I believe that the strata corporation has an ongoing duty to comply with and enforce the bylaws, obey the Strata Property Act, act honestly and reasonably in good faith, without conflict, significant unfairness, or unjust enrichment, and take responsibility for the damage it has wrongfully caused.
Part 2 of my Notice of Civil Claim filed on October 10, 2014, sets out the relief I am seeking from the strata corporation.
1.
The Plaintiff seeks each of the following claims
for relief against the Defendant Strata in addition to or in the alternative to
any other claim for relief.
2.
The Plaintiff seeks an Order that the Defendant
Strata compensate the Plaintiff for whatever damage is attributable to or
arises from these proceedings.
3.
The Plaintiff also seeks Orders that the Defendant
Strata:
a)
repair the structure of Unit 409 so that the sunken
warped floors are level and flat, the smell of mold and mildew is eliminated,
and air can move through the ensuite fan efficiently and effectively;
b)
center the shared plumbing between Unit 411 and
Unit 409 so that it does not protrude into Unit 409 and the walls in Unit 409’s
ensuite are all flat and visible mildew or mold is removed and guaranteed not
to reappear for 5 years;
c)
provide a vent in the bedroom on the lower level
of Unit 409, the same as those in Phase 2 of the strata development, to give effect
to the ventilation required for the health of the Plaintiff’s lungs;
d)
complete replacement value repairs of Unit 409’s
door systems, walls, floor coverings and flooring substrate, and replace the water
soluble support pillar in the garage with concrete that is more suitable for
the intended purpose;
e)
find and remove or seal off all mold and mildew
in Unit 409;
f)
extend the pipes to Unit 409’s exterior taps so
that the Plaintiff’s hose can be screwed onto said taps;
g)
replace the gouged up hardy board above Unit 409’s
patio window with a new unblemished board that matches the adjacent siding;
h)
extend Unit 409’s patio by approximately 24
inches from its east edge, paint it properly, and reinstate the developer’s
closer spacing and longer length of 2x2s for enclosing it;
i)
reinstate 3 birch trees in front of Unit 409 and
move the vine maple tree back in position between Unit 409 and Building 6
within 6 months of the date of this Order,
j)
restore the original standard of appearance of
the hydro kiosk between Units 407 and 409 by reinstating cladding that matches the
adjacent buildings or wash and paint the kiosk annually on the same painting
schedule as in strata bylaws;
k)
prepare an accurate report listing dates,
sources and targets, of all misrepresentations of fact and law made since at
least 2012, including the name of the owner, member of council, strata lawyer,
trata property manager, or police officer, and provide a copy to the
Plaintiff;
l)
restore the position of unit numbers in the
strata complex back to the original location under the lights on the garages and
that all of the unit numbers are easily visible to approaching rescue vehicles
at night;
m)
replace all bulbs regularly and ensure that lights
on garages are turned on at night on a light sensor or timer with bulbs burning
from 4 pm to 8 am in winter to at least 9 pm to 5 am in summer with appropriate
seasonal adjustments to light the night effectively, without wasting
electricity, or burning out bulbs in the daytime;
n)
provide a permanent map of the complex by the
mail boxes at the Lansdowne entrance;
o)
reinstate any tree around Unit 409 that in
future is cut down, dies, or is otherwise directly or indirectly neglected, damaged,
or lost due to human conduct within 6 months of the loss, using a mature
replacement,
p)
pay punitive damages to the Plaintiff of triple
the reinstatement costs for any tree destroyed around Unit 409;
q)
pay rent to the Plaintiff within 6 months of the
date of this Order in an amount equal to $200 for each month since the building
envelope repairs were completed with special levy funds in October 2005 to the
date of this order and continuing until Unit 409’s patio is extended as stated
above;
r)
remove the wood lattice installed by the
Defendant Strata around Unit 409 and reinstate and maintain surrounding foliage
in accordance with the developer’s landscape design or paint the lattice
annually on the same painting schedule as in strata bylaws;
s)
permanently remove any structure that protrudes
beyond an adjacent garage into the line of sight of passing traffic;
t)
screen extra decking that is in the line of
sight of passing traffic or neighbouring units with evergreen foliage from
grade level to approximately 1.5 to 2 metres that restores the curb appeal
provided by the developer’s landscape architect and protects neighboring
property values;
u)
repair and maintain strata plan patios with
monthly strata fees the same as balconies, or
i.
finish strata plan patios with low maintenance materials
that are equal or equivalent to balcony materials, or
ii.
wash, sand, and stain Unit 409’s patio and reapply
stain as required each year for at least 4 out of every 5 years that properly
applied stain is said to last; and
v)
require the owner to paint Unit 409’s strata
plan patio no more often than every 4th year;
w)
impose users fees for exclusive use of shared
common property to be paid within 6 months of the date of this Order and every
month thereafter pursuant to section 110 of the Strata Property Act and section
6.9 of the Strata Property Regulations as set out under the User Fee heading in
this Notice of Civil Claim, or as otherwise ordered by this court;
x)
in the alternative, permanently prohibit and
remove owner-added alterations that are not on the strata plan and reinstate
the trees and developer’s landscape architecture within 6 months of the date of
this Order or that an owner fails to pay imposed user fees;
y)
offset any user fees payable by the Plaintiffs by
100% for each month of their historical loss of equitable benefit and access to
common property since 1989
z)
include a term in strata management contracts requiring
strata managers to record or collect, and retain and provide access to strata
records as provided in the S.P.A., without omission, extra charges, or
superfluous unrequested material and ensure that management of strata records,
notices, and minutes of attended meetings comply with the Strata Property Act;
aa)
require a nominating committee to record and
circulate to all owners prior to election a resume for each candidate nominated
or agreeing to serve on the strata council prior to each Annual General
Meeting;
bb)
require each member of council to sign a
statutory declaration that he or she has read Parts 1 and 2, 4 to 11, and 14
inclusive of the Strata Property Act, and will read any material in question
before voting on it and go on the record when abstaining or reclusing;
cc)
require that all votes be called for in a
consistent order of those in favour, against, and abstaining, and be cast by a
show of hands or ballot, and counted with the number of each vote recorded;
dd)
answer each issue in correspondence and record
each decision in the minutes so each matter is understandable to the average reader,
ee)
provide confirmation of delivery and receipt of all
correspondence to all correspondents in a visible manner that is as reliable, prompt,
and effective as email;
ff)
confirm that any fines against the Plaintiff for
use of email are inappropriate and void;
gg)
accept email from owners or stop sending it and
correspond through the Defendant Strata’s registered office, not the strata box
as it is now;
hh)
engage in best efforts to obtain a copy of all
insurance documentation proving strata coverage for water damage on July 23,
2003and provide a copy to the Plaintiff;
ii)
engage in best efforts to obtain all
documentation sent to or from the Defendant Strata’s landscape architects and
arborists since 2003 and provide copies to the Plaintiff;
jj)
engage in best efforts to obtain all documentation
sent to or from the Defendant Strata’s lawyers and provide access to the Plaintiff
in accordance with her strata ownership rights and the provisions in the
S.P.A.;
kk)
engage in best efforts to obtain all
correspondence sent to or from the Defendant Strata, prepare a report, and
provide access to the Plaintiff ;
ll)
immediately on receipt of any strata record
containing personal information copy and redact in accordance with the stated
requirements of the Privacy Act and make all strata records available to owners
pursuant to the Strata Property Act on request until otherwise ordered;
mm)
obtain a geotechnical report on the history of sinking
buildings, cracking pavement and walls, breaking water mains, sewers, and
underground pipes, misaligned windows and doors, sink holes, and relevance of
the landscaping specifications in the restrictive covenants and strata history,
previous engineering reports, and the corresponding timing of Unit 409 history
of repeated sinkings, and provide a copy to owners along with the strata
corporation’s financial statements, depreciation report, or minutes;
nn)
identify and itemize all extra expenses
attributable to the existence of extra decking, including estimated costs for
demolition, removal, materials, construction, estimated costs for reinstatement
of original landscaping, the cost of
tree and stump removal, strata management add-ons, lawyers, surveyors,
engineers, and other and professionals, recommended insurance, repairs and
maintenance, painting, and provide a comprehensive written report to owners in the strata corporation’s
financial statements, depreciation report, or minutes;
oo)
obtain a forensic audit for the special levy
funds and provide a copy to owners in the strata corporation’s financial
statements, depreciation report, or minutes;
pp)
obtain an annual financial audit by Reid Hurst
Nagy, CGAs, or another leading strata corporation audit firm; with a copy to
the owners;
qq)
confirm that pet restriction bylaws are relative
to strata history and nuisance bylaws, and medium size in pet size restrictions
in this strata corporation allows greyhounds and other quiet dogs 30 inches
tall at the withers, or 88 pounds;
rr)
compensate the Plaintiff for losses, including
personal injury, hurt feelings, loss of reputation, loss of use, loss of time,
loss of enjoyment, loss of earnings, and all extra expenses, including property
reinstatement, clerical expenses, legal expenses and fines;
each
of which the Plaintiff claims in addition to or in the alternative to any other
orders.
4.
The Plaintiff seeks determinations and
declarations by the court that:
a)
the Plaintiff has an unrestricted right to rent
Unit 409 and in accordance with the developer’s disclosure statement is exempt
from the Defendant Strata’s rental bylaws,
b)
Unit 409’s patio door system was altered by the
Defendant Strata and restored to its original function by the Plaintiff, and any
existing fines or indemnity agreement concerning this matter is void;
c)
limited common property means only the property
shown on the strata plan designated for the exclusive use and benefit of the
owner of a particular strata lot such as strata plan patios and balconies, and
does not include buildings or any part of buildings that are not designated for
exclusive use, such as extra decking and buildings that form a boundary between
limited common property and common property that the strata corporation manages
or controls access to, such as fencing between patios and enclosures separating
patios or balconies from air space, and buildings managed and controlled by the
strata corporation for the shared benefit of others, such as decorative lattice
built in place of living landscape.
d)
the Defendant Strata’s strata box is not a reliable
or legal address for delivery of strata documents and any fine existing against
the Plaintiff for using email is void;
e)
votes must be cast by a ballot or show of hands and
be counted to be valid;
f)
the painting bylaw filed as 3.3 in the Land
Title Office in August 2013 is invalid and unfair; any fine against the
Plaintiff concerning this matter is void;
g)
action taken by the Defendant Strata which effectively
sections off repair and maintenance obligations in a manner that has the strata
corporation responsible for the repair and maintenance of limited common
property for 2‑bedroom units and individuals responsible for the repair and
maintenance of limited common property for 3-bedroom units is improper, unfair,
and void;
h)
the Defendant Strata’s maintenance policies for
strata plan patios, balconies, and extra decking are unacceptable, unfair, and
inconsistent with proportionate unit entitlement formulas, exclusive use, and
actual costs;
i)
converting common property to limited common
property in this strata corporation would result in significant unjust
enrichment for some and significant hardship and loss to others, which is unfair
and unacceptable;
j)
it is unfair to collect strata fees for repairs
of damage to buildings that the strata corporation is responsible to insure and
then deprive the innocent victim of benefits and provide them to others;
k)
buildings in a strata corporation include the substrate
and structural boundaries and support for a strata lot’s walls, floors, and
ceilings;
l)
the strata corporation is responsible to repair damage
to buildings in the strata corporation and said obligation includes damage arising
from defective construction, defective materials, water damage, or an insured
loss;
m)
the strata corporation’s obligation to repair
the buildings is mandated by the S.P.A. which does not limit the obligation to just
damage that poses an immediate threat to safety from an engineering perspective;
n)
the Defendant Strata’s failure to complete
repairs of water damage to Unit 409 for over 10 years is unfair and its failure
to obtain a ¾ vote not to complete repairs violates the Strata Property Act;
o)
the Defendant Strata unfairly and persistently disregarded
its statutory obligations under the Strata Property Act, including without
limit its obligations in regard to governance, property, finances, bylaws,
insurance, repairs, voting, minutes, strata records and enforcement of strata
bylaws;
p)
any document to or from strata representatives
that relates to the strata corporation is a strata record whether characterized
as email, private, privileged, or otherwise;
q)
no other Act or law denies an owner right to access
correspondence under the Strata Property Act, the strata corporation has a duty
to produce all correspondence, which may be redacted for privacy as reasonably
necessary but cannot be denied.
5.
The Plaintiff claims for:
a)
general damages,
b)
special damages,
c)
pre and post judgment interest,
d)
costs under Appendix B Schedule 3 of the Supreme
Court Civil Rules, and
e)
such other remedy as the court considers
appropriate and just in the circumstances.
