In a recent British Columbia case, a strata owner sued his strata corporation after it closed its pool as a result of the COVID-19 pandemic.
Strata Corporation Closes Pool Due to COVID-19 Pandemic
The applicant owns a strata lot in a strata corporation in British Columbia.
He was also one of seven members on the corporation’s strata council.
The strata is comprised of six residential buildings containing a total of 257 strata lots. The strata plan includes a separate recreation building which is identified as common property. Its recreational facilities include a recreation room, pool, hot tub and sauna. One of the strata’s bylaws required it to repair and maintain common property.
On March 17, 2020, in response to the COVID-19 pandemic, the strata closed its pool and it had not been reopened at the time the decision was issued in October 2020.
The strata owner submitted that the pool closure was a significant change in the use of common property and that the strata had not obtained a three-quarter vote of the owners, contrary to s. 71 of the Strata Property Act.
The owner therefore applied to the Civil Resolution Tribunal of British Columbia,seeking an order that the strata reopen the pool and not close it again unless ordered to do so by the provincial or local health authorities. He submitted that the strata’s decision was not valid because it was made through a series of emails, that only the Vancouver Island Health Authority had the authority to close the pool, and that the strata had not provided any evidence showing COVID-19 affected the safe operation of the pool. He argued that the pool’s chlorine made it safer than other common areas of the strata, and that the strata had to prove COVID-19 made the pool dangerous.
Finally, the owner claimed $26.08 as reimbursement of his portion of strata fees that he had paid for pool maintenance since the pool had been closed.
The strata conceded that it had originally closed the pool without a three-quarter vote of owners. However, the strata argued that it had closed the pool and the recreation facilities to ensure the safety of the strata owners, employees, and contractors, due to the COVID-19 pandemic. The strata stated that keeping the pool closed was consistent with public health official decisions. Additionally, it argued that it was entitled to do so under s. 71(1)(b) of the Strata Property Act, which states that a strata corporation can make a significant change to common property, without a three-quarter vote, if there are “reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage”. The strata submitted that it was working toward reopening the pool safely. Finally, it argued that it had continued to pay for pool cleaning and maintenance and therefore the owner should not be reimbursed any money.
Tribunal Refuses to Order Pool Reopening
At the outset, the Tribunal held that the strata had made its decision to close the pool on March 17, 2020 by email, rather than at a strata council meeting.
However, the Tribunal noted that the strata council had also met on March 24, 2020 and had discussed the pool closure. At the meeting, the council members had considered safety concerns, including the physical layout of the pool, change rooms, recreation room, and a COVID-19 legal article. At that meeting, one councillor voted against and six voted for closing the pool. As such, the Tribunal held that the strata had properly ratified the March 17, 2020 pool closure decision at its March 24, 2020 strata council meeting.
The Tribunal then proceeded to consider the COVID-19 arguments by both parties. It stated that the test to be met was whether the strata had reasonable grounds to believe that immediate pool closure was necessary to ensure safety. It rejected most of the arguments presented by the owner and found that the strata had met the test when it decided to close the pool and recreation facilities.
For instance, the Tribunal rejected the owner’s argument that only the Vancouver Island Health Authority had the authority to order the strata to close the pool. Additionally, it dismissed his contention that chlorine made the pool safe, stating that there was no evidence to support his claim.
The Tribunal concluded:
“Given the public health order, the public health guidelines relating to COVID-19, how little was known of the COVID-19 virus in March 2020, I find the strata had reasonable grounds to believe that immediate pool closure was necessary to ensure the safety of the strata owners, in March 2020….
While I find the strata was authorized, under section 71(b) of the [Strata Property Act] to immediately close the pool for COVID-19 related safety reasons, I find the strata is not justified in keeping the pool closed as the safety concerns are no longer immediate. Based on the [Vancouver Island Health Authority]officers’ emails, I find the pool can safely be reopened, once the strata develops COVID-19 policies and procedures to comply with the public health order limiting users and public health guidelines….
Although the parties agree that the strata is developing such policies and procedures, neither party has provided any evidence that any rules are in place to ensure the pool is safe to use at this time. So, I decline to order the strata to reopen the pool.”
Instead, the Tribunal ordered that the strata had to hold a meeting within 30 days to vote on the pool closure in accordance with the Strata Property Act, failing which it would have to reopen the pool with necessary rules and COVID-19 oriented safety procedures the strata deemed appropriate.
Additionally, the Tribunal rejected the owner’s claim for reimbursement of the portion of his strata fees that were used for pool maintenance, finding that there was no provision in the Strata Property Act or the strata’s bylaws which allowed the strata to refund an owner any part of paid strata fees.
Finally, the Tribunal did not find that keeping the pool closed had been significantly unfair to the owner. As such, it ruled that the owner was not entitled to damages.
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