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


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





2003 BCSC 1108


03 1157

Registry:  Victoria


Oral Reasons for Judgment

The Honourable Mr. Justice Lowry

June 19, 2003












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


A.R. Tyron appearing for the Respondent