A Burnaby townhouse owner who wants his strata to remove a gazebo it put up during the COVID-19 pandemic for outdoor council meetings has lost his case in front of the province's Civil Resolution Tribunal.
Darcy Grant Dmetrichuk, who owns a townhouse at a Kneale Place complex, told the tribunal the strata had put the gazebo on common property in violation of the strata's bylaws, according to a tribunal ruling Thursday (Oct. 3).
He wanted the strata to remove it and replace the grass.
The strata put up the wooden deck and metal gazebo after a rubber mat and tent it had erected for outdoor meetings in the early days of the pandemic in 2020 became damaged and unusable, according to the ruling.
The strata said the materials for the project were donated by council members and owners, and the gazebo was left in place for the enjoyment of all owners.
And, even if the structure was initially placed in violation of the bylaws, the strata argued it was approved retroactively by a 3-4 majority at a meeting in February, making Dmetrichuk's claim moot.
Tribunal member Amanda Binnie ultimately came down in favour of the strata.
She said Dmetrichuk's claims relied on sections of the Strata Property Act that dictate what strata owners can do to common property, but those don't apply to what stratas can do.
She said the legislation dictates the process strata's must follow to significantly change common property and ruled the strata at 6702 Kneale Place had followed that process by getting the 3/4 vote at the February meeting.
Dmetrichuk claimed only strata council members use the gazebo and alleged some members were in a conflict of interest because it was close to their units.
He said the strata had not proven it didn't pay for the gazebo and he was suspicious of owners who would donate to the strata.
He also argued the size of the structure, eight feet by eight feet, would not have been big enough to support social distancing during the pandemic.
But Binnie said the CRT does not have jurisdiction to rule on conflict of interest claims, and there was no evidence in the financial records the strata had paid for the gazebo.
As for the size of the structure, Binnie said "many people were meeting outdoors, regardless of distance, as a safer alternative to meeting indoors," especially in the early days of COVID-19.
"While Mr. Dmetrichuk suspects that only council members have used the gazebo, I find the strata has shown other owners have used the gazebo for other purposes, such as to distribute Halloween candy to children," Binnie said.
The CRT is an online, quasi-judicial tribunal that hears strata property disputes and small claims cases.
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Email cnaylor@burnabynow.com
