Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Thurlow & Alberni Project Ltd. v. The

Owners, Strata Plan VR 2213,

2022 BCCA 257

Date: 20220725

Dockets: CA47534; CA47535

Docket: CA47534

Between:

Thurlow & Alberni Project Ltd.

Appellant/

Respondent on Cross Appeal

(Respondent)

And

The Owners, Strata Plan VR 2213

Respondent/

Appellant on Cross Appeal

(Petitioner)

James Jamieson and Gillian Jamieson

Respondents

(Respondents)

- and -

Docket: CA47535

Between:

James Jamieson and Gillian Jamieson

Appellants/

Respondents on Cross Appeal

(Respondents)

And

The Owners, Strata Plan VR 2213

Respondent/

Appellant on Cross Appeal

(Petitioner)

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 2

Before:

The Honourable Mr. Justice Willcock

The Honourable Justice Dickson

The Honourable Mr. Justice Marchand

On appeal from: An order of the Supreme Court of British Columbia, dated

May 12, 2021 (The Owners, Strata Plan VR 2213 (Re), 2021 BCSC 905,

Vancouver Docket S198769).

Counsel for the Appellant/Respondent on

cross appeal in CA47534, Thurlow & Alberni

Project Ltd.:

S.A. Griffin

D. Siracusa

Counsel for the Respondent/Appellant on

cross appeal in CA47534 and

Respondent/Appellant on cross appeal in

CA47535, The Owners, Strata Plan

VR 2213:

A.K. Aggarwal

K.A. McGoldrick

The Respondent in CA47534 and

Appellant/Respondent on cross appeal in

CA47535, James Jamieson, appearing in

person:

J. Jamieson

Place and Date of Hearing:

Place and Date of Judgment:

Vancouver, British Columbia

April 5–6, 2022

Vancouver, British Columbia

July 25, 2022

Written Reasons by:

The Honourable Mr. Justice Willcock

Concurred in by:

The Honourable Justice Dickson

The Honourable Mr. Justice Marchand

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Summary:

Page 3

This appeal arises from the dismissal of a petition by the respondent, the Owners,

Strata Plan VR 2213 (the “Strata Corporation”), seeking an order pursuant to

s. 173(2) of the Strata Property Act, S.B.C. 1998, c. 43, that a special resolution

calling for the imposition of a special levy be approved. The special levy was passed

by a simple majority and is intended to raise funds to repair the building envelope.

The appellant, Thurlow & Alberni Project Ltd. (“Thurlow”), submits the judge erred in

addressing its defences by ordering it to pay its share of any special levy for any

future repairs, despite dismissing the petition. The Strata Corporation cross appeals,

arguing that the judge erred in applying the wrong test in interpreting s. 173(2) of the

Act and misapprehending the evidence with respect to the necessity of the repairs.

The Jamiesons appeal the dismissal of their application for documents on the

grounds the application should not have been dismissed with the petition. Held: Both

appeals allowed, cross appeal allowed. The order requiring Thurlow to pay its pro

rata share of any special levy for future repairs of common property was made on

the court’s own motion and without the benefit of argument from counsel. Regarding

the cross appeal, the judge erred in requiring the risk to be imminent and requiring

the repairs to be the minimum necessary to address the risk. The judge also

misapprehended the expert evidence, which showed the building envelope was

obsolete and needed to be replaced. Because the appeal is allowed from the

dismissal of the petition and remitted for consideration of the trial court, the

Jamiesons’ appeal is allowed and remitted as well.

Paragraph

Table of Contents

Range

INTRODUCTION: THE ISSUES ON APPEAL

REASONS OF THE CHAMBERS JUDGE

THE THURLOW APPEAL

[1] - [13]

[14] - [29]

[30] - [44]

[45] - [123]

[46] - [69]

[46] - [49]

[50] - [53]

THE STRATA CORPORATION CROSS APPEAL

Argument

Repair Necessary to Ensure Safety: the Applicable Test

Misapprehension or Failure to Consider Evidence of Safety

Concerns

Consideration of an Irrelevant Factor

[54] - [56]

[57] - [60]

Repair Necessary to Prevent Significant Loss or Damage:

the Applicable Test

Evidentiary Errors

[61] - [69]

[70] - [117]

[70] - [70]

[71] - [92]

Discussion and Analysis

Standard of Review

Statutory Interpretation of s. 173

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 4

Unauthorized Expenditures

Special Levies

[72] - [75]

[76] - [92]

Application of the Law to the Case

Work Necessary to Ensure Safety

Work Necessary to Prevent Loss or Damage

[93] - [117]

[95] - [101]

[102] - [117]

[118] - [123]

[124] - [126]

[127] - [130]

Relief

THE JAMIESONS’ APPEAL

SUMMARY AND CONCLUSION

Reasons for Judgment of the Honourable Mr. Justice Willcock:

Introduction: the Issues on Appeal

[1]

The appellants in CA47534 are the Owners of Strata Plan VR 2213 (the

“Strata Corporation”), a 21-storey high-rise building known as “The Carlyle”, located

at 1060 Alberni Street, Vancouver (the “Building”). The Building consists of 146

residential units in an 18-storey tower, and one commercial unit occupying the first

three floors of the Building. The Strata Corporation is divided into two sections, a

commercial section and residential section.

[2]

The Building is enveloped by an exterior insulation and finish system (“EIFS”),

installed at the time of its construction in 1988, with an estimated life expectancy

of 30 years. Beginning in or about 2018, the Strata Corporation began to note

deficiencies in the EIFS, leading it to obtain reports from consultants and, ultimately,

make a motion to approve a special resolution at its 2019 annual general meeting.

The resolution called for the imposition of a special levy of $5,327,969 for the

purpose of repairing the east and west elevations of the EIFS on the tower. The

resolution failed to achieve the 3/4 of the votes needed for it to pass. There were 97

votes in favour, 83.46 opposed and eight abstentions. The largest opposition to the

resolution came from the commercial section, owned by the respondent Thurlow,

holding 31.6% of the Strata Corporation votes.

[3]

The Strata Corporation then filed a petition seeking an order pursuant to

s. 173(2) of the Strata Property Act, S.B.C. 1998, c. 43 [Act] that the special

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 5

resolution be approved, and authorizing the Strata Corporation to proceed as if it

had been passed under s. 108(2) of the Act.

[4]

Section 108 provides:

(1) The strata corporation may raise money from the owners by means of a

special levy.

(2) The strata corporation must calculate each strata lot's share of a special

levy

a) in accordance with section 99, 100 or 195, in which case

the levy must be approved by a resolution passed by a

3/4 vote at an annual or special general meeting, or

(b) in another way that establishes a fair division of expenses

for that particular levy, in which case the levy must be

approved by a resolution passed by a unanimous vote at

an annual or special general meeting.

(3) The resolution to approve a special levy must set out all of the following:

(a) the purpose of the levy;

(b) the total amount of the levy;

(c) the method used to determine each strata lot's share of

the levy;

(d) the amount of each strata lot's share of the levy;

(e) the date by which the levy is to be paid or, if the levy is

payable in instalments, the dates by which the instalments

are to be paid.

[5]

Section 173, the provision relied upon by the Strata Corporation in this case,

provides:

(2) If, under section 108(2)(a),

(a) a resolution is proposed to approve a special levy to raise

money for the maintenance or repair of common property

or common assets that is necessary to ensure safety or to

prevent significant loss or damage, whether physical or

otherwise, and

(b) the number of votes cast in favour of the resolution is

more than 1/2 of the votes cast on the resolution but less

than the 3/4 vote required under section 108 (2) (a),

the strata corporation may apply to the Supreme Court, on such notice as the

court may require, for an order under subsection (4) of this section.

...

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 6

(4) On an application under subsection (2), the court may make an order

approving the resolution and, in that event, the strata corporation may

proceed as if the resolution had been passed under section 108(2)(a).

[Emphasis added.]

[6]

Thurlow opposed the petition, alleging it had entered into an agreement with

the Strata Corporation (the “Cost Allocation Agreement”) pursuant to which it

renovated the part of the Building occupied by the commercial section (including its

exterior envelope) without contribution from the residential section’s owners, and did

so on the understanding that the residential section would fund the replacement of

the exterior envelope of the residential tower without contribution from Thurlow. It

argued the residential section owners are barred by contract or, in the alternative,

are estopped from claiming contribution from the commercial section toward the cost

of the repairs of the tower’s envelope. In addition, Thurlow pleaded and relied upon

s. 195 of the Act, which provides:

Expenses of section

195 Subject to section 100 and the regulations, expenses of the strata

corporation that relate solely to the strata lots in a section are shared by

the owners of strata lots in the section and each strata lot's share of a

contribution to the operating fund and contingency reserve fund is

calculated as follows:

unit entitlement of strata lot

x

total contribution

total unit entitlement of all strata lots in section

[7]

Thurlow further argued that the 2019 annual general meeting was affected by

procedural irregularities and, last, that the proceedings commenced by petition were

not properly authorized by the Strata Corporation.

[8]

Thurlow applied for an order that there be a trial of the proceeding, for an

order that certain documents be produced, and for an interim injunction restraining

the Strata Corporation from funding the legal proceedings initiated by the petition.

[9]

The appellants in CA47535, residential unit owners James and Gillian

Jamieson, sought an order for the production of further and other documents by the

Strata Corporation.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 7

[10] The petition came on for hearing on May 12, 2021. The following orders were

made, for reasons indexed at 2021 BCSC 905:

a) the petition was dismissed;

b) the application of the respondents for trial of the proceeding was dismissed;

c) the Strata Corporation was ordered to produce documents relating to legal

expenses incurred in this litigation, but the balance of the document

production applications (including the Jamiesons’ application) was dismissed;

d) the application for an interim injunction restraining the Strata Corporation from

funding the proceedings was dismissed; and

e) para. 6 of the order provided:

Thurlow & Alberni Projects Ltd. is ordered to pay its share of any special levy

for any future repairs and maintenance of the common property of the

Building, including the exterior of the residential tower, in accordance with its

unit entitlement, subject to further court order or the agreement of the Strata

Corporation and owners as authorized in the Strata Property Act.

[11] Thurlow contends that, having dismissed the petition, the judge erred in

addressing Thurlow’s defences. It says the judge erred as a matter of law in failing to

find that s. 195 of the Strata Property Act required that the cost of the repair or

replacement of the EIFS be borne by the residential section alone, and further erred

by granting what amounts to a mandatory quia timet injunction (in para. 6 of the

entered order) which no party sought, and without affording the parties a hearing in

relation to that relief.

[12] The Jamiesons appeal the dismissal of their application for documents on the

grounds that the application should not have been dismissed with the petition.

[13] The Strata Corporation cross appeals, seeking an order setting aside the

dismissal of the petition and an order from this Court allowing the petition or, in the

alternative, remitting the petition to the trial court for hearing. The Strata Corporation

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 8

says the chambers judge erred in applying the wrong test in interpreting the phrases

“ensure safety” and “significant loss or damage” in s. 173(2):

a) by applying a more stringent standard than that called for by the legislation;

b) by considering irrelevant factors in holding that the repairs were not

necessary; and

c) by misapprehending the evidence with respect to the necessity of the repairs.

Reasons of the Chambers Judge

[14] At the hearing of the petition, Thurlow took the position that a building

envelope condition assessment (“BECA”) and the opinion evidence in affidavits

sworn by its principal author, Mr. Hoy, relied upon by the Strata Corporation, did not

meet the requirements for admissibility in R. 11-6 of the Supreme Court Civil Rules.

The chambers judge held that she would consider Mr. Hoy’s opinions because they

formed the basis on which the Strata Corporation acted: at para. 130.

Parenthetically, I note that Thurlow’s expert opinion evidence suffered from the

same defects as that adduced by the Strata Corporation—neither strictly complied

with the requirements of R. 11-6.

[15] Turning to the merits, the judge first addressed the question whether the

repairs and maintenance sought were objectively necessary to ensure safety. There

was evidence the entry of water into the Building had caused mould to develop in

some interior locations. The judge found that the evidence did not support the

conclusion that the mould was “real” and “not trifling”: at para. 135. She held that the

evidence supported the conclusion that some limited units might have some

elevated mould spores but there was not a systemic problem that posed a safety risk

throughout the Building: at para. 136.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 9

[16] She then considered the evidence that there was a risk that portions of the

EIFS would fall off the Building, concluding that there was some risk of failure in

certain locations but that risk did not justify full remediation of the EIFS:

[138] It is clear that since the Updated BECA Report in July 2019 to

present, a period of twenty-one months, there have been no falling panels.

The evidence that the panels are at a risk of falling off is not supported by the

totality of the engineering evidence. None of the experts emphasize any

imminent risk of panels falling. The suggestion is that it is a potential risk at

some point in the future. I am not prepared to find that a full remediation of

the east elevation of the Building is necessary to ensure safety. I accept there

is some risk of failure in the southern end of the east elevation of the Building.

This is the one area the engineers agree needs to have work completed, and

the Strata Corporation should address it, but it does not justify approving the

entire s. 173 Petition.

[17] The question whether the EIFS repairs were necessary to prevent significant

loss or damage was considered by weighing the competing expert reports. The

Strata Corporation’s consultant, Mr. Hoy, described the EIFS as obsolete and

recommended “full replacement of the building enclosure to a new rainscreen

system, including the windows and patio doors” on the east and west elevations of

the Building. He acknowledged that some targeted repairs could extend the life of

the EIFS, but not by more than ten years. However, this approach, in his view, would

result in “a prolonged construction period and potentially a more costly approach.”

[18] The judge noted that Thurlow’s expert, Mr. Narciso, was of the opinion further

investigation was needed to assess what repairs are necessary for safety and to

prevent significant loss or damage: at para. 144. The judge concluded:

[147] The evidence does not currently support that the type of remediation

requested in the special levy is necessary. Necessity has yet to be

determined since I accept that the proper investigations have not yet been

carried out.

[148] The petitioner cited several cases in support of the s. 173 Petition.

The evidence in the cases cited was far more substantial and indicated a

greater risk of significant loss or damage than the evidence before me ...

[19] She noted that a strata corporation can rely on s. 173(2) in support of a

resolution aimed at avoiding a loss that may arise if money is wasted by performing

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 10

temporary repairs rather than remedying a significant underlying problem: at

para. 149. However, she concluded:

[151] The evidence before me does not support that targeted repairs would

be a waste of money by the owners. The EIFS will have to be replaced with a

different system since it is, according to Mr. Hoy, obsolete. In contrast,

Mr. Narciso states that the EIFS is a system designed to deflect, absorb, and

desorb water away from the Building. These conflicting opinions are difficult

to reconcile.

[20] She also accepted that s. 173(2) can be relied upon in support of a resolution

intended to effect repairs promptly so as to avoid the loss arising from increased

costs if remediation is deferred. She acknowledged there is a risk of increased costs

if there is a delay in effecting a full remediation, but appears to have concluded that

the evidence did not establish that a full remediation will be required. She held:

[153] There was no evidence before me that the costs for a full remediation

would increase with time. I do accept there is a risk of increased costs if a full

remediation is necessary but it is not clear on the evidence before me that a

full remediation is required.

[21] She then characterized the issue before her as whether to exercise a

discretion to require owners to spend money on repairs, rather than a discretion to

permit the majority to effect repairs without the support of 3/4 of the votes cast in

support of the resolution:

[154] The evidence before me does not support that I should exercise my

discretion and require the owners to spend in excess of $5.3 million on the

repairs. As such, the s. 173 Petition is dismissed.

[22] Having dismissed the petition, it was unnecessary to address the

respondent’s application to move the petition to the trial list, or the application for the

production of documents (other than those related to legal fees incurred in the

proceedings).

[23] It was also unnecessary to consider Thurlow’s position that it could not be

required to contribute to the special levy to fund the repair or replacement of the

EIFS. As I have noted, Thurlow contended the Cost Allocation Agreement barred the

Strata Corporation from requiring Thurlow to pay for work on the residential tower;

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 11

or, in the alternative, that the residential section was estopped from claiming

contribution from the commercial section. Further, it had pleaded s. 195 of the Act as

a defence to the claim that it could properly be required to contribute to the special

levy.

[24] The judge nevertheless addressed the s. 195 argument, holding that s. 195

applies only to limited common property, the exterior envelope of the tower is not

limited common property, and Thurlow’s argument had no merit: at para. 169. While

she set out her reasoning for that construction of s. 195, neither the analysis she

employed nor the conclusion that s. 195 applies to limited common property had

been urged upon her by counsel.

[25] The chambers judge engaged in a limited weighing of Thurlow’s claim that the

Cost Allocation Agreement barred the Strata Corporation from seeking contribution

to the EIFS repair from Thurlow. On the evidence before her, she was unable to

resolve that question, holding that whether there was such an agreement and, if so,

what effect it had would “likely be determined in a further judicial proceeding”: at

para. 219. Despite this, she held, at para. 219:

... However, until the existence of that agreement has been judicially

considered I am of the view that Thurlow is legally obligated to pay for any

special levy authorized either by a 3/4 vote resolution or in accordance with a

s. 173 determination subject to any further court order.

[26] That conclusion was made part of the order described at para. 250 of the

reasons for judgment as follows:

[250] A summary of the orders made is:

1. The s. 173 petition is dismissed.

…

6. Thurlow & Alberni Projects Ltd. is ordered to pay its share of any

special levy for any future repairs and maintenance of the

common property of the Building, including the exterior of the

residential tower, in accordance with its unit entitlement, subject

to further court order or the agreement of the Strata Corporation

and owners as authorized in the Strata Property Act.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 12

[27] The judge did not expressly set out the basis for making an interim order

before addressing Thurlow’s claims, except her observation that the unresolved

issues with respect to Thurlow’s obligation to contribute to a special levy could

postpone even urgent repairs to the exterior of the tower. She wrote: “That type of

delay cannot be condoned since it will potentially put at risk the safety of the Building

and cause significant loss and damage to the owners”: at para. 195.

[28] The judge was also unable to resolve the question whether the course of

conduct of the parties in relation to the renovation of the commercial section gave

rise to an estoppel that barred the Strata Corporation from requiring Thurlow to

contribute to a special levy. That argument would also “have to wait for further

judicial commentary”: at para. 220.

[29] Finally, the chambers judge dealt with Thurlow’s application for particulars

and documents related to the legal expense incurred in these proceedings, and its

claim for an injunction, holding that the legal accounts and the amount paid in legal

fees respecting the s. 173 petition should be provided to all owners.

The Thurlow Appeal

[30] Thurlow’s appeal hinges upon the fact that the chambers judge was unable to

address its claims that the Cost Allocation Agreement or, in the alternative, estoppel,

precludes the Strata Corporation from requiring it to contribute a pro rata share of

the special levy. That being the case, Thurlow says, the chambers judge should not

have made any order with respect to its obligation to pay a special levy to effect

future repairs of the common property in accordance with its unit entitlement. For the

following reasons, I agree.

[31] The order in question was not sought by the Strata Corporation. It was made

by the judge on her own motion. A court should not act on its own motion in the

absence of extraordinary circumstances. As this Court noted in Jensen v. Ross,

2014 BCCA 173:

[24]

Civil litigation is an adversarial process. The judge is the referee.

Judges must leave it to the parties to determine the court processes that they

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 13

wish to engage to resolve a proceeding. Absent extraordinary circumstances

such as those facing Chief Justice McEachern when picketers threatened to

shut down the courthouse (Re British Columbia Government Employees

Union et al. and Attorney General of British Columbia et al. (1982), 2 D.L.R.

(4th) 705; aff’d (1985) 20 D.L.R (4th) 399; aff’d [1988] 2 S.C.R. 214), judges

should not act on their own motion. To do so compromises their role of

impartial arbitrator.

[32] There are no extraordinary circumstances such as might justify an order on

the court’s own motion in this case. No interim repairs or measures other than that

proposed by the resolution were before the court.

[33] The order requiring Thurlow to pay its pro rata share of any special levy for

future repairs of common property is affected by error that may have arisen because

it was made on the court’s own motion, and because the chambers judge did not

have the advantage of the thorough submissions we have heard on how s. 195

should be interpreted.

[34] First, the order restricts Thurlow’s rights before adjudication of the merits of its

defences. As Thurlow submits, the order bears the hallmarks of a quia timet order,

one made to restrain wrongful acts that are threatened or imminent but have not yet

commenced. The order was not made in the limited circumstances in which such an

order may be justified. As McLachlin J.A. (as she was) noted in Canwest Pac. T.V.

Inc. v. 147250 Can. Ltd. (1987), 14 B.C.L.R. (2d) 104 at 108–109 (C.A.):

In Aetna Fin. Services Ltd v. Feigelman, [[1985], 1 S.C.R. 2], the Supreme

Court of Canada reviewed the principles governing the granting of orders

prior to trial which are not confined to procedural matters, but which have the

effect of altering the parties’ rights over their property in the pre-trial period. ...

…

At p. 166, Estey J., for the court, distinguished between interlocutory

applications of a procedural nature and those which affect the parties’

substantive rights, stating:

As a general proposition, it can be fairly stated that in the scheme of

litigation in this country, orders other than purely procedural ones are

difficult to obtain from the court prior to trial.

After referring to the need of the applicant to show irreparable harm if the

order sought does not go, he went on to state:

A second and much higher hurdle facing the litigant seeking the

exceptional order is the simple proposition that in our jurisprudence,

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 14

execution cannot be obtained prior to judgment and judgment cannot

be recovered before trial. Execution in this sense includes judicial

orders impounding assets or otherwise restricting the rights of the

defendant without a trial.

These passages make it plain that the essential distinction is not between

Mareva orders and other types of interlocutory orders, but between

interlocutory orders of a procedural nature and interlocutory orders which

restrict a party’s substantive rights before trial. The broad concept of

execution as that word is used in Aetna extends to any order abrogating the

defendant’s rights prior to trial. Such orders, apart from certain exceptions,

will not be granted.

[Underline emphasis added; italic emphasis original]

[35] None of the exceptions described in Aetna are present in this case and for

that reason, in my opinion, the order should not have been made.

[36] Second, the only adjudication of the defences available to Thurlow was the

judge’s conclusion that s. 195 of the Act had no application in this case and that

there was, therefore, no statutory bar to the Strata Corporation seeking contribution

to its expenses from Thurlow. Unfortunately, that distinct question of statutory

interpretation was addressed without the benefit of the argument we have heard.

[37] The chambers judge held that the meaning of s. 195 is clarified by s. 11.2 of

the Regulations: at para. 172. It is unclear how reading s. 195 together with the

regulation cited by the judge leads to the conclusion that s. 195 relates only to

limited common property.

[38] Section 195 sets out a manner in which expenses that relate solely to the

strata lots in a section are to be borne. Such expenses generally are shared by the

owners of strata lots in the section. Section 11.2 of the Regulations modifies that

general cost sharing regime by providing a formula for cost sharing where a

contribution to a strata corporation’s operating fund relates to and benefits only

limited common property or only specific types of strata lots in a section. It reads as

follows:

11.2 (1) For the purposes of section 195 of the Act, but subject to a

resolution under section 100 of the Act, if a contribution to the

operating fund relates to and benefits only limited common property

for the exclusive use of strata lots in a section, the contribution is

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 15

shared only by owners of the strata lots entitled to use the limited

common property, and each strata lot's share of that contribution is

to be calculated in accordance with the following formula and not in

accordance with the formula set out in section 195 of the Act:

unit entitlement of strata lot in section

x

contribution to operating fund

total unit entitlement of all strata lots in section whose

owners are entitled to use the limited common

property to which the contribution relates

(2) For the purposes of section 195 of the Act, but subject to a

resolution under section 100 of the Act, if a contribution to the

operating fund relates to and benefits only one type of strata lot in a

section, and that type is identified as a type of strata lot in the

bylaws of the section, the contribution is shared only by owners of

strata lots of that type, and each strata lot's share of that

contribution is to be calculated in accordance with the following

formula and not in accordance with the formula set out in section

195 of the Act:

unit entitlement of strata lot in section

x

contribution to operating fund

total unit entitlement of all strata lots in section

of the type to which the contribution relates

(3) Subject to a resolution under section 100 or 108 (2) (b) of the Act, if

a strata lot's share of a contribution to the operating fund is

calculated in accordance with subsection (1) or (2), each strata lot's

share of the total contribution to the contingency reserve fund or a

special levy is to be calculated using the following formula:

unit entitlement of strata lot in section

total unit entitlement of all strata lots in section

x

total contribution to contingency

reserve fund or special levy

[Emphasis added.]

[39] Before us, Thurlow argues s. 195 of the Act and s. 11.2 of the Regulations,

just like s. 99 of the Act and s. 6.4 of the Regulations, set out a general cost

allocation rule and a formula for modifying the general rule where only certain

owners benefit from the expenditure. Section 99 sets out the generally applicable

obligation to contribute to operating funds and contingency reserves:

99 (1) Subject to section 100, owners must contribute to the strata

corporation their strata lots' shares of the total contributions budgeted for

the operating fund and contingency reserve fund by means of strata fees

calculated in accordance with this section and the regulations.

(2)Subject to the regulations, the strata fees for a strata lot's share of the

contribution to the operating fund and contingency reserve fund are

calculated as follows:

unit entitlement of strata lot

x

total contribution

total unit entitlement of all strata lots

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 16

Section 6.4 of the Regulations modifies that obligation to account for expenses

related to limited common property or specific types of strata units, an exception to

the general rule:

6.4 (1) For the purposes of section 99 of the Act, but subject to a

resolution under section 100 of the Act, if a contribution to the

operating fund relates to and benefits only limited common

property, the contribution is shared only by owners of the strata lots

entitled to use the limited common property, and each strata lot's

share of that contribution is to be calculated in accordance with the

following formula and not in accordance with the formula set out in

section 99 (2) of the Act:

unit entitlement of strata lot

x

contribution to operating fund

total unit entitlement of all strata lots whose

owners are entitled to use the limited common

property to which the contribution relates

(2) For the purposes of section 99 of the Act, but subject to a

resolution under section 100 of the Act, if a contribution to the

operating fund relates to and benefits only one type of strata lot,

and that type is identified as a type of strata lot in the bylaws of the

strata corporation, the contribution is shared only by owners of

strata lots of that type, and each strata lot's share of that

contribution is to be calculated in accordance with the following

formula and not in accordance with the formula set out in section

99 (2) of the Act:

unit entitlement of strata lot

x

contribution to operating fund

total unit entitlement of all strata lots

of the type to which the contribution relates

(3) Subject to a resolution under section 100 or 108 (2) (b) of the Act, if

a strata lot's share of a contribution to the operating fund is

calculated in accordance with subsection (1) or (2), each strata lot's

share of the total contribution to the contingency reserve fund or a

special levy is to be calculated using the following formula:

unit entitlement of strata lot

total unit entitlement of all strata lots

x

total contribution to contingency

reserve fund or special levy

[Emphasis added.]

[40] I agree with Thurlow that these provisions establish comparable schemes.

Just as s. 99 describes a general rule for sharing the burden of contributions to the

operating fund and contingency reserve fund, and s. 6.4 of the Regulations modifies

the rule to account for contributions to funds that benefit only limited common

property, s. 195 describes a rule for cost sharing between sections, and s. 11.2 of

the Regulations modifies the rule where the expenditure benefits only certain owners

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 17

in a section. Specific provisions in the Regulations govern cost sharing where

expenditures benefit only limited common property, but the general provisions in the

Act are not limited to common property. Counsel did not draw s. 99 of the Act and

s. 6.4 of the Regulations to the attention of the chambers judge because no counsel

argued that s. 195 applies only to limited common property. Nor did counsel address

the jurisprudence relied upon by the chambers judge in support of her conclusion

that s. 195 relates only to limited common property. In my view, the applicability of

s. 195 was not adequately addressed.

[41] If, as appears likely, the cost sharing formula set out in s. 195 applies to

expenses that relate to all common property, its applicability in a particular case will

hinge upon whether it can be shown that the expense in issue relates only to the

strata lots in one section. Having dismissed the petition, the judge made an order

with respect to Thurlow’s obligation to share the cost of “any special levy for any

future repairs and maintenance of the common property of the Building, including the

exterior of the residential tower” without regard to whether such levies might be

made to pay expenses that relate to strata lots in only one section: at para. 250. In

my opinion, no order should have been made with respect to Thurlow’s obligation to

contribute to undefined future expenses.

[42] I would not accede to the Strata Corporation’s argument that the judge’s

interpretation of s. 195 is not appealable because it is not an order. Nor would I

accede to its submission that “the judge’s statement that Thurlow remained legally

obligated to pay its unit entitlement share was not an ‘order’”.

[43] The finding that Thurlow is obliged to pay its unit entitlement share of “any

future repairs of the common property of the Building” is incorporated as para. 6 of

the entered order. Despite that fact, the Strata Corporation says it is powerless to

impose a special levy without Thurlow’s consent or a court order, and the impugned

order is “subject to further court order or the agreement of the Strata Corporation

and owners”. So, the Strata Corporation argues, the order will not have any effect

before the matter comes before a court. The order, however, must be considered to

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Page 18

have been intended to have some effect. While its effect in unclear, it is problematic.

I would allow the appeal and set aside the order requiring Thurlow to pay its share of

any special levy for any future repairs and maintenance of the common property of

the Building in accordance with its unit entitlement.

[44] I would do so, in part, because the judge’s interpretation of s. 195 of the Act

was not founded upon consideration of the argument the parties might have made if

the issue had been raised by the parties. The declaratory order should not stand as

a dubious precedent.

The Strata Corporation Cross Appeal

[45] The Strata Corporation says the judge erred by:

a) applying the wrong test in respect of the meanings of “ensure safety” and

“significant loss or damage” in s. 173(2) by applying a more stringent

standard;

b) considering an irrelevant factor—the fact that no panels had fallen off the

Building—in holding that the repairs were not necessary for safety; and

c) erroneously assessing the evidence, by

i.

ignoring evidence of the safety risk due to corroded fasteners;

ii.

misapprehending Mr. Narciso’s evidence regarding the EIFS

and the conflict with Mr. Hoy’s opinion regarding whether it was

obsolete and required full replacement;

iii.

iv.

misapprehending the evidence that there was commonality

between the engineering professionals that further

investigations were required; and

ignoring evidence of the increased cost of remediation of the

EIFS over time, and that targeted repairs would be a waste of

money.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 19

Argument

Repair Necessary to Ensure Safety: the Applicable Test

[46] The Strata Corporation submits that in considering whether the repairs were

necessary to ensure safety, the judge erred in focusing on imminence of the risk. It

says there is nothing to suggest there must be an imminent risk of a potential safety

issue in order to approve a special levy.

[47] The Strata Corporation says there clearly is a safety risk. It adduced evidence

that although there were no areas other than the southeast section with panels that

had noticeably detached, other locations on the east wall had “the same conditions

of compromised gypsum sheathing that have the same potential for panel

separation, wall cladding collapse and falling object hazard”.

[48] Further, it argues it was incorrect for the trial judge to say that none of the

experts “emphasize any imminent risk of panels falling”: at para. 138. Mr. Hoy had

reported that the panel adjacent to unit 410 and other panels on this east wall

section were “at imminent risk for further cladding detachment and full collapse”, and

Mr. Narciso did not dispute there was a risk of panels falling in that area.

[49] Thurlow does not suggest that s. 173 is only intended to address repairs that

are immediately necessary. It disputes the suggestion that the judge focused on the

imminence of risk. It says she concluded that the proposed repairs were not

necessary to ensure safety, not that the repairs were not immediately necessary.

That is apparent in her conclusion that there was not a safety risk due to the

existence of mould in the Building (at para. 136), and that “[t]he evidence that the

panels are at a risk of falling off is not supported by the totality of the engineering

evidence”: at para. 138. It says the finding that the proposed repairs were not

necessary is a finding of fact unaffected by palpable error.

Misapprehension or Failure to Consider Evidence of Safety Concerns

[50] The Strata Corporation submits that the judge erred in ignoring the evidence

of risk posed by corroded fasteners. The evidence was that there was systemic

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 20

corrosion of the fasteners supporting the attachment of both the window frames and

the metal guardrails, and that “[f]ailure of the fastener could result in the detachment

of the guardrail and window from the building”. Its expert evidence was that the “full

assessment of the fasteners at both the window and guardrail locations is essential

and should be completed within the next one (1) year to determine the level of risk”.

[51] The Strata Corporation says this was as equally a high-priority issue as the

repairs the judge found to require immediate attention, yet it is not mentioned in the

judgment. Corrosion was apparent and confirmation of its presence did not depend

on moisture readings, internal observations, or core openings.

[52] In response, Thurlow says a judge is not required to refer to every item of

evidence considered or to detail the way each item was assessed. Reasons are

sufficient if they are responsive to the case’s live issues and the parties’ key

arguments: R v. Walker, 2008 SCC 34 at para. 20. It says the failure to mention

fasteners is not a critical omission.

[53] Further, it argues, the expert opinion was that the fasteners should be

assessed so that risk could be determined. Thurlow says the recommendation of a

full assessment of the corroded fasteners is consistent with the conclusion that

further investigation is required to assess safety risks, and with the dismissal of the

petition.

Consideration of an Irrelevant Factor

[54] The judge placed some weight upon the fact that in the 21-month period

between the preparation of the BECA report and the hearing of the petition, there

had been no falling panels: at para. 138. The Strata Corporation contends that

considering the fact that no panels had fallen was impermissible ex post facto

reasoning and was an irrelevant factor. The question was whether there was a risk

to safety at the time of the hearing, not whether the risk about which the Strata

Corporation had been warned two years earlier had in fact materialized.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 21

[55] Thurlow says the fact that not one panel had fallen in the interval referred to

was relevant, and the judge did not say it was determinative. Her conclusions were

reached expressly on the basis of “the totality of the engineering evidence”: at

para. 138.

[56] In my view, there is no merit in this ground of appeal and it may be dealt with

summarily. Surely if panels had fallen off the Building after the passage of the

resolution by a majority of votes and before the hearing of the petition, that would be

considered to be highly relevant. The fact there had been no dramatic failure was

equally of some evidentiary value. The Strata Corporation points to no error in

principle in the consideration of this evidence.

Repair Necessary to Prevent Significant Loss or Damage: the Applicable

Test

[57] The Strata Corporation says that while the judge correctly set out the

meaning of “significant loss or damage” as referring to loss or damage that is

“extensive or important enough to merit attention” she did not apply that standard

when assessing the necessity of the proposed repair. Rather, it contends, she

concluded that the repair in this case was not comparable to cases where a “greater

risk of significant loss or damage” had been established by the petitioners: at

para. 148. It says this approach was erroneous and resulted in the application of the

wrong test: the only question was whether the test in s. 173 was met, not whether

the damage was less severe than in other cases.

[58] The Strata Corporation submits that the judge failed to grapple with whether

the damage sought to be avoided by the repairs was “significant enough to merit

attention”, and applied a more stringent standard.

[59] Thurlow says the judge applied the proper test in the following passage:

[145] The only common agreement is that some targeted repairs to the

south-east elevation of the Building are necessary to fix the EIFS. Otherwise,

the engineering evidence before me raises a significant dispute as to the

recommendations made.

...

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 22

[147] The evidence does not currently support that the type of remediation

requested in the special levy is necessary. Necessity has yet to be

determined since I accept that the proper investigations have not yet been

carried out.

[60] Thurlow argues the judge had proper regard to the cases, and was entitled to

consider what evidence was found to satisfy the s. 173(2) test and support the

exercise of the court’s discretion, and how they were different from the evidence

before her. The Strata Corporation was found not to have done sufficient

investigations and, Thurlow submits:

... it was not proportionate. Instead of addressing the specific and immediate

building envelope issues, which is largely restricted to the need to re-caulk

and paint and the south east corner which was the subject of Mr. Jamieson’s

“targeted resolution”, it stubbornly sought a very expensive, wide-scale repair

of the entire east side, top to bottom of the 21-storey building. …

[Footnote citations omitted.]

Evidentiary Errors

[61] Finally, the Strata Corporation alleges that the judge misapprehended the

expert evidence.

[62] It says the judge erroneously considered there to be conflicting opinions with

respect to whether the EIFS was obsolete and needed to be replaced. Thurlow’s

consultant Mr. Narciso expressed the opinion that “the EIFS is a system designed to

deflect, absorb, and desorb water away from the Building”. The Strata Corporation

says the trial judge mistakenly regarded that as an opinion that the system was not

obsolete. The depreciation report, which Mr. Narcisco reviewed, noted that the EIFS

had a typical service life of 30 years and was due for renewal in 2020.

[63] Further, the Strata Corporation says the judge mistakenly considered that the

Strata Corporation’s expert opinion evidence supported her conclusion that further

investigations were required. It says it is a misapprehension of the BECA report to

say that the “plan is that Williams [Engineering] would conduct further investigations

in order to determine what work has to be performed”, or that Williams Engineering

(Mr. Hoy) believed further investigations were necessary: at para. 146. Mr. Hoy

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 23

specifically stated that, in his view, the methods of investigation were sufficient, and,

in particular, he disagreed with Mr. Narciso that additional core openings were

necessary.

[64] Finally, the Strata Corporation says the judge erred in ignoring evidence of

the increased cost of remediation of the EIFS over time, and that targeted repairs

would be a waste of money. Although she recognized these were factors she could

take into account within the meaning of the word “otherwise” in s. 173(2), she stated

there was no evidence that the cost of remediation would increase with time, and

that while she accepted there was a risk of increased costs if a full remediation is

necessary, she was of the view that it was not clear on the evidence that this was

required. It says Mr. Narciso did not disagree that a full remediation was necessary;

rather, he opined that it could not be concluded that it was necessary at the present

time.

[65] The Strata Corporation says targeted repairs will only defer “a necessary full

wall cladding assembly replacement”, and, in order to be successful, the program of

targeted repairs would need to be “demanding”, including a detailed building

envelope condition assessment every two to three years, and repairs as necessary.

The Strata Corporation says the owners would spend more money for this

“demanding” targeted program and a new rainscreen system once those repairs no

longer prevented water ingress, as compared to the new system alone.

[66] The Strata Corporation says there was evidence (in the BECA report) that the

cost for priorities 1 and 2 (replacement of the EIFS envelope on the east façade and

part of the west façade), if completed in 18 months, would be $4.66 million, as

compared to $5.324 million if completed in stages over 4.3 years. That is some

measure of the extent to which delay will increase costs. It says that here, as in The

Owners, Strata Plan VIS114 v. John Doe, 2015 BCSC 13 [Strata Plan VIS114], it

would be “a waste of money to continue to pay for spot repairs that do not address

the root causes of the harm experienced”: at para. 107.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 24

[67] Thurlow says nothing turns on whether the judge misapprehended

Mr. Narcisco’s evidence with respect to obsolescence of the EIFS. The judge

properly understood the substance of Mr. Narciso’s evidence as to the need for

further investigation, which the judge accepted. It says the judge did not ignore or

misapprehend evidence of increased cost of remediation of the EIFS over time or

that targeted repairs would be a waste of money. Her view of the evidence simply

differed from the Strata Corporation’s view, as reflected in the judgment at

paras. 147–155 cited above.

[68] Mr. Narciso’s evidence was: “[I]n terms of proper sequencing, it is important

to undertake further investigations which will then inform what work, if any, might be

actually required. Otherwise both inefficient and unnecessary work, and

unnecessary expense, may be incurred.”

[69] Thurlow notes that the judge specifically distinguished Strata Plan VIS114. It

says that in Strata Plan VIS114, the court found that the exercise of the court’s

discretion was appropriate. In the case at bar, on the evidence, the court expressly

determined it was not.

Discussion and Analysis

Standard of Review

[70] There is no dispute with respect to the applicable standard of review. The

assessment of the strength of the Strata Corporation’s petition required the

chambers judge to exercise her discretion. The orders made attract a deferential

standard of review. We cannot interfere in the exercise of that discretion unless we

are satisfied that the chambers judge reached a conclusion which cannot reasonably

be supported, either because of an error in principle or a palpable and overriding

error. Thurlow says this is a fact-intensive case and the judge, after considering the

evidence, concluded that it did not support a finding that the proposed remediation

was necessary.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Statutory Interpretation of s. 173

Page 25

[71] Section 173 must be read in light of the whole scheme established by the

Strata Property Act. The Act provides that expenditures by a Strata Corporation will

ordinarily be approved in a budget or by resolution at a general meeting or special

meeting of the corporation. Section 96 provides for expenditures from the

contingency reserve fund. Certain ordinary and recurring expenditures from that fund

must be approved by a resolution passed by a majority; other expenditures require

a 3/4 vote. Section 97 provides that expenditures from the operating fund must be

approved by a resolution passed by a 3/4 vote at an annual or special general

meeting, or authorized in the corporation’s budget.

Unauthorized Expenditures

[72] Section 98 provides for an exception to those rules. It sheds some light on

how s. 173 should be interpreted. It provides:

98 (1)

If a proposed expenditure has not been put forward for approval in

the budget or at an annual or special general meeting, the strata

corporation may only make the expenditure in accordance with this

section.

…

(3) The expenditure may be made out of the operating fund or

contingency reserve fund if there are reasonable grounds to believe

that an immediate expenditure is necessary to ensure safety or

prevent significant loss or damage, whether physical or otherwise.

(3.1) For the purposes of subsection (3), the prevention of significant

loss includes, without limitation, the obtaining and maintaining by

the strata corporation of insurance that is required under section

149 or 150 or the strata corporation's bylaws.

…

(5) Any expenditure under subsection (3) must not exceed the

minimum amount needed to ensure safety or prevent significant

loss or damage.

[73] This provision, like s. 173, provides for expenditures that are necessary to

ensure safety or prevent significant loss or damage. Section 98(3.1) by including,

without limitation, the obtaining of insurance as an expense to prevent loss,

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 26

suggests that such losses are defined liberally, to include losses that are uncertain

but foreseeable and not necessarily imminent.

[74] The fact that the power to make unapproved expenditures may only be

exercised where there are reasonable grounds to believe that an immediate

expenditure is necessary suggests that without this express provision the power to

make unauthorized expenditures might otherwise not have been so limited.

[75] The express limitation on the corporation’s authority to make unapproved

expenditures to those that are the minimum amount needed to ensure safety or

prevent significant loss or damage suggests that the authority would not be so

limited in the absence of s. 98(5). In other words, unless limited by s. 98(5), the

corporation would have authority to use the operating fund or contingency reserve

fund to undertake such work as it considered to be reasonably necessary to ensure

safety or prevent significant loss or damage, which might be more than the minimum

amount of work.

Special Levies

[76] The provision for a special levy cited above, s. 108, regulates the imposition

of levies and the expenditure of funds raised by levy. It does not restrict the Strata

Corporation’s right to impose a special levy or the purposes for which a levy may be

imposed or spent, in any way.

[77] The brake on the imposition of special levies is the requirement that they be

approved by a 3/4 vote or, in the alternative, by a majority and court approval

pursuant to s. 173.

[78] Section 173 was enacted by a 2009 amendment to the Act, in force on

December 12, 2013 (B.C. Reg 263/2013). Prior to its enactment, the inability of a

strata corporation to maintain and repair common property was addressed by

application pursuant to s. 165 of the Act, which permits the court to order the strata

corporation to perform a duty it is required to perform under the Act, the bylaws or

the rules, and to make any other orders the court considers necessary to give effect

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 27

to such an order. The approach taken to applications under this provision may be

instructive. In general, for obvious reasons, judges have not been inclined to second

guess recommendations to repair structures or to become directly involved in the

timing or sequencing of repair.

[79] In Enefer v. The Owners, Strata Plan LMS 1564, 2005 BCSC 1866, Taylor J.

considered an application by an owner for an order authorizing a strata council to

raise $850,000 by a levy to fund a major rehabilitation project. One respondent

opposed the order sought, taking issue with certain of the expenses for which the

levy was to be imposed. The court held that it was “not for this Court in essence to

make orders … that restricts or limits the ability of council to perform its functions”: at

para. 52.

[80] In Browne et al. v. The Owners, Strata Plan 582, 2007 BCSC 206, Ralph J.

heard a petition brought by unit owners for an order compelling the repair of the

strata’s building envelope, and the authorization to issue a special assessment to

the owners to enable the repair. There was an issue with respect to the appropriate

scope of the necessary repair. The court recognized the strata corporation’s

obligations to make repairs, but was not inclined to specify which repair option

should be chosen by the strata corporation. A special levy was authorized which

would permit the corporation to raise the funds necessary to perform both the

immediate and medium-term work recommended by consultants. Justice Ralph

noted that the evidence before him was that there was more than one option open to

the strata corporation in responding to the damage: at para. 30. He adopted the

view, expressed in Sterloff v. Plan No. VR 2613 (1994), 38 R.P.R. (2d) 102

(B.C.S.C.), that the court should not interfere with a strata corporation’s discretion as

to how it managed its repair and maintenance obligations, provided it acted in the

best interests of all the owners: at para. 30.

[81] He held, at para. 30: “the strata corporation is entitled to determine which

actions to take in order to meet its statutory obligation” and:

[31]

I am satisfied that there must be an order under section 165 of

the Strata Property Act that the strata corporation perform its statutory

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 28

obligation to repair the building envelope. In performing its obligation the

strata corporation must have regard to the observations and

recommendations contained in [the expert’s] reports.

…

[34]

It is necessary to consider whether the court in directing the strata

corporation to proceed should authorize and empower the strata corporation

to issue a special assessment to the owners to a monetary limit. The strata

corporation has opposed such an order on the ground that the petition linked

the amount of $1,803,000 to the MH estimate of the cost of carrying out the

work described as “immediate” and as “medium term”.

[35]

In my view, it is open to the court to authorize and empower the strata

corporation to issue a special assessment to an amount "not exceeding"

$1,803,000 without restricting the corporation's authority to determine a repair

program that will accomplish its statutory obligation. There will therefore be

an order that to finance the building repair work the corporation is authorized

to issue a special assessment to the owners, based on their respective unit

entitlement, not exceeding $1,803,000 and payable in such manner as the

strata council may decide.

[Emphasis added.]

[82] Section 173 gave strata corporations an additional tool to enable them to

discharge their statutory obligations. It was comprehensively addressed by

Fitzpatrick J. in Strata Plan VIS114. She noted that the section was enacted by way

of the Strata Property Amendment Act, 2009, and that Hansard for September 24,

2009 records the following description of the relevant amendment by the Honourable

Rich Coleman (then Minister of Housing):

… [T]his bill enhances consumer protection. It gives owners, former owners

and potential purchasers greater rights to access additional information. It

ensures that special levies can't be mingled with other strata funds and are

only invested in appropriate, insured accounts. It allows the courts to break a

deadlock when the strata can't quite get a three-quarter vote needed to make

a crucial repair via a special levy.

[Emphasis added by Fitzpatrick J.]

British Columbia, Legislative Assembly, Official Report of the Debates

(Hansard), 39th Parl., 1st Sess., Vol. 3, No. 5 (24 September 2009) at 1635

(Hon. Rich Coleman).

[83] Justice Fitzpatrick rejected the submission that the court should only exercise

its discretion under s. 173(2) where the engineering evidence clearly establishes that

the repairs are immediately necessary to ensure safety or prevent significant loss or

damage: at para. 53. She considered that argument to be a conflation of the

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 29

requirements under s. 173(2) with the “almost identical” wording of s. 98(3) of the

Act: at para. 55. She noted that the authority to make unauthorized expenditures

under s. 98 was constrained by the requirement that the expenditure not exceed the

minimum amount needed to ensure safety or prevent significant loss or damage: at

para. 56. The argument that the discretion under s. 173 should be similarly

constrained was rejected. She held:

[58]

In my view, it is illogical to analogize the situation addressed in

s. 173(2) with that addressed in s. 98. In the first place, as argued by the

strata corporation, s. 98 deals with unauthorized expenditures whereas

s. 173(2) addresses a situation where a clear majority vote has been

received, but not the special majority vote. Accordingly, the premise is that

the expenditures have been considered by the owners but the special

majority vote was not obtained to proceed. In addition, s. 98 is clearly

intended to address urgent situations given the reference to the immediacy of

the expenditures being necessary. This is confirmed by reference to the

requirement in s. 98(5) that only the minimum amount need be spent. No

such limits are imposed or limiting language used in s. 173(2).

[59]

Accordingly, under s. 173(2), the requirement is only whether the

repairs and maintenance are “necessary” to ensure safety or prevent loss

and damage.

[84] In summary, Fitzpatrick J. described the appropriate considerations governing

the exercise of the discretion as follows:

[135] Section 173(2) is a new tool available to strata corporations to seek

court intervention in appropriate circumstances. I would not, however, expect

that court intervention would be appropriate simply because there is a

dispute. Clearly, the test under s. 173(2) must be met before the court's

discretion can be exercised. Importantly, there must be issues of safety or in

the event of loss or damage, that loss or damage must be “significant”.

Further, the court's discretion is only to be exercised in appropriate

circumstances and in accordance with the overall objectives in the Act.

[Emphasis added.]

[85] Section 165 empowers the court to make orders necessary to permit a strata

corporation to discharge its statutory obligation to maintain the strata’s property.

When it has been invoked, as we have seen, the courts have approached the

management decisions of strata corporations with deference. As Ralph J. observed

in Browne: “the strata corporation is entitled to determine which actions to take in

order to meet its statutory obligation”: at para. 30.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 30

[86] The same is true, in my view, when s. 173(2) is invoked. Before an

application for court approval can be brought, the Strata Corporation must have

proposed a resolution to approve a special levy. The levy must be intended to raise

money for the maintenance or repair of common property, or common assets the

Strata Corporation considers to be necessary to ensure safety or to prevent

significant loss or damage. The Act requires the resolution to specify, among other

particulars, the purpose of the levy; its total amount; and the date by which the levy

is to be paid or, if the levy is payable in instalments, the dates by which the

instalments are to be paid: at s. 108(3). Because the Act gives the court the power to

approve a special resolution, rather than the power to draft the resolution, it leaves in

the hands of the Strata Corporation the responsibility for formulation of the resolution

and discretion to determine the timing and scope of repairs. It would be unworkable

to leave such matters in the hands of the courts.

[87] For that reason, in my view, Fitzpatrick J. was correct in Strata Plan VIS114,

to conclude, after citing Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784, and

Browne, that the starting point for the analysis should be deference to the decision

made by the strata council, approved by the majority of owners: at para. 68.

Deferring to the strata corporation in that case, she concluded that “after a full

consideration of the matter, the strata corporation has concluded, I think reasonably,

that the time to proceed is now”: at para. 71.

[88] A similar approach was taken by Pearlman J. in The Owners, Strata Plan

LMS 1383, 2015 BCSC 1816, where he concluded that the strata corporation was

entitled to rely on the professional advice it had received (and agreed himself that

the repair proposed was necessary):

[58]

In my view, giving s. 173(2) its plain meaning and taking into account

the purpose of s. 173, which is to provide the means for strata corporations in

appropriate cases to be able to proceed with necessary repairs and

maintenance to common property in circumstances where they obtain

majority support but not a three-quarter vote, I find that the appropriate test of

what constitutes “significant” damage or loss is whether the damage or loss is

extensive or important enough to merit attention.

[59]

The strata corporation has relied on the advice it has received from

the engineers. It is entitled to do so. Bearing in mind all of the engineering

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 31

evidence, including the evidence of Levelton, I find that the repairs and

maintenance proposed by the strata corporation through the resolution are

repairs and maintenance necessary to prevent significant loss or damage to

the common property.

[89] In The Owners, Strata Plan NW 1815 v. Aradi, 2016 BCSC 105, the

respondent, opposing court approval of a proposed resolution, argued that because

the language contained in s. 173(a) and (b) “empowers a court to order mandatory

or prohibitory relief of an injunctive nature”, a test similar to that which must be met

to obtain injunctive relief should be employed. Justice W.J. Harris rejected that

submission, and instead adopted Fitzpatrick J.’s description of the discretion to

make an order pursuant to s. 173 “in appropriate circumstances and in accordance

with the overall objectives in the Act”: at para. 57, citing Strata Plan VIS114 at

para. 135. She wrote:

[60]

I conclude from these authorities that the court has a broad discretion

under s. 173 of the Act. The exercise of its authority is to be guided by a

consideration of the scheme of the legislation, its overall objectives, and the

circumstances giving rise to the application. The interests of the strata

corporation must be balanced against the interests of the owner or other

person against whom the order is sought, within this legislative context.

[90] In Santos v. The Owners, Strata Plan LMS 1509, 2016 BCSC 1775,

Morellato J. considered applications to appoint an administrator of a dysfunctional

strata corporation and to approve a special levy to permit repairs to be effected. She

held:

[56]

It is noteworthy that both s. 165 and s. 174 are remedial in effect and

are situated within Part 10 of the Act, which deals with “Legal Proceedings

and Dispute Resolution”. Both provisions provide the Court with a

discretionary power to provide remedies on an application to the Court.

These sections provide distinctive remedies to address different disputes

affecting a strata corporation. In this case, appointing an administrator to

remedy executive dysfunction while also issuing a special levy to remedy

legislative deadlock would give effect to the remedial purpose of these

provisions and would, in my view, be in the best interests of the strata

corporation. In reading the Act as a whole, it is clear that these are not

mutually exclusive remedies and that there is nothing to prohibit this Court

from ordering these remedies concurrently.

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Page 32

[91] She held that the enactment of s. 173 did not preclude the court from making

the orders that might formerly have been made pursuant to s. 165, even where less

than a bare majority of owners approved the proposed expenditure. She concluded:

[59]

While I agree that s. 173(2) provides an additional remedy to owners

who are seeking approval of a levy in circumstances were a 3/4 vote is

defeated but where a bare majority approves the levy, I do not accept that

that the enactment of this provision circumscribes the authority and the

discretion of this Court to issue a special levy in the proper circumstances,

even if less than a bare majority of owners approve the levy. … Put

differently, the broad remedial powers of the Court under the Act have been

expanded rather than constrained by the enactment of s. 173(2).

[92] I agree with the conclusions of Fitzpatrick, Pearlman and Morellato JJ. The

provision in question is remedial. It should be read purposively with a view toward

permitting strata corporations to discharge their statutory obligation to maintain and

repair the strata property. It permits the court to authorize special levies to effect

repairs that are necessary, but does not require that the repairs be immediately

necessary or that the proposed repair be the minimum necessary to address the

problem. It should be read in a manner that permits the Strata Corporation to

determine the timing and method of repair. The Act requires the Strata Corporation

to maintain and repair its common property. Section 173, seen in that context, is not

intended to place the court in the position of overseeing or managing repairs but,

rather, to afford a tool to break a deadlock and permit a simple majority to resolve to

effect necessary repairs. It would be contrary to the remedial intention of the

provisions to require the court to intensively analyse the scope of the work the strata

corporation proposes to do. Doing so will only increase costs to owners and fail to

address the deadlock the legislature clearly intended to resolve.

Application of the Law to the Case

[93] The chambers judge noted the Strata Corporation has the onus of proving on

a balance of probabilities that the repairs are necessary to ensure safety or to

prevent significant loss or damage, physical or otherwise, and that “significant loss

or damage” is that which is considered to be “extensive or important enough to merit

attention”: at paras. 113–114. It is correct that in order to invoke the court’s authority

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

Page 33

to make an order under s. 173(2), the Strata Corporation must establish the work

proposed is necessary. It is not, however, necessary for the Strata Corporation to

establish that the work must be done immediately, that there is an imminent risk to

persons or property or that the work proposed is the minimum necessary to address

the identified risk.

[94] In my view, the judge erred in assessing the necessity of the proposed work

to ensure safety and prevent damage by seeking to determine whether the work was

necessary to address an immediate safety risk and no more than presently

necessary to ensure safety or prevent damage.

Work Necessary to Ensure Safety

[95] Dealing with the evidence of mould, the judge concluded that there was

equivocal evidence of the presence of elevated levels of mould and the extent of the

mould problem. There was insufficient evidence that a safety risk was posed by the

presence of mould. She concluded: “it is not a systemic problem throughout the

Building”: at para. 136. That conclusion cannot be said to be erroneous. It turns on

the judge’s assessment of the evidence, to which we must defer, and does not

reflect the application of an erroneous test.

[96] Dealing with the evidence of deterioration of the EIFS and the “risk of portions

of the Building falling and endangering pedestrians or residents” (at para. 137), she

concluded “[t]he evidence that the panels are at a risk of falling off is not supported

by the totality of the engineering evidence”: at para. 138.

[97] That conclusion, however, is difficult to reconcile with the findings that

immediately follow:

[138] ... The suggestion is that it is a potential risk at some point in the

future. I am not prepared to find that a full remediation of the east elevation of

the Building is necessary to ensure safety. I accept there is some risk of

failure in the southern end of the east elevation of the Building. This is the

one area the engineers agree needs to have work completed, and the Strata

Corporation should address it, but it does not justify approving the entire

s. 173 Petition.

[Emphasis added.]

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[98] Taken as a whole, these findings suggest that the judge found that there is a

risk portions of the Building’s exterior cladding will fall off as a result of its

deterioration—clearly a safety risk—but that the risk does not yet require the

extensive work proposed by the Strata Corporation. For that reason, she was not

prepared to approve the “entire s. 173 Petition”. In part, that conclusion appears to

have been founded upon the view that the entire risk the Strata Corporation sought

to address was not imminent, and that which was imminent might be addressed by

less extensive work than proposed.

[99] In my view, once it was determined that the deterioration gave rise to a safety

risk, it was an error to consider whether the repair the Strata Corporation sought to

conduct was immediately necessary or whether it was the minimum work necessary

to address the deterioration that gave rise to what was clearly identified as a safety

risk. If the evidence established the existence of a safety risk, and that one

reasonable way to deal with that risk was to do work as extensive as that proposed

by the Strata Corporation, then the threshold for making a s. 173(2) order was

overcome.

[100] That being the case, the judge should have considered factors going to the

exercise of her discretion to approve the special resolution, including:

a) whether the Strata Corporation acted in good faith;

b) whether there were procedural irregularities in the manner in which the

resolution was proposed and passed by a majority of the votes cast at its

special or annual general meeting;

c) whether the Strata Corporation acted reasonably on the strength of

professional advice in seeking to impose the special levy; and

d) whether court approval of the resolution would unfairly prejudice the owners

in the minority.

Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213

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[101] The judge did not engage in that exercise, having concluded that all of the

proposed work was not imminently required to address the identified safety risk.

Work Necessary to Prevent Loss or Damage

[102] Section 173(2)(a) provides that a special levy must be “to prevent significant

loss or damage, whether physical or otherwise”. I will first address the evidence

regarding physical loss or damage, and then turn to economic loss arising from the

potential for increased costs if the remediation is delayed.

[103] Mr. Hoy identified multiple areas where repair was necessary to avoid

damage due to deterioration of the EIFS and water entering the Building. These

formed the basis for, among others, the following recommendations:

a) that the EIFS wall areas on the east elevation of the building (facing

Burrard St.) be replaced within a year, from top to bottom, with a new

rainscreen wall assembly system, starting with the south-east wall

section that had already separated, to prevent further damage,

potential for wall cladding collapse, and falling object hazard;

b) that the EIFS wall areas on the south-east elevation of the building

(the corner facing Burrard and Robson Sts.) be replaced within three

years with a new rainscreen wall assembly system,

c) that the EIFS wall areas at the west elevation (facing Thurlow St.)

north of the balcony be replaced with new rainscreen wall assembly

system within three years due to compromised gypsum sheathing and

potential for panel separation, wall cladding collapse and falling object

hazard.

[104] Mr. Hoy was confident that there had been sufficient investigation to establish

that the proposed work on the east and west elevations of the Building was

necessary. He deposed:

6.

Appropriate and reasonable best practice testing/examination

protocols were used to assess the Strata Corporation's building enclosure

(the “EIFS”). Every building envelope is unique, and the methodology used to

assess a building envelope will change based on local factors. In this case,

the following factors were considered when determining the appropriate

assessment methodology for the EIFS: the age of the EIFS, the original

exterior cladding assembly design, the fact that the EIFS' cladding was

designed as a face-sealed system, the EIFS' maintenance history, the failure

history of this type of system in the greater Vancouver area, and the

requirements of the local authority having jurisdiction over the EIFS'

remediation. With the aforementioned factors in mind, the methodology used

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Page 36

to assess the EIFS, including the number of core openings undertaken, was

determined to be sufficient in the circumstances.

…

13.

In the context of typical building envelope remedial work, the repair

scope is developed with a best practice design approach, sound building

envelope construction methodology, and the requirements of the authority

having jurisdiction. For the City of Vancouver, for example, when replacing a

segment of wall, it must adhere to current best practices and new rainscreen

technology. These standards apply to the Strata Corporation. To meet that

criteria, it is generally accepted that the wall area to be repaired include up to

a change-of-plane, and/or stack. It would also be impractical to only replace

one segment of an elevation, as this would be visually evident and would

likely be rejected by the local planning authorities due to alteration of the

building appearance. For efficacy, a single exploratory opening may be

adequate to conclude the fate of a wall segment, wall plane or elevation, and

whether the wall system is deemed suitable for the local environment. In this

case, a single exploratory opening was deemed to be adequate and effective

to conclude the fate of the wall segment.

[105] Mr. Narcisco, on the other hand, was of the view that the investigation

conducted by and for Mr. Hoy was superficial, and did not adequately address the

extent to which moisture penetration had caused panel separation and a risk of

collapse. He conceded that there was evidence of some significant damage that

required at least targeted repairs, but questioned the extent of the required repairs.

In his first affidavit he states:

16.

Based on the BECA Report, we believe there is currently enough

information to conclude that the southern end of the east elevation of the

building where the EIFS is sagging is damaged and requires targeted repair.

…

[106] However, he says:

13. … [T]he Building has an EIFS system. The EIFS system is designed to

deflect, absorb and desorb water away from the building. In other words, it is

expected to get wet. The presence of moisture alone, which is what the

impedance scanner [the testing device relied upon by Mr. Hoy] detects, is

insufficient to conclude that there is moisture-relateddamage. What is critical

is the condition of the materials behind the cladding, which requires

destructive testing to explore.

[107] In addressing the question whether targeted repairs would suffice in this

instance, the judge appears to have proceeded on the basis that it was not

established that the EIFS was “obsolete” and would inevitably have to be replaced at

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Page 37

the end of its expected lifespan. For ease of reference, I repeat here passages from

her reasons I have cited above. She wrote:

[151] The evidence before me does not support that targeted repairs would

be a waste of money by the owners. The EIFS will have to be replaced with a

different system since it is, according to Mr. Hoy, obsolete. In contrast,

Mr. Narciso states that the EIFS is a system designed to deflect, absorb, and

desorb water away from the Building. These conflicting opinions are difficult

to reconcile.

[152] The Depreciation Report estimated the EIFS life expectancy was until

2020. It is not clear how much longer after that date will it remain serviceable.

However, the Strata Corporation is in the process of obtaining an updated

depreciation report as required by the Act. Hopefully this will provide further

information for the owners to consider when deciding what repairs are

necessary and should be undertaken.

[Emphasis added.]

[108] This analysis indicates that the judge was not satisfied that the EIFS envelope

on the east and west elevations of the Building will have to be replaced, and that she

was of the view that the evidence of Mr. Hoy and Mr. Narcisco conflicted and was

“difficult to reconcile”. With respect, these views do not appear to be consistent with

the evidence.

[109] In his October 2016 depreciation report, Mr. Narcisco produced life cycle

renewal cost tables based on predicted replacement dates, assuming reasonable

and ongoing maintenance was being performed. The building envelope was

described in that report as an EIFS system installed in 1988 with a typical service life

of 30 years, an effective age of 25 years, a remaining service life of 5 years and a

“planned renewal date” of 2020. The report included the following notes:

Description: The Exterior Insulation Finish System (EIFS) consists of an

acrylic coating applied to reinforcing mesh, attached to rigid insulation and a

sheathing material. The cladding system does not feature a drainage cavity

behind the outer water shedding surface and is considered a “face-sealed”

assembly. This type of assembly has limited capacity to drain any moisture

that becomes trapped in the wall assembly.

Condition: The EIFS cladding is generally in serviceable condition. The EIFS

assembly was observed to have deteriorated acrylic coating in some

locations exposing the insulation, cracks in the acrylic coating and organic

growth and algae staining. Evidence of EIFS repairs was noted in a two

locations on the south and east elevations. Moisture ingress was reported at

penthouse unit 8 end unit 402 near the windows on the north and north west

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Page 38

elevation, respectively. Failing sealant and EIFS at the transition between the

tower roof membrane and the building wall above penthouse unit 8 provide

moisture with a direct path to enter the wall assembly and is likely the cause

of leaking at the unit.

Short-Term Action Required: Perform further review and repairs to address

leakage at the EIFS/window transition at unit 1704 and monitor vent locations

at residential balconies for moisture ingress.

Comments: An allowance for targeted repairs or an engineering assessment

of the cladding system has been included prior to full scale renewal. It should

be noted that premature failure of EIFS wall cladding has been observed in

the pacific northwest. The Strata should regularly review the EIFS cladding

and complete repairs as required to maintain the integrity of the water

shedding surface in an effort to mitigate potential water penetration issues.

[Emphasis added.]

[110] Mr. Hoy’s updated BECA report of July 2016 included the following

observations:

The exterior cladding system is obsolete and notequipped lo effectively

preventwater ingress and drainage without implementation of a successful

and demanding maintenance and renewal program. There are five main

categories of concern (list by priority):

1. The EIFS wall assembly backed by gypsum sheathing and

steel stud framing;

2. The EIFS wall assembly at the balconies and wall interfacing

(including guard fastening);

3. The window system, including window fastening;

4. Pool area;

5. The balcony drainage system.

…

“Face-seal EIFS, as installed on the building, has proven to be ineffective at

providing long term moisture protection of the underlying building envelope

components without diligent monitoring and maintenance of the sealant

joints, connections, and acrylic finish”. A more suitable system for our coastal

climate, that is subject to high annual rainfall and driving rain, is a wall

assembly incorporating a rainscreen system with more durablematerials.

Utilizing a rainscreen system will help the management of any water ingress

and mitigate damage by using pressure equalization and promoting the

principles of drainageand drying and deflection. Exterior insulation willhave to

be included to match the original intent for exterior thermal value.

[Emphasis added.]

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Page 39

[111] Mr. Narcisco took issue with the extent of the damage that had already been

sustained as a result of water penetration and with Mr. Hoy’s description of the work

now required but, as we have seen, his depreciation report expressed the view that

the EIFS would reach the end of its expected lifespan in 2020 and that it would then

require renewal. He described the inherent deficiency of EIFS systems when he

noted that “[t]he cladding system does not feature a drainage cavity behind the

outer water shedding surface and the assembly has limited capacity to drain any

moisture that becomes trapped within it.” Mr. Narciso also discusses targeted

repairs as measures to be taken pending full scale renewal, and he notes that

premature failure of EIFS systems has been observed in the pacific northwest.

[112] The appellant says these opinions were not in conflict and there ought to

have been no difficulty reconciling them. I agree. Both experts agreed that there is

existing damage at the southern end of the east elevation of the building.

Mr. Narcisco did not dispute the evidence that the EIFS is obsolete. There was no

doubt that it is at the end of its anticipated lifespan and will require replacement.

[113] The judge’s conclusion (at para. 153) that it was not clear on the evidence

before her “that a full remediation is required” must either have been based upon a

misapprehension of that aspect of Mr. Narcisco’s evidence, or have been intended

to say that there was no evidence that a full remediation is immediately required.

[114] The judge also recognized that the threshold in s. 173(2) of establishing that

maintenance or repair of common property is necessary to “prevent significant loss

or damage, whether physical or otherwise”, can be met by establishing that the

repair proposed by a strata corporation is necessary to avoid potentially greater

repair costs in the future, though she did not find that threshold was met in this case:

[149] Case authorities have interpreted the word “otherwise” in s. 173(2)(a)

of the Act to include loss of value to the units, potential for waste of money if

only targeted repairs are done, and the potential for increased costs when the

remediation does take place.

[150] There was no evidence before me to support any loss of value of the

residential units in the Building.

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Page 40

[151] The evidence before me does not support that targeted repairs would

be a waste of money by the owners. The EIFS will have to be replaced with a

different system since it is, according to Mr. Hoy, obsolete. In contrast,

Mr. Narciso states that the EIFS is a system designed to deflect, absorb, and

desorb water away from the Building. These conflicting opinions are difficult

to reconcile.

[152] The Depreciation Report estimated the EIFS life expectancy was until

2020. It is not clear how much longer after that date will it remain serviceable.

However, the Strata Corporation is in the process of obtaining an updated

depreciation report as required by the Act. Hopefully this will provide further

information for the owners to consider when deciding what repairs are

necessary and should be undertaken.

[153] There was no evidence before me that the costs for a full remediation

would increase with time. I do accept there is a risk of increased costs if a full

remediation is necessary but it is not clear on the evidence before me that a

full remediation is required.

As stated previously, in my view, the judge misapprehended the evidence in

concluding the experts conflicted in whether the EIFS was “obsolete” and would

inevitably have to be replaced at the end of its expected lifespan.

[115] I would not accede to Thurlow’s argument that nothing turns on whether the

judge misapprehended Mr. Narcisco’s evidence with respect to obsolescence of the

EIFS because she properly understood the substance of Mr. Narciso’s evidence as

to the need for further investigation. The necessity and value of investigation must

be weighed in light of the probability that full remediation will be required. Further

investigation to determine the extent of the needed temporary repairs may itself be a

wasted expense if full scale renewal is inevitable. The call for further investigation is

closely tied to the question whether full scale renewal is inevitable and will be

necessary soon. Misapprehension of the evidence in that regard undermines the

conclusion that further investigation is called for before approval of the Strata

Corporation’s resolution to effect repairs.

[116] For that reason, in my view, the judge’s conclusion that the Strata Corporation

has not established that the planned repairs are necessary to avoid economic loss is

flawed. I would set her order dismissing the petition aside.

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Page 41

[117] Further, the trial judge’s conclusion that further investigation was necessary

reflected her view that she had to be satisfied that the proposed work was necessary

to address an imminent threat of damage and was the least expensive means to do

so. In my opinion, those choices, if reasonably made by the Strata Corporation

acting in good faith on the strength of professional advice and in a manner that is not

unfairly prejudicial to the minority owners, are for the Strata Corporation.

Relief

[118] It is, of course, open to us to make or give any order that could have been

made or given by the chambers judge, including an order pursuant to s. 173(4)

approving the resolution, permitting the Strata Corporation to proceed as if the

resolution had been passed under s. 108(2)(a).

[119] In my view, however, there are several reasons why we should not do so.

[120] First, a resolution must describe the obligation of strata lot owners to

contribute to the levy imposed and, as I have noted, Thurlow’s liability has not been

settled and the resolution does not set out a method of determining that question on

an interim or final basis (nor have we been asked to do so).

[121] Second, there are factors going to the exercise of the discretion to grant the

order that have not been addressed by the trial court, and I am of the view that a

court of first instance should first address all such considerations.

[122] Last, almost three years have passed since consideration of the resolution

and, in my view, the trial court should reconsider the petition, on such evidence as it

considers appropriate to receive, to ensure that the court does not endorse a

resolution that has been overtaken by events.

[123] I would remit the petition to the trial court for reconsideration.

The Jamiesons’ Appeal

[124] The Jamiesons’ appeal may be dealt with summarily. They argue that the

Strata Property Act requires the Strata Corporation to maintain certain classes of

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Page 42

documents and to provide them to owners on request. They sought documents that,

in their view, related to the order sought by the Strata Corporation in the proceedings

commenced by petition. There was no freestanding application for those documents.

When the petition was dismissed, the chambers judge dismissed the Jamiesons’

application as moot. The judge held:

[161] The Applications seek extensive document production. Since I have

dismissed the s. 173 Petition, I will not comment on anyof the applicationsfor

production of documents, except where I discuss the legal fees incurred by

the Strata Corporation later in these reasons.

[162] I will add the following comments for the benefit of the parties.

Document production is strongly guided by the pleadings and governed by

the Supreme Court Civil Rules. If an action is brought under s. 164 of the Act,

that action would determine the parameters of the document production.

Section 169 of the Act provides direction on what information and documents

are producible.

[125] The Jamiesons appeal, arguing that the trial judge erred in law by not

considering and ruling on the application for documents “which was based on a

statutory right”. In reply, the Strata Corporation says the judge committed no error in

declining to address the application. Because she dismissed the petition, the

applications were certainly moot. The Strata Corporation says it is open to the

Jamiesons to seek production of documents pursuant to the provisions of the Act in

separate proceedings, other than those that were commenced by the Strata

Corporation for an order approving a special resolution.

[126] In my view, the Strata Corporation is correct to say that the chambers judge,

having dismissed the petition, could dismiss the application for production of

documents in those proceedings. However, because I would allow the appeal from

the dismissal of the petition and remit the petition for consideration to the trial court,

it follows that I would also allow the Jamiesons’ appeal from the dismissal of their

applications and remit those applications for consideration with the petition.

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Summary and Conclusion

[127] I would allow the Thurlow appeal and set aside para. 6 of the order on the

basis that the judge erred in law in making an order affecting Thurlow’s rights without

adjudication upon the merits of its argument.

[128] I would allow the Strata Corporation’s appeal, set aside the dismissal of the

petition, and remit the petition to the trial court for reconsideration on the basis that

the judge erred in law in the application of the test that must be met to obtain an

order pursuant to s. 173(2) of the Strata Property Act, and for consideration of the

amount of the levy; the liability of Thurlow to pay the levy; the method used to

determine each strata lot's share of the levy; the amount of each strata lot's share of

the levy; and the date by which the levy is to be paid or, if the levy is payable in

instalments, the dates by which the instalments are to be paid.

[129] I would allow the Jamiesons’ appeal and remit their applications for

consideration by the trial court.

[130] I would give the parties leave to make written submissions as to costs if they

cannot agree on an order reflecting their respective successes.

“The Honourable Mr. Justice Willcock”

I agree:

“The Honourable Justice Dickson”

I agree:

“The Honourable Mr. Justice Marchand”