One of
the primary means for strata corporations to enforce their bylaws is through
the imposition of fines against the offending owner or tenant. The authority to
impose a fine is derived from both Section 129 and Section 130 of the Strata
Property Act (the “Act”). Section 129 lists the options (which I will not
review) available to a strata corporation for enforcing a bylaw or rule.
Section 130 provides that the strata corporation may fine an owner if
that owner, an occupant of the owner’s strata lot, or someone visiting the
strata lot, contravenes a bylaw or rule. The strata corporation may fine a tenant
if the tenant, an occupant of the tenant’s strata lot, or someone visiting the
strata lot, contravenes a bylaw or rule. As was held in the case of The
Owners, Strata Plan LMS 0747 v. Magnatech, due to the technical
wording of this section, the fine must be levied against the tenant where the
tenant has contravened a bylaw. Levying the fine against the owner (even though
section 131 makes the owner ultimately responsible for fines levied against a
tenant) is not in compliance with the Act and the fine is invalid. Notice of
the contravention must be sent to the owner as well as the tenant pursuant to
section 135(1)(f).
However,
before a fine is levied the strata corporation (through its council or the
property manager) must ensure that certain steps are taken. Those steps are as
set out in section 135 of the Act. A fine cannot be levied unless:
1.
A complaint has been received about a contravention
of a bylaw or a rule.
2.
The strata corporation has given the offending
party the particulars of the complaint in writing and a reasonable opportunity
to answer the complaint (either in writing or at a hearing); and
3.
In the case of a contravention by a tenant, notice
of the same has been sent to the owner as well.
Before
moving on to discuss compliance with section 135, it should be noted that if a
property manager is asked to impose a fine, the decision to fine and the amount
of the fine should be approved by the council first. Standard Bylaw 20(4)
(which most strata corporations have adopted in some fashion) prohibits the
council from delegating such decisions. Ideally such a resolution should be
recorded in the minutes or as part of the council’s in camera record.
The
criteria set out in section 135 are relatively easy to meet. First there must
be a complaint. Contrary to what many people believe, the Act does not
require the complaint to be in writing. However, it is best that the council
get the complainant to write it. This way there is a record of the complaint.
(The right of access to the complaint letter is subject of intense debate,
which is best dealt with at another time). There is also nothing, which
prohibits a council member from initiating the complaint.
Second, the owner must be
provided the “particulars” of the complaint. Again the Act sets no
specific criteria for this. The more detail (i.e. date, time, place, etc) the
better. This provides the owner with an opportunity to better answer the
allegation(s). Remember, the council must see that due process is given to each
offender; hence the language of section 135.
The
offending owner must also be given the opportunity to respond to the
allegations, either in writing or by way of a hearing. The council must ensure
that no fine is imposed until after it has considered any reply. Consideration
of the reply should be done with an open mind and free of bias; again to ensure
due process. (It is a good idea to provide a deadline by which any reply or a
request for a hearing must be received. Two weeks is a reasonable period).
Once a
decision has been reached, the owner must be advised “as soon as feasible”.
There is, of course, no strict definition for this phrase, but again a couple
of weeks are probably reasonable. A reasoned response should be provided.
Although the Act does not set out the amount of detail that should be
included, a reasoned response shows that the council carefully considered the
matter and acted in a judicial manner.
The
failure to comply with section 135 can have significant consequences; namely
the setting aside of the fine by a court. For example, in Strata Plan VR19 v.
Collins 2004 BCSC 1743 the failure on the part of the strata corporation
to give the offending owner an opportunity to have a hearing before the council
precluding the strata corporation from recovering its costs to remedy a bylaw
contravention.
The
recent case of Dimitrov v. Summit Square Strata Corp 2006 BCSC 967
provides an excellent case study. In Dimitrov the plaintiff had been
fined $350 for being in violation of a pet bylaw. The fines were imposed over a
period of time. On each occasion the property manager (acting on instruction of
the council) simply wrote advising that a fine had been imposed. Dialogue
ensued between the offending owner and the strata council and she was
eventually invited to a hearing before the council. The matter was unable to be
resolved and wound up before the court. The plaintiff challenged the validity of
the imposition of the fines. In considering the issue of the fines the court
stated:
“The weakness in the respondent's [strata corporation]
position is that the invitations to the appellant [owner] were given after the
decisions had already been made that she had contravened (and continued to
contravene) the pet bylaw, and after fines had been imposed on the appellant.
The respondent's conduct in this regard might satisfy s.135 (2). However, in my
opinion, s.135 (1) of the Act clearly contemplates that the opportunity
to answer the complaint must be given before any decision is made on the issues
of guilt or penalty.”
In the end the court set aside the fines imposed against
the owner because the strata corporation failed to comply with the requirements
of section 135 in that it imposed a fine against an owner without providing her
an opportunity to respond to the allegations or request a hearing before the
council. The subsequent provision of a hearing before council was not
sufficient to cure the non-compliance. (This aspect of the decision, however,
differs somewhat from that in Cheung v. Strata Plan VR1902 2004
BCSC 1750 wherein it was held that the reversal and re-imposition of a fine
after considering the offending owner’s response was sufficient to cure
non-compliance with section 133.)
Compliance with section 135 is frequently overlooked when
it comes to imposing fines for the late payment of strata fees. For each
payment missed a letter must be sent.
The final issue to note is the appropriate amount of the
fine to be imposed. Unfortunately there is no set standard. The amount of each
fine (subject to the limitations set out in the strata corporation’s bylaws) is
at the discretion of the council. The Standard Bylaws set the maximum fine for
each occurrence at $50.00. A strata corporation can amend this in its bylaws
and set the maximum at $200.00 ($500.00 in the case of the violation of a
rental restriction bylaw). However, this does not mean that the council must
(nor always should it) impose the maximum fine. An escalation in the amount of
each fine is perhaps more appropriate. Ultimately if an owner feels that the
fines imposed are too harsh, that owner can ask the court to reduce the amount
of the fine pursuant to section 24 of the Law and Equity Act. Although,
such reductions do not occur as a matter of course, in Drummand v. Strata
Plan NW 2654 (2004), 34 B.C.L.R. (4th) 359 (BCSC) fines in the
amount of $16,400 were reduced to $1,000.
In the end, fines may appear as a matter of routine but
care must be given to compliance with section 135, the provision of due
process, and the appropriate amount of the fine(s) if they are to survive the
test of an attack. This is particularly critical when the offence is ongoing or
one in a long series of offences. The strata corporation does not want to
appear as though it cannot enforce the bylaws.
This
article is intended for information purposes only and should not be taken as
the provision of legal advice. Shawn M. Smith is a partner with the law firm
Cleveland Doan LLP and can be reached at (604)536-5002
or shawn@cleveland-doan.com.