BC Supreme Court varies CRT order in long-running dispute over maintenance for a strata duplex
August 17, 2018
BY Kevin Zakreski
McKnight v Bourque, 2018 BCSC 1342, was an appeal from a decision of the Civil Resolution Tribunal in “a strata dispute involving the owners of a waterfront duplex in Sooke.” The BC Supreme Court’s decision was the latest chapter in a long-running dispute over maintenance involving decisions of the court and the tribunal (see previous summaries here, here, and here).
This case asked the court to rule on the following issues, which were “appropriately stated as whether the CRT”:
- accepted expert opinion evidence contrary to the CRT’s rules of procedure;
- applied an erroneous legal test in determining that the [petitioner’s] conduct on her strata lot constitutes a “nuisance” within the meaning of the strata’s bylaws;
- was without authority to order that a home inspector make binding recommendations for implementation on maintenance and repair issues;
- was functus officio at the time the Decision was amended and re-issued; and,
- if so, whether the Decision erroneously sub-delegated a binding dispute resolution power to [the Condominium Home Owners Association].
The court dismissed the petitioner’s arguments on four of the five issues. The evidentiary issue more properly concerned acceptable lay opinion, rather than expert opinion. The court found the tribunal to have “considered, and applied, a functionally equivalent analytical framework” to the law of private nuisance. The tribunal’s governing legislation grants it broad authorization to issue clarifications, so it wasn’t functus officio at the time its decision was amended and re-issued:
On a combined reading of ss. 48(4), 51 and 64 of the [Civil Resolution Tribunal Act], it is apparent that the legislature intended the CRT to have relatively broad discretion to make amendments to its final decisions, as well as the orders crafted to give effect to those decisions. This includes the authority to amend for the purposes of “clarification.”
And, given that the clarification removed the binding power from CHOA, this finding rendered the last issue “moot.”
The petitioner only met with some success on the third issue. Here, the court found that the tribunal went too far in ordering that the strata corporation was bound to implement the home inspector’s reports:
The real issue on this ground of appeal is whether the CRT went too far in ordering that within 30 days of receiving the inspection reports, “the strata must retain an appropriately qualified contractor to implement the remedies recommended by the home inspector, unless otherwise agreed by the parties in writing.” [Underlining by the court.]
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In my view, the CRT was entitled to order under s. 48.1(1) of the CRTA that the strata corporation arrange for annual inspections by a qualified home inspector; that the inspection reports be produced and shared with the strata owners, including recommendations for maintenance and repair; and that the strata retain a qualified contractor to implement the recommendations.
However, the strata must be able to maintain an element of control over which of the recommendations it will act upon, when and in what form. It is reasonable to order that the strata corporation have regard to the specifics of the recommendations in determining next steps, but the recommendations themselves cannot completely fetter the strata’s discretion. In my view, that would constitute an unreasonable outcome.
The court held that the appropriate remedy would be to vary the tribunal’s order: “In light of my conclusion, and the fact that it is only the binding nature of the inspector’s recommendations that is at issue on this ground of appeal, not the existence of mandated inspections, per se, the remedy I consider appropriate is to vary the wording of paragraphs 14, 15 and 18 of the Amended Order.”
The court confirmed the remainder of the tribunal’s amended order.
