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TOPIC:
#19096
B.C tribunal VOIDED FINE chargeback after PARKADE DAMAGE. Ruled due to tenant & STRATA COUNCIL 2020/06/29 12:46  
Not legal advice.

From a well-known Toronto condo law firm has come an otherwise unattributed companion piece apparently from "out of the past", arguably in reference to Ontario's AMLANI decision on appeal. ( Amlani's treatment by his Ontario condo corp has been held at trial not just unreasonable but arguably illegal by charge-backing for legal bills without prior court order nor a statutory platform. See : https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=showcat&catid=2 ).

What's unreasonable ? Should Ontario condo fines be allowed - sorta like 'private vigilante justice' without a platform by statute ? Does Amlani & this sorta decision bode what might someday happen if Ontario's Condominium Authority Tribunal ever starts getting such jurisdiction ?

B. C. Tribunal decision a year ago suggests sort of a crapshoot : sloppy parkade warning signage; a tenant driving downwards ! ! arguably towards a closing parkade door; chargeback held fined BEFORE a hearing occurs in spite of B.C. strata law to the contrary !

BUT less unreasonable ( B.C. ) - and at least based on actual arms-length repair expenses - than $ 25 K "charge-backs" substantially ruled in Jan 2020 as unreasonable at smoker Amlani's civil trail. ( ONCA appeal outcome is pending. ) B.C.'s lawfully imposed fines at least have a legislative basis, but this may show well that skillsets by governancers & others may be sorely lacking. Or overwhelmed by even mildly complex issues. . . .

Xcrpt
:
" . . . 61. A strata is required to act reasonably in repairing and maintaining common property and common assets. If the strata has not acted reasonably, it can be found negligent.

. . . . . 69. I find that it was reasonable for the tenant to expect that she could use her garage door opener to open the garage door by pressing it after the outgoing car left the parkade, without waiting for the door to closely completely.

70. However, I also find that she should have noted whether the door was moving up or down before proceeding forward in her car. I find that she proceeded when the door was still closing, despite having pressed the garage door opener. As such, she is partly responsible for the damage to the garage door.

71. If the strata were able to impose a charge on the respondentís strata lot, which I find below they are not because they breached section 135 of the SPA, I find that it would have been reasonable to divide the repair expenses equally between the strata and the owners.

I say this because, on the evidence before me, both the tenant and the strata fell below a reasonable standard with respect to use of and signage for the garage door, respectively.

72. Based on the evidence, I find that the doorís sensors were operating properly, because once the door met the tenantís car, it reversed without causing much damage.

73. I also find that the fact that an outgoing vehicle failed to yield, as required by the bylaws, does not excuse a less than reasonable approach either on the part of the strata or the tenant.

79. I find that the strata and the tenant each partly caused the damage to the garage door.

80. However, because Bylaw 8.9 says the strata can only collect the cost of remedying a bylaw contravention from the owner if the tenant refuses to pay, and no evidence was filed proving a demand for payment to the tenant and the tenantís refusal, I find that the owners are not liable for the repair costs.

81. As a result, I order the strata to repay the respondent owners $1,335.24, because that charge was levied without compliance with section 135 of the SPA or the requirements of Bylaw 8.9. . ." - unquote


The Owners, Strata Plan KAS 2503 v. Houtstra et al, 2019 BCCRT 690 issued June 6 2019 http://canlii.ca/t/j5b0l
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