Part 38 published on 01/05/12
Appeal dismissed. Corporation’s refusal to allow owner to change opaque “spandrel window” to normal vision window significantly unfair. Owner permitted to change window
The lower Court held that the strata corporation’s refusal to allow the owner to replace an opaque window with a regular vision window was significantly unfair. [See Condo Cases across Canada, Part 35, September 2011.]
The strata corporation appealed to the Court of Appeal.
The majority of the Court of Appeal agreed with the lower Court’s view that it was significantly unfair “to expect the owners of 01 units to entirely lose their view in order to afford occasional privacy to certain 02 units”. The Court of Appeal majority decision also included the following:
I agree with the appellant that Courts should be most reluctant to interfere in the affairs of a strata corporation where the process adopted to arrive at a decision is one that is fair and democratic. But where an owner invokes s. 164 (of the Strata Property Act) to remedy alleged unfairness, a Court is mandated to consider if the action rises to the threshold of “significant unfairness”, in which case the Court is required to intervene.