Victoria, 2829 Arbutus Rd., Wedgewood Estates: Court dismisses petition claiming strata corporation abused the court's process in leaky condo repair dispute

Citation:

Nicolson et al. v. Section 1 of The Owners SP VIS 1098

Date:

20030619

 

 

2003 BCSC 1108

Docket:

03 1157

Registry:  Victoria

IN THE SUPREME COURT OF BRITISH COLUMBIA

Oral Reasons for Judgment

The Honourable Mr. Justice Lowry

June 19, 2003

 

BETWEEN:

 

DAWN NICOLSON, RACHEL ROUNTHWAITE, GORDON ATKINSON, FAIRLYE ATKINSON, WILFRED BAILLIE, GERALDINE BAILLIE, GORDON CHARLTON, MARY CHARLTON, ROSAMOND WASS, JULIE LOVITT, WESLEY DONISON, ROSEMARY DONISON, DARWIN GARSIDE, MEL COOPER, CARMELA COOPER, GEORGE VAVRUSKA, LOIS RUTH VAVRUSKA, MICHAEL K. POWER, DENISE LAKER POWER, and ALASTAIR M. TAYLOR

 

PETITIONERS

AND:

SECTION 1 OF THE OWNERS, STRATA PLAN VIS 1098

RESPONDENT

 

 

Counsel for the Petitioners:

G.N. Rudyk

Counsel for the Respondent:

A.R. Tryon

 

 

 

[1]         THE COURT: The strata lot owners of the Wedgewood Estates have for many months been divided over how damage caused by the ingress of water to parts of the common property should be remedied.  The majority, referred to as the "Ross Group", contend for the concurring recommendations of three engineering firms (the "RJC recommendation") which would mean the replacement of the cladding and the installation of new windows throughout.  The minority, referred to as the "B Group", favour a much less expensive recommendation (the "Dubas recommendation"), which is for a much limited expenditure.

[2]         The B Group applies now by petition for a declaration that resolutions that were passed by a two-thirds majority on March 21, 2003, at meetings of the Strata Corporation to proceed with the RJC recommendation and include the cost in the annual budget are invalid.

[3]         The resolutions are said to be invalid because of a judgment rendered by Mr. Justice Cohen on August 2, 2002.  The Ross Group has never been able to muster the required 75% that would permit the passing of a special resolution to have the repairs undertaken in accordance with the RJC recommendation and the B Group has maintained that, given the nature of the expenditure, an ordinary resolution supported by 50% of the owners is not sufficient.  Upon hearing an application brought by petition by the Ross Group under s. 165 of the Strata Property Act, S.B.C. 1998, c. 43 (the "Ross petition") to compel the Strata Corporation to effect repairs in accordance with the RJC recommendation, Mr. Justice Cohen considered whether what is recommended falls within the responsibility of the Strata Corporation to repair and maintain the common property, as provided by s. 72 of the Act.  The following order was entered to give effect to his judgment: 

1.   Until the evidence of the experts filed in this proceeding [the four engineering firms involved] is tested through an oral hearing, this court is not in a position to fully answer the stated question and to make a finding on which of the experts' opinions it prefers.

 

2.   Should the court prefer the RJC Reports, then the repairs recommended in those reports fall within s. 72 of the Strata Property Act, SBC 1998, c. 43, and the expenses associated with those repairs may be included in the annual budget of the apartment section.

[4]         The annual budget requires only an ordinary resolution.

[5]         The B Group appeared at the hearing of that petition and sought to have it dismissed.  Although there were apparently some discussions about arbitration or mediation, the Ross Group, the Strata Corporation, and the B group have taken no steps to have the determination contemplated made by the court.  Having failed to obtain the relief it sought, the Ross Group effectively abandoned its petition and says it has no intention of further pursuing it.  Indeed, given the ordinary resolution passed in March, it has no reason to do so.

[6]         The B Group now contends that by proceeding as it has to pass an ordinary resolution in March of this year, without any determination having been made by the court as to which of the recommendations is to be preferred, the Strata Corporation has committed an abuse of process by attempting to circumvent the order made in August 2002, in disposing of the Ross petition.

[7]         Support for the B Group's contention is said to lie in Mr. Justice Cohen having determined that the RJC recommendation would fall within s. 72 of the Act, and that the expenses incurred in implementing that recommendation could be included in the annual budget, if the court were to prefer that recommendation over the Dubas recommendation.  But, in my view, there is nothing in what was decided that renders the ordinary resolution passed in March an abuse of the court's process. 

[8]         Mr. Justice Cohen stated the question he saw fit to decide as follows at para. 62:

In other words, does the work outlined by the RJC Reports come within the meaning of "repair and maintain" in section 72 of the Act?

[9]         The B Group contended that the duty to repair and maintain only goes as far as restoration, and falls far short of an upgrade or betterment to building envelopes such as the RJC recommendation contemplates.  After a comprehensive review of the authorities, Mr. Justice Cohen effectively rejected the B Group's contention.  He summarised (paras. 77 and 78) that the words "repair" and "maintain" must not be construed too narrowly.  He said they must be construed in the context of the circumstances to which they are being applied, and that the elements of fairness and reasonableness must be considered in their construction and application.  He then recognized that there was significant conflict regarding the precise nature of the work to be performed in the competing recommendations and concluded that if the RJC recommendation were ultimately accepted, the work contemplated would fall within the meaning of "repair and maintenance" in s. 72 of the Act.

[10]    What I take Mr. Justice Cohen to have decided is that the RJC recommendation contemplated work that falls within the repair and maintenance that the Strata Corporation must undertake and that it could be included in the annual budget that requires only an ordinary resolution.  What he did not decide was whether all of the work contemplated in that recommendation is necessary to the proper repair and maintenance of the buildings and accordingly falls within the Strata Corporation's statutory authority.

[11]    Mr. Justice Cohen described the answer to the question that he addressed as being a step in the proceeding which I take to mean a step in the ultimate resolution of the impasse that has given rise to this litigation (para. 62).  His judgment does not indicate what he considered the next step would be.  Although an important determination favourable to the Ross Group was made, the effect was to deny that group the relief it sought, namely, an order compelling the Strata Corporation to proceed with the RJC recommendation.  Most significantly, the judgment contains no legal impediment to the Strata Corporation passing resolutions in respect of the repair and maintenance of the buildings.  There is no suggestion that the Strata Corporation was to be in any way enjoined from proceeding as it sees fit.  No relief of that kind has been sought, and none has been granted.

[12]    I am, in the circumstances, unable to see any basis on which it could be said that by passing the ordinary resolutions that were passed in March, the Strata Corporation has in some way abused the court's process.  It has done no such thing.  That is not to say that Group B is now foreclosed from contesting the necessity of all of the repairs contemplated by the RJC recommendation.  Indeed, the Strata Corporation accepts that it is open to the B Group to challenge the recommendation in court on the basis that it is not required for the fulfilment of the Strata Corporation's duty to repair and maintain the common property, and its implementation is therefore beyond its statutory authority.

[13]    But there is no basis on which it can be said that there has been an abuse of process, giving the court jurisdiction to interfere in the Strata Corporation's democratic process and declare the ordinary resolutions passed to be null and void.

[14]    The abuse of the court's process is a very serious allegation, which I consider has no place in these circumstances.

[15]    The petition is dismissed, with costs.

“P.D. Lowry, J.”
The Honourable Mr. Justice P.D. Lowry

July 28, 2003 – Corrigendum to Oral Reasons for Judgment issued by Mr. Justice P.D. Lowry advising that the appearances of counsel should read:

G.N. Rudyk appearing for the Petitioners

And

A.R. Tyron appearing for the Respondent

The Jefferson (Coquitlam): Court declares case against Polygon a nullity; leaky condo owners will try again

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Owners, Strata Plan LMS 888 v. The City of Coquitlam et al,

 

2003 BCSC 941

Date: 20030617

Docket: S015129

Registry: Vancouver

Between:

The Owners, Strata Plan LMS 888

Plaintiff

And

The City of Coquitlam, Winchester Investments Ltd., Polygon Town Centre Development Limited, Polygon Construction Ltd., Graham F. Crockart, Graham F. Crockart Architect Inc., Dec Design Mechanical Consultants Ltd., W.T. Vaughan, Thomas Leung Structural Engineering Inc., Thomas Leung, Inter-provincial Inspectors (1982) Ltd., East & West Alum Craft Ltd., W.L.S. Forming & Framing Ltd., Centra Siding Ltd., Metro Roofing & Sheet Metal Ltd., Peter Ross Limited, L & S Stucco Ltd., Almetco Building Products Ltd., 481516 B.C. Ltd., Dueck Cobblestones Ltd., Systems I Mechanical Limited, Team Glass Co. Ltd., Alliance Sheet Metal Works Ltd., and H. Van Leeuwan Landscaping Ltd.

Defendants and Third Parties

And

Matthew Mok

Third Party

Before: The Honourable Mr. Justice Cohen

(In Chambers)

Reasons for Judgment

Counsel for the Plaintiff

A. De Jong

M.S. Oulton

Counsel for the Defendants Winchester Investments Ltd., Polygon Town Centre Development Limited and Polygon Construction Ltd.

R. Basham, Q.C.

Date and Place of Hearing:

January 27 – 29, 2003

 

Vancouver, B.C.

I     THE APPLICATION

[1]            The Jefferson condominium and townhouse development in Coquitlam, was constructed between July 1992, and August 1993.  Remedial repairs have been ongoing to the development since February 2001. 

[2]            The Owners, Strata Plan LMS 888, the plaintiff, seeks to recoup the costs incurred investigating and fixing water ingress problems.  To that end, the plaintiff commenced this action on October 10, 2000, alleging, inter alia, negligence against the defendants Winchester Investments Ltd., Polygon Town Centre Development Limited and Polygon Construction Ltd. (the “Polygon Defendants”).

[3]            On September 6, 2001, the plaintiff passed the following special resolution:

Be it resolved that the Strata Corporation LMS 888 be authorized to proceed with legal action and use funds from the building envelope repair up to $100,000 to bring material and information to a decision ready status for possible litigation.

[4]            On January 8, 2003, the plaintiff passed a second special resolution:

BE IT FURTHER RESOLVED, pursuant to section 171 and/or 172 of the Strata Property Act, S.B.C. 1998, c. 43…that the Strata Corporation is hereby duly authorized, as a representative of all owners and/or on behalf of each individual owner…to continue with the Action and to proceed to mediation or engage in other settlement negotiations or proceedings in connection with the Action or, if necessary, to commence and maintain any other action against any responsible parties for damages and costs related to the investigation and repair of building envelope and other design and construction related deficiencies in the Strata Corporation’s buildings;…

 (More)

Owners responsible for court-ordered sale of their leaky condo

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

The Owners, Strata Plan LMS 1634 v. Bajwa et al,

2003 BCCA 357

Date: 20030610


Docket: CA030209

Between:

The Owners, Strata Plan LMS 1634

Respondent

(Petitioner)

And

Amjad Javed Bajwa and Nuzhat Munir Bajwa

Appellants

(Respondents)


Before:

The Honourable Mr. Justice Esson

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Low

Oral Reasons for Judgment

D. Hill

Counsel for the Appellant

V. Franco

Counsel for the Respondent

Place and Date:

Vancouver, British Columbia

June 10, 2003


[1] LOW, J.A.: This is an appeal of an order made in chambers approving the sale of a condominium unit owned by the appellants Amjad Bajwa and Nuzhat Bajwa for failure by them to pay strata fees and special levies totaling $20,696.91 to the respondent strata corporation. Fraser Valley Credit Union was named as a respondent in the proceedings in the trial court but, for understandable reasons, did not appear and, of course, has not participated in this appeal.

[2] The appellants contend that the chambers judge erred by not setting aside an earlier order made by Master Patterson giving the strata corporation judgment for the amount owing plus costs and the power to sell after 30 days; in not staying the master’s order pending the signing by the strata corporation of a contract with a builder for the repair of leaks in the building, or at least staying it to the extent of the special levy that forms a substantial portion of the amount owing; and in not giving to the appellants an additional period in which to redeem their property. Because the sale has completed and cannot be unwound, the appellants now argue that the strata corporation should absorb the second of two special levies that is the largest component of the debt that gave rise to the forced sale of their property.

[3] The appellants purchased the condominium on March 31, 1995. By August 1999 they owed the strata corporation accumulated monthly fees of $2,552.97. On March 18, 2000 the strata corporation passed a special resolution authorizing a special levy of all of the owners for the cost of an engineering report on the condition of the building’s envelope. The appellants’ share of this cost was $37.43. Although it became due immediately, it was unpaid.

[4] By July 24, 2000, the cost of repair to the building was known and the strata corporation passed another resolution authorizing a further levy to meet that cost. The appellants’ share of that levy was $16,374.60 payable in equal instalments on August 1 and September 1, 2000.

[5] The appellants did not pay. By letter dated October 12, 2000, the strata corporation demanded payment of the full amount then owing, consisting of the two special levies and further accumulation of unpaid monthly fees. Through counsel, the appellants provided a letter from the Homeowner Protection Office dated December 7, 2000 stating that it would fund the reconstruction special levy once “the repair contract has been signed”. Apparently this was not acceptable to the corporation.

[6] The appellants paid their monthly strata fees from November 2000 through August 2001. On April 3, 2001, the strata corporation filed a certificate of lien in the New Westminster Land Title Office against the appellants’ property for $20,900.31. It commenced these proceedings by petition on February 15, 2002. It gave the appellants notice that the petition would be heard on March 26, 2002. On that date neither appellant appeared. Master Patterson found the appellants to be in default of their obligation to pay the fees and the special levies. He gave the strata corporation judgment for $21,825.64, inclusive of court order interest, and gave the corporation exclusive conduct of the sale of the property, subject to court approval, if the appellants did not satisfy the judgment within 30 days. These proceedings and the order were made in full compliance with the statute governing strata corporations.

[7] The appellants did not pay the judgment. On July 11, 2002, the corporation accepted an offer from Prija Kanuga and Mohina Kanuga to purchase the appellants’ property. It served the appellants with a motion for court approval of the sale. The sale price was $58,500.

[8] On September 18, 2002, the appellants delivered a notice of motion seeking an order setting aside the order of Master Patterson or a stay of proceedings until the strata corporation signed a repair contract to permit the appellants to access the loan approved by the Homeowner Protection office.

[9] Both motions came on before H. Holmes J. on September 19, 2002. She dismissed the appellants’ motion. By this time, there were competing bids for the property and the chambers judge approved sale of the property to Arora Ashish for $61,500, the sale to close on September 26th. There is no suggestion that this was not a reasonable price for the property.

[10] In brief oral reasons, the chambers judge said that the situation was largely of Mr. Bajwa’s own making. The amounts had been due to the strata corporation for some time and the special levies had to be paid by the owners so the necessary repairs could proceed.

[11] The appellants say that the corporation insisted that it receive the levy amount before proceeding to effect the needed repairs. They say that if the corporation had completed the repairs before sale, the value of the appellants’ property would have increased by an amount more than their share of the cost. They say that before the chambers judge the corporation should have agreed to give them another sixty days to pay so they could raise the money once the corporation entered into a repair contract. In these circumstances, the appellants contend, the strata corporation should reimburse them for the amount of the reconstruction special levy. At the hearing before the chambers judge the appellants tendered an uncertified cheque in the amount of $5,000 purporting to cover what they owed apart from the second special levy.

[12] I am unable to see any merit in this argument. The amount of the second special levy was due to the strata corporation from the appellants as soon as they had notice of it. It remained due for more than two years before the order approving the sale now under appeal. There is no obligation on the corporation in the governing statute to delay collection to suit the appellants. This was a simple debt enforceable through a statutory lien and a court-ordered sale of the appellants’ property. The master gave them thirty days to redeem as provided in the statute. In fact they had a somewhat longer time than that to redeem. The purpose of the statutory regime is to give the strata corporation a process by which it can collect fees and levies unpaid by individual owners. To now require the corporation to pay back the simple debt it collected by the proper legal process, even if this court has such a power, would be to nullify the statutory scheme. The appellants chose not to appear and oppose judgment and they chose not to redeem. They must live with the consequences of those choices. There is no way this court can undo that which was properly done in law and deny the strata corporation the fruits of its judgment.

[13] I would dismiss the appeal.

[14] ESSON, J.A.: I agree.

[15] HALL, J.A.: I agree.

[16] ESSON,J.A.: The appeal is dismissed.


”The Honourable Mr. Justice Low”