How to enforce by-laws and rules
Back to our regularly-scheduled programming.
One of the things I want to do on this website is highlight some of the excellent instruction guides on the Financial Institutions Commission website and how they apply to Trinity Place at the moment. There are 28 of these guides, and given the nonsense surrounding the petty removal of signs recently, it seems appropriate that I start with the seven-page Guide 14: How to Enforce Bylaws and Rules.
We have some experience with this, actually, as it took about a year and a half for Council to work through all of the legal requirements to enforce noise by-laws against an Owner who, for all of that time and much before the formal complaint, seemed to have no interest in complying with the Strata Plan LMS 2833 Bylaws (hereinafter referred to as simply Bylaws) and just kept paying fines. He eventually seemed to tire of paying the fines though, as he bizarrely sued the Strata Corporation in Small Claims Court in a ill-advised effort to have the Court rescind not only the fines, but lien charges and a special assessment that was to pay RDH to compile their engineering report in 2010.
Compare that situation to the one we have now where some anonymous vigilante is taking it upon him/herself to enforce their interpretation of the Bylaws, therefore, in the process, attempting to circumvent the due process mandated by the Bylaws, the Strata Property Act, the spirit (if not the letter) of just about every Canadian law, and good, common sense! The irony is rich.
So what does this guide have to say about enforcing by-laws and rules? After stating the obvious in section 1 (owners, tenants and people living with or visiting owners and tenants must comply with by-laws and rules), the guide moves onto section 2:
How to Process Complaints of Alleged Bylaw and Rule Violations
The following steps should be taken by parties in dealing with complaints of alleged bylaw and rule violations:
- the aggrieved party complaining of a bylaw or rule breach by another owner or tenant must make a complaint to the strata council;
- the strata council must then give the alleged bylaw or rule offender written notice of the complaint;
That’s a good start. One should actually make a formal complaint to the Strata Council, not take matters into one’s own hands. Continuing:
- if the strata council decides to proceed with enforcement, it must give the alleged offender a reasonable opportunity to respond to the complaint, including an opportunity to respond at a hearing, if requested. The Regulations define hearing as “an opportunity to be heard in person at a council meeting”;
Seems in line with the kind of justice one expects in a nation such as Canada. In the case of our noise complaint, the offender was actually asked by Council to appear at a Council meeting, but (as I understand it) did not even respond to that invitation.
So much for processing complaints. The guide goes on to talk about enforcement options in section 3. If Council determines that a by-law has been breached, it may (but is not obliged to) impose a fine against an owner or tenant, and re-impose a fine. The Standard Bylaws permit a fine of up to $50 for a by-law infraction, although strata corporations are allowed to pass by-laws imposing fines of up to $200 in the case of a by-law infraction other than a rental restriction by-law (for which the maximum is set at $500). The Trinity Place Bylaws take advantage of this ceiling, allowing for fines of up to $200.
Both the Standard Bylaws and the Trinity Place Bylaws allow for fines to be re-imposed every seven days, although in the case of our noise complaint they were not re-imposed that often. In fact, had they been, the fines for a year and a half of non-compliance would have added up to almost $16 000! That might have settled the issue sooner, but wow, what a price to pay for stubbornness.
Back to that little word “may”. In law, as I understand it, the word “may” does not obligate certain action or inaction on the part of the party to whom the statement is directed. So, in this case, a strata council is allowed to (may) allow the offending party to correct or bring their behaviour into compliance with the law or by-law in question, rather than impose a fine. This certainly makes sense from a practical point of view.
The guide goes on in section 4 to indicate that by-laws cannot be enforced if they “contravene the [Strata Property] Act, [Strata Property] Regulations, Human Rights Code or another enactment or law”. This should be obvious. A strata corporation cannot, for example, pass a by-law allowing only men to sit on the strata council! And my contention is that the sign I have posted and re-posted on the notice board is a matter of free speech, something guaranteed by section 2 of the Canadian Charter of Rights and Freedoms … a little “enactment of law” that is kinda bigger and more important than the Trinity Place Bylaws!
Section 5 of the guide covers methods that can be used by a strata corporation to collect fines and costs if the offending party does not pay them of their own volition. These methods include suing the owner (after two weeks’ notice demanding payment), initiating collection action (just as if you don’t pay your credit card bill) after a court order against the offending party has been obtained, proceeding to arbitration, or refusing to issue a “Form F” (Certificate of Payment) to an owner or the purchaser of the owner’s strata lot.
Section 6 is actually on a topic that could have its own guide dedicated to it, as it is referred to in several of the guides: giving notice and calculating the notice period. In fact, I have already referred to this in stating that I believe that Strataco did not provide enough legal notice for the 29 September SGM. I will, in fact, dedicate another post to this topic.
The final section (section 7) deals with enforcement against tenants, and mentions that the Residential Tenancy Act also applies when dealing with tenants. An owner renting his strata lot must provide a tenant with a “Form K” (Notice of Tenant’s Responsibilities), a copy of the by-laws, and a copy of the rules. The owner must then give the signed copy of the Form K to the strata corporation. Other than that, a strata corporation may fine or seek costs from an owner for the actions of a tenant, but if the owner pays those fines or costs the tenant is still responsible to pay those fines or costs to the owner. And finally, a “strata corporation may be able to evict a residential tenant who repeatedly breaches reasonable and significant bylaw[s] or rules, if there is serious interference with the rights of other persons in the strata development.”
That’s it for this guide. What has been your experience at Trinity Place with enforcing by-laws and rules? Tell us in the comments section below.
Spelling note: I use “by-law” because neither my Canadian nor British dictionaries even mention a spelling without the hyphen. However, when I’m quoting something that doesn’t use the hyphen I, of course, quote exactly, and don’t bother with [sic].
Legal note: I am not a lawyer, and the foregoing does not constitute legal advice.
In: Governance · Tagged with: anonymous sign stealer, by-laws, free speech, legal, notice board, rdh building engineering, rules, strata council, strataco management