I am a paralegal, not a lawyer. The BC Law Society has a monopoly on the practice of law, which excludes me; so nothing in
or any of my other strata blogs, including this one, should be taken as legal advice.
Canada's Constitution and Charter of Rights promise equal protection under the law. Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination.
That is what is promised by the powerful and elite - to the powerful and elite. It is not what the
With respect to privilege, the striking disparity between those who ARE and those who are NOT in jail is evidence of disrepute in the administration of justice. Further examples are apparent in questionable decisions by the CRT, especially its assaults on victims of major perils the SPA promises insurance against and damage and loss that strata corporations are responsible for.
If the repair standard in Schneider v. The Owners, Strata Plan KAS 1104, 2018 BCCRT 743 was applied to insurance matters, instead of deliberately offloading costs onto the victims reporting losses stratas are responsible for causing, stratas would be unlikely to find an insurance company willing to accept that level of risk. As it is, the CRT interprets and administers the SPA in a manner that allows the insurance industry to exploit strata corporations in ways that would be intolerable in the rest of society.
Such cases have the effect of changing what is plain in statute to something that nobody can rely on for anything other than churning out predictable legal fees and strife.
The CRT perversely thwarting the SPA with such decisions acts to cloud Garth Cambrey's responsibility for a long history of misconduct in insurance matters; see
Shamefully, vice chairs of the Civil Resolution Tribunal are acting to change the Constitution of Canada into legal fiction; claiming to respect a strata council's democratic right to govern but Charter protection is not applicable or binding when it comes to administration of the SPA or CRTA; see
Depriving strata owners of Charter protection is inexplicable given the fact that the SPA expressly gives strata corporations the role of governance, and the Supreme Court of Canada has long confirmed that administrative tribunals are subject to the Charter in exercising their statutory powers; see
, [1989] 1 S.C.R. 1038 at paras. 5 and 41 to 48.
The following examples show how constitutional inequity in strata governance is inconsistent with a host of authorities.
Since the Canadian Charter applies to provincial legislatures and governments, it must, also apply to entities upon which they confer governmental powers within their authority; see
, 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844.
Ensuring that ordinary citizens have access to the justice system is implicit in the Charter and flows from the rule of law and equality rights under s. 15; see
In comparing a person who wishes to own strata property to a person who wishes to practice law, the words "without discrimination" in s. 15 are crucial; see Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, 1989 CanLII 2 (SCC)
When it comes to equal protection under the law in BC, contradictory positions are particularly noteworthy in regard to protection of lawyers, compared to protection of strata owners. Another example of this is the 7 Charter challenge to read down Canada’s money laundering Act to exclude lawyers, on the one hand; see
, [2015] 1 SCR 401, 2015 SCC 7, and, on the other hand, the contrasting treatment of strata owners in the perverse decision that strata governance is not subject to Charter scrutiny.
When I first mentioned the CRT in this blog on January 9, 2018, I asked BC's Civil Resolution Tribunal (the "CRT") to notify Shannon Salter (Chair) and Garth Cambrey (Vice Chair). I took this action in response to an invitation for feedback, because I am more concerned about covert top down oppression spreading throughout the strata agent industry than I am about justice for myself. When Richard Rogers, Executive Director and Registrar of the CRT advised me on October 10, 2018, that it is not appropriate for parties to contact members of the CRT directly I stopped giving the CRT further notice as I continued reporting on my concerns.
Lax enforcement of the SPA and strata bylaws, thwarting equal protection under the law by deferring to stratas, unjustly balancing competing interests instead of enforcing plain language law, and lack of compensation to make victims whole from foreseeable damage all act together to encourage rather than deter persistent misconduct in the strata agency industry. Legal fiction mocks the SPA and contributes to a spinning wheel of frustration, nuisance, waste and perpetual injustice.
Just a few examples of decisions that contradict the SPA or render it toothless include:
allowing failure to provide s36 copies, removal of 28 trees without permit contrary to covenant with no ¾ vote under s.71; saying no particular tree removal or bylaw breach was unfair; see Maguire v.
The Owners, Strata Plan VIS5830, 2017 BCCRT
allowing a strata to charge common expenses to a strata lot account and offload insurance
deductibles without having to first bear the burden of proving responsibility in a
court of due process as required by the SPA; see Zhang v The Owners, Strata Plan BCS 1039,
2017 BCCRT 56
dismissing a s36 claim for copies on the inexplicable grounds that strata management contracts for the 2010 to 2017 time period do not exist; see Cunningham et al v. The Owners, Strata Plan K 418, 2018 BCCRT 517.
Those at the top are creating perverse precedents, with immunity against foreseeable harm to those below. Insidious strata strife is flowing from the top down, and this should change.
on February 9th the CRT set out a well reasoned analysis that
found retroactive strata fees contrary to the SPA; see The Owners, Strata Plan NW 2729 v. Haddow et al, 2018 BCCRT 37; the problem is that on September 20th the Supreme Court allowed retroactive strata fees based on the judge's misconception that an
“owner’s strata fee obligation does not arise until it is approved at the AGM.” The resultant case law conflicts with the SPA; eg. ss. 40, 47, 59, 99, 103,
104, 107, 116, and 121, and s.17.9 of the Regulations, and most specifically s.104, not to mention standard bylaws; see 625536 B.C. Ltd. v The Owners, Strata Plan
LMS4385, 2018 BCSC 1637.
removal of a long existing shed 6 weeks after the applicant made approved repairs is not significantly unfair; the change in use and appearance of the common property only affects the applicant and is visible only to owners, not the public, so it is not significant, and past practice ignores s.71 and s.76, so a ¾ vote is not required; see Gibson v. The Owners, Strata Plan NW 1076, 2018 BCCRT 583
A few other examples of decisions that can be seen as morally or legally questionable include:
encouraging costly oppression by applying ambiguous bylaws prohibiting pets other than "one or more of" one dog and/or one cat or two dogs or two cats unreasonably perpetuating foreseeable misunderstanding of "more", or pets other than cats and dogs, instead of applying the strata's standard bylaws governing nuisance in plain language; see The Owners, Strata Plan EPS 2526 v. Allen, 2018 BCCRT 520
finding that Exclusive Use Agmts that give deep water slips in a marina to 58%, with no reasonable chance of wait lists assigning exclusive use of common property annually, is not unfair to minority, and the automatic renewal bylaw is valid and not in conflict with s76; see Clark v. The Owners, Strata KAS 2053, 2018 BCCRT 629
Questions of fact and law set out above are just a few in a growing number of examples of how administration that defeats the SPA has a direct and enduring detrimental impact on the lives of strata owners throughout British Columbia. In cases like Gibson and others unlawful conduct has become so normalized that it is perpetuated by adjudicators as an acceptable standard that spreads like an infection throughout the strata agency industry. All of which brings the administration of justice into disrepute and wrecks havoc on society.
The CRT is new. Now is the time to examine past decisions and take corrective action so that what is quick and convenient case by case is not ultimately the most costly and destructive in the long term.
The world is watching.
In perpetuating legal fiction the CRT is displacing reasonably plain language with distorted interpretations of the SPA that are anything but just or predictable. This is particularly apparent in cases dealing with strata insurance or bylaws that conflict with the SPA.
Take for example the decision it made on August 28,
2018 in
Bowles v. The Owners, Strata
Plan NW 227, 2018 BCCRT 484.
On October 13, 2016, a copper pipe within the strata lot of
the applicant (owner) caused significant water damage to the applicant’s strata
lot. The owner asked the CRT for orders that she is not responsible to pay the
strata’s insurance deductible and that the strata remove the $10,000 charge from her account.
There was no issue regarding the cause of the damage, or that
the repairs were covered by the strata’s insurance policy with a $10,000
deductible. It is also undisputed that section 158(2) of the Strata
Property Act (SPA) provides for recovery of the strata’s insurance
deductible where an owner is “responsible” for the damage.
The owner admits the loss resulted from a pipe wholly within the
owner’s strata that was original to the building, but she says that the
strata’s bylaws require an owner to be negligent for the strata to charge an
insurance deductible back to an owner.
The applicable bylaws are:
3.1 An Owner must repair and maintain the owner’s strata
lot, except for repair and maintenance that is the responsibility of the strata
corporation under these bylaws.
4.4 An owner shall indemnify and save harmless the strata
corporation from the expense of any maintenance, repair or replacement rendered
necessary to the common property, limited common property, common assets, or to
any strata lot by the owner’s act or omission…
Of note, amendments to
bylaw 4.4 in 2014 removed the terms “negligence or carelessness” to determine
whether an owner was responsible for a deductible.
Bylaws requiring the strata to seek recovery of the deductible in cases of negligence do not displace its discretion to recover otherwise under the SPA. That is not only common sense, it is the law under s.121 of the SPA and the Interpretation Act, and legal fiction to the contrary is dumbfounding.
Here the owner sued the strata, but it was undisputed that the owner was solely responsible for the damage, and in the whole of the circumstances proof of that is all that s.158 requires for recovery of the strata's insurance deductible.
Owners of single detached homes are "responsible" for damage to their own property unless the damage was caused by someone else, and that makes sense. It is unreasonable for a strata owner to offload repair costs for their own property onto those not responsible for the damage; which is, to me, the obvious reason for the bylaw cited in this case as 3.1.
Any property owner, whether in a traditional neighbourhood or a strata, is liable under the law of nuisance or negligence to compensate for damage caused to others by the owner's act or omission, which is, to me, the purpose of the bylaw cited above as 4.4.
Bylaw 4.4 does not does prohibit the strata from seeking recovery of the insurance deductible, to the contrary, it makes it mandatory when damage is caused by the owner's act or omission. The fact that the strata deliberately deleted the word "negligent" from its bylaw, makes it particularly unreasonable for the CRT to squash the strata's s.158 discretion and displace the SPA's statutory term "responsible" with the word "negligent." Under s. 121 a bylaw is invalid to the extent that it contradicts the SPA, and to enforce an invalid bylaw is unlawful. The SPA is paramount to the bylaws, and it is undisputed that the owner was responsible under s.158. The owner was not liable under bylaw 4, she was liable under s.158. The CRT's contrary decision is yet another example of injustice in a growing string of cases wrongly decided.
Under s.158 all forms of responsibility, from inadvertent to negligent, must be determined by a court or the CRT, not by the strata. The logic behind requiring the due process of court to determine responsibility is that it is obviously oppressive and an inherent conflict for a strata corporation to offload onto an innocent owner damage that the strata or others are responsible for.
The problem is tribunal adjudicators are held out to be experts in strata law, but there is no guarantee that they will act lawfully or be
legally trained. The result is this wildly swinging pendulum of bizarre legal fiction and crazy unfairness. In this case the CRT displaced the SPA with a bylaw to transfer a financial burden for damage that the owner was solely responsible for onto her neighbours and ordered the strata to remove the charge from the owner's strata lot -
all contrary to the owner’s bylaw 3
obligation to repair her own strata lot in reasonable accordance with the responsibilities that
normally exist in single detached homes, the strata's s.31 obligation to act in the best interests of the strata corporation and its removal of the word negligence from the bylaws, its statutory discretion under s.158, and the SPA's s.121's prohibition against contradicting governing legislation.
What is the most mind boggling to me is the stark contrast with previous decisions of the CRT's vice chairman, Garth Cambrey, in
Tam v. The Owners, Strata Plan BCS 282, 2017 BCCRT 93 and other cases where the CRT made the owner pay for damage that the strata was responsible for, even though the strata did not sue or owe any burden of proof. Two wrongs do not make a right. Such bizarre contradictions of common sense are crazy-making, and to me, are the reason
why s.121 is supposed to make bylaws that contradict the SPA invalid.
I don't think it is unreasonable for me, or any owner, to expect the CRT
to fairly and justly assess responsibility in a consistent manner based on fair
and objective determinations instead of perversely unpredictable fiction that
makes it impossible for anyone within the context of a strata corporation to rely on plain statutory law.
I recognize the cost and value of insurance and support valid indemnification bylaws
for damage to others from negligence, vandalism, or intentional neglect. It is prejudicial administration that is contrary to fact and legal paramountcy that I find offensive.
Unlawfully offloading responsibilities for repair costs is such a long festering practice that it is becoming a strata industry standard when to the
best of my knowledge, no indemnification bylaw that contradicts other bylaws, s.158, or the law of tort and contract is valid.
I ask tribunal members to act unreasonably and fairly, and do not blindly follow each other in violation of
the SPA. As it is, nobody can expect justice in a strata, because nobody can rely on the governing legislation to be enforced.
Lawyers have a better chance of success in court, but churning out revolving door litigation is not justice, it's a vexatious nuisance. See
http://www.macleans.ca/society/life/condo-hell/
Rather than constraining governing powers within the legal limitations provided by statute the CRT has hired tribunal members who are key sources of a historical abuse of power and allows them to further entrench said abuse throughout BC.
https://www.lexisnexis.ca/pdf/products/LexisNexis_Reference_Card_Administrative_Law.pdf
Worse, when questioned, the CRT holds out as lawyers, adjudicators who are not. On October 10, 2018, Richard Rogers, Executive Director and Registrar of the CRT ignored my request for clarification of the CRT's advice that tribunal member Garth Cambrey was a lawyer, advising that it is not appropriate for parties to contact members of the CRT directly. Accordingly, I am complaining indirectly, as I cannot ignore so many misrepresentations and adverse inferences.
**********************
To me, an ounce of prevention is worth a pound of cure.
With respect to the strata agency industry, standards of perfection, and unpaid volunteers, some volunteers make innocent mistakes; but some are masters of subterfuge guided by experienced professionals and deserve to imprisoned for criminal activity, including, but not limited to vandalism of property and personal assault. Even if the majority are honest, it only takes one rogue in a key position to poison the whole system. This needs to be recognized, not swept under the carpet.
If justice is to be served paid professionals, including but not limited to lawyers, police, judges, and other officers of the court, need to act within the law and stop perpetuating legal fiction.
Owners who win cases before
the tribunal without any penalty provision for unlawful acts or compensation to make them whole again win hollow victories that do
nothing to deter persistent misconduct by members of strata management teams.
Garth Cambrey, vice chair of the CRT, concerns me more than most, particularly in regard to repairs, maintenance, and insurance issues.
I don't know whether Mr. Cambrey was retaliating against me for shopping around for agency services other than Stratawest, or whether the required strata insurance had just not been put in place at the time of loss, but for whatever reason, when Unit 409 was flooded by Unit 510 the strata did not file a claim, did not have an adjuster appraise the damage, and did not complete the repairs to Unit 409 that the strata started in 2003. I don't know whether Mr. Cambrey was trying to escape liability, or what, but he then terminated the strata management contract also, for reasons undisclosed to me.
Please correct me if I am wrong, but now the same Garth Cambrey is tampering with the SPA, churning up problems in an even more shocking venue in his position as vice chair of the CRT.
Like other strata agents, and Tony Gioventu of CHOA, when it comes to the law, Garth Cambrey is in my opinion dangerously incompetent, if not corrupt, and he should not be acting unlawfully or practicing law without a license as he is.
Although I have no professional experience in strata law, I cannot help but be concerned about two CRT decisions made by Mr. Cambrey that I have recently taken notice of.
In the
first, Zhang v The Owners, Strata Plan BCS
1039, 2017 BCCRT 56, the owner applied to the CRT to have a $5,000
charge removed from their strata lot account. The
strata’s response was that
the owner is responsible to pay the strata’s $5,000 insurance
deductible.
The tribunal member, Garth Cambrey, Vice Chair of the CRT, ruled that a strata manager is permitted to charge the strata’s insurance deductible to an owner’s strata lot if the strata bylaws hold the owner responsible for damage that originated in his strata lot - effectively defeating the due process procedures for deductibles mandated by the SPA in plain language.
I have no problem with an owner paying the deductible for damage that is proven to be his responsibility, but
I have a huge problem when the new tribunal tortures the SPA’s clear and simple requirements into convoluted contradictions that allow rogue strata agents to act in contravention.
Under the law, RESPONSIBLE OR NOT, THE OWNER IN THIS CASE IS RIGHT. Without a court order a strata agent has no right to charge a common expense to a strata lot account. Under the law, the strata has
the burden of proof, and determination of responsibility is within the
jurisdiction of the court, not some strata agent. In allowing preemptive misconduct to stand without consequence
Mr. Cambrey failed to apply principles of law and fairness.
BC is the only jurisdiction in the country that allows stratas to impose
fines, as in the SPA s.129 and s.130 without bringing the matter before the court. BC limits a strata's power to
fine to enforcing bylaws and rules and subjects that power to strict, mandatory
procedures under s.135.
Obviously, a strata's motive to offload insurance deductibles that it can set at
more than $50,000 raises a much greater potential for conflict of
interest and absolute need for due process than a fine of about $200.
Under s.158 an insurance deductible is a s.1common expense which the strata is responsible to pay with s.99 strata fees. If a strata wants to recover an insurance deductible from an owner, s.158 requires it to bring the matter before the court to prove that the owner is responsible for the damage. No bylaw or strata agent can oust the jurisdiction of the court; under s.121 a bylaw is not enforceable to the extent that it contravenes the SPA. Allowing a strata manager to charge a deductible to a strata lot before a court determines responsibility forces the owner to bring the matter before the court to defend themselves. This reverses the burden so it is the opposite of s.158.
What Mr. Cambrey is doing far too often is "CONTRARY TO THE INTENT OF THE SPA" to quote his own words in The Owners, Strata Plan NW 2729 v. Haddow et al, 2018 BCCRT 37.
Furthermore, I doubt if the owner was actually responsible in this case. Arguing double stud construction of a wall shown on the strata plan does
not make such walls disappear from the strata plan. Nor can it turn
walls that are holding up the roof or the strata lot above into a strata
lot instead of common property.
Nothing stops a strata from suing an owner in order
to recover the deductible portion of an insurance claim if it can prove that
the owner is responsible for the damage. However, until then, it is important to note that, regardless of who
is responsible for the damage, the SPA explicitly states in very plain language that the payment of an
insurance deductible in respect of a claim on the strata corporation’s
insurance is a common expense to be contributed to by means of strata
fees.
T
he fact that the strata agent charged a common expense to an owner in
breach of SPA, without first bringing the matter before the court for due
process, is obvious and undisputed. That breach of law is what forced the owner
to seek corrective action to constrain governing powers within their legal
bounds and enforce the legal limitations provided by statute.
The CRT permitting said breach is damaging to strata owners as a betrayal of law and people's trust.
Such
conduct
brings into question the credibility of the whole determination. Instead of equal protection before the law, standards of
perfection, strict liability, perverse interpretations, and arbitrary judgments seem to be imposed on vulnerable innocents
far more than on tribunals or stratas acting unlawfully.
In this case, the relevant definition of common property is set out in s.1 of SPA as that
part of the land and buildings shown on a strata plan that is not part of a
strata lot, "and pipes located within a floor, wall or
ceiling that forms a boundary" between a strata lot and another strata lot or the
common property.
Boundaries
not shown on the strata plan are set out in s.68 of SPA as midway between
the surface of the structural portion of the wall, floor, or ceiling
that faces the strata lot and the surface of the structural portion of the wall, floor, or ceiling that faces the other strata lot. That may apply if the boundary between stacked strata lots are not shown on the strata plan, but it does not make the common property in walls that form boundaries that are shown on the strata plan (such as the wall in the
picture below, which is beside the next unit and below the one above)
disappear.
If arguing double stud construction of a wall shown on the strata plan could make a wall or boundary disappear from the strata plan, or change a wall holding up the roof or strata lot above from common property into the form of a livable "strata lot,"
the results would be ludicrous.
For example, pictured below is a repeatedly sinking) concrete foundation wall and double wall construction, both common property intruding into my strata lot. The foundation holds up Unit 510 above me and the roof above both of us, and the reason for the double wall construction is it supports the roof and contains the bathtub and shower plumbing and support for both my Unit 409 and Unit 510 above me. Like so many CRT cases that fly in the face of common sense and distort or appear to be willfully blind to fundamental facts and law, the Zhang decision victimizes owners and gives a hostile strata agent the power to claim that I am responsible for repairing any damage - contrary to fairness, justice, good faith, and reason. Deference to the strata prevails over equal protection under the law, or even ordinary common sense. Plain language law is manipulated into ludicrous perversions.
Strata agents, law firms, lawyers, courts, and tribunals that encourage stratas to shirk plain language responsibilities by coming up with utter nonsense, or convoluted perversions of mandatory laws, are a big part of attracting and keeping manipulative people in a business plagued with corruption arising out of inherent conflicts of interest.
I think that gathering sociological evidence would show how the general economy, as well as human relationships, would be better off without that in BC.
Boundaries and common property are defined in the SPA for good reasons. One is to curb injustice, as is further shown is in the photo below, where Garth Cambrey charged the cost of repairs to our upstairs neighbour, even though the damaged pipes were clearly within the floor or ceiling that forms a boundary between our two strata lots, and our neighbours could not do the repair themselves without unreasonable cost or trespassing into our unit, if it was even possible to do it themselves at all.
In the administration of justice, what
needs to change is not the boundaries
between strata lots, or the definition of common property, or the Strata
Property Act; it is acting to pervert them in ways that churn up significant unfairness. The CRT must stop such nuisance, PLEASE, do not keep perpetuating it!
With respect
to accountability, Mr. Cambrey did not consider material questions of law, such as:
- Is compliance with minimum protections
mandated by SPA discretionary, or obligatory?
- Did the strata manager apply a charge to the
owner’s strata lot in violation of a mandatory SPA requirement that must be
enforced effectively enough to make the law predictable enough to serve its purpose?
- Is the tribunal's purpose to remedy misrepresentations and violations of SPA, or encourage them?
- Does s.158 provide for effective CRT determinations and remedies in compliance with SPA?
- How do charges to strata lots for insurance deductible made prior to a tribunal decision on responsibility for the damage comply with s.158?
- Does delay for a year or more of repairs mandated by SPA, from February 2016 to February or March 2017, create unlawful nuisance to an owner?
- Should the tribunal condone the practice of
law without a license in violation of the Legal Professions Act by strata
agents, including plumbers, or resolve that stratas have a right to rely on that?
- How can a section of leaking pipe located within the wall
cavity between the boundary of units 2 and 3 not be common property?
- How can double stud construction of a wall that forms a boundary between a strata lot and
another strata lot or common property overtake the SPA definitions of common property and strata lot boundaries or the strata's statutory responsibility for repairs?
- Is the CRT twice finding that the pipe was within the wall
cavity between units a ground to appeal errors of law? If so, why is Garth Cambrey churning up vexatious litigation?
- Does the CRT consider appeals to be economical and quick, or within the reasonable means of most strata owners?
- If the tribunal is supposed to give effect to
the SPA, why did it dismiss the owner's application
when the strata manager had so clearly charged $5,000 to the
owner’s strata lot contrary to SPA requirements?
- Did Garth Cambrey intend to add further insult to injury by answering no to the question should
the owner be reimbursed for expenses paid to Canada Post for providing a
copy of the dispute notice to the respondent?
- Do decisions like this give owners and stratas any
reasonable expectation that mandatory SPA requirements can
be relied on for the purpose for which they are intended, at home or in court?
Garth Cambrey and his fellow strata agent seemed to find it quicker and more convenient to flip the law around, compelling
owners, not stratas, to bring the application, and worse, be defeated. Reversing the burden of proof tramples over trust and an owner's right to rely on the minimum protections of the governing statute.
Instead of deferring to the strata's misconduct, the
tribunal could have quickly and easily ordered the strata to reimburse or
remove from the owner’s strata lot the $5,000 wrongfully charged by the strata
agent and require the strata to apply for payment and prove responsibility in compliance with the SPA. Instead it insulted law abiding owners and created a burdensome can of worms for all of us to struggle against in future.
The tribunal has the power to properly award payment of the deductible
when a strata bothers to bring the matter before the tribunal in
accordance with the SPA. That is not hard to do, but this strata didn't
bother. And with CRT decisions like this, other strata
corporations probably won’t bother to in future either.
Mr. Cambrey is creating a two-tier system that deprives those below the upper echelon of
legal protections, which is a costly danger to society, and not in the best interest of strata corporations. As shown in the rest of my blogs, it is precisely this sort of slippery slope that raises
an apprehension of systemic conflict of interest that favours ease and convenience, over the SPA and principles of law, exploiting owners who do not have the means to even try get it overturned on appeal.
The Zhang judgment is a widely published decision which has been cited by 2 documents on CanLII in the first 4 months, and it can (and probably will) be cited by stratas province wide like gangbusters because it effectively reverses both the onus and burden set out in SPA, unfairly transferring them
from strata to owner.
From what I know about Mr. Cambrey from his acting as our strata agent for over a decade, he is a bully, perpetuating violations of SPA throughout the strata agency industry, and from what I see, bringing the administration of justice into serious disrepute.
Decades of direct personal knowledge of strata oppression gives me strong reason to point out
how life would probably improve for strata owners if agents, lawyers, courts, and police
stopped acting in their own interests of power and expediency without regard to
foreseeable damage to others, and started acting to consistently uphold the law, support those obeying it, remedy violations, and deter those acting unlawfully.
I think that abuse would be reduced throughout the strata
management industry, strata insurance deductibles might return
to more reasonable levels, repairs of damage from major perils would more
likely be completed, negotiations would be more honest and meaningful, peaceful
enjoyment would be far less disturbed, and the only significant loss might be
to those who profit from SPA violations at the expense of others.
As it is, I feel sorry for Xiang Xian Zhang and all the rest of the owners who are, or will be, future victims, as well as any other applicant, including myself, who must bring matters of law before someone like Garth Cambrey.
***************
Tam v. The Owners, Strata Plan
BCS 282, 2017 BCCRT 93
(decided on Oct 16, 2017, and cited by one document by Nov 29, 2017)
Analysis by Dianne Bond in January 2018
Here is my initial synopsis of the Tam case that I put in my database:
blocked
drain in CP caused unrepaired water damage in SL, SL repair not required in
bylaws, contractor advised skipping cleaning that drain, strata not negligent
if reasonable, deductible $15,000; can't charge back non-lienable emergency
pipe repair
The only
evidence and submissions set out for my review was what was necessary to give
context to Garth Cambrey's decision, so it took
a careful second look to see through what was extraneous confusion and lay bare what was actually material.
Facts
In May 2016,
the strata cleaned the main drain stack pursuant to s.72, but bypassed common
property drain lines to the strata lots, relying on delegating council's
responsibility to a plumber; in June it cleaned a blocked drain line to a
strata lot; and based on a $15,000 insurance deductible, didn’t complete
repairs to the strata lot and charged back to the strata lot the repairs the strata
had done.
Issues
At least eight sections of the Strata Property Act (SPA) raise issues,
based on the stated evidence and the material facts that the strata:
- is an artificial person who
can delegate power but cannot transfer council's s.3 responsibilities onto
others, including, but not limited to, plumbers, agents, or owners;
- is responsible to maintain
and repair common property pipes under s.72;
- caused an owner loss and
nuisance contrary to its s.3 duty to act for the benefit of the
owners;
- misrepresented the strata's s.4
powers and duties, offloading its burden onto an owner;
- acted unlawfully in multiple
ways, contrary to s.31 care and diligence;
- must insure s.149(1)
buildings, including strata lots, against major perils, including water
damage;
- charged back $955.74 to the
strata lot contrary to s. 99 calculations;
- failed to provide a s.34.1
hearing;
- transferred
s.158(1) responsibility for its $15,000 insurance deductible to the owner' strata lot unlawfully;
- left an estimated $10,971.64
in damage from a Reg. s.9.1 peril unrepaired instead of completing replacement value repairs; and
- may have failed to report the damage to an insurance
adjuster for investigation before the time
for a claim under the strata's policy expired.
My
Analysis
Garth
Cambrey, vice chair of the CRT reversed the $955.74 chargeback to the strata
lot, but took no action to correct, penalize, or deter other conduct that is contrary to SPA' requirements under s.149 for replacement value insurance, s.158 common expenses and due process, and s159.decisions not to repair. Quite the
contrary, he dismissed the owner’s claims that the strata is responsible to
repair damage to the strata lot resulting from water escaping from the backup in a common
property plumbing drain. He even refused to reimburse the tribunal fees,
despite the misconduct of the strata.
I know from my own experience as a victim that the highest reach of injustice is to be deemed just, when you are not.
Based on the
material facts, stated evidence, and function of insurance and replacement value repairs, the owner’s claim is legitimate, but the decision
of Mr. Cambrey discredits its validity and encourages stratas to act unlawfully.
Mr. Cambrey's ruling in this case is another widely published decision already cited by one document in just over a month, and regardless of whether or not it is overturned and ruled to be unlawful, it can continue to be cited by stratas province wide, forever.
In my opinion,
the string of issues that Mr. Cambrey considers relevant, necessary and
appropriate effectively cloud over material facts, support oppression, and defeat the fundamental
principles of insurance, law, and best interests. Once again, it seems like the CRT is using its power in ways that pervert the law to favour stratas, or prejudice owners by trampling over their legal rights.
First, Mr.
Cambrey says that the strata is not an insurer, which is mind boggling, if not an absolutely perverse pretense, when the strata’s responsibility for water damage insurance and
deductibles is mandated by SPA. In actual fact, owners pay the strata for insurance
premiums that are sometimes, if not always, one of the largest, if not the
largest, common expense in a strata's annual budget. In this case it is undisputed that the strata is responsible for the cause of the damage, and to my mind that makes Mr. Cambrey's position all the more twisted.
Having made his declaration, Mr. Cambrey cites case law, none of which says that a strata is "not an insurer"
(See Kayne
v. LMS 2374, 2013 BCSC 51 (CanLII), John Campbell Law Corp v. Strata Plan 1350,
2001 BCSC 1342 (CanLII), and Wright v. Strata Plan No. 205, 1996 CanLII 2460 (BC SC), 1996 CanLII
2460, aff’d 1998 CanLII 5823 (BC CA), 1998 CanLII 5823 (BCCA)). The Campbell case says a strata should not be put in the position of acting as an insurer "by default" as opposed to "by statute, or by collecting money for insurance premiums that owners are strictly liable to pay as a result of statutory duty".
Contrary to a correspondingly strict statutory duty on the part of the strata and the "all in it together" principle Mr. Cambrey twisted the SPA around, and perversely held the innocent victim responsible to repair water damage that the strata was responsible for causing, thereby promoting oppression and ever increasing nuisance in strata corporations throughout BC.
Mr. Cambrey did so by
shifting focus away from the fundamental fact that water damage to a strata lot
is a major peril covered by the strata’s insurance policy, artfully discussing all kinds of
matters that have little, if any, material relevance; saying for example, that
the burden to prove negligence falls on the strata lot owner, bylaws must be
considered, cost of repairs are non-lienable, the strata is entitled to
rely on its agents and is not held to a standard of perfection or
obligated to reimburse expenses an owner is responsible for.
Please correct me if I am wrong, but I thought it long settled in law that when it comes to conflicts with a statute, such as
SPA, contrary case law is overturned, or distinguished and not followed, contrary bylaws are of no effect, and,
although the strata is entitled to rely on its agents, it is largely in control of said agents, which is no doubt why the SPA does not allow stratas to offload statutory responsibility for repairs and maintenance onto agents.
Most notably, major perils covered in plain language under a strata's mandatory replacement value insurance have little, if anything, to do with negligence, bylaws, liens,
perfection, or responsibility for damage.
The only point that I can see in Mr.
Cambrey focusing attention on issues that are immaterial to the strata’s fundamental insurance obligation
is to support the contention that his fellow strata agents can charge deductibles to owners without bringing the matter before the court, and that strata councils are not responsible for
the negligence or mistakes of their agents. Sweet. That really works for everybody except for owners and the law.
Further, no matter how high the strata sets the deductible, that is secondary; the peril is still covered for replacement value repair. The
principle of pooled risk is inconsistent with offloading high deductibles or shirking replacement value repairs.
The stated facts in the Tam case make it reasonable to conclude that
the $10,971.64 estimate
was to complete repairs of damage to the strata lot that the strata was
required to insure. A deductible is secondary to a reported loss that allows an insurance investigator to assess the estimated cost of, and ensure completion of, replacement value repairs.
Under
the policy, the loss must be reported to the insurer in order to trigger the deductible, which is a common
expense. Under the law this is a naturally balanced discretionary amount, which can be offset only when the strata proves in court that
an owner is responsible for the repair, at which point, the owner must prove that the strata has all the responsibility of a natural person for the damage/insurance/conduct of its
agents and must in turn compensate the owner for the loss.
Otherwise, when
the deductible is high enough
and the strata’s estimate of repair costs is low enough, and strata
agents are granted chargeback powers - then due process, the ordinary
responsibilities of a natural person, and the whole purpose of insurance
and replacement value repairs in general are in jeopardy, if not
totally defeated.
From what I
can see, the
strata left property unpaired by indeterminate delay
instead of the 3/4 vote not to repair or replace the damaged property
that is required under s. 159, and left it up to the injured owner to seek corrective action. It is hard for me to see how leaving individual owners to deal with
damage from major perils serves the best interests of the strata corporation.
It is not surprising that strata lawyers, agents, and councils who can benefit directly or indirectly by avoiding the fairest most practical and reasonable approach under the law. In the case of insurance issues that is, of course, to be "all in it together" as a strata. What is surprising is that the CRT is supporting the source of the problem and perpetuating it, rather than take remedial action and sanction Garth Cambrey.
It is also important to note that when a strata is not
held to a standard of perfection, it is only fair that strata owners be entitled to at least as
much latitude with respect to relief from oppression, defects in pleadings or evidence, repair burdens, or whatever it takes to
provide equal protection under the law.
The CRT allows strata corporations to bring matters before the
tribunal where "principles of law" can be applied accessibly, quickly,
economically, informally, and flexibly. In contrast, Mr. Cambrey's decision appears to arbitrarily offload statutory obligations of strata corporations onto individual owners, perversely defeating in large part the purpose of
requiring that stratas insure property on
the basis of full replacement value and bring deductible issues before the court.
My Reasonings
Please forgive me if I sound critical, but whether or not Garth Cambrey is working under the supervision of a lawyer or practicing law without a license, it is unlikely, particularly with immunity from liability, that the foreseeable harm that he is causing to owners is anything like an innocent mistake. It is more like an "industry standard."
The CRT says that Mr. Cambrey has
over 30 years’ experience in BC’s real estate industry including owning a
property management firm for 20 years and serving on the Real Estate Council
for 5 years. It a nutshell, he would be far more likely to know and understand the Strata Property Act than a person like me, working at home, in isolation, would be.
In fact, Stratawest, owned by Garth Cambrey,
was our strata agent/manager of NW 2671 when:
- requested access to strata records was obstructed, preventing me from seeing Mr. Cambrey's letter advising my neighbour that he saw no reason why not to build extra decking on the common property between our units (significantly changing the use and appearance, unfairly destroying valuable landscaping, privacy, and sharing by unit entitlement);
- minutes were tampered with, excluding from my motion to amend the bylaws the words, "to control our present and future landscaping
costs and provide protection against erosion of the earth and negative impacts
on property values";
- the contract with Stratawest was preemptively signed without
the knowledge of council, while I was on council;
- I wrote dozens of letters to Stratawest complaining that water damage to my unit that the council member in charge of insurance was responsible for was left unrepaired; and
- slugs and snails were delivered weekly to my patio
and root weevils introduced into the centre of the complex in front
of my unit after I
complained that Stratawest robbed the landscaping budget to give themselves a raise.
but that is not all, I could go on and on about the damage to Unit 409 and NW 2671...
Having expressed some of my concerns about Garth Cambrey and Stratawest, it is important to note that I have seen worse, but not better. A natural selection process based on birds of a feather seems to be at the core of the strata agency industry, and the CRT could change that.
NW 2671 Strata Agents
| Year |
Agent |
Company |
| 1988-1992 |
J.Garth Cambrey |
Carriage Management
|
| Phil Dodds, Robert Brettell (1992) |
| 1992-2003 |
J.Garth Cambrey |
Stratawest Management* |
| Mel Meln (2000-2001) |
|
Wayne Sasaski (2002-2003) |
| 2004-2007 |
Joan MacDougall 2004.01.01 |
Bayside Property Services Ltd. |
| Sorina Timonea 2007.05.23 |
| 2007-2008 |
Hanne Andersen 2007.07.10
Manmitt Atwar (2008.02.20) |
Ascent Real Estate Management Corporation** |
| 2008-2009 |
Joan MacDougall 2008.06.01 |
Baywest Property Management *** |
| Ben Black (2009.01.10-04.30) |
| 2009-2010 |
Nini Nestor 2009.05.01 |
Teamwork Property Management*** |
| 2010-2018 |
Veronica Ralph (2010.04.01 - died 2017; 2010.09.15
Rita Brown?) |
Fraser Property Management**** |
| Jolanta Teszka 2012.10.11 |
|
*2003 Stratawest failed to
report water damage for insurance claim when Unit 510 flooded Unit 409
**Aug-Nov/08 Joan MacDougall allowed the Halford’s $10,000 to
be funneled through strata bank account to Al MacLeod
***2009 Al MacLeod changed agents just before AGM to where his
girlfriend worked at Teamwork
**** Jolanta Teszka was found not credible by the court
3 months before she deceived RCMP about LCP in 2014
After
Mr. Cambrey NW 2671 had 10 changes in strata agents in about 10 years. Apparently, council is happy to settle on
Jolanta Teszka, who the Provincial Court found "routinely" not credible and guilty of gross negligence in Said v. Meadow Ridge Classic Realty
2014 BCPC 012.Either that, or they feel stuck in one of those automatic renewal contracts produced by the Strata Property Agents Association of BC for the benefit of strata agents instead of condominium home owners.
On rare occasions Mr. Cambrey does not defer to the strata. In
Kazakoff v. The Owners, Strata Plan KAS 880, 2018 BCCRT 12, Mr. Cambrey found an owner exempt from signing an indemnity agreement as replacement of a previously existing patio was a reasonable expectation to remedy significantly unfairness.
Mr. Cambrey found that retroactive strata fees are contrary to the intent of the SPA when a strata refused to accept payments in The Owners, Strata Plan NW 2729 v. Haddow et al, 2018 BCCRT 37, but then the BC Supreme Court decided in 625536 B.C. Ltd. v The Owners, Strata Plan LMS4385, 2018 BCSC 1637 that the proposed budget for the
"coming" fiscal year may not only be amended at the AGM, but an "adjustment" to fees for previous months is
NOT a retroactive charge (in the most peculiar dictionary of the court.) Pursuant to sections 103-105 a deficit must be eliminated during the
"next" fiscal year, but with a 3/4 vote a surplus may reduce contributions. I have highlighted in green what I see as the court's
perverse examples of statutory interpretation and legal fiction, both of which undermine the reliability and accuracy of the Form B Information Certificate or Form F Certificate of Payment and churn up foreseeable, easily avoidable, systemic strife.
The biggest problem in strata life is not the SPA, it is twisted and unreasonable administration of it that serves nothing more than creating endless legal disputes. In the age of computers and email it seems trivial for the court to take notice that the SPA requires financial statements be issued twice when the AGM is held prior to the fiscal year end, and in contrast to the court's holding that the SPA does not require strata fees to be equal or monthly,
s104 explicitly requires payment of the same
"monthly" strata fees until the next budget, and AGMs usually, if not always, vote to approve equal monthly amounts, which bylaws require payment of on the first day of each month. I have never once seen AGM minutes of a vote on an "adjustment" amount incurred due to holding the AGM after the fiscal year end. Bottom line, on the basis of common sense and plain language
I disagree with the judge as to the intent of the SPA's clear statutory rules. I think that on this issue Mr. Cambrey got it right.
But then for some reason in
Zanatta v.
Kedgley et al, 2018 BCCRT 140 Mr. Cambrey muddled up an otherwise sound result by repeatedly conflating limited common property with common property throughout the case.
I can only speculate on his motives, but they could be seen as artifice setting the stage for future chicanery. Shockingly, he says that just because long term grants for exclusive use are "unlawful" does not mean that they did not exist, and having admitted in paragraph 36 that "as shown on the strata plan, stalls 11 and 12 are clearly CP" with "no designation of LCP" he inexplicably says in paragraph 50 that "I decline to order the owner has permanent and exclusive use of her LCP stall as requested by the owner, given the LCP designation can change."
The foreseeable ripple effects of such bizarre contradictions on the administration of justice are profound, and it probably doesn't take much imagination to understand the psychological effect that so deters self represented litigants.
If such errors are examples of the best that Mr. Cambrey can do as the vice chair of the CRT, he should stop acting immediately, before he causes any more damage. Too many bizarre decisions are being made and publicized without correction, with the potential to be cited in future cases, and the CRT should take effective remedial action without delay.
It is important to note that I have reason to believe that the nature
of Mr. Cambrey's decisions in insurance matters may have something to do with employing repetition as justification for yet to be completed repairs of water damage from 2003 when our strata management was Stratawest, and the
owner responsible for strata insurance flooded my unit when her toilet broke and there was no evidence of insurance being in place.
You can get an idea of the extent of Stratawest's role in the insurance and repair problems at NW 2671 by my letters written at the time if you
click on "View my
complete profile" below "About Me" near the top of any of my posts and
then scroll down to my blog on INSURANCE, WATER DAMAGE, AND STRUCTURAL
DEFECTS. That blog shows photos of unrepaired damage to Unit 409 that
remains
to this day due to indeterminate delay in completion
instead of the 3/4 vote not to repair or replace the damaged property
that is required under s. 159. Ironically, it is part of on an ongoing series of SPA violations in an application that I made to the
CRT based on Mr. Cambrey unfairly offloading nuisance and loss caused and perpetuated when my neighbour unlawfully removed a tree to add extra decking.
As in the Tam case above, the strata left my unit unpaired.
It was left up to me, the injured owner, to get past the barriers to access justice. I could not overcome this disadvantage, and neither could many others, including Tam and Zhang, as just two examples of grounds for appeal that I am seeing on CanLII, which owners obviously cannot manage to pay for.
In contrast to ss. 149 and 158 of SPA, and decision makers
earning over $160,000 a year, Garth Cambrey's ruling has the potential to force owners on fixed incomes to live in derelict properties, or to sell their homes just to
cover the cost to repair water damage, when the cause of it is the
strata's responsibility, and the deductible is supposed to be a common expense.
To consider the economic context behind not only the law, but what "significantly unfair" actually looks like, perhaps CRT members would take a more
balanced view of law and reason if they themselves were forced to
pay a proportionate equivalent of more than half of their own annual income on insurance deductibles, or whatever it takes to leave the CRT member with not enough money to cover food and shelter after paying for
damage that an "all in it together" strata corporation was responsible for causing and repairing.
According to the Winter
2018
Vancouver Chapter edition of the Canadian Condominium Institute
newsletter,
"the average flood deductible on strata policies is likely $25,000. The
average flood claim is more than $30,000, and 70% of strata insurance
claims
are floods." Such practices seem out of line, and in the interests of insurance companies, or the Institute, rather than the best interests of
strata corporations, or owners of strata property. Unless the deductible is a common expense, insurance deductibles that run as high as $25,000 thwart the
intended protection for which strata owners are forced to pay premiums, as far as I can see at least.
I reported the flood from Unit 510 to Stratawest and,
inexplicably, no insurance investigator ever assessed the damage to Unit 409, completion of
repairs was postponed unreasonably - for decades, if not permanently. I was given to understand that due to
structural issues the water damage repairs would be completed during an upcoming building envelope
project, but that was not what happened.
I was kept in the dark and unable to obtain reliable factual data, or
anything confirming that the strata's insurance was in place on July 23, 2003, while the president, secretary, treasurer, and member is charge of insurance (who was also responsible for flooding 409) all resigned, along with Stratawest, leaving the repairs to our unit incomplete.
Just like a paperback crime mystery, the plot thickens.The strata paid (not the insurance) about $25,000 to fully repair a less extensive
loss that was contained within Unit 227 just a few days later; and Stratawest, for reasons
undisclosed to owners, stopped being the agent for NW 2671 just before the time
for an insurance claim expired - after being NW 2671’s agent for 14 years.
Access to Justice
From what I have observed, perpetual strata problems are flowing from plain language law being twisted by the judges, lawyers, managers, and strata presidents who are at the helm, far more than by the members of strata councils or the strata owners who are at the bottom.
I would like this to be recognized and corrected by the CRT. Owners can't do it alone. Believe it or not, I am struggling, at my own peril, to make strata life better; but need adjudicators to help.
Administrative
law is a subset of public law. It is said to be concerned with abuse of power, to constrain governmental powers within their legal
bounds; to ensure that delegation of
authority is subject to legal limitations provided by statute.
Shockingly - when it comes to SPA matters - words of law too often do not match
actions, no matter how tortured interpretions may be.
The rule of law is the principle that law should govern a nation, as
opposed to being governed by decisions of individual government officials; it
implies that every person is subject to the law, including lawmakers, law enforcement
officials, and judges.
I am seeing
the SPA being administered in ways that give me reason to be seriously
concerned about toxic TOP DOWN patterns of disrespect for the law in industries that appear
to be infecting strata corporations and wrecking havoc of the lives of strata
owners throughout BC.I feel sorry for Wing Yin Tam, and all others, not just Asian applicants, who roll the dice by bringing matters of law before BC courts or the Civil Resolution Tribunal. It is too bad that statutory law is not predictable enough to reasonably rely on for protection against unlawful conduct.
**************
Pat Williams works for Clark Wilson, a law firm with a long
history of creating tortured strata communities through the practice of artifice. These are BC lawyers who promise the Law Society not to pervert the law to favour or prejudice anyone, and to uphold the rule of law and the rights and freedoms of all persons.
The most notable example that I am aware of is Clark Wilson publishing privacy guidelines that clearly contravene s.36 of the SPA, advising strata corporations and others to delete strata records, specifically
email, and deny access to legal opinions, perversely claiming that such barratry
is not giving legal advice to the unsuspecting victims that the firm charged to
receive it.
Now Pat Williams is tampering with the SPA in an inherent
and ongoing conflict of interest that churns up strife for the benefit of the legal
profession in an even more shocking venue in his position as a tribumal member
of the CRT.
Last year, in Maguire v. The Owners, Strata Plan VIS5830, 2017 BCCRT 77,
Mr. Williams effectively resolved that removal of 28 trees without permit, contrary to
covenant, with no ¾ vote under s.71, and failure to provide s36 copies was allowed. There was no evidence of others supporting the owner, so no particular tree removal
or bylaw breach was unfair.
Whether the loss is one tree, or 28, Mr. Williams obviously did not have the same idea of "unfair" as the owner.
This year provides another example in
Hales v. The Owners, Strata Plan NW 2924 2018 BCCRT 91,
where Pat Williams resolved that “short term” in s.76’s heading accurately describes a 1-year restriction as well as renewals, and any grant of exclusive use needs a written resolution to renew.
That much was consistent with the SPA, but then Mr. Williams changed plain language into doubletalk and added “unless the initial grant contains automatic annual renewal periods.” That is perverse legal fiction that he seems to have made up himself, noting that “tribunal decisions need not be followed” in future.
He
concludes that standard practice in strata management industry does not
comply with SPA (which the horror in the above photo of NW 671 proves only too well) so in an extremely bizarre twist he denies the owner relief,
saying that it is not appropriate to order the
strata to comply with any of the provisions of the SPA, that council can
make mistakes, past and future.
The owner in the Hale case claims that the strata repeatedly violated the SPA,
specifically, s.34 by failing to hear him, s.36 by failing to provide strata
records, and s.76 by granting exclusive use of common property to certain strata lots.
In summary, Mr. Williams says that the evidence is extensive, and,
“Except as
noted, I have reviewed all of the evidence submitted. I have only commented
upon the evidence and submissions as necessary to give context to my reasons.”
Mr. Williams says that the “owner has the onus to prove” the fact that the
strata violated the SPA, and the owner provided “an inordinate amount of” documentation ….
(Strike 1 looks like too much reading)
I cannot tell if Pat Williams actually reviewed
all this evidence, since he says that he reviewed the evidence except where noted,
but I can’t see anything noted clearly, if at all. It is also hard for me to
put " an inordinate amount" in context to see what may have been necessary to produce, without it being revealed at
what point in the process the strata conceded the fact that it violated the SPA.
The owner requested a hearing to ask the strata to “voluntarily
self correct all contravening irregularities” and gave notice that he might record
the hearing. When council resolved to “prohibit electronic recording”, the
owner said he would not, but he did. (Strike 2 raises credibility
issues) “Recordings can be altered and not include the complete
proceedings.” This is true, but pitting a gang of witnesses who have been proven
to act unlawfully against the owner, who is standing alone, and who are unfairly
prohibiting the owner from recording, creates an adverse inference of fundamental
oppression and material nondisclosure that Mr. Williams was too blinded by systemic
deference to recognize.
Council adjourned the hearing in 10 minutes with none of the
owner’s issues resolved after the owner was repeatedly interrupted and became agitated, and council refused
to reschedule the hearing unless the owner paid $250 in advance for a security
person and rental of a neutral location.
With respect to the law, the SPA says:
Short term exclusive use
76 (1)
Subject to section 71, the strata
corporation may give an owner or tenant permission to exclusively use, or a
special privilege in relation to, common assets or common property that is not
designated as limited common property.
(2) A permission or privilege under subsection (1) may be
given for a period of not more than one year, and may be made subject to
conditions.
(3) The strata
corporation may renew the permission or privilege and on renewal may change the
period or conditions.
(4) The
permission or privilege given under subsection (1) may be cancelled by the strata corporation giving the
owner or tenant reasonable notice of the cancellation.
Having criticized “unnecessary” documentation submitted in
evidence as an “inordinate” "extensive" amount, Mr. Williams seems to actually require an inordinate
extensive amount of unnecessary documentation from the SPA itself.
He says that subsection 3, “does
not state the period must be a maximum of one year.” No, of course it doesn’t; to
do so would be redundant when the maximum period is already stated in subsection
1. He says, “the SPA does not state a maximum or minimum
period on renewal.” No, of course it doesn’t; to do so would not only be redundant when the
maximum period is already stated in subsection 1, but it makes no sense to state a minimum period that could contradict the cancellation
provision in subsection 2.
When lawyers like Pat Williams criticize a victim for being less than concise and then take a simple plain langugage concept and twist it into serving perverted special interests, everything becomes more convoluted and burdensome. The SPA is not stating what should be obvious to a reasonable person because otherwise legislation that was originally a couple of dozen pages can morph into 10,000 pages; the Income Tax Act being the best example that I can think of.
The owner addressed the fact that council members are volunteers
and may have made an internally-resolvable “mistake” but that council transformed
that into an abject defiance of the law. Mr. Williams did not address defiance
of the law, unless you count his support of the strata persisting with conduct
contrary to s.76 by saying that pursuant to s.3, “the strata is carrying out its mandate” to manage the
common property.
Given the fact that Mr. Williams found the strata doing so
in violation of the SPA, it is reasonable to reach a common sense conclusion
that s.3 does not entitle, nor give the strata any kind of mandate, to act
contrary to s.76.
Pat Williams warns that the owner’s submission that previous
consent orders for production of records are “suggestive that the strata has a proven proclivity
not to comply with its legal mandates” is offensive. (Strike 3 evidence of past history is "offensive") He says that to agree with that submission would make
fear of consequences discourage consent orders and be inconsistent with the
tribunal’s mandate.
To his credit, for what it is worth, Mr. Williams took notice that Abdoh v.
Owners of Strata Plan KAS 2003, 2013 BCSC 817
does say that “short term” in the heading of section 76 accurately described a one
year period as well as any renewals of that length. He also noted that the standard practice in the strata management
industry does not comply with SPA and found that any grant of exclusive use
pursuant to section 76 of the
SPA will need to be renewed annually by written strata council resolutions. But then like a bad
habit he jacked it around by adding his own brand of legal fiction, saying, “unless
the initial grant contains automatic annual renewal periods.”
The SPA does not
provide for automatic renewal periods, Mr. Williams added that, even though reasonable
common sense concludes that “automatic” renewals effectively extend permission
for more than one year. Although his added words are inconsistent with s.76 and
the benefit of all strata lot owners, they are highly consistent
with the long established practice of churning up disputes for the perpetual benefit
of lawyers. For Mr. Williams to say, as he did, that “tribunal decisions need
not be followed” in future is no help. The damage is done; for years to come.
In
conclusion, Pat Williams makes the absolutely shocking suggestion that as the
strata was following industry standards, it is not appropriate to order the
strata to comply with any of the provisions of the SPA, that council can
make mistakes, past and future, and that s.3 somehow gives council discretion to
grant exclusive use without complying with the restrictions in s.76:
“I have already stated at
paragraph 100 of my decision that the strata council may grant exclusive use of
storage lockers by written resolutions in the near future. In doing so, I
recommend they determine if the grant is pursuant to section 76 of the SPA,
or pursuant to another avenue (such as section 3 of the Act). I would
expect the strata to comply with the SPA and govern itself lawfully. I
understand that mistakes have been made, council members are volunteers and mistakes
may be made in the future.
Given also that the strata was following
industry standards, it is not appropriate to order that the strata immediately
and forthwith comply with any of the provisions of the SPA.”
Pat
Williams is insidiously perpetuating frustrating false pretences recommended
by himself in inherent conflict contrary to the language and spirit of the
governing legislation and the logical interests of the less fortunate masses
who must live in strata property and put their trust in the minimum
protections against oppressive governance provided in sections34, 36, and 76
and elsewhere in the SPA.
Here, the owner was successful in proving that the strata acted
in violation of the SPA, but Pat Williams deprived him of reimbursement of
tribunal fees and expenses because the owner dared to ask that the offence provisions
in the CRTA be considered. So not only is there no penalty provision in the SPA
for the chicanery that is spreading as an “industry standard” throughout strata
corporations in BC, but through burdens of fees,
frustration, and fear Mr. Williams is acting to discourage victims
of corruption from even bringing the issue before the court. Such alarming judgments by
the new CRT speaks volumes.
************
It is not only Garth Cambrey and Pat Williams who are deserving of scrutiny; all the other examples are just too numerous for me to get into.
************
Having said that, one of the most recent CRT examples that I have noticed is Carlsen v. The Owners, Strata Plan LMS 533, 2018 BCCRT 124, where Kate Campbell noted that
"Under section 48.1 of the Act and the tribunal rules,
in resolving this dispute the tribunal may make order a party to do or
stop doing something, order a party to pay money, order any other terms or
conditions the tribunal considers appropriate."
In doing what the tribunal considers appropriate Kate Campbell resolved that s.71 was violated for pre-emptively enlarging patios and denying access to common property. She said "the strata must restore the original fence line and height," but then, instead of ordering the strata to restore the fencing, she contradicted herself and tossed the problem back onto the owners, saying that it must be put to a ¾ vote for a special levy or "retroactive acceptance" AS IF TWO WRONGS MAKE A RIGHT or do anything to remedy the damage and deter future misconduct.
What does Ms. Campbell think is the point of having the CRT? What good does it do strata owners to bring matters before the CRT? Why does she think that taxpayers are paying her to pass the buck?
The adjudicator should pay attention to what she is doing and take corrective action when an error is identified. She said that the strata must restore the original fence line and height to pre-2015 specifications, but she did not make that order, nor one for financial compensation to the owner for loss, including, but not limited to, the time and effort to bring the matter before the tribunal.
She goes further and clouds the fact with irrelevant distraction, saying that orders for the return of personal property up to $35,000
or financial compensation can be enforced through the Provincial Court, when she made an order for neither.
In my opinion the most foreseeable consequences of Ms. Campbell’s
decision are obvious, and make it, on a balance of probabilities, worse than a hollow victory
for BC strata owners. Rather
than remedy the damage and deter future misconduct, her decision is far
more likely to encourage preemptive changes for unjust enrichment
that perpetuate the type of corruption that is prevalent in Sunridge
Estates and seem to be moving closer to becoming another industry
standard.
Kate should know, owners who can remedy pre-emptive changes themselves do not need the CRT
It seems extremely unlikely that a reasonable man, even a philanthropist,
would bother to enforce this CRT decision by wasting even more of their personal
resources filing a copy in Provincial Court.
If the tribunal demonstrated as much creative effort in ensuring
that owners could reasonably rely on plain language law, as lawyers and agents do
in thwarting it, strata life in BC would dramatically improve, and
industry corruption would fade. But this CANNOT happen as long as
decisions like this keep being made. Owners cannot afford to waste their
lives on such frustration, and agents exploit the fact.
Most owners can't afford to keep litigating violations of the SPA on a revolving door basis, if ever at all. Please give up a break. We need access to justice, not wasteful churning.
There
is nothing appropriate about shirking the opportunity to show strata owners that the law has a purpose - and breaking it has consequences - so that everyone can rely on its binding nature to deter rogues from acting unlawfully and contrary to the best interests of the strata.
On Apr 20/18 I notified Shannon Salter that I had just updated stratalaw.blogspot.ca and to please let me know if anyone complains. and I will do whatever I can to make it right. That update includes the following copy of my November 20, 2014 email her.
I tried to submit a response
to your invitation for comments and suggestions on November 18, 2014, but
I was stopped repeatedly by the CAPTCHA code images on the website.
BC’s Civil Resolution Tribunal sounds
like it could very easily improve access to justice – or not. Time will tell.
I speak as a strata owner and
self-represented litigant who has been suffering for
decades from unfair treatment and vexatious delays with no affordable access to
justice. The judicial playing field is anything but level, and adding to said
disrepute, limitation dates were prejudicially shortened by the BC government.
Cheerful smiles posted throughout the
tribunal web site seem more representative of out of touch fantasy
than an accurate expression of people struggling for their rights. Believe me,
it’s no fun. When it comes to conflicts of interest, oppressive governance, and
undermined credibility please remember who is in power and who is oppressed.
Please also consider motivation - who was enriched and who was suffering.
For years I waited in vain for a long
promised tribunal but conditions eventually became intolerable; the strata
ignored my mediation suggestion, and forced litigation. As far as “quick and
efficient hearings” go I have direct personal knowledge of hearings by
council members, strata managers, lawyers, and professionals that increased
corruption and systemic and scandalous oppression. I agree with online hearings
to a point, but I think that foreseeable personal injury from personal attacks,
erosion of Maslow’s hierarchy of needs, or exceeding the limits of human
endurance cannot be observed online, and should not be ignored.
How strata property expertise is defined
is important. It seems reasonable for the public to expect that knowledge of
the SPA is being tested in writing, but how can we confirm this? Who will help
resolve conflicts if the tribunal is going to handle issues such as unfair
actions; uneven, arbitrary or non-enforcement of strata bylaws; irregularities
in the conduct of meetings, voting, minutes, financial matters, and use of
common property; and interpretation of the legislation, regulations or bylaws –
peers of the vulnerable or powerful? In the interests of justice
I think proportionate representation is a legitimate expectation. Fundamental
systemic issues are significant, to say the least.
It seems reasonable to me to disclose
to the public how the composition of the proposed tribunal is being
distributed. What percentage of the tribunal will be comprised of resident
strata owners who have been victims of significantly unfair treatment, or
persecution by the powers that be? Will the number of self-represented strata
plaintiffs on the tribunal be equal to the power alliance of strata defendants,
namely strata council members, property managers, lawyers, and industry
professionals? Will the tribunal include any victims at all?
Will the tribunal address
fundamental contributors to and social impacts of top down systemic
oppression, defective strata governance, willful blindness, power without
responsibility, historical deference, and the hierarchies of assumed
credibility? With respect to the public interest I really hope so.
I suggest that a controlled study and
unbiased analysis of an aggregate of common complaints be included to audit
strata governance compliance with statutory obligations and create a more
realistic hierarchy of credibility to ultimately reduce the cost, delay and
complexity for users of BC’s justice system. I believe that the tribunal’s
power over more than million strata residents and nearly 30,000 strata
corporations may be a force strong enough to affect the quality of residential
construction, government, and society, not to mention the degree of negligence
in the strata agency and building industries, for better or worse
If your invitation for comments is
genuine, please provide instructions on the website on how to complete the
abstract images of your CAPTCHA code. I tried everything I could think of and
nothing worked. Sample screen capture images are below.
In another computer mystery that I will never understand, I'm not sure if the screen captures that I sent to Ms. Salter shows up in this post.
In my follow up reminder I said that I am not currently in a position to bring CRT errors before the
ombudsman or anyone else, so please let me know without delay if you are
taking any form of corrective action so things don't get worse.
