Ladysmith, Colonia Gardens: Leaky townhouse owners battle over whether those with basements should pay twice as much for repairs, $120,000 each, as those with crawl spaces

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Peace v. The Owners, Strata Plan VIS2165,

 

2008 BCSC 461

Date: 20080417

Docket: S47701

Registry: Nanaimo

Between:

Martha Peace, Rick Seaton also known as Robert Seaton,

Betty Seaton, John Wilson, Sheila Wilson, Gwen Brosz,

Grace Bennett, Suzanne Stephen, Douglas Stephen, Levonne Martyn,

Les Martyn, Pat Davidson, Jack Davidson, Diane Stephens

Plaintiffs

And

The Owners, Strata Plan VIS2165

Defendant

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

Counsel for the Plaintiffs:

T. Huntsman

Counsel for the Defendant:

C. Wilson

Date and Place of Hearing:

April 1, 2008

 

Nanaimo, B.C.

[1]                Both parties have made interlocutory applications, which may be summarized as follows:

(a)        The defendant applies for an order dismissing the action, in whole or alternatively in part, based on the plaintiff’s failure to file a statement of claim within the time set by my order made on February 8, 2008, and various alleged defects in the statement of claim (including failure to plead facts which could constitute a cause of action under s.164 of the Strata Property Act).

(b)        The defendant sought an order requiring the plaintiff owners of Strata Lots 28-36 in Strata Plan VIS2165 to pay an additional $50,000 each toward the cost to complete “leaky condo” repairs to Strata Lots 1 to 41, and related relief.  However, this application was settled by way of a consent order during the hearing.

(c)        The plaintiffs applied for an order that would extend the time within which they could file a statement of claim, from February 22, 2008, to February 26, 2008, and for an order requiring the defendant to answer interrogatories delivered by the plaintiffs on February 11, 2008. 

The application of the defendant

[2]                On February 8, 2008, I ordered that the proceeding of the plaintiff by way of petition be converted into an action, and that the plaintiffs file and deliver a statement of claim within 14 days.  There was some misunderstanding of plaintiffs’ counsel as to whether such an order was actually made.  However, counsel for the defendant informed plaintiffs’ counsel that she was certain such an order had been made and warned plaintiffs’ counsel that she would move to strike out the action if the order was not complied with.  It appears that plaintiffs’ counsel scrambled to prepare a statement of claim, but it was not filed until February 26, 2008, which was about four days outside the time limit set by the order.

[3]                Having reviewed the evidence and heard the arguments on this point, I would not give effect to the defendants’ application to dismiss for failure to comply with the order of February 8.  I would grant an extension of time to February 26, so as to cure the procedural error committed by plaintiffs’ counsel.

[4]                For the defendant, Ms. Wilson took specific objection to a number of paragraphs in the body of the statement of claim and the prayer for relief.  Before considering these objections, I will set out enough of the background facts to provide a context for consideration of the application before me. 

Background Facts

[5]                The plaintiffs are the owners of nine of the 41 strata lots in the Strata Plan VIS2165, which is located at 815 Dunsmuir Street in Ladysmith, and which is known as Colonia Gardens.  The 41 residential suites in Colonia Gardens are contained in 15 separate buildings.  There are 11 triplexes and four duplexes.  The plaintiffs live in nine suites contained in three of the 11 triplex buildings. 

[6]                The defendant is the strata corporation created by statute to represent all of the owners, but in this action the defendant represents only the owners other than the plaintiffs, who own the other 32 strata lots contained in Colonia Gardens. 

[7]                In late 2005 or early 2006, the Strata Corporation retained an engineering firm to investigate and report on suspected water damage to the residential suites in the 15 buildings which comprise Colonia Gardens.  Kondra Associates Engineering inspected Colonia Gardens, and prepared an engineering report dated April 10, 2006.  The engineer concluded that the building envelopes of all of the 15 buildings in Colonia Gardens were leaking and that the water had caused substantial damage.  The estimated cost to complete repairs to all of the buildings was about $3,000,000. 

[8]                At a meeting of the owners on June 15, 2006, a motion was made to levy an assessment against the owners to pay the money to cover the costs of these repairs.  Twenty-nine voted in favour of the motion, and 12 voted against it.  The motion was defeated, as a three-quarter majority vote was required. 

[9]                In June 2006 following this meeting, Victor Martin, an owner of a strata lot in Colonia Gardens, filed a petition.  He sought, inter alia, an order requiring the Strata Corporation to impose a levy against all owners of strata lots to pay for the repair costs in proportion to their respective unit entitlements.  Some years earlier, the developer had assigned a unit entitlement of two, to each of the nine strata lots owned by the plaintiffs, and a unit entitlement of one to the other 32 strata lots. 

[10]            The present plaintiffs filed a petition on July 7, 2006.  Their petition and the petition of Victor Martin came before the court on July 13, 2006.  On that date, I ordered that the Strata Council be authorized to require each of the 41 owners to pay $58,835.25 toward the cost of repairs.  The issue of whether the petitioners would ultimately be required to pay for repairs on the basis of a unit entitlement of two was adjourned.  Other orders were also made, respecting both petitions.

[11]            After two general meetings of the owners on September 11, 2006 and December 12, 2006, the owners passed resolutions by a three-quarter majority vote, which empowered the Strata Corporation (through its council) to impose a special levy of $120,000 against each of the nine strata lots owned by the plaintiffs, and $60,000 against each of the 32 other strata lots.  The Strata Corporation then made the assessments against the owners in accordance with the resolutions. 

[12]            It is agreed by all parties that the damage caused by water penetrating the building envelope, and the building envelope itself, are necessary.  The Strata Corporation entered into a contract with a building contractor, the building repair work was commenced in October 2007, and it is estimated that the repair work will be completed by July 2008. 

[13]            The strata lots in Colonia Gardens are all of the same type.  The difference between the lots owned by the plaintiffs and the other lots is that each of the nine lots owned by the plaintiffs have a concrete basement area, whereas the other 32 strata lots have only a concrete crawl space.

[14]            In making and enforcing these resolutions, the Strata Corporation was purporting to act within its powers under the Act.  However, an examination of the orders made on July 13, 2006 leads me to conclude that these actions were inconsistent with the orders made.  But, I am not persuaded that the breach of the orders was intentional.  I accept that the majority who voted for these resolutions believed they were acting within the powers given by statute.

The Pleadings

[15]            In their statement of claim, the plaintiffs allege two separate causes of action.  The first claim is based on s.164(1)(a) of the Act, which states in part as follows:

164(1)  On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair

(a)        action or threatened action by, or decision of, the Strata Corporation, including the council, in relation to the owner or tenant….

[16]            The plaintiffs allege that it would be “significantly unfair” to require them to pay twice as much as the other owners toward the cost of repairs because they say it will only cost about $10,000 more to repair each of their suites, than it will cost to repair the other 32 suites. 

[17]            The plaintiffs’ second cause of action is based on s.246 of the Act.  Among other things, that section empowers the Supreme Court to change the unit entitlement of a strata lot, where the unit entitlement of a residential strata lot is calculated on the basis of “habitable area” but the unit entitlement does not accurately reflect the habitable area or the square footage of a strata lot.  In this case, the plaintiffs do not say that the surveyors committed error in calculating the square footage of their strata lots.  Rather, they allege that the square footage measured, exceeds the habitable area.

Alleged Defects in the Statement of Claim

[18]            The defendants first argue that paragraph 2 incorrectly describes the defendants as being “the other owners” of the strata lots in Colonia Gardens (i.e., the owners other than the plaintiffs).  Counsel for the plaintiffs acknowledged that this description was incorrect, and undertook to amend it, with leave of the court.

[19]            The defendants next submitted that several paragraphs of the statement of claim should be struck out on the ground that they relate to claims for relief that have previously been abandoned by the plaintiffs, namely, sectioning and estoppel.  Paragraphs 5, 6, 7 and 8 of the statement of claims were attacked on one or both of these grounds. 

[20]            In my opinion, the statement of claim is not well drafted.  It is true that a number of the allegations could be seen as relating to estoppel or sectioning.  However, I think it is arguable that these paragraphs comprise circumstances which are relevant to the issue of significant unfairness.  I am not persuaded that they should be struck out.

[21]            Paragraph 9 of the statement of claim was challenged on the ground that it is argument.  I do not agree.  Moreover, I am not satisfied that the allegation as to the timing of the damage to the residential suites is irrelevant to any issue in this proceeding.  It will not be struck out.

[22]            As to paragraph 10 of the statement of claim, although drafted somewhat awkwardly, it contains the essence of the foundation for the plaintiffs’ claim of significant unfairness.  Accordingly, it will not be struck out. 

[23]            Paragraph 11 of the statement of claim makes allegations relating to the habitable area of the nine suites owned by the plaintiffs, as compared to the habitable area of the other residential suites in Colonia Gardens.  While it is not well worded, this paragraph encompasses the plaintiffs’ second cause of action, based on s.246 of the Strata Property Act, and will be allowed to stand. 

[24]            The remaining challenges to the statement of claim relate to the prayer for relief.  I agree with the defendants’ submissions concerning paragraphs A, B and C.  Those three paragraphs will be struck out. 

[25]            I do not agree with the challenge to paragraph E (i.e., that it claims relief tantamount to sectioning), and it will be allowed to stand.

[26]            As to F of the prayer for relief, the first part of that paragraph (i.e. the part before the alternative claim) will be struck out.

[27]            It seems to me that paragraphs G and J of the prayer for relief claim estoppel, and for that reason they should be struck out. 

[28]            Paragraph H of the prayer for relief requests an order which would authorize the Strata Corporation to collect $5,000 from each of the owners as a contribution for legal fees, to pay for a legal opinion as to whether the Strata Corporation should bring action against someone (presumably the developer or builder) to recover the costs of the leaky condo repairs.  To my mind, that is a matter entirely separate from the allegations made in the statement of claim, and there are no allegations in the statement of claim which could support such relief.  Accordingly, paragraph H will be struck out.

Does the Statement of Claim disclose a reasonable cause of action under s.164 of the Strata Property Act?

[29]            The defendant seemed to acknowledge that the statement of claim does disclose a reasonable cause of action based on s.246 of the Strata Property Act (although imperfectly stated).  But it was submitted that the pleadings do not disclose any reasonable claim based on s.164 of the Act.  In essence, it was asserted that, even if the plaintiffs were able to prove that the cost to repair each of their residential suites would not be anywhere near twice as much as the cost to repair each of the other 32 residential suites, such proof could not support a finding of significant unfairness.

[30]            I repeat the relevant part of s.164 of the Act:

164(1)  On application of an owner or tenant, the Supreme Court may make any interim or final order to prevent or remedy a significantly unfair

(a)        action or threatened action by, or decision of, the Strata Corporation, including the council, in relation to the owner or tenant. . . .

. . .

(2)        For the purposes of subsection (1), the court may

(a)        direct or prohibit an act of the Strata Corporation [or] the council

. . .

(b)        vary a transaction or resolution, and

(c)        regulate the conduct of the Strata Corporation’s future affairs.

[31]            In this cause of action, the plaintiffs allege that, in the particular circumstances of this case, it would be “significantly unfair” to permit the Strata Corporation to require the plaintiffs to pay twice as much for the “leaky condo” repairs, than the owners of the other 32 residential suites in Colonia Gardens.  The key allegation of the plaintiffs is that it will only cost about $10,000 more to repair each of their suites than it will cost to repair each of the other 32 suites.  Based on that assertion, the plaintiffs allege that it would be significantly unfair to require each of them to pay $120,000 for repairs, but to require the other owners to pay only $60,000 for repairs.

[32]            Counsel for the defendants submit that it could never be “significantly unfair” for a strata council to require owners to pay for the cost of repairs to the suites comprising a strata plan, on the basis of the unit entitlement assigned to each strata lot.  Counsel argued that a unit entitlement of two was assigned to each of the nine strata lots owned by the plaintiffs in accordance with the provisions of the legislation (i.e., by the developer).  Next, counsel referred me to s.99 of the Act, which in substance requires a strata corporation to assess owners for the cost of repairs, in accordance with the unit entitlement assigned to each of their strata lots.  From this foundation, Ms. Wilson contends that, in this case, the strata corporation had no discretion in the matter, and only did what the law required it to do.  It was further pointed out that the plaintiffs have made no allegation of bias, conspiracy to injure or abuse of the democratic process.  I was referred to several authorities which were said to support the conclusion that the court should never interfere with the lawful democratic processes of a strata corporation.  Ms. Wilson made the point that the Strata Corporation could only change unit entitlement by a unanimous vote under s.100, or s.108(2)(b) of the Act, which had not been (and could not be) done. 

[33]            The main cases relied on by the defendants were Coupal v. Strata Plan LMS2503 2004 BCCA 552 and Strata Plan LMS1537 v. Alvarez 2003 BCSC 1085.

[34]            In the Coupal case, the main issue was whether the provisions of the Condominium Act or those of the Strata Property Act applied to a strata corporation’s allocation of the costs for “leaky condo” repairs.  If the former statute applied, the respondent owners would not be required to pay any of the

 

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Ladysmith, Twinfalls: Leaky condo owners stuck with bills from lawyers ignorant of Strata Council's ability to contract

Citation:

Giroday v. SP VIS 3242

Date:

20030117

 

2003 BCSC 66

Docket:

S30241

Registry:  Nanaimo

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

PATRICK J. GIRODAY

SOLICITOR

AND:

STRATA PLAN VIS 3242

CLIENT

 

 

REASONS FOR DECISION

 

OF

 

MASTER J.W. HORN

AS REGISTRAR

 

 

Patrick J. Giroday Appeared In Person and for Mr. Torrie

 

 

Counsel for Strata Plan VIS 3242:

J.R. Jordan

Date and Place of Hearing:

July 17, 2002, Final Submissions Received November 29, 2002

 

Nanaimo, BC

 

[1]            Two bills were rendered by Patrick J. Giroday Law Corporation dated February 16, 2000, and June 7, 2000, and two bills were rendered by D. Douglas Torrie Law Corporation dated February 14, 2000, and April 27, 2000.  The bills were rendered to Strata Corporation VIS 3242.  The solicitors, Mr. Giroday and Mr. Torrie, are associated in practice and they were retained, if they were retained at all, in respect of one matter only.  Their services were terminated before they had completed the work upon which they were engaged and $1,578.78 of Mr. Giroday’s bill has been paid.  Mr. Giroday’s bills amount to $4,032.50.  Mr. Torrie’s bills amount to $1,247.43. 

[2]            During the hearing, Mr. Torrie acknowledged that $22 ought to be deducted as a disbursement improperly charged.

[3]            The chief issue before me was whether the lawyers were lawfully retained by the Strata Corporation.  If they were not so retained, then the Strata Corporation owes them nothing.  Some argument was addressed to me upon the basis that they had done work for the Corporation which was of value to it and were entitled to be remunerated on a quantum meruit basis.  That may or may not be a good claim in law but it is not a matter which I as a taxing officer have any authority to deal with upon a review under the Legal Profession Act.

[4]            The retainer issue arises out of s.49 of the Condominium Act which reads as follows:

Maximum expenditure by strata council

 

49    Unless otherwise provided by a bylaw added to Part 5, a strata council must not, except in emergencies, authorize, without authorization by a special resolution of the strata corporation, an expenditure of more than $500 which was not set out in the annual budget of the corporation and approved by the owners at a general meeting.

 

[5]            Mr. Sutherland and Mr. Baker were owners of two strata units in Twinfalls Condominium in Ladysmith.  There were twenty-three units, not all of which had been sold.  The owner/developer, a Mr. Lang, through the agency of a company, still owned five of the units.

[6]            By December, 1999, a Strata Council had been formed and Mr. Sutherland and Mr. Baker were respectively Chairperson and Secretary of the Strata Council. 

[7]            By December, 1999, concerns had arisen among the strata owners as to the integrity of the building envelope.  In other words, they feared that they had bought into a “leaky condo.”  They had received, informally and without cost, some opinions from building contractors as to steps that they should take to assure themselves of the integrity of the building envelope and they had been advised to obtain a building envelope assessment from some qualified person.  They had approached a governmental body called the Homeowner Protection Office and had been provided with a condominium-owner’s manual relating to managing major repairs.  They had been advised that if they obtained such assessment they might be in a position to obtain financial assistance from the Homeowner Protection Office.  They were also of the understanding that upon presentation of an assessment showing defects, the municipal assessed value of each of the condominiums might be reduced, resulting in lower taxes to the owners.

[8]            They had other concerns.  They were not able to ascertain whether Mr. Lang had, prior to the formation of the Strata Council, collected or paid Strata fees and if so, whether these fees had been expended upon things which were the responsibility of Mr. Lang rather than of the Strata Plan Corporation and they wanted an accounting.

[9]            On December 2, 1999, Mr. Giroday, who specializes in civil litigation, and Mr. Torrie, who is a solicitor with a practice including real property, met with Mr. Sutherland and Mr. Baker who represented the Strata council.  They were engaged by them to act in respect of all the matters with which the Strata owners were concerned. 

[10]        No written retainer was obtained, but they were informed of the hourly rate at which the two lawyers would be charging their fees.

[11]        Since what was said by Messers. Sutherland and Baker in respect of the services that they were seeking has assumed some importance, in that it is argued that the lawyers were also asked to advise them in regard to the internal management of the Strata Corporation and the Strata Council’s affairs, I shall set out what my notes of evidence say in that regard, with my interpretations in brackets.

[12]        My notes of what Mr. Giroday said in evidence in chief are:

I was asked if there was any problem entering into a contract (i.e. a contract with the consulting engineer).  I advised on form of contract.  I did not advise Sutherland or Baker that they would need a special resolution to contract – wasn’t asked about internal affairs nor to give advice.

 

[13]        My notes as to the relevant questions and answers in cross examination are as follows:

Question:   “Did you ask if they had authority?”

Answer:     “I assumed that they did.”

Question:   “Aware that no expenditure without approval?”

Answer:     “Engaged to give advice.”

Question:   “Could not spend money outside budget?”

Answer:     “They did not ask me anything except the form of the contract.  Aware that quote was $3,900.  Was not aware that such expenditure requires special resolution – not necessarily required – emergency – no special resolution and can use contingency fund.  In hind sight, I wish I had asked.”

Question:   “Emergency measures or in budget?  Did anyone say it was urgent?”

Answer:     “BC Assessment Authority to meet in February or March also Levelton report showed serious problems.” 

Answer:     “My retainer was to help them assess the problems with view to litigation.” 

Answer:     “I understood they had attended a seminar and had a manual.”

Answer:     “I gave no advice as to their duties.”

Answer:     “My firm prepared a borrowing resolution.”

Question:   “No representation?

Answer:     “Yes, they gave us to believe that they had authority.”

Question:   “See s. 49.  If you had read section would you have got a special resolution?”

Answer:     “I don’t know.  They did not ask.”

Question:   “When did you become aware that a borrowing resolution might be required?”

Answer:     “I don’t know.  I don’t know if it was required.  They presented a draft resolution.  They received information from HPO see March 15, 2000, (this was a letter marked Exhibit 7 which advises that the wording of the borrowing resolution should be completed by Mr. Giroday’s office to ensure against any future problems).

            I never advised them to comply with the Condominium Act.”

Question:   “Were you aware that they had to have a special resolution to commence litigation?  Any concern they could not get the votes?”

Answer:     “My involvement was arranging envelope assessment.”

[14]        My notes as to Mr. Torrie’s evidence in chief are as follows:

I did not ask for authority or special resolution to spend more than $500.  I was aware that a resolution was required to spend money out of budget.  Their authority was based on the “indoor management rule” – I did not concern myself with their bylaws.  I proposed a borrowing resolution to vote for “expenses incurred in work done and to be done.”  I knew that they needed resolution to borrow.  I did not concern myself with their budget or bylaws.

 

[15]        My notes of Mr. Baker’s evidence in cross examination are:

I had a copy of the Home Protection Office brochure.  It was distributed to members in November, 1999.  I knew how to approach management of leaky condos – there are references (in the brochure).  I did not know that a special resolution was required to spend money over $500.

 

Question:   Did you go to him (Mr. Giroday) for legal advice.

 

Answer:     He did not ask if we had authority or to obtain a special resolution – as soon as we knew we got a borrowing resolution – we wanted to find out how a developer could be held responsible for deficiencies and failures.

 

[16]        The evidence which I recorded and set out above leads me to the conclusion that

1.    Neither Mr. Giroday nor Mr. Torrie was approached to give advice about the internal management of the strata corporation or the strata council.  They were approached to undertake litigation, if so advised, in respect of the cost of repairs to the condominium and to undertake litigation, if so advised, to obtain an accounting of strata fees owed by the developer. 

2.    Mr. Jordan in his supplementary submissions of September 30, 2002, says in Paragraph 64:  “The council member who gave evidence, unchallenged, was clear that he and the other member were at the lawyers for legal advice on how to proceed and be in compliance with the Act.  Mr. Baker specifically asked for that assurance.  Mr. Giroday said he gave it.”  My notes, though admittedly sketchy, do not indicate that such assurance was requested or given.

[17]        I have only been directed to one authority dealing with the effect of s.49 of the Act upon parties contracting with a Strata Corporation.  It is Can-Pac v. Carriage Management (1990) 49 BCLR (2d) 139 (BCCoCt).  In that case the plaintiff company was engaged in the sale and servicing of a heat-saving device.  The defendant, Carriage Management, was the building manager operating under written contract for the strata owners of an apartment block.  The plaintiff proposed to install an energy management system on a 90-day trial and that proposal was accepted by the property manager who forwarded the proposal to a member of the strata council recommending that it be authorized.  It was unclear whether any such authorisation was given by the council. 

[18]        The court held that the defendant management corporation had actual authority to manage the common property and to perform all acts usually performed by property managers.  To this extent the agreement was binding and created contractual rights between the plaintiff and the strata corporation. 

[19]        As to s.49, the court accepted that there was no authorization by special resolution for an expenditure over $500 and but came to the conclusion that s.49 did not make a contract for such expenditure void and that it was only voidable.  The court observed that this seems to follow from the fact that s.49 itself does not attach any consequence to the failure to obtain such a special resolution. 

[20]        Accordingly, the contract in this case is a valid contract until such time as one of the parties brings it to an end.  It is not entirely clear when that event occurred.

[21]        It is said, however, that knowledge of the fact that a contract for legal service in excess of $500, must be authorized by special resolution and had not been so authorised, must be attributed to the solicitors. 

[22]        It seems to me that what would have to be attributed is the knowledge: 

(a)   That the strata corporation had no bylaw added to Part 5 which exempted the strata council from the provisions of s.49

(b)   That there was no special resolution of the strata corporation authorising the expenditure.

(c)   That the expenditure was not provided for in the annual budget of the corporation approved by the owners at a general meeting. 

[23]        It is not easy to see how the solicitors can be deemed to have knowledge of all these matters.  Perhaps they should have enquired.  But I find that they did not enquire and did not know of any restriction on the Strata Council’s ability to contract with them.

[24]        Ignorance of the law is not an excuse, of course, but I am not aware of any principle laying down that a solicitor is deemed to know all of the law or is to be held to any higher standard of inquisitiveness than a lay person about the authority of a person to contract with him.

[25]        I do not believe that s.49 was intended to prevent tradesmen such as plumbers or electricians, who have done work for a strata council in excess of $500, from being paid, simply because no special resolution has been passed to authorize an expenditure over $500.  The section, it seems to me, is aimed at the internal management of the strata corporation and not at external relations with persons such as plumbers, electricians or solicitors.  One of the consequences, for example, of a breach of s.49 by a strata council is that a strata owner may not be liable to a levy to cover the cost.  (See Re Blunt and Strata Corporation VR 45 (1977) 2BCLR 248(BCSC))

[26]        What happened after the solicitors were engaged is not in question nor is it submitted that they over charged for the work done.  Between the two of them they had several conferences with Messers Sutherland and Baker.  They engaged a suitable person to make a building report.  They delivered the report to the strata council.  They engaged an accountant to prepare an opinion as to whether the strata fees had been collected and, if not, what amount should have been collected.  They drew a resolution to approve borrowing in order to pay for past and future expenditures in and about the assessment of and repairs to the building. 

[27]        On April 15, 2000, there was an annual general meeting of the strata owners and the borrowing resolution was on the agenda, but at the meeting it was decided to adjourn that resolution until the engineering report had been received.  Neither Mr. Sutherland nor Mr. Baker were re-elected to the council.  A further meeting was then held on May 24, 2000, at which the report was considered.

[28]        Mr. Giroday was present at the latter meeting.  The borrowing resolution was not passed by the necessary majority.  The voting was 13 in favour and 10 against and five of the contra votes were cast by the developer, Mr. Lang. 

[29]        After the meeting the issue was raised by some of the strata members whether Mr. Lang was entitled to vote in respect of the units that he still owned in view of the fact that, as developer, he had a conflict of interest.  Subsequently, Mr. Giroday prepared and gave an opinion on that matter.  Though Mr. Giroday was not involved in the subsequent litigation, that issue eventually went to court.  It was held that the votes at the two meetings were valid.

[30]        While it is not easy, on the evidence, to fix the time at which it can be said that the Strata Council terminated the relationship with the solicitors it was, in my opinion, at the meeting of May 24, at which the borrowing resolution was defeated.  Any work done after that was, in my view, unauthorized by the new Strata Council elected on April 15th.

[31]        Dealing with Mr. Giroday’s bill, the entries for May 25, 26, and 30, 2000, are, for this reason, disallowed.  Dealing with Mr. Torrie’s bill, the bill is allowed in full. 

[32]        If counsel, on the basis of this decision, will provide me with a certificate with agreed calculations, then I will sign it.

[33]        I have not taxed off more than one-sixth of either of the bills and unless there is an offer to settle, the solicitors will have their costs on a party and party basis but for one common bill.  Failing agreement, a party and party bill of costs may be presented to me for assessment.

“Master J.W. Horn as Registrar”