B.C.'s Civil Resolution Tribunal has ordered a New Westminster strata to allow a woman injured in a car accident to have an inflatable hot tub on her balcony.
Owner Margaret Cupples sustained serious injuries in a January 2020 motor vehicle accident, tribunal vice-chair Garth Cambrey said in his April 24 decision.
She borrowed an inflatable soft tub spa in June 2020 to assist with her physical recovery, placing it on her deck. She said ICBC purchased the spa in November 2020 to assist in her healing. She also purchased a pop-up tent to cover the spa.
However, she said the strata asked her to remove the spa and tent between June and August 2022 because it considered the items a breach of the strata’s bylaws.
"After a council hearing in September 2022, the strata requested the tent be removed immediately, but allowed Mrs. Cupples to keep the spa until March 31, 2023," Cambrey said.
Cupples claimed the spa and tent did not breach bylaws and that the strata head treated her unfairly. She sought a tribunal order that the strata allow her spa and tent to remain on the deck as long as she is an owner, including an exemption from any future bylaws about hot tubs and her inflatable spa.
The strata disagreed, saying bylaws do not allow tents or spas on decks and that it had to enforce them.
It said a five-month period to March 31, 2023, was a reasonable accommodation for the spa, but the tent was not necessary to her recovery, so it requested the tent be removed. She had provided notes from her doctor, massage therapist, physiotherapist and occupational therapist about the spa being necessary for her recovery.
The strata argued its bylaws do not permit an owner to place a soft-type hot tub or spa, or a tent, on the deck. It said it had been reasonable in accommodating Cupples need for the spa but that the accommodation must eventually end.
Cambrey found neither the spa nor the tent were alterations of common property.
He also found the bylaw did not explicitly prohibit soft tub spas from decks; instead, it limits permitted items to those listed in the bylaw, which includes "summer furniture and accessories," he said.
"I find there is no permanent quality to Mrs. Cupples’ spa," Cambrey said. "It is inflatable and given the spa’s size, I find it can be drained, deflated, and moved relatively easily and quickly. Overall, I find Mrs. Cupples’ inflatable spa is a piece of furniture which she can use and enjoy on her deck."
As the spa broke no bylaws, the tribunal ruled the strata had treated her significantly unfairly.
Cambrey ordered the strata to allow Cupples to keep the spa but declined to make an order that she would be exempt from any future bylaws about hot tubs or inflatable spas.
