Vancouver, Earles Station, 4590 Earles St.: Court refuses to award special costs to petitioner in condo war that saw 11 members of the strata corporation spend more than $130,000 fighting owners of one condo

Citation:

Jensen et al v. Strata Plan VR2733 et al

Date:

20010530

 

 

2001 BCSC 751

Docket:

L001355

 

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

LEE ALEXANDER JENSEN AND DEBRA JENSEN

PETITIONERS

AND:

THE OWNERS, STRATA PLAN VR2733 AND SHARON KELLY

RESPONDENTS

 

 

REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE R. D. WILSON

 

 

Counsel for the Petitioners:

B.W.F. McLoughlin, Q.C.

Counsel for the Respondent
The Owners, Strata Plan VR2733:

A. Wade

 

Date and Place of Hearing/Trial:

1 May 2001

 

 

Vancouver, BC

 

I.

[1]            The petitioners seek an order that the costs of this proceeding be assessed as special costs,[1] or, alternatively, as increased costs.[2]

[2]            This proceeding is one authorized by the Judicial Review Procedure Act.  In the spring of 2000, the petitioners petitioned the court for an order setting aside the award of a single arbitrator.  The arbitrator had been appointed pursuant to s. 44(4) of the Condominium Act.  The arbitration proceedings commenced in June 1998.  The arbitrator's award was made 21 April 2000.  In reasons for judgment filed 16 October 2000, I made an order setting aside that award.  That order was based upon a finding that the conduct of the arbitrator would induce a perception of bias.  The formal order arising from the reasons for judgment has not been perfected by entry.

[3]            The petitioners claim that the conduct of the respondent Strata Council was of such a character that, applying the governing legal principles, an award of special costs, or alternatively increased costs, must follow.  The conduct complained of is said to have preceded the initiation of the arbitration proceedings and carried through to the present day.

II.

[4]            The conduct complained of by the petitioners, includes the following.

[5]            Prior to the commencement of the arbitration proceedings, the directors of the Strata Council caused to be filed, in the Land Title Office, a special resolution.  The wording of that filing differed from the words of the resolution passed at the meeting of the corporation.

[6]            A meeting of the Council in March 1998 was audio-recorded.  The directors of the Strata Council initially refused to provide a copy of the audiotape to the petitioners.  Subsequently, the petitioners were advised that the tape had been destroyed.

[7]            During the course of the arbitration proceedings, the petitioners' then counsel terminated her retainer.  For some period of time, the petitioners were not represented.  The petitioners say that the respondents endeavoured to take advantage of that absence of representation by refusing the petitioners an adjournment, inducing the arbitrator to adjourn the proceedings pending the petitioners' appointment of counsel and making an application to this court for an order terminating the arbitration proceedings.  As well, the petitioners complain of the direct communications between the arbitrator and counsel for the respondents, and the respondents' refusals to consider settlement offers.  For example, pending the hearing of the application to terminate the arbitration proceedings, counsel for the petitioners wrote to then counsel for the respondents, in part, as follows:

As to expense, I am informed by my client she has told the Strata Corporation she is willing to settle this matter for an amount approximately equal to the fees you will be paid if this matter continues to hearing.  Your clients' absence of response suggests that they are not concerned with expense but are carrying on a grudge battle.

 

[8]            Mr. McLoughlin says that the petitioners, at that point, (September 1999), were prepared to settle the matter for a consideration of between $15,000.00 and $20,000.00.  In result, however, legal expenses for the corporation thus far are some $130,000.00.

[9]            The result of the arbitration award was a monetary assessment against the petitioners.  The monetary award was promptly made an encumbrance against the title to the petitioners' strata lot.  Execution proceedings were threatened.  The petitioners sought a conciliatory resolution of that threat, pending the hearing of the judicial review proceedings.  The respondent refused to be conciliatory.  That necessitated an application by the petitioners for an order staying execution on the award.

[10]        Finally, the petitioners say that the respondent continues to refuse to discuss this matter in good faith.

III.

[11]        The first question raised by counsel is the admissibility of the evidence of events preceding the filing of the petition in the judicial review proceeding.  The respondent says that evidence is not admissible.  It relies upon this statement in Laye v. College of Psychologists (British Columbia)[3]:

I agree that what happened before the notice of appeal was filed is relevant only peripherally to the question of the costs of appeal.  As a general rule, special costs are awarded only for misconduct in the proceeding in which the costs order is made.

 

[12]        The petitioners contend that evidence is admissible.  They rely upon this statement of principle in Stiles v. B.C. (W.C.B.)[4]:

The principle which guides the decision to award solicitor and client costs ... is that solicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement.

 

[Mr. McLoughlin's emphasis]

 

[13]        In my opinion, the evidence led by Mr. McLoughlin of events prior to the initiation of the judicial review proceedings, is admissible.

[14]        I do not view the extract relied upon by Mr. Wade as a statement of principle of admissibility by the Court of Appeal.  That statement appears to have been made in relation to that particular case before the Court of Appeal.

[15]        In Laye, a psychologist successfully appealed, to this court, a finding by the College of Psychologists of improper conduct.  The psychologist was awarded special costs of the appeal.  The college appealed that order.

[16]        The Chambers judge had awarded special costs for the following reasons:

1.    There was a relentless pursuit by the college of the psychologist, at the end of which the psychologist was vindicated;

2.    The college made a last minute concession, on the appeal, on the count upon which the psychologist had been convicted;

3.    There was an allegation of sexual impropriety which was dismissed after six days of hearings before the college; and

4.    The psychologist made an offer which was not accepted by the college.  Had that offer been accepted, the position of the college would have been better than was the case following the hearing.

In result, the Chambers judge found that the conduct of the college was "reprehensible" and deserving of reproof or rebuke.  Hence, the award of special costs.

[17]        The Court of Appeal set that order aside.  In doing so, the Court of Appeal reviewed extensively the developments throughout the entire episode.  The factors giving content to the notion of "reprehensible" were not confined to events on the appeal.

[18]        The Court of Appeal was not persuaded that the conduct of the college was sufficient to attract an order for special costs.  However, the Court of Appeal was satisfied that the conduct of the college was sufficient to justify an award of increased costs.

[19]        In Fullerton v. Matsqui,[5] the Court of Appeal made an order for special costs at the trial and on the appeal.

[20]        The Fullerton action was a claim for damages for assault.  A jury dismissed the plaintiffs' claim.  On appeal, the plaintiffs applied for leave to introduce fresh evidence.  That fresh evidence involved the circumstances of the testimony of a representative of the defendants.  The Court of Appeal found that there was a lack of complete candour on the part of one of the defendants' witnesses.  The Court of Appeal found that this lack of candour was calculated to mislead the trial judge and jury.

[21]        Manifestly, the Court of Appeal did take into consideration the evidence of what happened before the notice of appeal was filed.

[22]        I conclude that the principle relied upon by the petitioners, from Stiles, above, is the governing law.  That is to say, special costs may be awarded, if there is some form of reprehensible conduct, either:

1.    in the circumstances giving rise to the cause of action, or

2.    in the proceedings in which the costs order is made.

[23]        The second question raised by counsel is, was the conduct of the respondent Strata Council "reprehensible"?

[24]        "Reprehensible" conduct is conduct which is "scandalous" or "outrageous" or constitutes "misbehaviour".  It also includes milder forms of misconduct.  "It means simply 'deserving of reproof or rebuke'".[6]

IV.

[25]        Mr. McLoughlin contends the governing factors on the question o

[26]        Stiles v. B.C. (W.C.B.), supra, in the Court of Appeal, was an appeal from the decision of a Chambers judge awarding Mr. Stiles solicitor/client costs, payable forthwith.  Mr. Stiles was a firefighter.  A review board of the Workers' Compensation Board held that Mr. Stiles was entitled to benefits under the Workers' Compensation Act.  The employer appealed.  The board refused to implement the decision of the review board pending the employer's appeal.  Mr. Stiles commenced proceedings under the Judicial Review Procedure Act to compel payment of the benefits to which he had been declared entitled.  The Chambers judge granted an order restraining the hearing of the employer's appeal pending the hearing of Mr. Stiles' petition under the Judicial Review Procedure Act.  It was on the grant of that order that the Chambers judge made the decision on costs under appeal.

[27]        The Court of Appeal reversed the decision on costs.  In so doing, the Court of Appeal made the following statement of principle:

The principle which guides the decision to award solicitor-and-client costs in a contested matter ... is that solicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement.  The words "scandalous" and "outrageous" have also been used.  ...

 

[28]        Fullerton v. Matsqui, supra, was an assessment of costs by the Court of Appeal in the first instance.  In Fullerton, the test set out by the Court of Appeal in Stiles was applied.  As well, reference was made to Nygard International Ltd. v. Robinson (1990), 46 B.C.L.R. (2d) 103 (C.A.) for the following proposition:

"Our general rule is that costs on a solicitor-and-client scale are given only with respect to or in situations of misbehaviour in the conduct of the litigation."[7]

 

[29]        In Leung v. Leung, supra, Mr. Leung obtained an interim injunction without providing notice of his application therefor to the defendants.  The defendants made application, successfully, to have that interim injunction set aside.  The court set aside the interim injunction, and in doing so, made an order for special costs against Mr. Leung.  That decision as well involved an application of the principle, cited above, from Stiles.  The court went on to say, however:

There is nothing in the conduct of Mr. Leung in relation to this matter which I would call "scandalous" or "outrageous".  But "reprehensible" is a word of wide meaning.  It can include conduct which is scandalous, outrageous or constitutes misbehaviour; but it also includes milder forms of misconduct.  It means simply "deserving of reproof or rebuke".

 

[30]        The court went on to say:

... Anyone considering whether to proceed ex parte should reflect that they do so at the risk, if they cannot later satisfy the court that the failure to give notice was justifiable, of special costs being awarded.  ...

 

[31]        Garcia v. Crestbrook Forest Industries[8] was another instance in which the Court of Appeal set the costs in the first instance.

[32]        Mr. Garcia had succeeded at the trial level in an action for damages for breach of an employment contract by his employer, the defendant Crestbrook Forest Industries.  The employer appealed.

[33]        Among other things, Garcia is authority for the proposition that "special costs are the costs that used to be called solicitor-and-client costs".[9]  It is also another instance of the application of the principles set out in Stiles and the principle in Leung.

[34]        An award of special costs was made for the following reasons:

1.    The appeal had no reasonable prospect of success.

 

2.    The litigation was a financial drain on the respondent's resources and the respondent brought those circumstances carefully to the attention of the president of the appellant company.

 

3.    The appellant company had failed to pay promptly the termination payment required by the Employment Standards Act and had failed to provide the respondent promptly with his record of employment as was required by him to obtain unemployment insurance.

 

4.    After making an offer to settle equivalent to nine months' wages, three months before trial, the appellant failed to pay any amount in excess of the payment required by the Employment Standards Act until after the judgment at trial when it paid the respondent the equivalent of eight months' wages although it knew, or should have known, about his difficult financial circumstances.[10]

 

[35]        Edgar v. Freedman[11] was a personal injury action.  The trial judge awarded the successful plaintiff increased costs because of the defendant's conduct in prolonging the trial by arguing that the plaintiff's injuries were caused by a subsequent accident.  The defendant appealed.  The appeal was dismissed.  The Court of Appeal was content that no error had been committed by the trial judge in awarding increased costs by reason of the conduct of the defendant.  The Court of Appeal approved the statement of principle in National Hockey League v. Pepsi-Cola Canada Ltd. (infra):

The discretion to award increased costs may be exercised where the court determines that "for any reason" an award of ordinary costs would lead to an unjust result.

 

[emphasis in the original]

 

[36]        The issue in Moore v. Castlegar & District Hospital[12] was the authority of the Supreme Court of British Columbia to order costs between defendants.  The trial judge held that there was no authority so to do, the Court of Appeal reversed.  In so doing, the Court of Appeal confirmed that the matter of costs in the Supreme Court of British Columbia was a matter of discretion (to be judicially exercised).

[37]        The next series of authorities urged upon me by Mr. McLoughlin dealt with the consequences of a party's failure to accept an offer to settle.

f the scale of costs are found in the following authorities.

 

 (More)

Vancouver, Earles Station, 4590 Earles St.: Court finds reasonable perception of bias by arbitrator based on undisclosed relationships with Clark Wilson and Patrick Williams

Citation: Jensen v. The Owners, Strata Plan VR 2733 and Kelly

Date:

20001016

  2000 BCSC 1489

Docket:

L001355

Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

LEE ALEXANDER JENSEN AND DEBRA JENSEN

PETITIONERS

AND:

THE OWNERS, STRATA PLAN VR 2733 AND SHARON KELLY

RESPONDENTS


REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE R. D. WILSON

 

Counsel for the Petitioners:

B.W.F. McLoughlin, Q.C.

Counsel for the Respondent
The Owners, Strata Plan VR 2733:

Counsel for the Respondent
Sharon Kelly:


P. A. Williams


J. A. Bleay

Dates and Place of Hearing/Trial:

27 - 29 September 2000

 

Vancouver, BC

I.

[1] This proceeding is taken pursuant to the Judicial Review Procedure Act. The petitioners seek an order setting aside the award of a single arbitrator.

[2] The relief is sought on the grounds of apprehension of bias, and errors of law on the face of the record. I have concluded that the award must be set aside on the first ground. Accordingly, I need not, and do not, address the questions raised by the second ground.

II.

[3] I find the following to be the material facts on this disposition.

[4] In or about 1990, what had been a British Columbia Hydro substation was converted into a condominium complex, containing 12 residential strata lots. On 24 July 1994, Mr. Jensen acquired title to Strata Lot No. 2 in that complex.

[5] By 1996 and 1997, differences between members of the Strata Corporation had surfaced. By letter dated 3 June 1998, the Strata Council alerted Mr. Jensen to three options available to him to resolve complaints he was making. Mr. Jensen elected to proceed to arbitration as prescribed in s. 44 of the Condominium Act, the then current legislation. By letter dated 4 June 1998, Mr. Jensen informed the Strata Council of his decision. As well, he nominated Ms. Sharon Kelly as a single arbitrator. Mr. Jensen had been informed of Ms. Kelly's identity by a building consultant. By letter dated 18 June 1998, the Strata Council agreed upon Ms. Kelly as a single arbitrator.

[6] Following the appointment of Ms. Kelly, it came to the attention of the Jensens that the Strata Council had retained the services of Mr. Williams, as their counsel for the arbitration. The petitioners objected to Mr. Williams' participation on the ground of conflict of interest. It was said by the petitioners that contact had been made, with Mr. Williams, by Ms. Jensen, prior to his retention by the Strata Council. Ms. Kelly was asked to resolve that preliminary issue. Written submissions were made to Ms. Kelly on the question of Mr. Williams' conflict of interest. All of the material appears to have been received by Ms. Kelly by 31 August 1998. On 30 September 1998, Ms. Kelly issued what is entitled a "Interim Arbitration Award". In that award, she dismissed the petitioners' objection, on the ground that there was not sufficient evidence to prove a conflict of interest.

[7] What Ms. Kelly did not disclose to the Jensens, or to Mr. Williams, is that she, Ms. Kelly, had retained Mr. Williams' firm in March 1997 to act for her in a real estate transaction. Nor did she disclose that in July and August 1998, a solicitor in Mr. Williams' firm "assisted Ms. Kelly ... with a contract for the construction of a residence".

[8] Nor did she disclose to the petitioners that she was scheduled to participate in a course or event, with Mr. Williams, on 22 October 1998.

[9] At the time Ms. Kelly issued her interim award, she knew, or must have known, that she was scheduled to participate in that event. Exhibit D to the affidavit of Ms. Jensen, sworn 6 September 2000, is a photocopy of an information page containing notification of the event. The page bears the date "August 98". The notice is under the head "ADR Professional Development - Courses and Events". One of the courses or events is described as "Arbitrating Condominium Disputes". The event is scheduled for 22 October 1998 at Robson Square Conference Centre from 9:00 a.m. to 4:30 p.m. The text of the notification reads as follows:

Pat Williams, C.Arb. and Sharon Kelly will conduct the course. Pat has been involved in many condominium arbitrations as an Arbitrator and legal Counsel. Sharon has acted as an Arbitrator in condominium disputes. Pat and Sharon have different views on some matters and similar views on other matters when conducting arbitrations.

Participants will learn how an arbitration regarding a condominium in (sic) invoked, how the arbitration panel is constituted, the procedure to be followed, and the application of law to arbitration decisions.

Included in the procedure discussion will be tips on views and the experience of arbitrators dealing with the very emotional issues that appear so common when resolving condominium disputes. The costs to the parties will be addressed.

Participants will observe a complete mock arbitration which will address the problems that typically arise in condominium arbitrations.

BCAMI members who complete the course should be better able to make themselves available to individual condominium owners and Strata corporations to assist in the resolution of disputes short of having to go to Court.

[10] At the time Ms. Kelly accepted the appointment as the single arbitrator in the matter, she was an associate member of the British Columbia Arbitration and Mediation Institute. I am unable to reconcile Ms. Kelly's failure to disclose the foregoing information, to the petitioners, with s. 7 of her Institute's Code of Ethics, which counsels members that they "... shall disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality or bias."

[11] The course or event was held as scheduled. Mr. Williams and Ms. Kelly participated as advertised.

[12] Ms. Kelly's failure to disclose this information to the petitioners denied them the opportunity to address the issue very early on in the arbitration proceedings.

[13] A further opportunity to disclose that information arose in April 1999. Following a conference to deal with procedural matters in the arbitration, Ms. Kelly wrote a letter to the parties. Among other things, she said:

Lee Jensen also raised concerns respecting my treatment of Debra Jensen in the conference call today and questioned my neutrality on several matters. I am asking whether the complainant wishes to formally challenge my authority on the basis of an apprehension of bias, perceived unequal treatment of the parties or some other named reason. If so, I would request that a written letter be provided before the commencement of the hearing.

[14] By the time of that letter, Mr. Williams' firm had provided further legal services to Ms. Kelly. In February 1999, a solicitor of the firm had acted for Ms. Kelly on the sale of real property. In March and April 1999, a solicitor in the firm reviewed a contract on behalf of Ms. Kelly and drafted a demand for payment.

[15] Although Ms. Kelly was alert to the notion of "apprehension of bias", she did not disclose her previous involvement with Mr. Williams' firm, and Mr. Williams, nor her continuing involvement with that firm. Again, the petitioners were denied the opportunity to address this problem in a timely fashion prior to the commencement of the arbitration hearing.

[16] A further opportunity to address this issue was presented in June 1999. By letter dated 2 June 1999, Ms. Kelly wrote to the parties and said, among other things:

In reference to Debra Jensen's letter that was faxed to my office today, I am not aware of any "arbitration act". There is a Commercial Arbitration Act, however that Act does not apply to condominium arbitrations. In respect to Debra Jensen's question regarding B.C.A.M.I., I am not aware of who governs the practices of associations. As to who governs myself, if this question relates to any challenge in repect (sic) to my arbitrating this dispute, I refer Debra Jensen to my letter dated April 21st that outlines a procedure.

[17] The arbitrator's award was released 14 April 2000. The petitioners were unsuccessful in establishing their complaints.

[18] The petitioners did not learn of Ms. Kelly's solicitor client relationship with Mr. Williams' firm nor of her participation in the event with Mr. Williams, until after the award had been released.

III.

[19] Infinite and varied are the examples of human conduct attracting inquiries into the issue of "apprehension of bias". Not so the governing principles for the determination of the issue. They are finite and well-defined. All proceeding from the first premise that it "... is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".

[20] "Seen" contemplates observation. "... by a fair minded person"; "by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information ... [the] test is 'what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly' ..."; [the observer is not she of the] "very sensitive or scrupulous conscience".

[21] I find that Ms. Kelly's solicitor client relationship with Mr. Williams' firm, and her participation in the event of 22 October 1998 with Mr. Williams, neither of which were disclosed to the petitioners, would induce a perception of bias on the part of Ms. Kelly by such an observer as described above.

[22] Accordingly, Ms. Kelly's award dated 21 April 2000 is set aside. Costs will follow the event.

"R.D. Wilson, J."
The Honourable Mr. Justice R.D. Wilson

Vancouver, Earles Station, 4590 Earles St.: Condo owners battle strata corporation; arbitration bogged down; court provides direction

Date: 19991231

 

Docket:

A991893

Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

 

BETWEEN:

THE OWNERS, STRATA PLAN VR2733

Petitioner

AND:

LEE ALEXANDER JENSEN
and DEBRA JENSEN

respondents

 

 

REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE LYNN SMITH

 

 

Counsel for the Petitioner:

Patrick A. Williams

Counsel for the Respondents:

Brian W.F. McLoughlin, Q.C.

Place and Date of Hearing:

Vancouver, British Columbia

November 4, 1999

 

INTRODUCTION

[1] Lee Jensen has been the owner of a strata title property at 4590 Earles Street, Vancouver since 1994. The building is a former B.C. Hydro substation which was converted into a twelve unit, three floor condominium in about 1990.

[2] By May, 1997, Lee Jensen and his wife Debra Jensen were expressing numerous concerns about the way things were done in the building. These concerns led to formal complaints, and to requests for access to the Strata Corporation's files. The level of concern escalated to the point that, on May 11, 1998, Debra Jensen wrote to the Strata Council indicating that she and her husband were seriously considering legal action. The Strata Council replied on June 3, 1998 with a letter that reviewed a number of matters and concluded:

Should you not agree with any of the foregoing, we suggest you pursue any of the following remedies available to you. These are (1) gaining the support of the majority of strata lot owners; (2) arbitration; and (3) court. Outside of these remedies the strata will not take any further action on these issues.

[3] Mr. Jensen replied on June 4, 1998 advising that he would pursue arbitration pursuant to s. 44 of the Condominium Act, R.S.B.C. 1996, c. 64. He proposed Sharon Kelly as sole arbitrator and the Strata Council agreed. Sharon Kelly accepted the appointment.

[4] Since June, 1998, when the arbitration process began, there have been three and one-half days of hearing during which seven witnesses have been called and hundreds of documents have been entered in relation to 23 issues set out by the respondents. The arbitration is far from complete.

[5] Under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 240, the petitioners seek an order that the arbitration be dismissed due to the delay in bringing it to a conclusion. In the alternative, the petitioners seek an order giving directions to the arbitrator with the purpose of bringing the matter to a conclusion. Notice of the Petition was provided to the arbitrator.

ISSUES

[6] The issues I must determine are:

1. Do I have jurisdiction to make either of the orders sought?
2. To what extent have the respondents been responsible for the delay in proceeding with the arbitration?
3. Has the delay in proceeding with the arbitration been such that there has been non-compliance with s. 45(1) of the Condominium Act?
4. If so, should the arbitration be dismissed or should directions be given to expedite the arbitration?

REVIEW OF THE EVIDENCE

[7] I note at the outset that I have disregarded paragraphs 16, 24, 28, 34, 56, 62 and 89 of the affidavit of Lance Nose which, as counsel for the respondents pointed out, are based on information and belief and inadmissible in these proceedings due to Rule 51(10) (a).

[8] Although the disputes between the Jensens and the Strata Council have become wide ranging and comprehensive, some of the core issues relate to the Jensens' disagreement with the allocation of certain roof deck space to individual tenants, with the manner in which the building is maintained and operated, and with the Strata Corporation's manner of dealing with deficiencies in the original construction of the building. This latter point particularly is related to their concern that the Strata Council is dominated by persons who were part of, or are friends of, the original developer of the building and that costs the developer should have covered have been off-loaded to the strata lot owners.

[9] One of the arbitrator's first acts was to request a statement of facts and issues from each party. The original deadline for the Jensens was July 21, 1998. They received an extension of that deadline and produced their statement of facts and issues on about August 14, 1998. The comprehensiveness of the issues which they raised is evident in a review of their statement, which is reproduced here in its entirety in Appendix "A" to these Reasons.

[10] The Strata Corporation retained Patrick Williams of Clark, Wilson on August 18, 1998 to represent it in the arbitration. The respondents objected to this on the basis that Mr. Williams was in conflict of interest. They alleged that Debra Jensen had left a message on Mr. Williams's voice mail prior to his retainer by the Strata Corporation, and that Ms. Jensen's voice mail message had not only conveyed her interest in retaining Mr. Williams but also had related confidential information. The arbitrator took time to consider this objection and in an interim award dated September 30, 1998 found that Mr. Williams was not in conflict.

[11] The Strata Corporation's statement of facts and issues for the arbitration was submitted on October 5, 1998. After a conference call and as required by the arbitrator the Strata Corporation provided a table of contents of the Strata Corporation's documents.

[12] On November 25, 1998 the arbitrator wrote to the parties pointing out that changing spokespersons caused delays. This was in response to a communication from Lee Jensen that the respondents had chosen to appoint legal counsel because he could no longer represent himself and he was concerned that Debra Jensen could not be the spokesperson. (A lawyer, Rose Bender, who had represented the Jensens to a limited extent, had ceased to be involved.) The arbitrator advised that Debra Jensen could be the spokesperson if the Jensens decided they would not appoint legal counsel, and asked for dates for a further conference call. In her letter Ms. Kelly commented:

This arbitration commenced in June 1998, and usually by now a hearing has been held and an award rendered. I have a mandate to hold the arbitration in a timely manner.

[13] The petitioners began to express increasing concern about the delay, and this was conveyed to the arbitrator.

[14] In early January 1999 the petitioners were advised that Sandra Benson would be acting as the Jensens' lawyer. However, Ms. Benson did not represent the respondents on the next conference call on January 11, 1999. This conference call involved Mr. Williams, Debra Jensen and the arbitrator and was over 90 minutes in length. The arbitrator set a number of deadlines and requirements for the proceedings, including that the Jensens were to provide their list of documents by January 26, 1999 and that other information would be exchanged and dates for the hearing set.

[15] One particular issue that arose was the request by Lee and Debra Jensen to have access to all Strata Corporation files for review. They had had one hour with the files in February, 1998 but no access since then. (The respondents had been told they could have access to the files for two hours on July 16, 1998, a date on which it happened they were to be on vacation. For various reasons a new date was not arranged.) The request was taken under consideration by the petitioner's counsel, Mr. Williams.  On January 15, 1999, he wrote a letter to the arbitrator with a copy to Debra Jensen stating that the position of the Strata Corporation was that the Jensens could not be given the opportunity to review all documents in the possession of the Strata Corporation. He gave several reasons for this position:

1. The complainant has the onus of proof yet had not produced documents.
2. It would be unfair and a violation of natural justice to order the Strata Corporation to allow the Jensens complete discretion to review every document in its possession.
3. The document production should be conducted in a manner similar to court type proceedings, and if Debra Jensen is aware of a specific document that should be in the Strata Corporation's files because it is relevant to the arbitration and has not been disclosed, then she should identify that document.

[16] Mr. Williams expressed a concern that there could be enormous prejudice to the Strata Corporation if the Jensens were allowed to review every document. He provided two examples of Ms. Jensen following up with persons and organizations who happened to be named in or involved in the proceedings and bringing what he characterized to be personal attacks. One example was the architect who had designed the redevelopment. This point was summarized in the following:

... What is material is the very real concern the Strata Corporation has that the past conduct of Debra Jensen is consistent with an attempt to negatively influence all those who come in contact with the Strata Corporation. It is for that reason that it is submitted the document exchange must be a more formal one, more akin to Court proceedings and the Rules of Court of British Columbia and that only documents that are relevant to the arbitration or available to the Jensens under the Condominium Act should be produced.

[17] The arbitrator made a number of specific rulings regarding document requests that came forward as matters progressed. It appears that the Strata Corporation complied with all the arbitrator's rulings regarding production of documents relevant to the proceedings. Some 395 documents have been produced from both sides.

[18] It also appears that, with the exception of minutes of Strata Council meetings prior to the date when the Jensens moved into the building, the Jensens did receive all documents they were entitled to under s. 122 of the Condominium Act (although they object to the fact that they received only draft minutes of the 1999 annual general meeting). However, minutes of the period pre-1994 and the draft minutes for the 1999 annual general meeting were not provided until September 1999.

[19] The arbitrator continued to try to move the matter along but by April 1999, the hearing had not yet begun. In a letter of March 31, 1999 Ms. Kelly confirmed hearing dates of April 23rd and 24th, and required that all documents be exchanged between the parties no later than April 8, 1999.

[20] On April 5, 1999, Lee Jensen confirmed that he had assumed conduct of the matter.

[21] The Strata Corporation provided the balance of the documents it had been required to produce by April 6, 1999. Debra Jensen delivered some documents to the office of counsel for the Strata Corporation on April 7, 1999 and indicated more would be delivered as soon as they could do so. On April 14, 1999, Debra Jensen noted that the Jensens would be requesting more documents from the Strata Corporation and that they would be providing additional lists of their own documents. The arbitrator required that each party provide a list of witnesses that it intended to call and might call. The president of the Strata Council and another member worked past midnight on the evening of April 22, 1999 in order to respond to a requirement for production of documents in the arbitrator's April 21, 1999 letter flowing from further requests from the Jensens.

[22] The hearing was to begin on April 23, 1999. After two hours and fifteen minutes, during which only the procedural matter of numbering documents had been dealt with, there was a break. During the break, Debra Jensen told Mr. Williams that Lee Jensen had become ill and was unable to continue. Later, during the lunch break, Debra Jensen called the arbitrator and asked for an adjournment for the balance of that day and the next. The arbitrator granted the adjournment with no input from the Strata Corporation.

[23] On April 26, 1999 Debra Jensen provided further documents which were accepted by the arbitrator. The arbitration continued on May 3, 1999, over Ms. Jensen's objections, from 1:00 p.m. to 9:00 p.m. Further documents were numbered and three witnesses called. On May 25, 1999 four witnesses were called and further new documents produced.

[24] Lance Nose, the chair of the Strata Council, deposes that:

Throughout the hearing dates of May 3, 1999 and May 25, 1999 Sharon Kelly admonished Debra Jensen for asking irrelevant and improper questions of the witnesses, duplicating evidence and not complying with requests of Sharon Kelly. It became apparent to me that Debra Jensen was incapable of conducting the arbitration. She would cry when admonished, ask questions even after being told not to ask the questions and spoke out of turn despite being repeatedly told by Sharon Kelly not to do so.

[25] Mr. Nose states that he formed the opinion "that the arbitration would never stop, that Debra Jensen would continue to call witnesses who would provide irrelevant testimony, that costs would continue to escalate, correspondence and documents would continue to be delivered and produced, all in a planned objective to stall the proceeding."

[26] On the other hand, Ms. Jensen deposes that "Had I been permitted to see the Strata Corporation documents we requested in 1997, 1998 or even in early 1999, I would have been able to select the documents relevant to the issues and save a substantial amount of time, as well as narrowing the issues between the parties. The continuing and deliberate efforts of the Strata Council to prevent my examination has been the real cause of delay in this matter."

[27] There were some 64 names on Ms. Jensen's list of proposed witnesses. Her explanation is that she listed a number of witnesses also on the Strata Corporation's list because she was not sure they would be called and because she had been unable to obtain the documents that would prove the matters in question.

[28] As of June 1, 1999 the Strata Corporation had been billed $62,424.64 by its counsel.

[29] At the June 1, 1999 hearing, counsel for the Strata Corporation applied to the arbitrator for an order that the arbitration be adjourned until Debra Jensen was represented by legal counsel or other competent representation. Ms. Kelly made that order. She sent a letter on June 2, 1999 to the parties as follows:

Re: Arbitration
This letter serves to address some outstanding procedural matters respecting the arbitration hearing yesterday. To clarify my direction, I do not wish to receive any new exhibits. All exhibits were to be exchanged prior to the commencement of the arbitration. While some exceptions have been provided for, in particular the request by the Jensen's for additional documents, this exception was not intended to provide a flood gate for additional documents. It is noted that there are currently hundreds of documents to address during the course of this arbitration.
I wish to clarify in writing my direction at the hearing regarding any correspondence that is sent to my office. Correspondence is limited to addressing any procedural matters relating to this arbitration. For efficiency, I would prefer that procedural matters are addressed at the hearing instead of by letter.
I direct that the Jensen's advise my office as soon as possible in respect to obtaining representation for the purposes of the hearing so that a further hearing date can be set.
In reference to the respondent's interim submission I wish to clarify that my letter of May 27th did not summarize the issues before me, only the relief sought. I direct that the Jensen's ensure that they provide clarity respecting the relief sought on the date that the arbitration continues.
In reference to Debra Jensen's letter that was faxed to my office today, I am not aware of any "arbitration act". There is a Commercial Arbitration Act, however that Act does not apply to condominium arbitrations. In respect to Debra Jensen's question regarding B.C.A.M.I., I am not aware of who governs the practices of associations. As to who governs myself, if this question relates to any challenge in respect to my arbitrating this dispute, I refer Debra Jensen to my letter dated April 21st that outlines a procedure.
I wish both parties to be aware that I will be on holidays effective tomorrow and will not return until June 9th.

[30] Since that date, neither party has moved to re-set the arbitration for hearing.

[31] On July 13, 1999, Mr. Williams received a phone message indicating that Brian McLoughlin, Q.C., had had an interview with Debra Jensen, that he might act for her and would contact Mr. Williams in due course.

[32] On July 15, 1999, these proceedings were commenced.

[33] Mr. McLoughlin did agree to act for the Jensens on a "limited pro bono" basis, and appeared for them at the hearing of this petition.

[34] In her affidavit sworn in response to this petition on September 14, 1999, Debra Jensen set out a list of the conduct of the Strata Council which she alleges to have been oppressive or prejudicial. The list has 26 items, and includes most of the matters in the respondents' original Statement of Facts and Issues.

ANALYSIS

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