Duty
of Strata Councils to Exercise Discretion & Enforce a Bylaw.
Sections
26 & 31 Strata Property Act
by Fred Hardy
Strata
councils must recognize that with authority and power go responsibility,
discretion and reasonableness. Indeed, these requirements are the basis of
administrative law. Committees, boards, quasi-judicial tribunals and strata
councils are required to follow rules established and evolved over the
centuries. Should these bodies not follow the rules, and exceed their
jurisdiction, the affected party can seek redress in one form or another. An
example of redress is to go to the court and ask for an injunction to stop
certain action being taken. Or, the affected party (plaintiff) can sue the
other party (defendant) and seek damages. Or, the affected party can seek redress
in a Human Rights Tribunal and ask for compensation related to suffering and
loss of dignity as well as relief from enforcement of a bylaw.
In most
instances, it is taken for granted that decision makers sitting on boards,
committees, and etcetera are legally trained or have a good understanding of
administrative law. Or, they will have access to legal resources as required.
When the Strata Property Act was introduced in
2002, the legislative drafters recognized that people sitting on strata
councils are volunteers and may not have a solid grounding of their duty to
investigate complaints and exercise discretion and reasonableness when
discharging that duty. So, Section 31 was included in the Strata Property
Act, as follows:
In exercising the powers and performing the duties of the
strata corporation, each council member must: Exercise the care, diligence and
skill of a reasonably prudent person in comparable
circumstances.” (emphasis added)
There
appears to be a growing trend for affected parties in a strata corporation to
take their complaints to a Human Rights Tribunal and then winning their case.
In my opinion, the complainants are winning because strata councils are not
using discretion and reasonableness in discharging their duties. They feel they
must enforce a bylaw regardless of the circumstances. The following case shows
what happens to councils, and owners who they serve, when councils do not
exercise discretion and end up at a Human Rights Tribunal.
The
Human Rights Tribunal recently considered a complaint that a strata corporation
had discriminated against an owner by installing a timer on the front door that
disconnected the door entry system during the night.
For security reasons, the strata council decided to install a
timer on the Enterphone system so that after 8:00 p.m. owners would no longer
be able to unlock the front door from their strata lot when someone rang, but
instead would be required to go to the front door and personally unlock the
door to let the visitor in.
One owner expressed concern about the new system. The owner was 80
years old and suffered from various health problems including congestive heart
failure, advanced arthritis, and macular degeneration. In a letter from her
doctor to the strata council the doctor stated that because of her health
problems it was physically unrealistic for her to be mobile in an emergency
situation and that a delay in accessing medical assistance could result in a
critical situation. The owner also advised the strata council that three companies
were willing to give free estimates and suggestions to the strata council for
alternative security arrangements.
In response to the owner’s concerns, the strata council advised
the owner that she should obtain the names of other owners in the building who
would be willing to assist her in the event of an emergency.
When the strata council refused to re-connect the door entry
system as it had been, the owner complained to the Human Rights Tribunal.
The Human Rights Tribunal concluded that the owner had a
disability. The Tribunal noted that, although the new requirement of
disconnecting the entry system applied to all residents, and did not single out
the complainant, the new system affected people with a disability differently
than those who were not disabled. As a result, the Tribunal concluded that the
strata corporation had discriminated against the owner because of her physical
disability. The Tribunal also determined that accommodating the owner would not
create an unacceptable risk to the other owners in the strata development.
The
Tribunal ordered the strata corporation to re-connect the door entry system
after 8 p.m. The Tribunal also awarded the owner $1,500 in damages.
The case confirms that the actions of strata corporations are
within the jurisdiction and subject to the scrutiny of the Human Rights
Tribunal. Strata corporations must be very careful when imposing requirements
that particularly impact occupants suffering from disabilities.
There
are several other cases on record where the strata
corporation lost because they did not exercise discretion and make concessions
based on the circumstances.
Some observers of this growing trend of complainants going to
Human Rights Tribunals say that owners are finding this as a means to get
around bylaws and rules that don’t suit them.
I respectfully disagree with that position. I believe these cases
are being taken to Tribunals because councils have not acted with
reasonableness and do not look into the circumstances, which surround the
issue. Further, they feel that conducting or not conducting a certain action is
setting a precedent. This latter notion is incorrect.
Precedent setting has never been an ironclad rule.
“…no two sets of facts are identical in every respect—even when
the same parties are involved, the time must be different. Judges, when they
feel it truly necessary, can distinguish the case before them from an earlier
precedent by dwelling on minor differences…” The Law and Business
Administration in Canada (9th Edition) page. 24.
And further, “…a tribunal (such as a strata council) is not bound
to follow its previous decisions on similar issues. Its decisions may reflect
changing circumstances in the field it governs—it should not treat the earlier
decision as binding upon it, and should be open to argument as to why the case
ought not to be followed.” Administrative Law in Canada, Sara Blake, page
112.
The test for “reasonableness” is how would the average
person act or react in similar circumstances. Again, councils must consider all
of the circumstances when making a decision.
Imagine
if you read in the morning newspaper that a policeman pulled over a speeding
motorist who was rushing his spouse to Emergency at a hospital. When asked why
the policeman issued a ticket under these circumstances, he replied: “The man
was speeding, the law must be enforced”. Do you think the policeman acted
reasonably? How do you think a court would react?
Duty
to Enforce a Bylaw—Section 26 Strata Property Act
Section 26 Strata Property Act explicitly
states that councils must enforce the bylaws. In my opinion, this course of
action must be taken commensurate with Section 31 (Duty to act reasonably and
in a prudent manner) and consistent with the common law and case law dealing
with accommodation. Duty to accommodate is legalese for making an
exception in the enforcement of a bylaw or statute. I again refer readers to
the cases above where courts and tribunals have ruled against councils who have
overstepped the bounds of discretion and reasonableness.
I now quote from an article written by
local lawyer Shawn Smith published in the Condo Chronicle (Volume 2005-2) and
available at URL www.condohelp.org/cc/cc2005-2pg01.html.
“One the best refinements (of
the Strata Property Act) in my mind, has been establishing a definition of
“significant unfairness” which is used under s.164 of the Strata Property Act.
In Reid v. Strata Plan LMS2503 (2001)(BCSC), the court defined that term as:
“…at
the very least, significant unfairness encompasses both oppressive and unfairly
prejudicial conduct as defined in the Condominium Act cases i.e. conduct which
is burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been
done in bad faith, and/or has been unjust or inequitable”
The decision in Gentis v. Strata
Plan VR 368 has clarified this further by holding that significant
unfairness must be assessed in light of all the circumstances and in particular
the balancing of the competing interests within the strata corporation.
These two decisions have set the
groundwork for a number of important cases that have helped define the extent
of the strata corporation’s decision-making authority.”
Perhaps another contributing factor in
the increasing influx of complaints being taken before Human Rights Tribunals
is because the service is free. On the other hand, if a strata corporation
wishes to respond to the complaint and dispute the claim, they usually hire a
lawyer, an added cost if the Human Rights Tribunal awards compensation to the
plaintiff. In an Ontario case, the Human Rights Tribunal awarded $9,000.00 in
compensation to the complainant because the strata corporation acted in a
discriminatory manner towards her.
Strata councils have a few options
available before enforcing a bylaw that have harmful consequences for both the
affected owner and other owners in the strata corporation.
Strata lot owners do not enjoy the
protection of “condo police”. We won’t need any police, as long as everyone
acts reasonably and within the law.