Guide to Responding to Bylaw Infraction Complaints
Naomi Rozenberg, Associate
Phone: 604-685-3911
Email: nrr@lmlaw.ca
Lesperance Mendes is frequently asked how a strata corporation should respond to complaints that residents have breached a bylaw.
Three Step Process
In general, we recommend that a strata council follow this “three-step process” when a complaint is received, to comply with section 135 of the Strata Property Act.
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Step 1: Send the resident a written notice that a complaint was received by the strata corporation.
The strata council must first give written the notice to the resident that a complaint was received.
The written notice should:
- include details of the complaint, including the date and time of the alleged bylaw infraction(s);
- refer to the specific bylaw(s) that was allegedly breached;
- give the recipient (owner or tenant) a reasonable opportunity to respond;
- indicate that the resident can request a hearing;
- list possible consequences if the council finds there has been an infraction, such as a fine;
- provide a deadline by which the resident must (a) respond in writing to the complaint and/or (b) request a hearing at an upcoming strata council meeting.
Step 2: Hold a council meeting.
After the hearing (if a hearing is requested), and once the deadline to submit written submissions has passed, the strata council must ultimately determine if there has been a bylaw infraction. In doing so, council members must consider the correspondence and submissions from both sides in an impartial manner.
If the council determines that there has been a bylaw infraction, council members must also vote on the consequence. This could be a warning, a fine, or other remedies that are permitted by the Strata Property Act.
The council’s decision must be noted in the strata council meeting minutes, without reference to individual names.
Of course, a council member who is personally involved with the complaint should recuse him or herself from the meetings at which the complaint is discussed and must abstain from voting.
Step 3: Send a decision letter.
A decision letter must be issued that sets out the strata council’s decision. For example:
- The resident receives a warning.
- A fine is imposed, according to the maximum fine allowed by the bylaws.
- For a continuing contravention, a fine is imposed every 7 days until the resident remedies the bylaw infraction.
- The strata do work on or to the owner’s strata lot or the common, such as removing objects from the common property or common assets, and the cost of doing so is charged to the resident who may be fined.
- The resident is denied the use of a recreational facility (but only if the bylaw contravention relates to the facility).
What happens if the resident still refuses to follow the bylaws?
In many instances, fines and other consequences do not have a deterrent effect. If the resident or occupant continues to contravene the bylaw and/or refuses to pay the fines, the strata council should consider other avenues of bylaw enforcement, such as filing a complaint at the Civil Resolution Tribunal.
As a general rule of thumb, the strata council should start the complaint process within 90 days of the non-compliance. This will reduce the chance of missing the limitation period (deadline) to bring a complaint. It will also prevent excessive and unnecessary fines from accumulating, which may be difficult to collect.
Additional Points to Consider
- The strata council should obtain as much information as possible about a complaint. The strata council may need to ask follow-up questions to determine who may be responsible for the contravention and which bylaws or rules were broken.
- A fine must not automatically be levied every time a new complaint is received. The strata council must respond to each complaint as a separate incident and follow the three-step process every time.
- A strata council may determine that a resident has breached a bylaw on a ‘balance of probabilities’. In other words: is it more like than not that the resident contravened the bylaw? The council does not need to show proof ‘beyond a reasonable doubt’. The council members can take many factors into consideration when rendering a decision, including circumstantial evidence and the resident’s failure to respond to (or deny) the allegation.
- Whether a behavior constitutes a “nuisance” is a question of mixed fact and law. The strata council should consider a number of factors, including the nature of the conduct and the frequency and the duration of the behavior.
- A strata council must ensure that its actions or decisions do not violate an owner’s reasonable expectation in a manner that is “significantly unfair” to the owner.
- Strata corporations must always be mindful of the Human Rights Code. Council members must ensure that their decision does not discriminate against a person or class of persons because of their race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.
Conclusion
A strata corporation that follows the three-step process improves its chances of enforcing and collecting fines that are levied. The process encourages fairness, promotes impartiality and can potentially avoid future disputes. In contrast, failure to follow the three-step process will likely result in a Court or Tribunal order that some or all of the fines imposed be reduced or removed entirely.
Lesperance Mendes would be pleased to review your strata corporation’s process of responding to bylaw infraction complaints to ensure the procedure complies with the Strata Property Act. To make an appointment, please contact Paul G. Mendes or Naomi R. Rozenberg.
Caution: The content on this website is intended as general information only and should not be relied on as legal advice. Views expressed in articles, alerts and other publications may not apply to the circumstances of a specific case and are subject to change as a result of legislative amendments and court or tribunal decisions. Readers should obtain their own up-to-date independent legal advice before making any decisions that affect their rights.
Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567