A Burnaby condo owner has won a victory over his strata after it accused him of lobbing bags of household garbage off his ninth-floor balcony to the common area below.
Gandong Xu took the strata at Midori (6638 Dunblane Ave.) to the Civil Resolution Tribunal over a $200 fine for littering, according to a tribunal ruling Wednesday.
The strata had fined him in July 2022 after the strata manager got a complaint that someone in Xu's Metrotown apartment "was found" throwing garbage from the balcony.
But Xu told the tribunal the strata imposed the penalty without giving him a chance to have a hearing, which is a requirement under the Strata Property Act.
The strata argued Xu didn't respond to an email from the strata manager telling Xu to fill out a hearing request form, but Xu provided the tribunal with a copy of an email he said he sent to the strata manager with the completed hearing request form attached.
"I recognize that digital copies of emails can be convincingly faked," tribunal member Micah Carmody said. "However, I am not persuaded that Mr. Xu has done so here. The strata does not say how it knows that the strata manager did not receive the June 7, 2022 email. There is no direct evidence from the strata manager."
Carmody said the processes stratas have to go through before imposing a fine are "strict, with no leeway" and if stratas don't perfectly comply, the fines are invalid.
He ordered the strata to reverse the fine.
Banking document found in garbage
It wasn't the first time the strata had accused Xu of throwing garbage off his balcony.
Last time, the tribunal upheld a $200 fine, according to a March 2022 tribunal ruling.
Between June 2020 and May 2021, Midori's caretaker had noticed garbage littered on common property beneath the area of Xu's balcony on several occasions, according to that ruling.
In April 2021, the caretaker opened a garbage bag found in the area and found a shredded TD Canada Trust document.
After it was pieced together, it revealed Xu as the recipient.
Xu did get a hearing before the fine was imposed in that case.
"He asked the strata for evidence, and a strata council member said the garbage bag included something with his name on it," Carmody said, describing an audio recording of the hearing. "Mr. Xu's tone grew increasingly hostile and several council members intervened to try to de-escalate the hearing and return to the bylaw contravention complaint. The council appropriately ended the hearing when Mr. Xu wanted to discuss an unrelated incident and continued yelling and threatening legal action."
Xu told the tribunal he got all his TD statements by email so the document couldn't be valid.
He also claimed the caretaker had access to the building’s mailroom and had framed him by stealing his mail.
Carmody was unconvinced.
He noted the inconsistency between Xu's claims that he didn't get mail from TD but the caretaker had somehow still stolen his TD mail to frame him.
Carmody further noted that Xu hadn't given a reason for why the caretaker would frame him.
Xu also argued the TD document couldn't be used as evidence because the way it was obtained breached his privacy, but Carmody cited a Supreme Court of Canada ruling that found a person abandons their privacy interest when they place garbage for collection on their property in a way that is accessible to the public.
"I find the privacy interest in garbage tossed onto a common property landscaped area is even more clearly abandoned," Carmody said.
The Civil Resolution Tribunal is an online, quasi-judicial tribunal that hears strata property disputes and small claims cases.
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