The Owners, Strata Plan VIS114 v. John Doe (British Columbia Supreme Court)

The strata building suffered water ingress issues.  In 2008 and 2013, the strata corporation carried out major remediation on the building’s south and east walls.  Major work had not been carried out on the north and west walls, despite engineering recommendation to complete that further work.

At its most recent annual general meeting, the strata council had failed to obtain a 75% vote (required under the Strata Property Act) in order to impose the necessary levy and proceed with the repairs to the north and west walls. [In accordance with section 108(2)(a) of the Strata Property Act, the strata council could impose a special levy only if approved by a resolution passed by a ¾ (75%) vote at an annual or special general meeting.]  In late 2013, the Strata Property Act was amended (section 173(2)) to give the Court some oversight where strata owners failed to approve a special levy for the repair and maintenance of common property in certain circumstances.

The strata corporation applied, under section 173 (2), for the necessary order allowing the corporation to proceed with the special levy and major repairs.

The Court granted the requested order, approving the failed owner’s resolution (as if the resolution had been passed under section 108(2)(a)).  The Court said:

Of critical importance on this application is the requirement that the maintenance or repair be “necessary to ensure safety or to prevent significant loss or damage, whether physical or otherwise”.

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I have found above that, without the remediation to the north and west walls of (the building), there is a risk to an owner’s safety and also a risk of significant loss or damage to the owners, whether that be physical or otherwise.  The evidence establishes that many owners on the north and west walls have experienced and continue to experience substantial issues that affect or damage their property and negatively impact their health and the enjoyment of their strata units generally.

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A substantial majority of the owners (63%) voted in favour of the remediation.  As such, the strata council was 12% short of obtaining the special majority that it needed to proceed in accordance with the Act.

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I agree that the court should not lightly interfere with strata corporation matters.  The Act addresses the governance of a strata corporation and its operations and intervention by the court will be the exception rather than the rule.  Disputes or disagreements amongst owners are not uncommon and the Act provides for the resolution of those disagreements and disputes, usually by the voting process at meetings.

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.

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The remedy under section s.173(2) of the Act was designed to address the very situation that is currently faced by the owners of (the strata units).  A solid majority of the owners support the efforts of the strata corporation to comply with its statutory duty to repair.  This duty remains despite the opposition of the anti-remediation forces.

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To allow a small minority of owners to thwart (the efforts of the strata corporation) in these circumstances would be unfair to all owners, but, in particular, to those on the north and west walls of (the building) who are continuing to suffer while others do not.