Strata corporation’s decision not to redo exterior-wall treatment wasn’t significantly unfair to owner

11 December 2017

By Kevin Zakreski

In Chan v The Owners, Strata Plan BCS 0856, 2017 BCSC 2240, a strata-lot owner asked the BC Supreme Court for “a declaration that a February 24, 2014 decision of the strata council of the building in which she resides is significantly unfair to her, an order setting aside the decision, and an order that the strata corporation use reasonable efforts, at its expense, to effect repairs to an exterior balcony wall of her strata unit.” The “repairs” related to a building-envelope project to “completely recoat the exterior of the building with an elastomeric coating, which was necessary to ensure that the building remained waterproof for an extended period of time.”

The respondent strata corporation was responsible for “a 28-story strata building” located in downtown Vancouver. The petitioner owned a strata lot “located close to the top of the building,” which had “a luxurious design” and commanding waterfront views.

Near the completion of the project, the contractor performed the following test:

To ensure that the coating adhered properly, RDH [an engineering firm], in accordance with industry practice, recommended that after application of the new coating, adhesion cut tests of the coating be undertaken. Accordingly, as the project progressed, approximately 50 adhesion cut tests were completed at randomly selected exterior wall locations. After confirming that the coating was adhering properly in each tested area, Dura Seal recoated the area from which the cut test was taken.

The exterior balcony wall near the petitioner’s strata lot was the subject of one of these tests. The petitioner claimed that, as a result, “the coating put on by Dura Seal was ‘inconsistent’ with the original recoating in that the exterior balcony wall ‘appeared uneven and patchy.’ ” The court heard varying evidence on the extent of this concern and its potential effect on the strata lot’s marketability.

The court began its consideration by citing Dollan v The Owners, Strata Plan BCS 1589, 2012 BCCA 44, in which “the Court of Appeal reviewed the law concerning the test required to be met to establish significant unfairness,” which was as follows:

In the case of a strata unit owner seeking redress under s. 164, I would adapt the test, suggested by Greyell J. [in Golden Pheasant Holding Corp. v. Synergy Corporate Management Ltd., 2011 BCSC 173 (CanLII) at paras. 47-50] slightly to the context of s. 164 and articulate it in this manner:

(1) Examined objectively, does the evidence support the asserted reasonable expectations of the petitioner?

(2) Does the evidence establish that the reasonable expectation of the petitioner was violated by action that was significantly unfair?

In this case, the court found that the petition failed on both branches of the test. First, the petitioner’s expectations weren’t reasonable:

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.

Although it was strictly not necessary to go on past this point, the court also held that the petitioner’s argument failed on the second branch too:

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.

In the result, the petition was dismissed with costs to the strata corporation.

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