IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
The Owners, Strata Plan VR456 (Re),  
2022 BCSC 502  
Date: 20220330  
Docket: S215858  
Registry: Vancouver  
Re: The Owners, Strata Plan VR456  
In the Matter of Division 2 of Part 16 of the  
Strata Property Act, S.B.C. 1998, c. 43  
- and -  
Docket: S222743  
Registry: New Westminster  
Between:  
Tracey Anne MacLennan and Suzanne Elise Foster, Executors of  
the Will of Colin MacKenzie MacLennan, Deceased  
Petitioners  
And  
The Owners, Strata Plan VR 456  
Respondent  
Corrected Reasons: Counsel name added April 8, 2022  
Before: The Honourable Justice Matthews  
Reasons for Judgment  
Counsel for the Petitioner,  
P. Mendes  
The Administrator of Strata Plan VR456,  
in Vancouver Action No. S215858  
appearing via videoconference:  
Counsel for Michelle Mok and James Mok  
in Vancouver Action No. S215858  
appearing via videoconference:  
M. Nied  
Counsel for Tracey MacLennan and  
Suzanne Foster in Vancouver Action  
No. S215858 appearing via videoconference:  
J. Abrioux  
The Owners, Strata Plan VR456 (Re)  
Page 2  
Counsel for Michelle Mok and James Mok  
in New Westminster Action No. S222743  
appearing via videoconference:  
M. Nied  
Counsel for Tracey MacLennan and  
Suzanne Foster in New Westminster Action  
No. S222743 appearing via videoconference:  
J. Abrioux  
P. Mendes  
Counsel for The Administrator of Strata Plan  
VR456 in New Westminster Action  
No. S222743Vancouver Action No. S215858  
appearing via videoconference:  
Counsel for the Liquidator of Strata Plan  
VR456 in Vancouver Action No. S215858  
appearing via videoconference on  
January 19, 2022:  
P.J. Roberts, QC  
Place and Dates of Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
January 17-19, 2022  
Vancouver, B.C.  
March 30, 2022  
The Owners, Strata Plan VR456 (Re)  
Page 3  
Table of Contents  
OVERVIEW................................................................................................................ 4  
VALIDITY OF THE CONSENT ORDER APPOINTING THE ADMINISTRATOR...... 5  
Legal Principles...................................................................................................... 7  
Service of Ms. Mok................................................................................................. 8  
Relief Sought in the Petition is Different from the Relief Provided for in the  
Consent Order...................................................................................................... 12  
Entry of the Consent Order................................................................................... 19  
Whether the Consent Order is an Invalid Contract Or An Abuse of Process........ 20  
Whether the Consent Order Could Provide for the Administrator to Enter Into a  
Listing Contract .................................................................................................... 22  
CONFIRMATION PETITION.................................................................................... 28  
Legal Principles.................................................................................................... 29  
Validity of the Winding-up Resolution................................................................... 30  
Liquidator Must Apply for Approval of the Sale and its own Appointment and  
Vesting Order.................................................................................................... 33  
Whether the Contract of Purchase and Sale was Incomplete........................... 35  
Inaccurate Estimate of the Costs of Winding-Up .............................................. 36  
Interest Schedule.............................................................................................. 37  
Best Interests of the Owners ................................................................................ 38  
Timing of the Sale............................................................................................. 40  
Marketing of Spruce West................................................................................. 41  
Evidence of Fair Market Value.......................................................................... 44  
Conclusion on Best Interests of the Owners..................................................... 50  
Significant Unfairness........................................................................................... 50  
Confusion and Uncertainty ................................................................................... 54  
Repair Efforts.................................................................................................... 54  
DISPOSITION.......................................................................................................... 56  
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Overview  
[1]  
The owners of one of the strata lots in Strata Plan VR456, known as Spruce  
West, brought a petition, NW S222743, seeking the appointment of an administrator  
(appointment petition). They brought the appointment petition because the owners  
had failed to maintain Spruce West to the point that it was the subject of a City of  
Vancouver Emergency Work Order that remained outstanding for over two years, it  
had become dangerous, and according to some, uninhabitable. The owners of five  
of the six strata lots consented to an order appointing an administrator.  
[2]  
Pursuant to the consent order, the administrator advertised Spruce West  
for sale and received offers to purchase, one of which resulted in a contract of  
purchase and sale, subject to the owners voting to wind up the strata corporation  
and approving the sale. The owners of five of the six strata lots have passed a  
motion voluntarily winding-up the strata corporation and selling Spruce West to  
Butterscotch Holdings Inc. The administrator has brought a petition, VA S215858,  
seeking orders confirming the winding-up, approving the sale, and other orders  
necessary to effect the winding-up (the confirmation petition).  
[3]  
The owners who oppose the winding-up and sale are James Mok and  
Michelle Mok, the co-owners of strata lot four. While they took no position on the  
petition appointment at the time the consent order was made, they now assert the  
consent order was not properly made and should be set aside. The basis for their  
position is that Ms. Mok was not served with the appointment petition, the terms of  
the consent order were broader than the relief sought in the petition, and the consent  
order contained a term that could not be ordered by the court. The Moks also  
oppose the confirmation petition because they assert that the marketing of Spruce  
West was inadequate, and the proposed sale is improvident because the proceeds  
will not permit them to find a replacement home in the same neighbourhood.  
[4]  
The owners who brought the appointment petition assert that it was served  
on Ms. Mok through common law service by delivery to her spouse, Dr. Mok. They  
submit that while the terms of the consent order differed from what was set out in the  
 
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petition in some regards, neither Dr. Mok nor Ms. Mok responded to the appointment  
petition. As a result, they were entitled to enter the consent order on the terms  
consented to by the other owners who responded to the appointment petition.  
They submit that its terms accord with the law.  
[5]  
The administrator takes the position that the arguments that the Moks make  
to set aside the consent order are made too late and should not undo everything that  
the administrator has done to address the problems with Spruce West.  
[6]  
The core issues are whether:  
a) the consent order appointing the administrator should be set aside for  
failure to serve Ms. Mok and because its terms are broader that the  
petition seeking appointment of an administrator; and  
b) the sale is provident, such that the vote of the owners of five of the six  
strata lots to voluntarily wind up the strata corporation and approving its  
sale should be confirmed.  
Validity of the Consent Order Appointing the Administrator  
[7] The owners of strata lot five, the executors of the Estate of Colin MacLennan,  
brought the appointment petition. Colin MacLennans daughters, Tracey Anne  
MacLennan and Suzanne Elise Foster, determined that Spruce West was in  
significant disrepair when they became the owners of strata lot five after their  
fathers death. The disrepair included significant water ingress in the walls, mould  
in their late fathers unit (and at least one other unit), deteriorating fire escapes,  
cracks in the car park ceiling allowing water ingress, problems with the external  
doors and windows, crumbling concrete on the exterior walls, rusted steel structural  
supports in the exterior walls, crumbling stucco siding, and problems with the main  
roof and parkade roof.  
[8]  
Ms. MacLennan and Ms. Foster learned that problems with leaks and water  
ingress had been reported since 1998. There have been various reports and  
 
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inspections by building inspectors and engineers since. The owners commissioned  
reports in 2017 and 2018. The 2017 report authors recommended repairs for  
which the costs were estimated to be $1.1 million. The 2018 report authors  
recommended repairs estimated to cost $1.68 million. Not all of the owners accepted  
the recommendations made and so the strata corporation did not undertake the  
work recommended  
[9]  
In April 2018, the City of Vancouver issued an Emergency Work Order  
pertaining to the exterior fire exits. Initially, the Emergency Work Order had a  
deadline of immediately. Ms. MacLennan and Ms. Foster did not learn of it until  
some time after it was issued, because the owner who had received the notice did  
not advise the other owners about it. The owners did not undertake the work  
necessary to address the City of Vancouvers Emergency Work Order.  
[10] As a result of this paralysis, Ms. MacLennan and Ms. Foster retained a  
lawyer who wrote to the other owners and advised them that Ms. MacLennan  
and Ms. Foster would be commencing proceedings to have an administrator  
appointed so that repairs would be undertaken or the building sold to a developer.  
They advised that before doing so, they were prepared to entertain a final  
opportunity for the owners to develop a strategy for repair or a sale through a  
winding-up process. Other owners retained legal counsel and allegedly committed  
strata corporation funds to the legal bills without the prior approval of the owners.  
A resolution to pay those outstanding legal bills was defeated. The discussions and  
decision-making that Ms. MacLennan and Ms. Foster attempted to prompt were  
derailed by this legal bill dispute.  
[11] On January 10, 2020, Ms. MacLennan and Ms. Foster filed the appointment  
petition. The appointment petition sought an order that an administrator be  
appointed to investigate the condition of the strata corporations property,  
including whether it would be in the best interests of the owners to wind up the strata  
corporation, as well as to recommend work to be done to repair the common  
property of the strata corporation, and to raise funds by special levy to pay for the  
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repairs. The appointment petition was brought pursuant to s. 174 of the Strata  
Property Act, S.B.C. 1998, c. 43.  
[12] A consent order was made on April 17, 2020, providing for the appointment of  
an administrator to undertake the powers and duties of the strata corporation and  
the strata council to undertake the repairs required to meet the City of Vancouver  
Emergency Work Order, and to pursue a voluntary wind-up, including entering into a  
listing agreement to sell Spruce West.  
[13] The Moks assert the consent order must be set aside because the petition  
was not served on Ms. Mok, the consent order was entered improperly, it contained  
relief different from that sought in the petition, and the court could not order that the  
administrator enter into a listing agreement to sell Spruce West without a resolution  
passed by a majority of the owners.  
Legal Principles  
[14] Rule 22-7 of the British Columbia Supreme Court Civil Rules, B.C. Reg.  
168/2009, provides authority for the court to set aside steps taken in a proceeding  
in certain circumstances and provides that failure to comply with the rules is an  
irregularity, as opposed to a nullifying failure:  
Rule 22-7 Effect of Non-compliance  
Non-compliance with rules  
(1) Unless the court otherwise orders, a failure to comply with these Supreme  
Court Civil Rules must be treated as an irregularity and does not nullify  
(a) a proceeding,  
(b) a step taken in the proceeding, or  
(c) any document or order made in the proceeding.  
Powers of court  
(2) Subject to subrules (3) and (4), if there has been a failure to comply with  
these Supreme Court Civil Rules, the court may  
(a) set aside a proceeding, either wholly or in part,  
(b) set aside any step taken in the proceeding, or a document  
or order made in the proceeding,  
(c) allow an amendment to be made under Rule 6-1,  
 
The Owners, Strata Plan VR456 (Re)  
(d) dismiss the proceeding or strike out the response to civil  
Page 8  
claim and pronounce judgment, or  
(e) make any other order it considers will further the object of  
these Supreme Court Civil Rules.  
Proceeding must not be set aside for incorrect originating pleading  
(3) The court must not wholly set aside a proceeding on the ground that the  
proceeding was required to be started by an originating pleading other than  
the one employed.  
Application to set aside for irregularity  
(4) An application for an order under subrule (2) (a), (b) or (d) must not be  
granted unless the application is made  
(a) within a reasonable time, and  
(b) before the applicant has taken a fresh step after knowledge  
of the irregularity.  
[15] The Moks assert the court has the inherent jurisdiction to set aside a consent  
order on a ground that would invalidate a compromise not contained in a judgment  
or order, citing Pond v. Pond, 2017 BCCA 243, and Racz v. Mission (District), 1988,  
22 B.C.L.R. (2d) 70, 1988 2937 (C.A.).  
[16] The Moks also submit that the court has the inherent jurisdiction to set aside  
a consent order that amounts to an abuse of process, relying on Macht v. Macht,  
[1997] B.C.J. No. 3112, 1997 12624.  
Service of Ms. Mok  
[17] Rule 16-1(3) of the Supreme Court Civil Rules provides for service of a  
petition as follows:  
Service  
(3) Unless these Supreme Court Civil Rules otherwise provide or the court  
otherwise orders, a copy of the filed petition and of each filed affidavit in  
support must be served by personal service on all persons whose interests  
may be affected by the order sought.  
[18] Rule 4-3(2)(a) provides that personal service is effected by leaving a copy of  
the document with the person.  
 
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[19] The appointment petition was served in accordance with the Supreme Court  
Civil Rules on the other owners, except Ms. Mok. The failure to serve Ms. Mok in  
accordance with the Supreme Court Civil Rules was an oversight.  
[20] Ms. MacLennan and Ms. Foster submit that, notwithstanding the failure to  
serve Ms. Mok in accordance with the Supreme Court Civil Rules, they made  
effective common law service on Ms. Mok.  
[21] Common law service is made when an originating process is brought to the  
attention of a named defendant: Ngo v. Go, 2009 BCSC 1146 at para. 23, citing  
Balla et al v. Fitch Research Corporation et al, 2005 BCSC 1447 at paras. 24-27.  
This can include personal service on a spouse of a party who brings it to the  
attention of their spouse.  
[22] The requirement for service to be effective at common law is evidence that  
allows the court to confidently conclude that the person knew that the originating  
process was a legal claim, who commenced the proceeding, and the general nature  
of what was sought: Balla at paras. 18, 27.  
[23] Dr. Mok was served with the appointment petition on January 21, 2020 at  
strata lot four in Spruce West. Dr. Mok was the chair of the strata council for  
Spruce West. On January 24, 2020, he sent an email to the other owners, including  
Ms. Mok, suggesting an immediate meeting to discuss the still outstanding City of  
Vancouver Emergency Work Order, [i]n light of the Petition. The obvious inference  
to be drawn from this email is that by virtue of the email, if not before, Ms. Mok  
became aware of the existence of the appointment petition.  
[24] Ms. Mok swore an affidavit about the appointment petition in which she did  
not state that her husband did not make her aware of the appointment petition.  
Dr. Mok also swore an affidavit; he did not depose that he did not make Ms. Mok  
aware of the appointment petition.  
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[25] On February 13, 2020, Priyan Samarakoone, a lawyer, contacted counsel for  
Ms. MacLennan and Ms. Foster and advised them that he represented Dr. Mok and  
Ms. Mok.  
[26] Based on the evidence of the email from Dr. Mok to the other owners copied  
to Ms. Mok, and the lack of contrary evidence in the Moksaffidavits, I find that  
Ms. Mok was made aware of the appointment petition by her spouse, Dr. Mok.  
Based on the evidence that she retained a lawyer, I find that Ms. Mok knew who the  
petitioners were and had an understanding of the general nature of the relief sought  
in the appointment petition.  
[27] Ms. Mok submits that common law service has not been accepted as  
effective where personal service is required subsequent to the Supreme Court  
Civil Rules replacing the Rules of Court: Tschurtschenthaler v. Sunlogics Inc.,  
2013 BCSC 1197.  
[28] It is true that since the Supreme Court Civil Rules, the jurisprudence is  
less concerned with whether common law service has been effected and more  
concerned with the discretion found in Rule 4-6(4) of the Supreme Court Civil Rules.  
Rule 4-6(4) provides that the court can take into consideration any evidence it  
considers appropriate to determine whether there has been service.  
[29] In Tschurtschenthaler, Justice Jenkins considered an application to set aside  
a default judgment where the corporate defendant was served by delivering a copy  
of the notice of civil claim to an officer of the corporation in without prejudice  
correspondence. Justice Jenkins called into question whether common law service  
remained applicable, given that the then relatively new Supreme Court Civil Rules  
provide for a clear and simple method of serving a corporate entity with a notice of  
civil claim. Justice Jenkins noted that the Court of Appeal had not spoken on the  
issue of common law service since the Supreme Court Civil Rules came into force  
in 2010.  
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[30] Neither the requirement to serve a petition personally, nor the method of  
personal service of a petition, changed when the Supreme Court Civil Rules  
replaced the Rules of Court. For that reason, the basis on which Justice Jenkins  
questioned the applicability of common law service does not readily arise in these  
circumstances. I conclude that the Supreme Court Civil Rules do not contain any  
changes applicable to this type of proceeding which would support the supposition  
that the concept of common law service is no longer applicable to the personal  
service of petitions.  
[31] In addition, subsequent to Justice Jenkinsdecision in Tschurtschenthaler,  
the Court of Appeal issued a case upholding service despite non-compliance with  
the rule for personal service under the current Supreme Court Civil Rules, after  
considering all the evidence pertaining to service as permitted by Rule 4-6(4):  
McIlvenna v. Viebig, 2013 BCCA 411 at para. 42, citing Orazia v. Ciulla (1966),  
57 W.W.R. 641, 1966 430 (B.C.S.C.). Orazia is cited in many of the cases  
considering common law service, including in the comprehensive review of the law  
undertaken by Justice Johnston in Balla. While the Court of Appeal in McIlvenna did  
not address Justice Jenkinspoint about whether common law service continued to  
be applicable under the Supreme Court Civil Rules, it applied the principles that  
inform common law service and cited the leading decision on it in the course of  
doing so.  
[32] In Edwards Estates (Re), 2019 BCSC 858, I considered the evidence  
of personal service of a petition and held that service had been effective,  
notwithstanding that the petition had not been left with the respondent, but  
rather with a person who gave it to him, citing McIlvenna and Orazia.  
[33] I am satisfied that under the concept of common law service, and/or by virtue  
of Rule 4-6(4), a court may consider the evidence and determine that a person has  
been served with a petition, notwithstanding failure to serve it personally by leaving it  
with that person, so long as the court is persuaded that the person had knowledge  
The Owners, Strata Plan VR456 (Re)  
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that the petition had been filed with the court, who the petitioner is, what the petition  
is about, and the general nature of the relief sought in the petition.  
[34] I conclude that is what occurred here. I decline to set aside the consent order  
appointing the administrator on the basis that it was not personally served on  
Ms. Mok in the manner set out in the Supreme Court Civil Rules.  
[35] Ms. MacLennan and Ms. Foster submit that, in the alternative, Rule 16-1(3)  
gives the Court discretion to dispense with personal service. Having determined  
that effective service has been made, it is not necessary for me to consider this  
alternative submission.  
Relief Sought in the Petition is Different from the Relief Provided for in  
the Consent Order  
[36] As noted above, the appointment petition was filed on January 10, 2020 and  
served on Dr. Mok on January 21, 2020. I infer it was served on the other owners  
at around the same time. In accordance with Rule 16-1(5), the time by which to  
respond was February 11, 2020.  
[37] On February 11, 2020, the owner of strata lot six, Dan Sonnenschein,  
filed a petition response. On April 6, 2020, the owners of strata lots one and two  
(Agnes Oy Line Mui) and strata lot three (Peter Tovbis) filed petition responses.  
Dr. Mok and Ms. Mok have never filed a response to the appointment petition,  
including to this date.  
[38] Ms. MacLennan and Ms. Foster assert that Dr. Mok and Ms. Mok have no  
standing to seek any relief on the appointment petition given that, by virtue of failing  
to respond, they are not parties. Since Dr. Mok was personally served, and based  
on my determination that Ms. Mok was effectively served, this is an argument  
deserving of consideration for both of them. However, they seek leave to be added  
as parties to the appointment petition if that is required. Given my disposition of their  
arguments on the appointment petition, I will not address this procedural quandary  
that is of their own creation. I do consider it to be part of a pattern of conduct on their  
 
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part to obstruct the resolution of issues pertaining to Spruce West. For example, at  
some strata meetings where a voice vote was called for, Dr. Mok refused to voice a  
vote and simply held up a sign which read no. When asked to clarify whether that  
was a refusal to vote or a negative vote on the motion, he refused to provide  
clarification.  
[39] I also pause to note that it is not disputed that the Moks have standing on the  
confirmation petition, notwithstanding that they did not respond to the appointment  
petition.  
[40] On March 11, 2020, counsel for Ms. MacLennan and Ms. Foster sent a  
letter to Mr. Samarakoone (the Mokscounsel) and the other owners or their  
representatives, enclosing a notice of hearing of the appointment petition for March  
24, 2020. Mr. Samarakoone replied that he was no longer acting for the Moks, but  
he would forward the letter to them.  
[41] On March 18, 2020, counsel for Ms. MacLennan and Ms. Foster sent an  
email to Dr. Mok and the other owners, advising that they would be proceeding  
with the hearing to appoint the administrator, attaching a notice of hearing and a  
draft order. The draft order had terms different from the petition and almost identical  
to the consent order that was ultimately entered.  
[42] In their affidavits, neither Dr. Mok nor Ms. Mok denied that they received the  
email about the March 24, 2020 hearing from their former counsel. Dr. Mok deposed  
that he intended to attend the March 24, 2020 hearing and booked the day off to  
attend. I conclude that the Moks were informed of the date of the hearing by their  
former lawyer. I conclude that they had notice of the terms sought to be included in  
the order.  
[43] Leaving aside non-substantive wording changes, the consent order differs  
from the relief sought in the petition with regard to the powers and duties to be  
exercised by the administrator, and the objectives the administrator was tasked  
with accomplishing.  
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[44] The Moks rely on cases in which an order has been set aside on appeal  
when the order made exceeded the relief sought: N-Krypt International Corp. v.  
LeVasseur, 2018 BCCA 20; Naderi v. Naderi, 2012 BCCA 16 at paras. 8, 22. The  
Moks did not appeal the consent order, they seek to have it set aside in the same  
court. The standard of review that the Court of Appeal employs to determine whether  
to set aside an order is not applicable to this application.  
[45] The Moks also submit that in order to seek an order on the terms that are  
contained in the consent order, the petitioners were required to amend the petition  
and serve it on all persons whose interests would be affected by the relief sought:  
Rules 6-1(2)-(7) and 16-1(19). In support of this submission, they also submit that  
the Courts jurisdiction comes from the originating petition and so to grant relief,  
it must be provided for in the originating petition and notice given.  
[46] The administrator submits that in the circumstances in which this consent  
order was entered, the failure to amend is not a failure to comply with the  
Supreme Court Civil Rules.  
[47] Assuming, without deciding, that there was a failure to comply with the  
Supreme Court Civil Rules, it is presumed to be an irregularity, not a nullity:  
Rule 22-7(1). The Moks assert that because it is a failure that goes to the Courts  
jurisdiction, the irregularity cannot be cured.  
[48] In my view, in order for the Court to lose jurisdiction to make the consent  
order, the relief provided in the consent order must be substantively different from  
that sought in the petition.  
[49] The petition sought appointment of an administrator to exercise the powers  
and duties of the owners and strata council pursuant to s. 174, whereas the consent  
order provides for the administrator to exercise all the powers and all the duties of  
the strata council and the strata corporation.  
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Page 15  
[50] I do not consider the addition of the word allmodifying powers and duties”  
to provide for a substantively different scope than powers and dutieswithout the  
modifier all.  
[51] With regard to the fact that the petition sought an order that the administrator  
have the powers and duties of the owners and the strata council, but the consent  
order provides the administrator with duties of the strata corporation and the strata  
council, I note that the petition cites s. 174 of the Strata Property Act as authority for  
this aspect of the appointment. Section 174 of the Strata Property Act provides for  
an administrator to be appointed to exercise the powers and duties of the strata  
corporation. Accordingly, the change from the petition to the consent order is  
consistent with the provision specifically cited in the petition, and best described as  
a correction in the relief sought. I do not consider this change from the petition to the  
consent order to have affected the Moksright to notice of what was sought in the  
petition versus what was ordered by consent.  
[52] With regard to the tasks to be undertaken by the administrator, the relief  
sought in the appointment petition charges the administrator with investigating the  
condition of Spruce West, retaining an engineer to prepare a written report detailing  
the repairs required, establishing a timeline for the repairs, hiring consultants or  
appraisers to evaluate whether it is in the best interests of the owners to wind up  
the strata corporation, and recommending work. The appointment petition seeks,  
alternatively, that the strata corporation repair its common property, hire a building  
envelope consultant to investigate the condition of the common property, and assess  
a $1,700,000 levy to undertake the repairs and a $30,000 levy for the costs of  
specifications and tender documents to undertake the repairs. The appointment  
petition, again in the alternative, also seeks a winding-up order pursuant to s. 284  
(Part 16 Division 3) of the Strata Property Act.  
[53] On these issues, the consent order narrows the repair work to be done to  
the City of Vancouver Emergency Work Order and directs the administrator to  
The Owners, Strata Plan VR456 (Re)  
Page 16  
investigate and complete a voluntary winding-up in accordance with Part 16,  
Division 2 of the Strata Property Act.  
[54] The nature of the winding-up sought in the appointment petition is a court-  
ordered dissolution (i.e.: not voluntary) pursuant to s. 284 of the Strata Property Act.  
Section 284(3) requires the court to consider the best interests of the owners, the  
probability and extent of significant unfairness to one or more owners (and other  
categories of persons not relevant to this matter), and whether there will be  
significant confusion and uncertainty in the affairs of the strata corporation or  
of the owners.  
[55] Voluntary winding-ups are voted on by the owners and if there is  
supermajority (80%) approval, they may be confirmed by the court pursuant to  
s. 278.1. Section 278.1(5) requires the court to take into account the same  
considerations mandated in s. 284(3).  
[56] The petition sought a non-voluntary winding-up order as alternative relief.  
The consent order provides for the administrator to pursue a voluntary winding-up  
resolution. The difference is that under the relief sought in the petition, the court  
would order the winding-up at the hearing of the petition based on the evidence then  
available. Under the consent order provisions, the administrator was to take steps to  
conduct a voluntary winding-up vote by the owners who would vote on it at a special  
general meeting, and if approved, the administrator was to seek court approval.  
The matters the court must consider in either case and the test to be applied to  
court approval are the same.  
[57] Four of the strata lots responded to the appointment petition and decided they  
would agree to the repairs necessary to address the City of Vancouver Emergency  
Work Order and determined they would pursue a voluntary winding-up instead of  
undertaking the rest of the repairs. The pivot to a voluntary winding-up provided  
the owners more control over the winding-up. They negotiated those terms with  
Ms. MacLennan and Ms. Foster, such that five of the six strata lot owners, and all  
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Page 17  
of the parties to the appointment petition, agreed on the terms of the appointment  
of the administrator.  
[58] The substantive relief provided for in the consent order is substantively  
consistent with, but narrower than, the relief sought in the appointment petition.  
The emergency repair work is a subset of the necessary repair work covered by  
the relief sought in the appointment petition.  
[59] By failing to respond to the petition, the Moks did not assume the risks and  
responsibilities of getting on the record, which includes costs. They also precluded  
themselves from influencing the outcome: Ranftl v. The Owners, Strata Plan  
VR 672, 2005 BCSC 1760 at paras. 21-22. Had the non-voluntary winding-up  
relief been addressed at the hearing of the appointment petition, the Moks would  
not have had standing to oppose it. Ironically, the pivot to the voluntary winding-up  
enfranchised the Moks by affording them time and opportunity to persuade other  
owners to not agree to the winding-up and to vote against it.  
[60] The other matter that was addressed differently in the consent order than in  
the relief sought in the appointment petition was the matter of costs. The petitioners  
sought costs. The consent order provided for the matter of reimbursement of the  
petitionerslegal expenses to be voted on at a meeting of the owners, without  
prejudice to the petitioners to seek their costs in the future. Again, this afforded a  
measure of control to the owners as a whole, including the Moks, that was to their  
advantage.  
[61] There are a number of other changes that are ancillary to the pivot from  
undertaking all repairs or a non-voluntary winding-up to the consent order providing  
for the emergency repairs and a voluntary winding-up. I do not consider them to be  
substantive or to negatively affect the Moks.  
[62] In reaching this conclusion, I have taken into account the provision of the  
consent order authorizing the administrator to enter into a listing agreement for  
Spruce West without a vote of the owners. As I conclude below, the governing  
The Owners, Strata Plan VR456 (Re)  
Page 18  
appellate authority provides that a strata corporation has the power to enter into  
a listing agreement by virtue of s. 2(2) of the Strata Property Act. The petition  
sought the appointment of an administrator under s. 174 of the Strata Property Act,  
which provides for an administrator to assume the powers and duties of the strata  
corporation. Accordingly, the consent order does not substantively differ from the  
relief sought in the petition when the powers and duties of the strata corporation  
to be vested in the administrator are understood in accordance with the case law.  
[63] I conclude that the Moksrights to notice, as persons affected by the relief  
sought in the appointment petition, was not abrogated or substantively negatively  
affected by the terms of the consent order.  
[64] Accordingly, it is my view that if the Rules of Court did require the petition  
to be amended, it is an irregularity and not a failure that caused the Court to lose  
jurisdiction. Assuming the irregularity, it was incumbent on the Moks to move to  
persuade the Court to set aside the consent order within a reasonable time and  
before they took a fresh step after knowledge of the irregularity: Rule 22-7(5).  
They did not do so. They had notice of the terms of the consent order as a draft  
order proposed for the hearing of the appointment petition in March 2020, and they  
had the entered consent order in May 2020. The evidence shows that from the  
outset of the involvement of the administrator, the Moks were in conflict with him  
over what he had the power to do. The administrator consistently referred them  
to the consent order. They did not move to set it aside until December 2021.  
[65] The Moks waited far too long to raise the failure to comply with the  
Supreme Court Civil Rules they now assert. Between May 2020 and December  
2021, the administrator replaced the strata council, held votes, expended strata  
funds, listed Spruce West, received and reviewed offers, negotiated the offers,  
held the winding-up vote, and made the application to approve it. The owners,  
in the meantime, continued to incur expenses related to their strata lots.  
[66] I will not set aside the consent order on the basis that its content differed  
from the relief sought in the appointment petition.  
The Owners, Strata Plan VR456 (Re)  
Page 19  
Entry of the Consent Order  
[67] The March 24, 2020 hearing of the appointment petition did not proceed  
because by that time, the British Columbia Supreme Court had adjourned all  
in-person court matters due to the COVID-19 pandemic.  
[68] The owners, other than the Moks, determined they would agree to the  
appointment petition on certain terms. Having reached an agreement with all of  
the owners who responded to the petition, Ms. MacLennan and Ms. Foster filed a  
requisition asking that the consent order be entered as a desk order. That allowed  
them to proceed with addressing the issues despite the courts being closed for  
hearings.  
[69] The Moks submit that Ms. MacLennan and Ms. Foster acted improperly by  
entering into discussions with the other owners and entering a consent order by  
desk order, instead of proceeding with a hearing of the appointment petition. Dr. Mok  
asserts that even though he did not respond to the appointment petition, he intended  
to attend and speak at the hearing. He asserts that the consent order entered  
by way of desk order without notice to him deprived him of his right to do so.  
[70] I do not agree. By failing to respond to the petition, Dr. Mok and Ms. Mok  
(since I found she was effectively served) deprived themselves of the right to further  
notice of steps taken in the proceeding, including the opportunity to participate in its  
resolution by way of contested hearing or consent order.  
[71] The Moks assert that Ms. MacLennan and Ms. Foster misrepresented the  
state of affairs by filing a requisition to enter the consent order, which stated that  
each party affected by the order agreed to the terms of the order, and that they  
were filing an order signed by five of six strata lot owners. The Moks assert that the  
representation was incorrect because they were affected parties and had not agreed  
to the terms of the consent order.  
[72] I do not accept this submission because neither Dr. Mok nor Ms. Mok  
responded to the appointment petition and so they were not affected parties:  
 
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Rule 1-1(1) of the Supreme Court Civil Rules. They may have remained persons  
whose interests were affected by the order sought, but that is different from being a  
party: Democracy Watch v. British Columbia (Attorney General), 2017 BCSC 1303  
at para. 8. Consent orders require the consent of parties of record, not of persons  
who do not have party status: Rule 13-1(10).  
[73] Next, the Moks assert that the representation that the order was consented to  
by five of six strata lot owners was incorrect because Ms. Mok had not been served  
and Dr. Mok did not consent. That submission fails on math. There are six strata  
lots, and the owners of five of them consented to the order. The petitioners’  
representation was accurate.  
Whether the Consent Order is an Invalid Contract Or An Abuse of  
Process  
[74] The Moks assert that the Court should set aside the consent order because  
it is essentially an agreement between the owners of Spruce West to appoint an  
administrator. They assert that because not all of the owners agreed to the  
appointment, there is no valid contract and the order must be set aside: Pond; Racz.  
[75] The contractual analogy is not entirely apt because under the Strata Property  
Act, all of the owners do not have to agree to the appointment of an administrator.  
If there is no agreement by all of the owners, then one or more owner can petition  
the court for appointment. That is exactly what happened here.  
[76] To the extent the contractual analogy is apt, in a consent order, the  
contracting parties are the parties to the legal proceeding. At the time the order was  
made, all of the affected persons had been served. Those who had responded to the  
appointment petition and had become parties of record agreed to the appointment of  
the administrator on the terms in the order.  
[77] The Moks also submit that the Court has the inherent jurisdiction to set aside  
a consent order that amounts to an abuse of process, relying on Macht. In Macht,  
the petitioner sought a divorce, primary custody, and child support. At the time the  
 
The Owners, Strata Plan VR456 (Re)  
Page 21  
order sought to be set aside was made, both parties were represented. Despite  
having been advised by the respondents lawyer that the petitioner had to comply  
with the notice of intention to proceed provisions of the Rules of Court, and the  
respondent delivering an unfiled appearance to the petitioner, the petitioner  
proceeded ex parte and obtained an order for a divorce, for sole custody, and  
for child support in an amount greater than sought in the petition.  
[78] The Moks argue this case is analogous to Macht because the order sought  
was granted without the respondent having notice of what was sought and the  
chance to respond. I do not consider this case analogous. For the reasons I have  
already given, the Moks were served with the petition and had notice of the changes  
to the relief sought via the draft order that was sent to them, notwithstanding that  
they had not responded to the appointment petition. With the possible exception of  
the issue of whether the owners should have the right to vote on a listing contract,  
which I will address below, the Moks had the chance to respond to the petition and  
the revised relief sought as set out in the draft order, but did not.  
[79] The Moks also rely on Ching-Peng Chien v. Canada Eighty-Eight and Yong,  
2005 BCSC 466, for the proposition that where full and fair disclosure has not been  
made during an ex parte hearing, an order may be set aside. In that case, the Court  
had reference to Rule 52(12.3) of the then in force Rules of Court, providing that a  
person may apply to set aside an order made without notice where the person is  
affected by the order. The Court also found that it could set aside the order on its  
own motion when it was made ex parte, and the party seeking the order had made  
submissions which led the Court to believe it had jurisdiction to make the order when  
it did not. The Moks assert that submitting a consent order for entry by way of desk  
order without notice to all affected persons is, for all intents and purposes, an  
ex parte application, subject to the strict duty of utmost good faith and disclosure.  
[80] Again, the Moks had ample notice of what was sought. I do not agree that  
the consent order was obtained ex parte. Nor were intentional or unintentional  
misrepresentations made to the Court when it was sought.  
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Page 22  
[81] Based on the same reasoning, the Moks assert that the consent order was an  
abuse of process. I do not find it to be an abuse of process based on lack of notice  
to the Moks or lack of accurate representations to the Court for the same reasons I  
have just articulated. In addition, where a hearing is held intra parte, as this one was,  
the court may order relief broader than that sought, so long as the parties have had  
the opportunity to be heard: A.L.M. v. K.H., 2004 BCSC 1420 at para. 37. In this  
case, the hearing of the petition converted to a consent order by way of desk order  
when all of the parties, who responded to the petition, reached an agreement with  
the petitioner on what the terms of the order should be. I am satisfied that this  
amounted to those parties who came forward having the opportunity to be heard.  
Whether the Consent Order Could Provide for the Administrator to Enter  
Into a Listing Contract  
[82] The Moks submit that the consent order must be set aside because it permits  
the administrator to enter into a listing agreement without a vote of the owners. They  
say this provision is not permissible at law and so the order must be set aside.  
[83] Section 174(7) of the Strata Property Act prohibits an administrator appointed  
under s. 174 from doing anything that requires a vote of the owners, unless the vote  
has been held and reached the required threshold. This prohibition is qualified by the  
words unless the court otherwise orders.  
[84] The Moks rely on Norenger Development (Canada) Inc. v. The Owners,  
Strata Plan NW 3271, 2016 BCCA 118 [Strata Plan NW 3271], in which the Court  
of Appeal held that a court could not abrogate the ownersrights to vote on a matter  
which the Strata Property Act required a vote to be taken before the strata  
corporation could act. In that case, the administrator was appointed by consent  
order. The consent order provided for the administrator to prepare bylaws to be  
voted upon by the owners. If the bylaws were not passed by a 3/4 majority, the  
administrator could apply to the court for further direction. That came to pass, and  
the chambers judge, relying on the words unless the court otherwise ordersin  
s. 174(7) of the Strata Property Act, made an order repealing and replacing the  
 
The Owners, Strata Plan VR456 (Re)  
Page 23  
strata corporations bylaws. The Court of Appeal overturned that order (not the  
consent order), stating that the words unless the court otherwise orderscould not  
be used to abrogate the ownersdemocratic rights on the matters provided for in the  
Strata Property Act. The Court of Appeal did not explain what application the words  
unless the court otherwise orderscould have.  
[85] A threshold issue is whether the Strata Property Act restricts the strata  
corporation from entering into a listing agreement unless the owners have passed a  
resolution at a general meeting authorizing it to do so, or, whether the powers and  
duties of a strata corporation include the power to enter into a listing agreement  
without such a resolution.  
[86] The Moks rely on Buckerfield v. The Owners of Strata Plan VR. 92,  
2018 BCSC 839 at para. 19, affd Dubas v. the Owners of Strata Plan VR. 92,  
2019 BCCA 196 at para. 35 [Strata Plan VR 92], in which the Court of Appeal  
upheld the decision of the chambers judge who declined to grant a declaration that  
a supermajority vote was required to list a strata complex for sale. In the course  
of doing so, both the chambers judge and the Court of Appeal reviewed various  
provisions under the Strata Property Act, which mandate that certain things can only  
be done with owner approval and specifying thresholds for certain issues on which  
votes must be held. A simple majority, 50%, is the threshold for those which do not  
require a 75% or 80% vote. Where a voluntary winding-up is underway, the winding-  
up must be subjected to a vote, receive 80% support, and must be confirmed by the  
court. The disposition of land must be passed by a 3/4 vote (75%) of the owners.  
[87] The Court of Appeal also held that a listing agreement that is conditional upon  
an approved winding-up provision does not infringe the interests of dissenting  
owners. Dissenting owners have the protection that the winding-up must be passed  
by 80% and approved by the court, and the disposition of land must be approved by  
75%. This was also important to the chambers judge. The decision stands for the  
proposition that in a voluntary winding-up and sale, the back end requirements of a  
The Owners, Strata Plan VR456 (Re)  
Page 24  
supermajority resolution and confirmation by the court provide the protection to the  
owners.  
[88] At para. 19 of the chambers judgment in Strata Plan VR 92, Justice Brundrett  
stated:  
[19]  
First, I do not read the provisions in the Strata Property Act, which the  
petitioners cite, or the authorities provided to me, as directly mandating the  
requirement of a supermajority vote in order for the Strata Council to retain a  
realtor by signing a listing agreement to secure offer(s) for a sale which is in  
any event conditional upon the wind-up resolution by the owners: see, for  
instance, ss. 71, 78-82, and 105 of the Strata Property Act. In particular, I do  
not read the retention of a realtor as a change in use of common property, an  
alteration of common property or the disposal of land by the strata  
corporation engaging the supermajority requirements set out in some of those  
other sections. Hence, the normal default voting threshold of a majority vote  
would apply to the decision to approve a listing agreement: s. 50 of the Strata  
Property Act.  
[89] The Moks submit that the last sentence of this paragraph is authority for  
the proposition that s. 50 of the Strata Property Act requires the owners to pass a  
resolution with a 50% threshold in order to enter into a listing agreement. Section 50  
of the Strata Property Act does not expressly cover the authority to enter into a  
listing agreement. It provides that at annual or general meetings, matters are  
decided by majority vote unless a different voting threshold is required or permitted  
by the Strata Property Act.  
[90] The administrator relies on The Owners, Strata Plan VR2122 v. Bradbury,  
2018 BCCA 280 [Strata Plan VR2122 BCCA], where Justice Fenlon, for the Court,  
rejected the argument that only the liquidator could enter into a contract to sell strata  
property in a voluntary winding-up (which could only occur after an 80% vote). At  
para. 39, Justice Fenlon held that a strata corporation has the powers of a natural  
person, and may enter into contracts, by virtue of s. 2(2) of the Strata Property Act.  
The administrator argues that because a strata corporation can enter into a listing  
agreement, the provision of the consent order authorizing the administrator, who  
was given the powers of the strata corporation, to do that without a vote does not  
offend s. 174(7) or the interpretation of that provision found in Strata Plan NW 3271.  
The Owners, Strata Plan VR456 (Re)  
Page 25  
[91] The Moks submit that the Court of Appeals decision in Strata Plan VR 92  
is more recent authority than Strata Plan VR2122 BCCA and governs.  
[92] Neither Strata Plan VR 92 nor Strata Plan VR2122 BCCA directly answer the  
question of whether a vote of owners is required for an administrator exercising the  
powers and duties of a strata corporation to enter into a listing agreement.  
[93] The ratio of Strata Plan VR 92 is that the Strata Property Act does not  
expressly or impliedly require a supermajority vote to list strata complex for sale. In  
that case, the petition was brought before the listing agreement had been entered  
into. The strata corporation had planned a general meeting at which a resolution  
would be put to the owners. Accordingly, the petition proceeded on the footing that  
a vote would be held, and the question was whether it could be passed by 50% or  
required a supermajority. The issue of whether a vote was required was not before  
the court. However, at para. 92, set out above, Justice Brundrett stated, arguably  
in obiter, that “a majority vote would apply to the decision to approve a listing  
agreement”. The Court of Appeal upheld the decision as a whole, and therefore  
I consider that the Court of Appeal upheld that statement also.  
[94] In VR2122, the owners passed a resolution to pursue a voluntary winding-up  
and directed the strata council to source a broker to market the property. The strata  
council selected the broker and entered into the listing agreement: VR2122 BCCA  
at para. 3, The Owners, Strata Plan VR2122 v. Wake, 2017 BCSC 2386 [VR2122  
BCSC] at paras. 33-35. The question of whether the owners had to vote on the  
listing agreement was not addressed. The ratio of the decision is that in a voluntary  
winding-up, the listing agreement does not have to be entered into by the liquidator,  
it can be entered into by the strata corporation. However, that ratio is situated in a  
context where the owners first voted to pursue a voluntarily winding-up and market  
the property. In this case, five of six of the owners did the same thing through the  
consent order but not through a vote at a general meeting.  
[95] It is not appropriate to conclude that in Strata Plan VR 92, the Court of Appeal  
overturned its decision in Strata Plan VR2122 BCCA without saying so. However, in  
The Owners, Strata Plan VR456 (Re)  
Page 26  
order to reconcile these cases, it is necessary to understand whether the powers  
and duties of a strata corporation include the ability to enter into a listing agreement  
without the vote of the owners at a general meeting.  
[96] As explained in VR 92, the Strata Property Act provides for certain matters for  
which a resolution achieving a 75% or 80% majority is required. Entering into a  
listing agreement is not among them. Where the Strata Property Act requires a  
resolution but does not stipulate the threshold, a 50% majority is required: see for  
example, s. 25 of the Strata Property Act. The matters that require a vote are  
enumerated in the Strata Property Act. The provisions and standard bylaws that  
require a resolution of owners are listed in the British Columbia Strata Property  
Practice Manual, loose-leaf (Vancouver: The Continuing Legal Education Society of  
British Columbia, 2008, 2021 update) at §6.101, 6-61 to 6-65. Entering into a listing  
agreement is not among them. At paras. 57-58 of Strata Plan NW 3271, the Court of  
Appeal described this as a comprehensive list of the provisions that required owner  
approval through a vote before the strata corporation can act.  
[97] In VR2122 BCSC, at paras. 120 and 121, Justice Loo considered British  
Columbia government published commentary and a bulletin from the Condominium  
Home Owners Association Bulletin on the voluntary winding-up process. Both of  
those publications suggested the usual practice is for the owners to pass a majority  
resolution to move the process forward and hire legal counsel, following which the  
strata council will search for a broker and retain the broker to market the strata plan  
or negotiate with a developer. Again, the question of whether a resolution to enter  
into a listing agreement is required is not expressly addressed.  
[98] According to the authors of the British Columbia Strata Property Practice  
Manual, the Strata Property Act does not require that a contract be approved by  
either a majority vote or a three-quarter vote. However, before funds can be spent,  
they must be approved in a budget: §6.4.  
[99] In summary, the law is uniform that the strata council, on behalf of the strata  
corporation, may enter into the listing agreement as part of the process of a  
The Owners, Strata Plan VR456 (Re)  
Page 27  
voluntary winding-up that a majority of the owners have determined to embark on.  
The recommended practice and the usual practice by which the majority of owners  
demonstrate that they have determined to embark on a voluntary winding-up is to  
pass a resolution at a general meeting. The Strata Property Act does not expressly  
require a resolution: Strata Plan NW 3271 at para. 58.  
[100] However, I cannot conclude that the precedential authority of VR 92 is only  
obiter. The issue decided was whether a resolution to enter into a listing agreement  
had to be passed by a supermajority of the owners. Justice Brundrett answered in  
the negative and said that a majority vote was required. That is different than  
answering in the negative because no vote is required. Despite the lack of  
consideration between the difference in those two possible negative answers, and  
despite express requirement in the Strata Property Act, I consider myself bound by  
VR 92 to hold that a simple majority resolution is required.  
[101] I return to the consent order and the decision of the Court of Appeal in Strata  
Plan NW 3271. The Moks submit that Strata Plan NW 3271 stands for the  
proposition that a court may not permit that owners’ voting power be bypassed, as  
the consent order in this case did, by permitting the administrator to enter into a  
listing agreement without approval of the owners.  
[102] However, that is not precisely what the Court of Appeal held in that case nor  
what it was asked to consider. In that case, unlike in this case, the matter in issue,  
the amendments of the bylaws, was the subject of an express provision of the  
Strata Property Act requiring a vote. The consent order did not dispense with that.  
The administrator held the vote and it was defeated. The application to the court was  
for approval of the bylaws notwithstanding they had been defeated at the statutorily  
required vote. The Court of Appeal would not permit the court to override the vote.  
The Court of Appeal held that the “unless a court otherwise orders” provision in  
s. 174(7) of the Strata Property Act, was not clear enough to permit a court to  
override a vote. Although those words obviously have some meaning or the  
legislature would not have included them, the Court of Appeal did not attempt  
The Owners, Strata Plan VR456 (Re)  
Page 28  
to interpret them in that case beyond holding that they were not clear enough to  
override a vote.  
[103] I acknowledge that the prohibition in s. 174(7) is broader than a prohibition  
against overturning a vote. It states that the administrator may not do anything that  
the Strata Property Act requires be the subject of a vote unless the vote has been  
held and passed by the applicable threshold, unless the court otherwise orders.  
[104] There are two important differences between this case and Strata Plan  
NW 3271. The first is that in this case, a majority of the owners consented to the  
court ordering the step (entering the listing agreement) that would be subject to  
the vote, while in Strata Plan NW 3271, the owners merely consented to the  
administrator being appointed to draft new bylaws. They did not consent to the new  
bylaws without a vote. The second is that in this case, the court’s order permitting  
the administrator to enter into the listing agreement was done in the consent order,  
unlike in Strata Plan NW 3271 where after the vote failed, the application to the court  
was on a contested basis with the applicant seeking to use the “unless the court  
otherwise orders” provision to sweep away the failed vote.  
[105] In this case, I consider the consent order signed by a majority of the owners  
to demonstrate that the majority of the owners had determined to embark upon a  
voluntary winding-up. I conclude that was a principled basis for the court to  
“otherwise order” that the administrator could enter into a listing agreement with a  
resolution of the owners because the majority of the owners expressed their consent  
to the administrator doing so.  
[106] I conclude that the provision of the consent order permitting the administrator  
to enter into a listing agreement is valid.  
Confirmation Petition  
[107] The owners of strata lots one, two, three, five, and six seek to have the  
winding-up of the strata corporation confirmed and a liquidator appointed to carry out  
the winding-up, including the sale of Spruce West.  
 
The Owners, Strata Plan VR456 (Re)  
Page 29  
[108] The Moks oppose the relief sought in the confirmation petition. The Moks  
raise issues with the form, and therefore validity, of the winding-up resolution.  
However, the focus of the Mokssubmissions was that the marketing of Spruce  
West was inadequate such that the contract of purchase and sale with the proposed  
buyer, Butterscotch, did not yield a fair market value price. The Moks submit that if  
Spruce West is sold, they will be out of their home and unable to buy an equivalent  
home in the same neighbourhood.  
Legal Principles  
[109] Before the Strata Property Act was amended in November 2015, the strata  
unit owners had to vote unanimously to wind up and terminate a strata corporation.  
In VR2122 BCSC at para. 8, Justice Loo explained that the amendments reduced  
the unanimity requirement to 80% of the strata units, coupled with the requirement of  
court oversight to consider the best interests of owners, the probability of significant  
unfairness to one or more owners, and the probability of confusion and uncertainty.  
[110] Section 278.1 of the amended Strata Property Act provides as follows:  
Confirmation by court of winding-up resolution  
278.1 (1) A strata corporation that passes a winding-up resolution in  
accordance with section 277, if the strata plan has 5 or more strata lots,  
(a) may apply to the Supreme Court for an order confirming  
the resolution, and  
(b) must do so within 60 days after the resolution is passed.  
(2) For certainty, the failure of a strata corporation to comply with  
subsection (1) (b) does not prevent the strata corporation from applying under  
subsection (1) (a) or affect the validity of a winding-up resolution.  
(3) A record required by the Supreme Court Civil Rules to be served on a  
person who may be affected by the order sought under subsection (1) must,  
without limiting that requirement, be served on the owners and registered  
charge holders identified in the interest schedule.  
(4) On application by a strata corporation under subsection (1), the court may  
make an order confirming the winding-up resolution.  
(5) In determining whether to make an order under subsection (4), the court  
must consider  
(a) the best interests of the owners, and  
 
The Owners, Strata Plan VR456 (Re)  
(b) the probability and extent, if the winding-up resolution is  
Page 30  
confirmed or not confirmed, of  
(i) significant unfairness to one or more  
(A) owners,  
(B) holders of registered charges  
against land shown on the strata  
plan or land held in the name of  
or on behalf of the strata  
corporation, but not shown on  
the strata plan, or  
(C) other creditors, and  
(ii) significant confusion and uncertainty in the  
affairs of the strata corporation or of the  
owners.  
[111] In VR2122 BCSC, at paras. 79-84, Justice Loo stated that the process is to  
consider the best interests of the owners by balancing the competing views of those  
in favour of the winding-up and sale and those opposed. The next step is to consider  
the probability and extent of significant unfairness to one or more owners if the sale  
is or is not confirmed. The onus to establish significant unfairness is on those  
opposing the winding-up. The final step is to make a qualitative assessment of  
the likelihood and extent of significant unfairness and significant confusion and  
uncertainty. If the court concludes there will be significant unfairness to an owner  
who opposes the winding-up and/or there will be confusion and uncertainty caused  
by the winding-up and sale, it must be to an extent that warrants overriding the clear  
legislative authority to wind up a strata corporation where 80% of strata unit owners  
have voted to do so.  
[112] The Court of Appeal overturned Justice Loos decision appointing a liquidator  
without the liquidator appearing before the court to seeks its appointment, an issue  
to which I will return. The Court of Appeal upheld the rest of the decision, including  
the analysis of the voluntary winding-up provisions.  
Validity of the Winding-up Resolution  
[113] The Moks submit that the resolution passed by 83% of the owners to wind up  
the strata corporation was invalid because:  
 
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Page 31  
a) it was not obtained by the liquidator;  
b) the contract of purchase and sale with Butterscotch was incomplete in  
that it did not include personal items, such as window coverings;  
c) it did not provide an accurate estimate of the costs of winding up; and  
d) the interest schedule is flawed.  
[114] The applicable legislative provisions are ss. 277, 278, and 279 of the Strata  
Property Act:  
Appointment of liquidator  
277 (1) To appoint a liquidator to wind up the strata corporation, a resolution  
to cancel the strata plan and appoint a liquidator must be passed by an 80%  
vote at an annual or special general meeting.  
(2) A liquidator must have the qualifications of a liquidator that are required by  
the Business Corporations Act.  
(3) The resolution must give the name and address of the liquidator and  
approve all of the following:  
(a) the cancellation of the strata plan;  
(b) the dissolution of the strata corporation;  
(c) the surrender to the liquidator of each owners interest in  
(i) land shown on the strata plan,  
(ii) land held in the name of or on behalf of the  
strata corporation, but not shown on the strata  
plan, and  
(iii) personal property held by or on behalf of the  
strata corporation;  
(d) an estimate of the costs of winding up;  
(e) the interest schedule referred to in section 278.  
Interest schedule  
278 (1) The interest schedule must meet any requirements as to form and  
content that are required by this Act and the regulations, and must do all of  
the following:  
(a) state whether the strata corporation holds land in its name, or has  
land held on its behalf, that is not shown on the strata plan;  
(b) identify land shown on the strata plan and land held in the name of  
or on behalf of the strata corporation, but not shown on the strata  
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plan, by legal description sufficient to allow the registrar to identify it in  
the records of the land title office;  
(c) list the name and postal address of each owner;  
(d) list the name, postal address and the estimated value of the  
interest of each holder of a registered charge against the land;  
(e) list the name, postal address and interest of each creditor of the  
strata corporation who is not a holder of a registered charge against  
the land;  
(f) list each owners share of the proceeds of distribution in  
accordance with the following formula:  
(2) If there is no assessed value for the owners strata lot or for any strata lot  
in the strata plan, an appraised value  
(a) that has been determined by an independent appraiser,  
and  
(b) that is approved by a resolution passed by a 3/4 vote at an  
annual or special general meeting  
may be used in place of the assessed value for the purposes of the  
formula in subsection (1) (f).  
(3) If a strata corporation has a schedule of interest on destruction that was  
required under section 4 (g) of the Condominium Act, R.S.B.C. 1996, c. 64, or  
a similar schedule that was required under any former Act, that schedule  
determines the owners share of the proceeds of distribution on the winding  
up of the strata corporation and for that purpose replaces the formula in  
subsection (1) (f).  
Vesting order  
279 (1) Within 30 days of being appointed, the liquidator must apply to the  
Supreme Court for an order confirming the appointment of the liquidator and  
vesting in the liquidator  
(a) land shown on the strata plan,  
(b) land held in the name of or on behalf of the strata  
corporation, but not shown on the strata plan, and  
(c) personal property held by or on behalf of the strata  
corporation  
for the purpose of selling the land and personal property and distributing the  
proceeds as set out in the interest schedule.  
(2) The court may grant the order if satisfied that  
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(a) the requirements of section 277 have been met, and  
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(b) if the strata plan has 5 or more strata lots, the winding-up  
resolution under section 277 has been confirmed by an order  
of the court under section 278.1.  
(3) For the purposes of subsection (1), the liquidator is appointed on the date  
the winding-up resolution under section 277  
(a) is passed, if the strata plan has fewer than 5 strata lots, or  
(b) is confirmed by an order under section 278.1, in any other  
case.  
Liquidator Must Apply for Approval of the Sale and its own Appointment  
and Vesting Order  
[115] The Moks assert that the governing provision is s. 282 of the Strata Property  
Act, which requires the liquidator to obtain a resolution before disposing of property.  
Since the liquidator did not obtain the resolution, the confirmation petition must be  
summarily dismissed. The Moks rely on VR2122 BCCA for this proposition.  
[116] In VR2122 BCSC, the owners negotiated a conditional purchase and  
sale agreement and then passed a resolution to wind up and appoint a liquidator.  
The chambers judge approved the winding-up resolution, appointed the liquidator,  
approved the sale pursuant to the purchase and sale agreement, and made ancillary  
orders.  
[117] At the appeal, the owners opposing the winding-up and sale argued that it  
was mandatory for the liquidator to apply to be appointed and to hold the vote to  
dispose of the property. The Court of Appeal held that it was necessary for the  
liquidator to apply to be appointed and for the vesting order to be made, but that  
did not preclude the strata corporation from entering into a listing agreement,  
marketing the property, and entering into a conditional purchase and sale agreement  
or seeking its approval on the s. 278.1 application. The Court of Appeal upheld the  
terms of the order confirming the winding-up and approving the sale, but overturned  
the terms of the order appointing the liquidator, vesting title to the strata property in  
the liquidator, declaring good and marketable title, and providing for the authority  
and powers to the liquidator. After explaining that a purchase and sale agreement  
could be and should be entered into before the s. 277 resolution seeking  
 
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appointment of a liquidator, in the context of a voluntary winding-up, so that the  
best interests of the owners can be considered under s. 278.1(5), the Court of  
Appeal stated, at para. 42:  
Having said that, I would agree with the appellants that the Act requires  
the liquidator to apply for approval of his appointment and the vesting order.  
The liquidator is assuming important responsibilities and should be before the  
court seeking its approval. The court must be able to determine that the  
liquidator is qualified and suited to carry out these responsibilities. I see  
nothing in the Act that would prevent the liquidator from bringing that  
application at the same time the strata corporation applies for approval of the  
winding-up resolution, with the preliminary issue of the adequacy of the  
winding-up resolution necessarily to be determined first.  
[emphasis in the original].  
[118] This passage, and this case as a whole, is not support for the proposition  
that the failure of the liquidator to apply for its appointment, or for the approval of  
the winding-up of the strata corporation, precludes the court from making the orders  
confirming the winding-up vote and approving the sale. At para. 47 of VR2122  
BCCA, the Court of Appeal said there is no reason why the strata corporation cannot  
apply, as a part of the s. 278.1 application, to obtain court approval of a particular  
purchase and sale agreement sought to be implemented through the winding-up  
process, and the Court of Appeal upheld the order approving the sale.  
[119] I do not accept the Mokssubmissions that the winding-up resolution  
(including the resolution to approve the sale) was invalidly passed because the  
resolution was put to the owners by the administrator and not by the liquidator.  
[120] However, in oral argument, the Moks also asserted that because the  
liquidator did not bring the application for its appointment, the petition should fail.  
In VR2122 BCCA, the Court of Appeal set aside the portions of the order appointing  
the liquidator and vesting the property, etc., because the liquidator did not apply for  
them.  
[121] It is apparent from s. 279 that the liquidators application cannot be made  
before the s. 278.1 order has been made in the case of a strata plan with five or  
more strata lots, as is the case here. The Court of Appeal, in VR2122 BCCA, stated  
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that the liquidator must be before the court, and observed that there was no reason  
the liquidator could not apply at the same time as the application confirming the  
winding-up resolution and appointing the liquidator. The Court also confirmed that,  
pursuant to s. 279, the application can be made at any time within 30 days of the  
liquidators appointment.  
[122] VR2122 BCCA, and the legislation, uses the word application. There has to  
be an underlying proceeding in which an application can be made. In this case, the  
administrator commenced the petition seeking the orders sought, including  
confirmation of the winding-up, approval of the sale, appointment of the  
administrator, the vesting orders, and ancillary orders. The proposed liquidator  
has responded to the confirmation petition and advised that it consents to the  
orders pertaining to its appointment, the vesting, its powers and authority, and  
the orders ancillary to those terms of the order. Counsel for the liquidator appeared  
at the hearing of the confirmation petition and advised the Court that, although it  
could have sought to be added as a petitioner or have brought a separate petition,  
it responded to the petition and consented to the orders that pertain to it, in order  
to streamline the costs and be as efficient as possible.  
[123] I am satisfied that this process meets the requirements of the Strata Property  
Act in substance and the requirement described in VR2122 BCCA, that the liquidator  
be before the court so the court can be satisfied that its appointment is appropriate.  
The liquidator is before the Court to confirm that it consents to the terms on which  
it is being appointed and no issues have been raised with the suitability of the  
liquidator or the terms on which it is appointed.  
[124] I do not consider the Moksarguments on this aspect of the confirmation  
petition preclude me from making the orders sought.  
Whether the Contract of Purchase and Sale was Incomplete  
[125] The Moks argue that at the time the resolution of the owners was passed  
approving the winding-up, the contract of purchase and sale was incomplete  
because it did not contain a schedule of personal property, such as upgrade  
 
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materials, appliances, equipment and window coveringswhich were to remain  
the property of the owners. They submit the resolution did not comply with  
s. 277(3)(c)(iii) of the Strata Property Act, which requires that the resolution identify  
the personal property held by or on behalf of the strata corporation to be  
surrendered to the liquidator.  
[126] I do not accept the Mokssubmission. While there was discussion at the time  
of the resolution that a list of the property to be excluded would be appended to the  
contract of purchase and sale, thereby amending the contract of purchase and sale,  
s. 277(3)(c)(iii) requires that personal property to be surrendered to the liquidator be  
included in the resolution, not that excluded personal property be listed in the  
resolution. The contract of purchase and sale defines the property to be transferred  
as the lands and buildings, inclusive of structures and improvements.  
[127] In addition, while the resolution purported to approve the contract of purchase  
and sale, which the Moks argue was incomplete, it was not required for it to do so.  
As noted above, the contract of purchase and sale did not have to be approved  
by the owners to get to this stage of the voluntary winding-up procedure, but it is  
open to the administrator to have this Court approve it: VR2122 BCCA at para. 47.  
I understand that the contract of purchase and sale has now been amended to  
append the list of excluded personal property, and so the excluded property has  
been incorporated into the contract of purchase and sale to be approved by this  
Court. I do not accept that the problem asserted was a defect in the s. 277  
resolution.  
Inaccurate Estimate of the Costs of Winding-Up  
[128] The Moks assert that because the resolution and the confirmation petition  
provided an estimate of the costs of the winding-up, followed by language that the  
actual costs might vary from the estimates, and that a variation will not require a  
further meeting or vote approval of the strata corporation, the resolution was  
inconsistent with s. 277(3) of the Strata Property Act, which is intended to provide  
certainty to the owners. They describe the order sought as a blank chequewhich  
 
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ought not be approved, especially since the owners were given a much higher  
estimate several months before the winding-up resolution, thereby giving rise to  
the concern that the estimate in the resolution and the petition might be unreliable  
by a significant margin.  
[129] The administrator and counsel for the liquidator point out that an estimate is  
required by s. 277(3) of the Strata Property Act. An estimate was provided at an  
earlier time that was much higher than the estimate currently provided. Counsel for  
the liquidator has explained that the higher estimate given before the resolution was  
based on the typical costs to wind up, but was determined to be too high because in  
this case, the administrator did a significant amount of work allowing for a more cost-  
efficient process resulting in a decreased estimate.  
[130] The administrator and proposed liquidator also assert that an estimate should  
not be a straightjacket on which a winding-up vote should be invalidated. At the time  
the resolution is proposed and the estimate is provided, the nature of the opposition  
may be unknown and generally speaking, the more opposition, the more work to get  
to court approval, and the greater the expense. The liquidators counsel also pointed  
out that the liquidator still has to have its accounts passed pursuant to s. 283 of the  
Strata Property Act. However, if the liquidator must go back to the owners to have  
actual costs that vary from the estimate approved, the process will be delayed and  
cost more.  
[131] While I would not rule out the possibility that an estimate that is totally  
devoid of reality could invalidate a resolution, I accept that the language pertaining  
to estimates of costs was appropriate in the resolution. It follows that I reject the  
argument that the s. 277 resolution was invalid because it included such language.  
Interest Schedule  
[132] In its response to the petition, the Moks assert that the interest schedule  
improperly sets out the interest of one of the strata units. This argument was not  
addressed in any detail in the written or oral submissions, other than a statement  
that the schedule is fatally flawedand misleading.  
 
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[133] In the absence of a substantive submission and evidence on this point,  
I will not consider it further.  
Best Interests of the Owners  
[134] In VR2122 BCSC, Justice Loo observed that once a resolution with an 80%  
vote in favour has been passed, the view of the 20% (or the portion who did not vote  
in favour) that the sale is not in their best interests is not enough to overcome the  
view of the majority. Rather, the best interests factor requires a balancing of the  
competing individual views of whether a sale is appropriate: VR2122 BCSC at  
para. 79. The test is objective, requiring the court to consider what reasonable  
owners would do in comparable circumstances: VR2122 BCSC at para. 98.  
[135] The Moks rely on para. 112 of VR2122 BCSC, where Justice Loo asserted  
that the court, in considering the interests of the minority opposed to a sale, ought  
to imply the duties that were imposed on the sales committee and the strata titles  
board, citing the Singapore Court of Appeal in Ghee and others v. Dave and others,  
[2009] 3 SLR. 109, [2009] SCGA 14 at paras. 168 and 169. Justice Loo then  
includes a list of duties, including appointing competent professional advisors,  
marketing the property for a reasonable period of time, following up on expressions  
of interests, creating competition between interested purchasers, obtaining expert  
advice, such as an independent valuation, and waiting for the most propitious time  
for the sale.  
[136] I pause to note that Justice Loo described these factors in considering the  
dissenting ownersinterests. Earlier in her reasons, she emphasized the importance  
of balancing the competing views. Clearly, para. 112 is an expression of part of the  
analysis of determining the best interests of the owners, and not the whole of her  
analysis.  
[137] The Moks assert that there were failures in the marketing of Spruce West,  
the process, timing of the confirmation petition, and the price obtained compared to  
current fair market value. As a result, the Court should conclude that the proposed  
sale does not serve the best interests of the owners.  
 
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[138] Before turning to the specifics of their concerns, it is important to understand  
the state of repair of Spruce West, the information that the owners and the  
administrator had about needed repairs, and the costs of those repairs.  
[139] Dan Sonnenschein is the owner of strata lot six, the penthouse.  
Mr. Sonnenschein swore an affidavit about the history of the problems with the  
building which is largely uncontested.  
[140] In 2009, Mr. Sonnenschein hired an inspection service to inspect his strata lot  
and common areas. The inspector reported that the building had not been properly  
maintained for years and urgently needed a maintenance program before more  
concrete fell off it. The inspector recommended several remediation steps, such as  
replacing windows with thermally broken frames and glazing, obtaining structural  
and electrical engineering advice on anchor bolts, structural supports for the  
concrete fire escape stairs, and the buildings electrical system which was not  
properly grounded. The problems identified in this report were not addressed by  
the strata corporation, except the fire escape stairs which became the subject of  
the City of Vancouver Emergency Work Order before they were addressed by the  
administrator.  
[141] In 2017, the strata corporation retained an engineering company to undertake  
a visual review of the building with a focus on its envelope. The engineers concluded  
that immediate repairs were needed to maintain the life safety and occupant  
liveabilityof the building, including replacing all exterior windows and doors,  
installing rain screen cladding, replacing failed walls, and repairing the main roof and  
the parkade roof. The engineers also concluded that the brackets connecting the fire  
exit stairs had failed, such that new brackets were required immediately and proper  
fire-stopping should be installed between the stairs and the walls. The estimated  
cost of repairs was $1,100,000.  
[142] On April 17, 2018, the City of Vancouver issued the Emergency Work Order  
pertaining to the fire exit stairs.  
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[143] In 2018, the strata corporation retained a different engineering firm to conduct  
another visual review. This engineering firm recommended similar repairs as the  
first, suggested a five-year strategy, and estimated the costs would be $1,680,000.  
[144] There is evidence that water ingress was apparent in the entryway to the  
building, the parking garage, and in at least some of the units. Mr. Sonnenschein  
had reported mould in his unit for several years. Ms. MacLennan and Ms. Foster  
also reported mould in strata lot five.  
[145] As discussed above, none of the required rehabilitation had taken place prior  
to the administrator being appointed, and all were outstanding when the building was  
marketed.  
Timing of the Sale  
[146] The Moks assert that the sale should be delayed until the Broadway corridor  
project is far enough advanced that it will put upward pressure on the sale price.  
They rely on the evidence of their appraiser, who asserts that development, once  
those plans are approved, is the highest and best use of the building. The Moks  
also argue that Spruce West was marketed during the global COVID-19 pandemic,  
an unpropitious time.  
[147] While this factor is to be considered in accordance with VR2122 BCSC, it  
must be considered in context. A timing consideration assumes that the owners  
have the ability to choose when to market the property. In this case, despite the  
Moksassertion that the building is liveable, the evidence is that there is mould in  
at least two of the units. Mr. Sonnenschein deposed that he is unable to obtain  
insurance. Ms. MacLennan and Ms. Foster are unable to rent strata lot five because  
of its condition. The owners have not taken any meaningful steps towards necessary  
repairs except the City of Vancouver Emergency Work Order, which they only  
did after an administrator was appointed for that purpose and after it had been  
outstanding for two years. The owners have forced themselves into a situation  
where the only viable option is to wind up and sell because they have not kept the  
building in a minimum standard of repair. Such circumstances do not permit timing  
 
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the market or waiting to take advantage of an increase in value when the Broadway  
corridor transit approvals take effect.  
[148] I conclude the timing of marketing the building does not negatively impact the  
best interests of the owners assessment.  
Marketing of Spruce West  
[149] The Moks assert that the marketing of Spruce West was inadequate and the  
winding-up and sale should not be approved because:  
a) it was listed for sale during the COVID-19 pandemic, which was a bad  
time;  
b) it was conducted in a summary manner and for less time than it was  
supposed to be;  
c) it was conducted in a manner that dissuaded other prospective purchasers  
after potential purchasers surfaced;  
d) no appraisal was done to give confidence to the owners and the court that  
fair market value was obtained;  
e) the contract of purchase and sale was entered into one-and-one-half  
years before the confirmation petition was heard and the sale price does  
not reflect current fair market value; and  
f) the sale price undervalues Spruce West because it does not reflect that  
it is in close proximity to planned transportation improvements to the  
Broadway corridor.  
[150] The administrator appointed pursuant to the consent order was Garth  
Cambrey.  
[151] After requesting marketing proposals from four commercial brokerage firms,  
Mr. Cambrey entered into a listing agreement on behalf of Spruce West with  
 
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Goodman Commercial. Goodman assessed the value of Spruce West to range  
between $2.5 million and $4.095 million and proposed a listing price of $4,750,000.  
[152] Mr. Cambrey did not obtain an independent appraisal of Spruce West, a  
matter provided for in the consent order. I will return to this topic.  
[153] Goodman commenced marketing in July 2020. The marketing campaign  
included promotion in the Goodman Report, advertisement on Goodmans website,  
through the Western Investor Newspaper, Landlord BC Magazine, Twitter, Facebook  
for Business, LinkedIn, an email campaign, a postcard mailout to 2,200 purchasers,  
a sales brochure to investors and developers, and follow-up with potential  
purchasers by phone call or meeting.  
[154] Two prospective purchasers made offers. The highest was from OpenForm  
at $4,300,000, and the other was from Butterscotch at $3,900,000.  
[155] The administrator signed a letter of intent with OpenForm on August 6, 2020.  
The administrator held a special general meeting on September 2, 2020, seeking  
approval from the owners to proceed with a court-ordered winding-up and sale  
based on the OpenForm offer. The owners other than the Moks voted in favour.  
The Moks abstained. However, on September 20, 2020, OpenForm withdrew its  
offer after doing due diligence based on the view it formed as to the costs to repair  
the building. It indicated it would be prepared to proceed at a price of $2,500,000.  
[156] The administrator went back to Butterscotch and entered into a letter of  
intent on September 20, 2020. After Butterscotch toured the building, it also  
refused to move forward with its initial offer of $3,900,000. Through Goodman,  
the administrator negotiated an amended letter of intent at $3,300,000. The owners  
of five of the six strata lots approved the administrator entering into a letter of intent  
with Butterscotch at that price. A contract of purchase and sale was entered into  
on November 6, 2020 for the sale subject to the voluntary winding-up and court  
approval.  
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[157] On March 24, 2021, the administrator convened a special general meeting  
where the owners passed the resolution that is the subject of this petition.  
[158] The Moks assert that the marketing period was too short, describing the  
marketing campaign as little more than a weekcompared to the proposals outlined  
by the companies that recommended a 6-12 week marketing period.  
[159] I do not accept that the marketing period was little more than a week.  
The administrator deposed that the marketing started in July 2020. The administrator  
entered into the letter of intent with OpenForm on August 6, 2020. The evidence is  
that was not the end of the marketing in that the property remained and still is on  
Goodmans website. However, it is clear that from that time on, a under contract”  
banner appeared on the advertising of the property, including after OpenForm  
withdrew its offer and before the letter of intent was concluded with Butterscotch.  
Whether that would attract or detract potential buyers is not clear on the evidence.  
However, for the reasons that follow, it does not make a difference on the best  
interests analysis.  
[160] The period of active marketing resulted in two offers that were in the upper  
portion of the range of prices that Goodman suggested the property should sell for.  
However, once those prospective purchasers looked more closely at Spruce West,  
they were not prepared to pay those prices for it. The first reduced its offer by  
$1,800,000 and the other by $600,000. Based on the evidence of the state of  
disrepair of Spruce West, I conclude that any purchaser who took a close look  
would have its enthusiasm dampened and concerns about repair costs heightened.  
That is not a facet that could be changed through a lengthier marketing campaign.  
[161] The Moks also raise concerns that the marketing process referenced repairs  
required for life safetyissues and the City Emergency Work Order, without  
emphasizing that the owners had approved a special levy to address those issues.  
In July 2020, the owners approved a $50,000 special levy to address the City of  
Vancouver Emergency Work Order, based on the administrators initial estimate of  
the cost of repairs. However, the repairs had not been undertaken at the time the  
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marketing of the property began and were not finished until mid-2021, in part  
because the owners defeated a second motion to pass a further special levy when  
the proposals from contractors exceeded the special levy funds raised.  
[162] It would not have been accurate for the marketing to suggest that the owners  
were addressing the necessary repairs at their own expense. To be accurate on  
this front, the marketing would have had to say that the owners were prepared to  
address the City of Vancouver Emergency Work Order, a small fraction of the  
necessary repairs, at their own expense, leaving water running into the building,  
concrete crumbling of the walls, windows and doors needing replacement, and  
mould in at least two of the units.  
[163] I do not accept that the content and length of the marketing campaign  
resulted in offers that were sub-par in terms of the best interests of the owners.  
Evidence of Fair Market Value  
[164] There is conflicting evidence as to whether the Butterscotch offer reflects the  
fair market value of Spruce West, including the timing at which fair market value  
should be determined.  
[165] As a starting point, the administrator did not obtain an appraisal until after the  
Moks filed their response to this petition, including their appraisal, to which I will  
come.  
[166] The consent order provided for the administrator to obtain an independent  
appraisal but did not require it. At an information meeting with the owners prior to  
retaining Goodman to list Spruce West, the administrator recommended to the  
owners that an appraisal be deferred until Spruce West was listed. Shortly after  
entering into a listing agreement with Goodman, the strata corporation held its  
annual general meeting. The agenda included a resolution for an appraisal.  
The administrator recommended the appraisal. The resolution did not receive  
a seconder and was defeated.  
 
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[167] The administrator did obtain an appraisal in late December 2021 in order to  
reply to the Moksappraisal evidence. It is noteworthy that at the time the building  
was about to be marketed, the owners were so disinterested in spending the money  
to obtain an appraisal that no one seconded the motion the administrator put on the  
annual general meeting agenda. Regardless of whether the resolution was needed  
to obtain an appraisal, the objective evidence is that the owners were content to  
proceed without one.  
[168] I turn to the issue of whether the sale price negotiated a few months later was  
not in the best interests of the owners, given that they did not have an independent  
appraisal at the time they entered into the contract for purchase and sale.  
[169] The owners were faced with two unknowns of their own making. The first,  
and arguably controlling, was the actual cost of repairs. They were working with  
dated information that was not based on opening up the walls to see the real extent  
of the damage to the envelope and structures of the building. The second was the  
lack of an independent appraisal, the value of which would arguably be impacted  
by the first unknown.  
[170] The owners had Goodmans opinion that the building sale price could range  
from $2.5 million to $4.05 million. The provincially-assessed value, as of July 2020,  
was $4,402,000. That latter value could not be said to be informed by the costs of  
repairs. The estimates of repairs ranged from $1.1 million to $1.68 million. By 2020,  
the repair estimates were dated and they were based on visual inspections only.  
[171] The ongoing reluctance of a majority of owners to spend more than the bare  
minimum to repair Spruce West, coupled with the information they had about the  
market value of the building, their disinterest in obtaining an independent appraisal,  
and the information they had about the value of the building and the costs of repairs,  
collectively provides the basis on which to objectively assess whether the owners  
could make a decision on a sale price that was in their best interests. The resolution  
to raise the remainder of the funds to complete the City of Vancouver Emergency  
Work Order was defeated in December 2020, shortly after the owners approved the  
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Butterscotch letter of intent at $3.3 million, but before they passed the resolution in  
favour of the winding-up and sale.  
[172] Considering all of the evidence from the perspective of a reasonable person  
in the position of the owners, it is my view that the owners could have made the  
decision that the supermajority made with the information available, especially since  
they made collective decisions to limit the information they had about the value of  
Spruce West and the true costs of repairs it needs.  
[173] The Moks assert that the purchase and sale agreement with Butterscotch  
must be viewed against the current fair market value, i.e.: the fair market value at  
the time the court hears the petition. In support of this argument, they point to  
s. 278.1(1) of the Strata Property Act, which permits a strata corporation that has  
passed a voluntary winding-up resolution to make an application for approval of the  
voluntary winding-up, and requires it to do so within 60 days of the resolution.  
[174] Subsections (1) and (2) of s. 287.1 are not readily reconcilable on their face.  
The s. 278.1(1) application to the court is permissive, but its timing is mandatory,  
subject to s. 278.1(2) which stipulates that failure to comply with the mandatory  
timing requirement neither invalidates the resolution nor prohibits the application for  
approval. The parties could not point to any authorities addressing these provisions.  
[175] The Moks did not take the position that the failure to meet the 60-day  
timeframe is fatal, but they argue the 60-day timeframe must mean something.  
I agree with both of those positions. The Moks assert it means that the legislature  
requires evidence of the value of the proposed sale that is current at the time the  
court is hearing the petition to confirm the winding-up resolution.  
[176] In my view, the legislature cannot be taken to be stipulating a requirement  
that the sale price represent market value at the time the court hears the  
confirmation petition in all cases. In a rapidly changing market, that could defeat any  
proposed winding-up. Among other things, having a petition heard within 60 days of  
a vote may be impossible in some British Columbia Supreme Court jurisdictions  
The Owners, Strata Plan VR456 (Re)  
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where there is opposition to it such that more than a two-hour hearing is required.  
This matter required a three-day hearing. Counsel for the Moks was not retained  
until the summer of 2021 (after a March 2021 resolution) and was not available for  
the petition hearing until late 2021. It proceeded in January 2022.  
[177] In my view, the legislatures inclusion of the 60-day timeframe, while  
permitting an escape valve, was to promote the value of having a timely court  
confirmation process so that the proposed winding-up and sale is not divorced in  
time from prevailing owner sentiments and market conditions. A resolution that has  
become stale by virtue of the passage of time may no longer be in the best interests  
of the owners or remain reflective of the ownerswishes. The court must consider  
that, especially in cases where the confirmation petition is brought after that  
timeframe.  
[178] The confirmation petition was filed in July 2021, three to four months after the  
resolution was passed. The hearing date was scheduled in consultation with counsel  
for the Moks, considering the time at which a three-day petition could be  
accommodated in Vancouver. That is generally at least two to three months out from  
the time a hearing date is requested. In the circumstances, the time to hearing was  
not unreasonable.  
[179] With regard to the currency of the intention of the owners, as late as  
January 2022, all of the owners, except the Moks, have sworn affidavits advising  
of their commitment to the winding-up and sale, despite the passage of time and the  
upswing in sale prices for residential properties in Vancouver, a topic to which I now  
turn.  
[180] The evidence is that between the assessment years of 2020 and 2021,  
the provincially-assessed value of the Moksstrata unit increased from $768,000  
to $883,000, or by 15%.  
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[181] The July 2020 provincially-assessed value of Spruce West was $4,402,000,  
broken down into land of $3,486,000 and improvements of $912,000. The July 2021  
provincially-assessed value was $4,984,000.  
[182] The Moks have provided an appraisal of the land component of the property  
as at November 17, 2021. The appraised value is $3,750,000. The appraiser also  
opines that the highest and best use of the property is to develop it as bare property  
once the Broadway corridor transit project has been approved. He notes that at the  
time of his report, the matter was to go before Vancouver City Council in the spring  
of 2022.  
[183] I do not find an appraisal of the bare land value to be of assistance in  
determining whether this proposed sale of Spruce West is in the best interests of  
the owners. In order for it to be sold as bare land, the building would have to be  
taken down. The net sale proceeds to the owners must take into account the costs  
of taking down the building. There is no evidence of the costs of doing so. The only  
thing I can conclude from this valuation is that the net proceeds of a bare land sale  
would be $3,750,000 less the costs of converting the property to bare land. Other  
considerations would be that in order to effect such a sale, the owners would have  
to vacate their strata lots before obtaining the sale proceeds. There is no evidence  
that, at any point in the process that has unfolded over the last two years since the  
owners of strata lot five sought the appointment of an administrator, anyone has  
suggested the property be marketed as bare land.  
[184] The administrator obtained an appraisal of the property (land and building) as  
at November 2020. The Moks assert it is not admissible because it cannot pass the  
threshold analysis of relevancy, necessity, absence of an exclusionary rule, and a  
properly qualified expert, relying on White Burgess Langille Inman v. Abbott and  
Halliburton Co., 2015 SCC 23 at para. 23.  
[185] The focus of the Moksobjection is relevance. They assert that because the  
appraisal is as at November 2020, 14 months ago, it does not provide any relevant  
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Page 49  
opinion evidence because the Court must assess the sale price against the current  
value of the property.  
[186] I accept the evidence demonstrates that the market value of residential  
property in Vancouver has generally increased between the time Spruce West  
was marketed, the letter of intent with Butterscotch was entered into, and now.  
[187] I pause to note that the Mokscompanion argument is that Rule 11-6 of the  
Supreme Court Civil Rules, in particular the rules on reply expert reports, apply.  
If this is the case, it may never be possible to have admissible appraisal evidence if  
the timelines in Rule 11-6 must be respected because the value could easily change  
between the time the report must be served and the time of the hearing, given the  
sometimes volatile real estate markets in this province.  
[188] Leaving aside the timelines in Rule 11-6, an appraisal conducted at the time  
a winding-up resolution was voted upon might no longer reflect the value of the  
property at the time the court considered the application, even if it was brought  
within the 60-day window provided for in s. 278.1(1).  
[189] As provided for in VR2122 BCSC, the test regarding the best interests of the  
owners is an objective test, taking into account what a reasonable person would  
do with the information available to the owners: at para. 98. I am of the view that  
appraisal value at the time the owners are making the decision is relevant.  
[190] I do not accept the Mokssubmission that the administrators appraisal report  
is inadmissible because of the date at which the property was valued.  
[191] The Moks also submit that the administrator’s appraisal report is not  
admissible because it is not a proper reply. They rely on authorities interpreting  
Rule 11-6 reply requirements. Rule 11-6 is not applicable to expert evidence entered  
into evidence on a petition. In addition, the administrator does not tender the report  
as a response to the Moksexpert opinion evidence, which is opinion evidence on  
the market value of the bare land. He tenders the report as a response to evidence  
which Ms. Mok tendered in her affidavit as to the market value of Spruce West as  
The Owners, Strata Plan VR456 (Re)  
Page 50  
land and building, including evidence of provincial assessments and real estate  
market evidence. As evidence in reply to that, it meets the timelines in the Supreme  
Court Civil Rules.  
[192] Finally, the Moks argue the report is not admissible because there is no  
statement of the authorsqualifications. Both the administrators report and the  
Moksreport contain very brief descriptions of the authorsqualifications. None of the  
report writers attached curricula vitae. Nevertheless, based on the brief statements  
of qualifications and experience, I am satisfied that the reports are admissible.  
[193] The administrators appraisal is that as of November 2020, Spruce Wests  
highest and best use was as a townhome development. The appraised value was  
$3,380,000.  
[194] With regard to the use to which the administrators appraisal report can be put  
on the confirmation petition, it was not available to the owners at the time they  
approved the letter of intent or voted on the resolution. It does not assist with  
determining if the owners, voting with the information they had, were acting in the  
best interests of the owners. However, it assists by providing insight that had the  
owners had the appraisal, they would not have likely voted differently.  
Conclusion on Best Interests of the Owners  
[195] In balancing the interests of the owners objectively and taking into account  
the circumstances of Spruce West and the information the owners had, I conclude  
that the Moks have not demonstrated that the proposed winding-up and sale is not  
in the best interests of the owners.  
Significant Unfairness  
[196] The significant unfairness assessment in ss. 278.1(5)(b)(i) and 284(3)(b)(i)  
encompasses oppressive conduct and unfairly prejudicial conduct or resolutions. It is  
intended to preclude conduct or consequences that are burdensome, harsh,  
wrongful, lacking in probity or fair dealing, or has been done in bad faith.The  
modifying term significantindicates that the unfairnessmust be oppressive or  
   
The Owners, Strata Plan VR456 (Re)  
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transcend beyond mere prejudice or trifling unfairness. It must be unfairnessthat is  
of great importance or consequence: VR2122 BCSC at para. 140, citing Dollan v.  
The Owners, Strata Plan BCS 1589, 2012 BCCA 44 at paras. 25-28. The word  
significantimposes a more stringent threshold than simply unfairness: VR2122  
BCSC at para. 140, citing Jaszczewska v. Kostanski, 2016 BCCA 286 at para. 41.  
[197] In VR2122 BCSC, Justice Loo held that in considering significant unfairness,  
the issue must be viewed through the lens that the dissenting owners are facing  
an involuntary taking of their homes. In a case where the factors supporting the  
winding-up and sale are a significant profit of the sale of the strata corporation as a  
whole, Justice Loo held that there should be greater emphasis on property rights as  
a home rather than to property rights as a commodity or economic interest. Justice  
Loo cited The Owners, Strata Plan VR 1966, 2017 BCSC 1661 at paras. 41 and 42  
for the proposition that because it is an involuntary taking of a home, the statute  
must be strictly complied with. Although VR2122 BCCA overturned the decision of  
Justice Loo in part, it upheld this aspect of her decision and expressly approved the  
passage from Strata Plan VR 1996 relied on: VR2122 BCCA at paras. 29, 32.  
[198] In this case, the Moks argue that they view Spruce West as their home. They  
have owned it since 1997. The evidence is not clear as to whether it is the primary  
residence of either of them. One of the owners, Ms. Mui, deposed that Ms. Mok has  
not lived there for many years. Ms. Mok does not state that she lives there, but she  
does identify herself as being of that address.  
[199] Unlike in other cases, where owners objecting a winding-up and sale of a  
strata corporation depose to attachments to their homes, the Moks do not do so.  
Ms. Mok deposes to the convenience of its location in terms of acquiring healthcare  
for a serious health condition. They both depose that they would like to relocate to  
the same neighbourhood. They have led evidence about the market costs of a  
similar home in the neighbourhood that demonstrates that their share of the  
winding-up and sale proceeds will not allow them to replace their home in the  
same neighbourhood.  
The Owners, Strata Plan VR456 (Re)  
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[200] The evidence demonstrates that over more than a decade, the owners have  
made decisions to not spend the money to maintain their building. As a result, it is in  
disrepair. They cannot expect that they can buy a home in good repair of similar size  
in the same neighbourhood.  
[201] The evidence demonstrates that after years of ignoring serious and growing  
problems with the building, since April 2020 the owners, other than the Moks, have  
reckoned with this fact and have agreed to the winding-up and sale. The Moks,  
however, believe the Broadway corridor transit project will enhance the value of  
Spruce West if they can hold on for a few more years. Their counsels submissions  
emphasize the failure to capitalize on this as part of the submission that the timing  
of the sale was unpropitious. The strata minutes in evidence show that the Moks  
have been arguing that the owners should wait for the Broadway corridor plans  
to positively impact the price of the building for many years.  
[202] Of the six strata lots, four are the homes of the owners. One is rented out.  
One is owned by the daughters of a deceased owner. This is not a case where  
the supermajority is seeking winding-up to capitalize on a profit. Although all of  
the owners, except the daughters of the deceased owner of strata lot five, will  
realize much more than they paid for their units, it is likely that they will all realize  
proceeds that are less than the cost of buying a similar sized home in the same  
neighbourhood. Their homes do not enjoy a value that would permit any of  
them to relocate to something in good repair in the same neighbourhood.  
[203] Accordingly, the nature of this contest is not the same as one where the  
supermajority want to make money and the dissenting owners want to keep their  
homes. This is a contest between owners who do not want to spend the money to  
bring the building into good repair and have accepted that means they must sell it,  
and those who also have refused to spend the money to bring the building into good  
repair but do not accept that means they cannot continue to live there. The Moks are  
prepared to continue to live in a building that leaks, has crumbling concrete, and in  
The Owners, Strata Plan VR456 (Re)  
Page 53  
which some of the units contain health hazards like mould, until the Broadway  
corridor brings home the economic benefits they have been banking on.  
[204] While the Moks have deposed as to features of the neighbourhood they  
are attached to and find convenient, the unfairness of the practical result that the  
proceeds will not allow them to relocate to a similar sized home in the same  
neighbourhood must be viewed in the context that they played a role in creating  
this situation.  
[205] In attempting to discharge their onus to establish relative significant  
unfairness, the Moks have not, since April 2020 when the administrator was  
appointed to effect a sale of Spruce West, proposed a workable plan to rehabilitate  
Spruce West. I conclude that given the history of not being able to agree to a plan,  
despite the longstanding knowledge of serious problems with the structure, the  
owners will continue to deadlock on this issue.  
[206] Ms. MacLennan and Ms. Foster cannot rent or occupy their strata lot. Their  
evidence shows that the value of their strata lot is eroding as they continue to fund  
the expenses associated with owning an uninhabitable strata lot in a dilapidated  
building.  
[207] Mr. Sonnenschein deposed that he has been unable to obtain insurance on  
his strata lot due to the state of the building. He has inquired of the real estate agent  
who he used when he bought the unit and that agent is unwilling to list it because  
of the state of the building. He deposed that he is unable to rent out the strata lot  
because of the mould in his unit.  
[208] While I consider that the Moks may not be able to continue to live in the same  
neighbourhood and that is a downside to them, there is greater unfairness on those  
owners who have accepted the reality that all of the owners are unable to agree on  
whether and how to repair the building if the winding-up and sale is not approved  
and the owners continue to be unable to agree.  
The Owners, Strata Plan VR456 (Re)  
Page 54  
Confusion and Uncertainty  
[209] Since April 2020, a supermajority of the owners has agreed to move towards  
the winding-up and sale of Spruce West, instead of continuing the paralysis about  
what to do about its problems.  
[210] The Moks do not agree that they have obstructed repairs on the building in  
the past or that the owners cannot work together to bring the building into repair.  
In his affidavit #3, Dr. Mok deposed that:  
Repair Efforts  
11.  
I have reviewed the First Affidavit of Tracey Anne MacLennan made  
January 7, 2022, the First Affidavit of Suzanne Foster made January 7, 2022,  
the First Affidavit of Petislav Tovbis made January 5, 2022, the First Affidavit  
of Dan Jacob Sonnenschein made January 6, 2022 and the First Affidavit of  
Agnes Mui made January 5, 2022. Those affidavits make many allegations  
against Ms. Mok and me that are not true. Unfortunately, I am not in a  
position to make a full response to those allegations due to the very limited  
time I have had with those affidavits and the very limited time available to  
make this affidavit before the court materials must be filed with the Court.  
12.  
However, I will quickly respond to the allegation in those affidavits that  
Ms. Mok and I have tried to obstruct repairs in respect of the Building and that  
the Owners are unable to work together to make repairs. That allegation is  
not true. Ms. Mok and I have supported needed repairs to the Building, and  
the Owners have repeatedly demonstrated their ability to cooperate to make  
repairs to the Building. Now shown to me and attached as Exhibit Bare  
copies of some productive correspondence between me, Ms. Mok and our  
fellow Owners concerning repair issues. These are just some examples of  
many I could provide to the Court if I had the time to do so.  
13.  
Also, in the First Affidavit of Petislav Tovbis made January 5, 2022 at  
paragraph 9, Mr. Tovbis suggests that Ms. Mok and I opposed the raising of a  
special levy for a city work order in respect of the Building. This is incorrect.  
Ms. Mok and I were in support of raising funds for repair work, but we had  
concerns about the amount to be raised because we had been given  
conflicting information by Barry Kinakin, an engineer at Read Jones  
Christofferson Ltd. We paid our portion of this special levy, and all other  
levies, in full and on time.  
14.  
While the above-noted affidavits say some hurtful things about me  
and Ms. Mok, I bear no ill-will against my fellow Owners. I can see no reason  
why the Owners cannot work together with the assistance of an administrator  
or otherwise to make needed repairs to the Building or obtain fair value for  
our mutual asset instead of leaving several hundred thousand dollars (or  
more) on the table and making it impossible to buy comparable homes in the  
area.  
   
The Owners, Strata Plan VR456 (Re)  
Page 55  
[211] Ms. Mui, the owner of strata lots one and two, deposed that between her and  
the Moks, they have three of six votes and they have historically repeatedly voted to  
defeat any repairs. She deposed that for her part, she has done so because she has  
no money to invest in the building. She wished to continue with the winding-up and  
sale of the property.  
[212] Mr. Tovbis, the owner of strata lot three, agrees that the failure to address the  
problems in the building is not due solely to the Moks but that there is no hope of  
moving forward other than through the winding-up and sale. He deposed that:  
6.  
Although Dr. and Ms. Mok are not solely to blame for the condition of  
the building, they have consistently opposed efforts to undertake  
needed repairs to the building. They and others, including myself,  
have not been willing to spend money on addressing the disrepair in  
the building, and I have no confidence that the Moks have suddenly  
seen the light and now wish to commit to repairing the building.  
7.  
While full of criticisms about the appointment of the administrator, the  
marketing process, and the sale price, their affidavits offer no hope to  
me as a fellow owner that if the windup does not proceed, we can  
come together as a group to address needed repairs.  
8.  
9.  
I, too, am very concerned about the sale price for the property, but I  
am also aware that if we do not sell, extensive repairs are needed to  
the building, and most of us are not willing to spend that money.  
Proof of this can be found in the minutes from the strata corporations  
annual general meeting held on July 13, 2020. At that meeting, we  
voted on a $50,000 special levy to address a work order issued by the  
City of Vancouver. The work order required us to fix the fire escape or  
vacate the building. When it came time to vote on the special levy to  
install shoring in the fire escape, they refused to vote in favour at the  
cost of $2,128.36 to the Moks. Attached as Exhibit Ato my affidavit  
is a true copy of the special general meeting held on July 13, 2020.  
10.  
11.  
How can any owner be expected to put their faith in the ability of the  
strata corporation to address the state of disrepair in the building  
when we have owners unwilling to spend the money necessary to fix  
a dangerous fire escape?  
Not confirming the windup vote at this stage will condemn the  
ownership to another deadlock on repairs, and undoing that deadlock  
will require further court intervention and more expense by the  
owners. Another owner will have to come forward and bring an  
application for the appointment of an administrator. It will also require  
the owners to undergo the cost and expense of another windup  
process.  
The Owners, Strata Plan VR456 (Re)  
Page 56  
12.  
If the windup does not proceed, it will be significantly unfair to me  
because, unlike Dr. and Ms. Mok, I cannot afford to continue to live in  
a building that remains in a significant state of disrepair. When I  
bought this property, I did not expect to be involved in a nearly 17-  
year argument over repairs and maintenance. I did not expect that an  
administrator would be necessary to agree on repairs related to life  
safety. My unit forms an important part of my life savings, and I fear  
that if we do not sell this building now, the strata corporation will  
continue in an indefinite stalemate over repairs.  
[213] In response to the question about what is to be done if the winding-up and  
sale is not approved, given the paralysis in addressing the disrepair of Spruce West  
the owners have collectively demonstrated over the years, including the City of  
Vancouver Emergency Work Order, the Moks respond that they are willing to  
consider addressing repairing the building.  
[214] The only evidence that repairs might finally come about is in Dr. Moks  
third affidavit, in which he asserts that there is no reason the owners cannot work  
together to have repairs done. Against that, there is significant evidence of the  
owners not being able to agree to spend money on repairs. It is not enough to say  
that repairs could, in theory, be accomplished for this to be a viable alternative.  
[215] I do not accept that an alternative to avoid selling the building is the owners  
agreeing on a plan to rehabilitate it. In the absence of a plan to address this  
seriously deteriorating building, I conclude that there would be significant confusion  
and uncertainty if this winding-up and sale is not approved.  
Disposition  
[216] The application to set aside the appointment petition is dismissed.  
[217] I confirm the winding-up resolution and make the orders sought in the  
confirmation petition.  
Matthews J.”  
 



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