B.C. neighbours unhappy with the colour their fence was painted accused their strata of sexism in a Civil Resolution Tribunal (CRT) dispute.
In the end, tribunal vice-chair Eric Regehr was having none of it and ordered Carmie Vairo and Joan Stock and Allan and Linda Ayres to pay the strata $106 in dispute-related expenses.
The units are not connected by a wall but are separated by a narrow common property breezeway.
In 2017, the four built fences with gates in front of and in between their units.
“They say that they all signed assumption of liability agreements (AOL agreements) making them responsible for repairing and maintaining the fences,” Regehr said.
However, in 2022, the strata stained the fences with a solid stain, replacing the original semi-transparent stain.
The four did not like the new colour.
They said the strata breached the AOL agreements and the Strata Property Act by making a significant change to the appearance of common property without a 3/4 vote at a general meeting.
They sought an order that the strata re-stain the fence to its original colour.
The Ayreses bought their unit in 2014 while Carmie Vairo and Joan Stock bought in 2015.
As part of its original 2014-2015 construction, the strata included fences and gates in front of some of the strata’s buildings.
Consistent appearance
At a July 2015 meeting, the strata council approved a semi-transparent stain for all fences and arbours in the strata for “a consistent appearance.”
The strata began considering a change to the complex’s fence colour in 2020, according to tribunal documents. The strata held a town hall meeting in July of that year and said that its staining contractor had applied a solid stain to a few areas of fencing as a test.
“The strata said several staining contractors had recommended solid stains as more durable and better for the wood than the existing semi-transparent stain,” Regehr said. “The strata asked owners to ‘take some time to live with the new stain and consider the benefits.’”
At the March 23, 2021 strata council meeting, the strata decided that it would use the solid stain going forward, having reviewed the test area.
The strata arranged for more staining in 2022. In the June 23, 2022 strata council meeting minutes, the strata said that its contractor would be staining trellises, fences, and gates, without specifying which ones.
The work started on June 27, but because of an apparent miscommunication between the strata and the contractor, the strata did not know that the contractor was going to start that day. So, the strata did not notify the owners until June 28.
By then, the contractor had already stained the group's front fences, but not the breezeway fence.
Vairo objected to the staining in a June 30 email.
The four said the colour change was a significant change in the appearance of common property but the strata said that despite the AOL agreements, it retained authority over repairing and maintaining the fences.
“The strata said that it had decided to re-stain the fences to protect them and to maintain a uniform fence appearance throughout the complex,” Regehr said. “The strata also denied that the change was significant. In November 2022, after a hearing, the strata denied the applicants’ request to re-stain the fences to their original semi-transparent colour.”
Tribunal analysis
Regehr said only one AOL agreement, a document signed by Vairo, was in evidence. He noted the whereabouts of the documents was not necessary to the dispute.
“I have concluded that the AOL agreements do not give the applicants authority over the fences, nor do they remove the strata’s responsibility to repair and maintain them,” Regehr said.
“So, nothing turns on which fences are the subject of an AOL agreement.”
He found the AOL agreement is “unenforceable to the extent it delegates the strata’s responsibility to repair and maintain undesignated common property alterations to an owner."
Sexism allegation
The four owners said the strata falsely accused them of sexism in an email.
“They want the strata to explain the remark and apologize,” Regehr said.
The tribunal member said the four had consistently asked that a certain strata council member recuse herself from discussions about the stain colour because her husband had initially selected the colour.
The husband was a former strata council member and the four did not believe that the current council member could be impartial given her husband’s prior involvement.
“The strata told the applicants that the ‘council disagrees with your position that a woman cannot act independently of her husband,’” Regehr said. “The applicants consider that comment to accuse them of sexism.”
The strata denied it accused anyone of sexism.
“The implication of the strata’s comment is obvious. The comment was rude and condescending. That said, the applicants’ emails were not always entirely professional either. Tensions were high,” Regehr said. “In any event, the CRT has consistently held that it will not order apologies, because forced apologies serve no real purpose. I agree.”
