What You Can Do About Significantly Unfair Action By Strata Council

In a previous issue of the Condo Chronicle, I stated that Council must take action (or not) only after they have looked into the circumstances and then act reasonably, pursuant to Section 31 Strata Property Act (SPA). Council members must act with utmost good faith. Not only is that directive spelled out under the SPA, but Boards, Committees, Strata Councils must exercise discretion and reasonableness. The strata council must respond to complaints from owners regarding breaches of the bylaws and may be required (emphasis added) to take enforcement action with respect to the bylaws. So what recourse does a strata owner or tenant have if the action of Council is unreasonable and significantly unfair—see Section 164 Strata Property Act:

On application of an owner or tenant, the Supreme Court may make an interim or final order it considers to prevent or remedy a significantly unfair action or threatened action by, or decision of, the strata corporation, including the council, relating to the owner or tenant

In these circumstances, the court has broad powers to direct or prohibit any act by the strata corporation and/or the strata council. In Reid vs The Owners, (2003) BCCA 126 (CA), the B.C. Court of Appeal said that the term “significantly unfair” would include conduct that was oppressive or unfairly prejudicial. The Court used the definition of the word unfair from The Canadian Oxford Dictionary as: not just, reasonable or objective”.

Councils must also exercise reasonableness when levying a fine on an owner or tenant. They must set the amount of the fine commensurate with the circumstances. Excessive amounts of a fine have been found to be “significantly unfair”. See Drummond v Strata Plan NW 2654 (2004), 34 BCLR (4^th) 359 (BCSC). Facts of this case: a boy of 16 years of age moved in with his parents in a home in a strata which had an age restriction of 19 years. The Strata Council fined the parent $200.00 per week for every week the child resided there. The fines accumulated to $16,400.00. The mother took the matter to court on the grounds the fine was “significantly unfair”. The judge agreed and reduced the fine to $1,000.00 even though the Judge found the defendant parents to have come to court with “unclean hands”. This area of the law is relatively new, so Courts have been granted great latitude in deciding cases and subsequent compensation to the aggrieved parties.

There are a number of avenues aggrieved owners and tenants can take to try to get relief from the unreasonable actions of a strata council. Some pieces of advice follow:

• Try to resolve the complaint by writing Council or appearing before Council explaining your case. You should draft a short summary of your explanation (no more than 2 typed pages). You may wish to research the law, either at a law library near you or via the Internet.
• Contact Pacific Condominium Association (PCA) for a discussion and help. PCA can offer help—and have successfully done so—by attending Council meetings and offering advice and providing a form of mediation. It should be remembered that board members of PCA are not lawyers and cannot give legal advice. Contact PCA at 604-538-8888, by email at paco@condohelp.org or read archived articles at: www.condohelp.org
• If the issue is one of alleged discrimination, you may wish to contact the Human Rights Coalition for assistance. See: www.bchrcoalition.org. Phone: 604-689-8474 Ext 205 or, 1-877-689-8474
• You may also wish to contact the B.C. Human Rights Tribunal at 604- 604-775-2000 or 1-800-440-8844. (See more on Human Rights in Volume 2006-4 of this newsletter or on www.condohelp.org). The tribunal receives the assistance of a lawyer who attends their office every Monday to assist the public with matters related to discrimination. In order to benefit from the best advice, you must bring your summary for discussion.
• Call Lawyer Referral Service and be referred to a lawyer. See: www.bccba.org or in the lower mainland phone: 604-687-3221; elsewhere 1-800-663-1919. Tell the Service the call is related to an issue in your strata. You will be given the name and contact information of a lawyer who will assist you. The fee is usually $25.00 or less for a 30 minute consultation. You may also attend the lawyer’s office in person.

• File a petition in the Supreme Court in your county; e.g., Vancouver or New Westminster
• Hire a lawyer, one who specializes in condominium law. Again, you will be asked for a two-page summary of your problem.