged breach (date, time, etc.);
• allow an opportunity to respond before deciding whether to impose a fine; and
• promptly notify the owner or tenant of any decision;
they should be on solid ground to collect any fines they do impose.
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 a variety of 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
