Part 9 published on 01/02/05
Enforcement of By-law prohibiting hard flooring
According to s. 135(1) of the Strata Property Act, the Strata Corporation must not
a) impose a fine against a person,
b) require a person to pay the cost of remedying a contravention, or
c) deny a person the use of a recreational facility,
for a contravention of a by-law or rule unless the Strata Corporation has
d) received a complaint about the contravention,
e) given the owner or tenant the particulars of the complaint in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant, and
f) if the person is a tenant, given notice of the complaint to the person’s landlord.
The Strata Corporation had passed a by-law stating that all floors of Strata lots on the second and third floors must have wall-to-wall carpeting, with the exceptions of kitchens and bathrooms and the first five feet of an entry hallway.
The Court confirmed that this by-law is valid and enforceable. The Court said that “it is within the rights of the Strata Corporation to pass and enforce any by-law that it sees fit as long as that by-law does not contravene the Act, the Human Rights Code, or any other enactment or law.”
One of the owners had installed laminate flooring, in contravention of the by-law. There had been no resulting complaints about noise. Even so, the court said:
“However, if s. 135(1)(d) refers to a complaint about the contravention itself, then the Strata council can be taken to have made the complaint themselves and thus the Strata Corporation’s actions would be in accordance with s. 135(1) (d).”
The Court accordingly ordered that the owner remove the laminate flooring at the owner’s expense. However, the Strata Corporation had not complied with s. 135 (1)(e) of the Act (giving the owner an opportunity for a hearing). This did not prevent the Strata Corporation from remedying the by-law contravention at the owner’s expense, but it did prevent the Strata Corporation from requiring the owner to pay the costs of the enforcement proceeding. Therefore, the Strata Corporation was required to bare its own costs of the proceeding.