Written by guest author Veronica Franco, Partner with Clark Wilson LLP.
The Platinum Legal Services Retainer (PLSR) is a unique program created by Clark Wilson LLP in partnership with HUB International. It gives our mutual clients the opportunity to access legal services from the Strata Property Group lawyers at Clark Wilson LLP at a very affordable cost. The PLSR has been operating for almost 10 years and continues to grow.
Strata corporations need access to affordable legal services for their routine legal matters. The PLSR provides two types of legal services:
- General Advice
- Litigation
General Advice Services allow a strata corporation to ask for short legal opinions on any legal issue. There is no limit to the number of questions that can be asked. We often refer to these opinions as “short snappers” – critical advice that takes no more than a half hour to provide. Litigation Services provide strata corporations the ability to use a Clark Wilson lawyer for certain types of legal proceedings that are not covered by the strata corporation’s insurance policies.
GENERAL ADVICE
Typically, the strata manager or an authorized strata council member will email us a question at the dedicated PLSR email address. Then, one of the Clark Wilson LLP strata lawyers will respond by email. While we do receive phone calls, we often encourage emails to ensure our advice is recorded and communicated to the council without any misunderstanding.
If the question goes beyond the retainer, we will let the strata corporation know, and where it makes sense, provide a quote for the service. For example, if the question involves whether a bylaw is enforceable, we will answer it and perhaps recommend an alternative. On the other hand, the PLSR does not include a complete review of a strata corporation’s bylaws. If it is requested, we will advise the strata corporation that we do perform such services at a cost that is not included and may provide a quote.
Examples of questions we address frequently:
- Is the replacement of Poly B piping located in a strata lot the responsibility of the strata corporation or the owner of the strata lot?
- Is the installation of a hot tub or air conditioner on common property a significant change in the use or appearance of that common property, requiring approval of a resolution by 3/4?
- Is the attic of a townhouse common property or part of the strata lot?
- Who decides what parking stalls and storage lockers will be available to specific residents?
We provide answers to these types of questions and more. Each answer will depend on the circumstances of each strata corporation, including its history, the strata plan and the bylaws. As a result, we will often request copies of these documents or further facts that may be relevant for us to answer.
LITIGATION SERVICES
There is a list of types of lawsuits that are included in the PLSR and set out in the PLSR contract. One of the most frequently used is for the collection of a chargeback following water damage or sewer backup. The PLSR will allow for an unlimited number of these sorts of chargebacks provided that the amount is more than $2,500, the strata corporation has a valid chargeback bylaw, and the chargeback can be pursued in the Strata Property Division of the Civil Resolution Tribunal (CRT), where there is no monetary limit.
As a result, we have assisted many strata corporations pursuing chargebacks as small as $2,500 (in which the water damage was limited to emergency restoration company services) to deductibles as high as $250,000 (caused by a tenant activating a sprinkler). In addition, if the strata corporation has charged back the repair costs and the owner starts a CRT claim to have the chargeback removed from the account, we will assist with the defense and the counterclaim to obtain judgment in the amount of the chargeback.
While the strata corporation will still have to pay disbursements – such as any CRT filing fees or fees charged by an expert witness – all the work we do at Clark Wilson LLP to pursue or defend these types of claims at the CRT are included in the PLSR. In practice, what this means is that we will prepare the dispute notice, dispute response or counterclaim, as needed. We also will assist in uploading these documents if necessary.
During the facilitation phase, we provide advice on how to deal with each CRT interaction for the purpose of settlement and to move the dispute forward. If it resolves, we will assist with drafting or reviewing any settlement agreement. If it does not settle and moves into the adjudication phase, we will prepare the Tribunal Decision Plan, which includes gathering and uploading all relevant evidence such as witness statements, as well as preparing and uploading the submissions to try to persuade the CRT of the strata corporation’s position.
What is often critical in these sorts of CRT claims is the evidence. While in some situations the source of the leak is obvious, in others it is not as clear. In those situations, even having a bylaw that makes an owner indemnify the strata corporation for all expenses incurred to repair any loss or damage where the owner is responsible is not sufficient without the evidence showing the owner is responsible.
The witness statements paint a picture of what happened when the leak was first discovered. As part of the Litigation Services, we will interview those people who attended the leak. In addition, we will ask whoever was involved in the investigation – from the plumber to the restoration contractor – questions to help determine where the water came from and how the damage was caused. We leave no stone unturned to ensure that when the CRT is deciding the case, the only possible conclusion that can be made is that the owner is responsible. Sometimes that means obtaining the evidence to show that nothing else could have been the source. Of course, if the evidence points to strata corporation responsibility, we will provide advice to help settle the claim. This type of thoroughness can result in success and receiving kudos, such as “My sincere thanks for your help and all the time you have spent on this. Very much appreciated.”