Hearings

The Strata Property Act contains an oft-used provision requiring Strata Council’s to hold a “hearing” at the request of an Owner or Tenant.  Section 34.1 reads:

Request for council hearing

34.1 

(1) By application in writing stating the reason for the request, an owner or tenant may request a hearing at a council meeting.

(2) If a hearing is requested under subsection (1), the council must hold a council meeting to hear the applicant within 4 weeks after the request.

(3) If the purpose of the hearing is to seek a decision of the council, the council must give the applicant a written decision within one week after the hearing.

Subject to any clarification in the Bylaws of your Strata Corporation which might provide more details, what you see is what you get.  There are no other Regulations relating to Hearings and the above provides very little in the way of guidance to Strata Councils who are asked to conduct a Hearing on what they might look like, whether or not there are any restrictions, what obligations are imposed on them at the Hearing itself, what a written “decision” might entail, etc.  

Needless to say these “grey areas” can place a Strata Council in a difficult spot on a number of fronts.  Questions we are often asked include:

• “Are we obligated to discuss the matter with the person requesting the hearing, or is it simply an opportunity for them to speak”?
• “What sorts of time constraints can we place on the hearing itself”?
• “What do we do about someone who cannot accommodate a specific date and time when we have quorum available”?
• “How would we deal with a complicated matter where 7 days is not enough time to give full consideration to or gather information about the subject at hand”?
• “Are there any limitations on the topics that can be the subject of a hearing?  Is it just to deal with bylaw complaints or requests from an Owner or Tenant, or can they also request a Hearing to complain about the Council’s decisions, opine about the Common Property, or criticize a Council member’s choice of footwear”?

While that last example is obviously (fingers crossed) never going to happen, it does highlight the potential for absurdity that arises as a result of the lack of clarity in the Act when it comes to Hearings.  There are no simple answers to these questions, but we do suggest that Strata Councils consider what a “reasonable person” might do in similar circumstances.  It would be helpful to outline in advance some of the parameters for hearings, and consider implementing those in your Bylaws if your Strata Corporation has not done so already.  Based on our past experience, here are some suggestions you might find helpful:

• Discuss the parameters of the Hearing with the person making the request at the outset, so that they know what to expect when it comes to how long they have and what level of engagement they should expect;
• Ask questions for clarity;
• Individual members of Council should remember that no single member is authorized to speak on behalf of the group when it comes to making a decision, and that Council as a whole should and will discuss the Hearing after the other party has left, following which they will provide direction to the Property Manager to respond on Council’s behalf.  This should be stated at the outset of the Hearing, specifically that the Owner/Tenant should not expect a decision to be rendered on the spot but that they will be fully heard and that a decision will be rendered after they’ve departed;
• Avoid making subjective comments or pre-judging the matter which would demonstrate the credibility of the Hearing as a vehicle for the Owner/Tenant to gain honest consideration of the matter at hand;
• Set reasonable expectations when it comes to scheduling – do not effectively thwart the Hearing process by setting an unreasonable date or time as the only option available to the Owner/Tenant.

Councils are obligated to provide a written decision on the subject of a hearing within 7 days, and there is case law that demonstrates that a failure to respond within that time period can effectively eliminate Council’s authority on some matters (such as whether or not a fine can be issued).  That being said, the requirement to provide a written decision does not impose obligations on what the decision must constitute.  For example, if more information is required in order for Council to render a proper, fully considered decision (such as supporting documents, statements from neighbours or third parties, further discussion, etc.) then the decision of Council might be “Council’s decision is that they require ______ in order to render a decision” thus extending the 7 day deadline for a response.  We’d caution against utilizing this tactic in an unreasonable manner, and a request for further information should be absolutely genuine.

For particularly vexatious matters, Council’s should consider whether or not it would be appropriate to have legal counsel for the Strata Corporation attend a Hearing, especially if you are already embroiled (or expect to be come so) in legal matters with an Owner/Tenant.  Again, there is no limitation stated in the Act that would prevent Council asking a third party to attend in this sort of capacity.

It’s worth restating that none of the above should be construed as legal advice, and that we encourage all Strata Council’s to seek legal advice especially if you intend to implement a Bylaw that would lay out some parameters for Hearings.