06/12/2017 – Jurisdiction British Columbia
Part 61 published on 01/03/2017
Strata corporation’s repair and maintenance efforts reasonable. No unfairness.
The strata corporation had completed exterior envelope work involving the application of an elastomeric coating to the building exterior. An owner alleged that the quality of the work was cosmetically unsatisfactory and resulted in significant unfairness to the owner. The Court dismissed the owner’s petition. The Court said that the strata corporation had responded reasonably to the owner’s concerns. The Court said:
It is relevant to these proceedings that there were some 50 test samples taken throughout the building and no other strata owner complained about the recoating project or about the appearance of the test triangles after the recoating.
Thus, viewed objectively in the circumstances, and with regard to the evidence, the subjective expectations of Ms. Chan and Mr. Tse with respect to the wall repair were not reasonable. The petitioner has failed to meet the first part of the significant unfairness test.
Regardless, I will consider the second part of the significant unfairness test, which is whether the strata council’s actions were “significantly unfair”. Simple unfairness is not sufficient. As set out in Dollan, at para. 31, significant unfairness involves conduct that is “burdensome, harsh, wrongful, lacking in probity or fair dealing or has been done in bad faith”.
I cannot find that the strata council’s conduct in this case amounts to significant unfairness under the above definition. The strata council responded to Mr. Tse’s concerns not once but twice by requesting two recoatings of the cut test area, attempting to resolve what Mr. Tse saw as a cosmetic defect.
Mr. Tse was permitted to address the strata council after these recoatings to express his concerns. After listening to his complaints, and considering the opinion of (the corporation’s consultant), the strata council voted on whether to attempt further remedial work. In unanimously declining to do so, the strata council was acting in the best interests of all of the strata members. It cannot be said that the decision was harsh or burdensome, or lacking in probity. The actions of the strata council suggest that it attempted to address the petitioner’s concern fairly.
The evidence is clear that a further recoating may well impair the integrity of the wall. Further, while the cost to effect the remediation sought by the petitioner was not significant, an issue referred to by counsel for the petitioner in argument, the strata council’s response was not inappropriate in the sense of being harsh, wrongful or taken in bad faith.