Recourse to the Courts (22:XVI)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 24, 2023.|
A. Matters That the Court May Determine at First Instance
1. Inherent Jurisdiction
The BC Supreme Court may exercise its inherent jurisdiction as a superior court to determine strata property claims and disputes. The CRT also has the authority to handle strata disputes between owners of strata lots and corporations for a variety of matters.
2. Legislative Authority
Administrative tribunals have no inherent or equitable jurisdiction and can exercise only the powers conferred on them by their legislation.
a) Civil Resolution Tribunal Jurisdiction
The CRT shares non-exclusive jurisdiction over strata property claims with the courts. The courts can dismiss a claim and order it to be instead resolved by the CRT if it is under their jurisdiction.
S. 121(1) of the SPA outlines the CRT’s jurisdiction to resolve certain claims, including the following:
- The interpretation or application of the Strata Property Act or a regulation, bylaw or rule under that Act;
- The common property or common assets of a strata corporation;
- The use or enjoyment of a strata lot;
- Money owing, including money owing as a fine, under the Strata Property Act or a regulation, bylaw or rule under that Act;
- An action or threatened action by a strata corporation, including the council, in relation to an owner or tenant;
- A decision of a strata corporation, including the council, in relation to an owner or tenant;
- The exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.
On the other hand, the following types of claims are excluded by s 122 of the CRT Act and must be determined by the BC Supreme Court:
- S. 33 [accountability];
- S. 52 [unanimous votes];
- S. 58 [court appointed voter];
- S. 89 [removal of claim of lien after purchase from owner developer];
- S. 90 [removal of liens and other charges];
- S. 117 [forced sale of owner’s strata lot to collect money owing];
- S. 160 [court orders respecting rebuilding damaged property];
- S. 173(2) [court order when special levy resolution receives more than 1/2 but less than 3/4 of votes];
- S. 174 [appointment of administrator for strata corporation];
- S. 208 [orders respecting requests from leasehold landlords];
- S. 209 [leasehold landlord’s remedies on leasehold tenant’s default];
- The following provisions of Part 13 [Phased Strata Plans]:
- i)s. 226(1)(c) and (d) [release of security for common facilities];
- ii) s. 232 [amendment of declaration to extend time for election];
- iii) s. 233 [other amendments respecting Phased Strata Plan Declaration];
- iv) s. 235 [orders if owner developer elects not to proceed with next phase];
- v) s. 236 [order to compel completion of a phase];
- S. 246 [order for amendment of Schedule of Unit Entitlement];
- The following provisions of Part 16 [Cancellation of Strata Plan and Winding Up of Strata Corporation]:
- i) s. 272 [vote to cancel strata plan];
- ii) s. 273.1 [confirmation by court];
- iii) s. 278.1 [confirmation by court];
- iv) s. 279 [order vesting authority in liquidator];
- v) s. 284 [application for court order to wind up strata corporation].
b) Court Order that Civil Resolution Tribunal Not Resolve Claim
The Supreme Court may order the CRT not resolve a strata property claim if the CRT lacks jurisdiction to resolve the claim (s 16.2(1)(a)) or if it is not in the “interests of justice and fairness” that the CRT resolves the claim (s 16.2(1)(b)).
c) Court Order that Court Not Resolve Claim
The CRT is deemed to have specialized expertise with respect to strata property claims within its jurisdiction, so the court must dismiss a proceeding if it is under the CRT’s jurisdiction, unless it is not in the “interests of justice and fairness” per s 16.2(1)(b).
3. Interests of Justice and Fairness
When considering whether the court resolution of the claim is in the interests of justice and fairness, the Supreme Court may consider the following under s 16.3 of the CRT Act:
- Whether an issue raised by the claim or dispute is of such importance that the claim or dispute would benefit from being adjudicated by that court to establish a precedent;
- Whether an issue raised by the claim or dispute relates to a constitutional question or the Human Rights Code;
- Whether an issue raised by the claim or dispute is sufficiently complex to benefit from being adjudicated by that court;
- whether all of the parties to the claim or dispute agree that the claim or dispute should be adjudicated by the tribunal;
- Whether the claim or dispute should be heard together with a claim or dispute currently before that court;
- whether the use of electronic communication tools in the adjudication process of the tribunal would be unfair to a party in a way that cannot be accommodated by the tribunal.
4. Civil Resolution Tribunal Refusal to Hear Claim
The CRT may also, under s 11(1) of the CRT Act, refuse to hear a claim that is otherwise within its jurisdiction.
B. Court Proceedings for Strata Property Matters
1. Applicable Levels of Court
Recourse to the courts (the Provincial Court, Supreme Court of British Columbia, or the Court of Appeal of British Columbia) is needed when the dispute is not within the jurisdiction of the CRT and neither of the parties has issued a notice to arbitrate or sought mediation.
The Supreme Court can hear any dispute that is not excluded from its jurisdiction by legislation, while the Provincial Court can only hear cases that the Provincial Court Act, RSBC 1996, c 379 and other legislation may grant it. Appeals from the Provincial Court decisions are heard at the Supreme Court, while appeals from the Supreme Court are heard at the Court of Appeal.
2. Bylaw to Sue in Small Claims Court Without a ¾ Vote Resolution
A strata corporation may sue in either Provincial or Supreme Court for money owed to the strata corporation if the lawsuit is first approved by a 3/4 vote at an annual or special general meeting (see s. 171(2)).
Section 171(4) provides, however, that a 3/4 vote resolution is not required to commence a proceeding in Small Claims Court if the strata corporation has passed a bylaw by passing a ¾ vote resolution at either an annual or special general meeting dispensing with the need for authorization, and the terms and conditions of that bylaw are met.
3. Parties/Style of Cause/Standing
The proper name for a strata corporation is “The Owners, Strata Plan [number]” (SPA, s 2(1)(b)). Failure to name parties properly may result in default proceedings being set aside or a judgment being granted against a nonexistent party.
Generally, if relief if sought against someone asking the court to order someone to do something, that person should be named as a party to the claim.
Further, different sections of the SPA also permit different entities to bring a claim. A strata lot owner can bring a claim against the strata council where the council members is in breach of the ‘conflict of interest’ sections of s 32 of the SPA (Wong v AA Property Management Ltd., 2013 BCSC 1551).
4. Petition versus Notice of Civil Claim
Proceedings in Supreme Court can be started by a petition or notice of claim. Strata disputes must be brought to court by petition if the SPA permits “an application” to the Supreme Court, which is often the case for strata disputes. Proceedings commenced under petitions have unique rulings, like no automatic right to cross-examine on affidavits or to issue subpoena or to examine witnesses.
Claims brought by a notice of civil claim can take longer to resolve than one brought by petition. Evidence in a trial is normally given orally when brought by a notice of civil claim, whereas a petition is usually heard in Supreme Court chambers on the basis of affidavits instead of oral evidence.
5. Section 171 and 172 Approval and Funding of Litigation
Sections 171(2) and 172(1)(b) require a strata corporation to obtain a 3/4 vote resolution authorizing litigation brought under these sections before starting the action.
Section 171 should be used when there is a “representative action”, as described in Strata Plan LMS 1468 (Owners) v Reunion Properties Inc., 2002 BCSC 929. For example, this is the section under which a “leaky condo” action would be brought. In other words, even though there may be individual claims as well, if it can be said that “if one wins, they all win”, the claim falls under s 171.
a) Types of Actions That Require a ¾ Vote
The requirement for a ¾ vote makes it difficult for a strata corporation to pursue litigation, so the courts have held that sometimes, this approval is not required. In The Owners, Strata Plan VR 1008 v Oldaker, 2004 BCSC 63, the strata corporation did not need ¾ vote approval to bring a petition under s. 117 to sell a strata lot to enforce a lien. Essentially, when the SPA authorizes a strata corporation to bring a proceeding against an owner for a specific purpose, approval under s 171 is not required.
b) Ending an Action
A majority vote under s. 27 may be sufficient in some cases to authorize discontinuance of an action (The Owners, Strata Plan LMS 1468 v Reunion Properties Inc., 2001 BCSC 788). However, if a claim seeks damages or payments of money to the strata corporation, s. 82 may require a ¾ vote to approve a settlement or discontinuance of a lawsuit.
c) Retroactivity of Approval
The requirement for approval under s. 171(2) or 172(1)(b) before starting litigation remains. However, in a situation of urgency such as an injunction to preserve the status quo in the face of a threatened action that cannot easily be undone, or because of the possible imminent expiry of a limitation period, a strata corporation can start an action or petition and then proceed to obtain the 3/4 vote approval of the litigation retroactively.
6. Practice Issues in Strata Litigation
a) Litigation Privilege and Requests for Access to Records
Sections 35 and 36 of the SPA allow strata lot owners and tenants (including former owners and tenants) to obtain documents of the strata corporation, including legal opinions obtained by the strata corporation. However, attorney-client privilege is a fundamental principle of our legal system, so the court in The Owners, Strata Plan VR 1120 v Mithcinson, 2022 BCSC 2054 held that legal opinions obtained by a strata corporation and requested under s. 36 are only to be produced as follows:
- Opinions relating to litigation between the strata corporation and the requesting owner are not disclosable, as specifically provided by s. 169(1)(b) of the SPA;
- opinions relating to disputes between the strata corporation and the requesting owner that did not result in litigation are not disclosable, as protected by solicitor-client privilege; and
- opinions relating to contemplated or ongoing disputes between the strata corporation and other owners are not to be provided to the requesting owner until the litigation is fully resolved and all avenues of appeal fully exhausted, at which time the opinions may be provided to a requesting owner. Upon disclosure, the requesting owner is not to share the legal opinions received with any other person or organization.
b) Cross-Examination on Affidavit
There is no right to cross-examine a deponent on their affidavit, but it may be possible to obtain consent to do so from the parties or an order from the courts. The test for determining whether cross-examination is justified is, from Brown v Garrison, 1967 CanLII 849 (BCCA).
In exercising its discretion, the court will consider whether there are material facts in issue, whether the cross examination is relevant to an issue that may affect the outcome of the substantive application, or whether the cross-examination will serve a useful purpose in terms of eliciting evidence that would assist in determining the issue.
Evidence and how to properly get it before the court is a common issue in strata dispute resolution. Often times, strata claims are about novel issues and what needs to be included as evidence continues to involve.
General rules of evidence still apply to strata disputes, and hearsay evidence should not be used in an affidavit.
d) Discovery Process
There are a number of different parties that can act as a strata corporation, including the strata lot owners, members of the strata council, agents hired by the strata corporation, or employees of the strata corporation. Issues can arise about who would be an appropriate representative for examinations of discovery. However, when a strata corporation is a plaintiff, every strata lot owner may be examined for discovery (Owners, Strata Plan VR 368 v Marathon Realty Co., 1982 CanLII 493 (BC CA)).
e) Relief Sought
It is very important to figure out what kind of relief to seek before filing a petition or notice of claim. A judge is usually reluctant to order remedies that are not asked for in some fashion in the petition or notice of claim.
f) Stay of Proceedings
To avoid inconsistent results when multiple actions are brought for interrelated issues involving a single strata corporation, a stay of some of the proceedings may be ordered. To determine if a stay is approp riate, the following issues should be considered (Peh v The Owners, Strata Plan LMS 3837, 2008 BCSC 291 at paras 69 to 99):
- Will a decision in one case substantially determine, or reduce the issued to be decided in, the other case or cases?
- Is the stay sought for tactical reason?
- What is the most “logical, efficient, and cost-saving” way to proceed?
- Where is the balance of convenience?
C. “Tadeson” Orders
A Tadeson order is a common name for a court order under section 165 of the SPA, named after Tadeson v Owners, Strata Plan NW 2644, 30 RPR (3d) 253 1999 CanLII 6999 (BC SC) ("Tadeson"). Under this section, an ownerm tenant, mortgagee of a strata lot or other interested person may apply to the Supreme Court to order that a strata corporation do any of the following:
- Perform an act required by the SPA, SPR, bylaws, or rules;
- Stop violating the SPA, SPR, bylaws, or rules;
- Any other order necessary to give effect to the above.
A Tadeson order is often used for “leaky condo” situations, where a strata corporation fails to make necessary repairs under its responsibility.
In Tadeson, a bloc of strata lot owners repeatedly blocked resolutions to pay for repairs to defective walls and balconies that allowed water to enter the building. Finding a failure to discharge its duty to repair, the court allowed the petition to pay for repairs and ordered costs against the owners who opposed the petition.
D. Section 173 Appications
Section 173(1) of the SPA operates similarly to a section 165 Tadeson order, but the court order compels a strata lot owner, tenant, or other person to comply with or cease violations of the SPA, SPR, bylaws, or rules.
A strata corporation must first satisfy three conditions before it may apply to the BC Supreme Court for a section 173 order:
- It proposes a resolution to approve a special levy to raise money for repairs to common property or common assets that are necessary to ensure safety or prevent significant loss or damage;
- The resolution fails the required ¾ vote of the strata lot owners, but does receive more than half of the votes cast;
- Not more than 90 days have passed since the resolution was voted upon.
The strata corporation has the burden of proving on a balance of probabilities that the repairs are required, although it is not necessary to prove that the repairs were required immediately: see The Owners, Strata Plan VIS114 v John Doe, 2015 BCSC 13.
An application under s. 173(2) is typically commenced by a petition, and all registered owners must be served with a copy of the court materials by “personal” service under the Supreme Court Civil Rules.
E. Judicial Review from the Civil Resolution Tribunal
1. The Nature of Judicial Review
Provincial superior courts have an inherent jurisdiction to review the decisions or actions of delegates, including administrative tribunals such as the CRT for strata disputes.
2. Time Limit for Review
There is a 60-day time limit for commencing a judicial review of a decision of the CRT from the date the decision is issued. However, under s. 57(2) of the Administrative Tribunals Act, SBC 2004, c 45 (“ATA”), the court may extend the time for filing the petition for judicial review if it is satisfied that there are serious grounds for relief, there is a reasonable explanation for the delay, and no substantial prejudice or hardship will result to a person affected by the delay.
3. Standard of Review
For strata cases decided by the CRT, the applicable standard of review pursuant to s. 56.7 of the CRT Act is “patent unreasonableness” by establishing the CRT as an “expert tribunal” with “specialized expertise in relation to questions of law and fact.
However, the rule of law requires a correctness standard of review for constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies. Where the court does apply the correctness standard of review, they may substitute its own view for that of the CRT. For example, in The Owners, Strata Plan VR 1120 v Mitchinson, 2022 BCSC 2054, the court found that questions of solicitor-client privilege fall into the general category of questions of law, to the court applied the correctness standard and substituted its own opinion for that of the CRT.
F. Enforcement or Cancellation of Civil Resolution Tribunal (CRT)
1. Enforcing or Cancelling Orders of the CRT at Court
Sections 57 to 60 of the CRT Act provides means by which parties may enforce orders of the CRT in the Supreme Court of British Columbia or the Provincial Court of British Columbia.
An order of the CRT may be enforced by filing a validated copy of the “order giving effect to the final decision” in the Supreme Court of British Columbia (CRT Act, s 57). The following conditions must be met:
- The final decision is an approved draft consent resolution order;
- The time to appeal the decision has expired or leave to appeal has been denied.
If on appeal, the Supreme Court has varied the CRT decision, the varied decision can be enforced by filing both a validated copy of the CRT decision and the Supreme Court order.
If the CRT order is for financial compensation or the return of personal property and the value of the payment or property is less than the monetary limit from the Small Claims Act, RSBC 1996, c 430, the order may instead be filed in the Provincial Court (CRT Act, s 58).
For a more complete discussion of enforcing decisions of the CRT, refer to Chapter 20: Small Claims and the CRT.
a) Contempt of Court
In extreme cases of non-compliance with a CRT order, it may be necessary to commence proceedings of contempt of court. Section 60 of the CRT Act provides that:
- A person who fails or refuses to comply with an order of the tribunal is liable, on application to the Supreme Court, to be punished for contempt as if in breach of an order or judgement of the Supreme Court;
- Subsection (1) does not limit the conduct for which the Supreme Court may make a finding of contempt in respect of a person’s conduct in relation to a tribunal proceeding.
In this scenario, the applicant must be prepared to demonstrate the elements of contempt beyond a reasonable doubt (The Owners Strata Plan LMS 2768 v Jordison, 2013 BCSC 487 at para. 34). The elements are set out at para 19 of The Owners, Strata Plan NW 2395 v Nikkel, 2020 BCSC 282, citing Carey v Laiken, 2015 SCC 17:
- The order breached must be stated clearly and unequivocally concerning what should and should not be done: para. 33. If an order is unclear or is missing essential detail about where, when, or to whom it applies; if it incorporates overly broad language or if external circumstances obscured its meaning, the alleged contemnor may be excused;
- The person must have actual knowledge of the order: para 34. It may be possible to infer knowledge in some circumstances or if the contemnor has been wilfully blind; and
- The party alleged to be in breach must have done the act intentionally: para 35. Intent to interfere with the administration of justice is not an element of civil contempt and the lack of contumacy is not a defence: para. 47.
Punishments for contempt include fines and, as a last resort per The Owners, Strata Plan VR 812 v Yu, 2019 BCSC 693, the forced sale of an owner’s strata lot.
2. Authority to Enforce or Cancel an Order of the CRT
Section 171(2) of the SPA states that before the strata corporation sues as representative of all owners, the suit must be authorized by a 3/4 vote resolution. This does not apply to the Civil Resolution Tribunal. From sections 189.1 and 34.1 of the SPA, a strata corporation, owner, or tenant may request the CRT to resolve any dispute concerning a strata property claim within its jurisdiction, although requests by an owner or tenant must be preceded by either a request for a council hearing or a CRT direction that the council hearing may be exempted.
The CRT can cancel an order under s. 37 of the CRT Act. A strata corporation must then file the cancelled order and not take any further steps to enforce the order.
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