SWS Marketing Inc. v. Zavier
calling these meetings, there is insufficient evidence that 20% of owners
made a formal request to them for a meeting under s.43. There is no
evidence of a request by the necessary number of owners to the properly
elected Original Council, or a subsequent refusal by the Original Council to
respond to this demand. Hence, I find that there was no proper council
election at those two Zavier Council meetings. The failure to provide proper
notice itself is fatal to the validity of these meetings given the importance of
notice to the proper democratic functioning of a strata corporation: [citations
omitted]. The notice problems outlined above were so sufficiently clear,
egregious, and unnecessary that I conclude that s.47’s curative provision is
unavailable to the defendants: [citation omitted].
In relation to the subsequent Zavier Council meetings, they are all
tainted with this “original sin” arising from their failure to be properly elected in
2013 or 2014. All of their later meetings purported to be called by the
improperly constituted Zavier Council. It may have been possible for the
defendants to collectively have demanded and called a meeting pursuant to
s.43, but none of the Zavier Council meetings were called pursuant to the
authority of this section after a demand to the proper council. Given the lack
of authority of the Zavier Council, the Zavier Council was not in a position to
call further meetings on its own initiative.
In terms of the Gauthier Council, I accept that the defendants Zavier
and Lanz lost their status on the Original Council in 2013 and 2014 through
their failure to participate in meetings called by Rene Gauthier. They were
replaced by William Gauthier and Jorg Thielk. This became the properly
constituted Gauthier Council in charge of calling further meetings: SPA,
Although there were certain “glitches” in the conduct of the Gauthier
Council meetings organized thereafter, there can be little dispute as to the
validity of, at a minimum, the December 31, 2019 Gauthier Council AGM at
which William Gauthier, Rene Gauthier and Sacha Elez were elected . The
meeting minutes acknowledged, and on their face respected, the need to wait
30 minutes before freshly determining quorum from the members present.
By this time, SWS had purchased a unit, giving Rene Gauthier the status to
be nominated to Council. Even if there was a problem with the budget
presentation, that would not invalidate the election of the Gauthier Council. A
full complement of three council members was elected. This was the
Gauthier Council’s last properly constituted group, and indeed is the most
recent council properly elected by either group. As such, I find that they are
entitled to serve in that role pending a new strata meeting.
 I consider all of these matters res judicata.
 In these Reasons, I will continue to refer to a strata council of which Mr.
Gauthier is a member as a “Gauthier Council.” However, since February 2021, a
“Gauthier Council” and the Strata Corporation’s strata council are one and the same.