Dean Park Estates Community Association, Colin Stewart Ross, Candace Victoria Tisdale Ross, Gary Patrick McGee, Phyllis Dianne McGee v. Ivy Anna Anderson, 2017 BCSC 1258

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dean Park Estates Community Association v. Wachal, 2017 BCSC 1258 Date: 20170523 Docket: 16-4727 Registry: Victoria Between: Dean Park Estates Community Association, Colin Stewart Ross, Candace Victoria Tisdale Ross, Gary Patrick McGee, Phyllis Dianne McGee and Ivy Anna Anderson Plaintiffs And: Ryan Wachal and Celinia Fung Wachal Defendants Before: The Honourable Mr. Justice G. R. J. Gaul Oral Reasons for Judgment In Chambers Counsel for the Plaintiffs: L. LeBlanc, (agent for L.J. Alexander) Counsel for the Defendants: N.W.

Lott Place and Date of Hearing: Victoria, B.C. April 20 - 21; May 11, 2017 Place and Date of Judgment: Victoria, B.C. May 23, 2017 [ 1 ] THE COURT: These reasons for judgment are subject to editorial revisions before their reproduction in final form. In no manner will the results of my decision be changed. Introduction [ 2 ] Dean Park Estates is a large and well-established residential community located in the District of North Saanich, B.C. Its beginnings date back to the mid-1970s.

It now consists of 31 separate subdivision plans, with over 700 single family dwellings. [ 3 ] The plaintiff, the Dean Park Estates Community Association (the “Association”), is a non-profit society incorporated under the B.C. Society Act , R.S.B.C. 1996, c. 433 . According to its constitution, the Association’s purpose: … shall be to foster the welfare of the residents living in the area known as Dean Park Estates, and shall include, but not be limited to: … (

b) ensuring that the building scheme (restrictive covenants) applicable to the area is maintained. [ 4 ] The remaining plaintiffs in this action are Dean Park Estate property owners. [ 5 ] The defendants, Ryan and Celinia Wachal, own property in Dean Park Estates as well. [ 6 ] In their legal action against the defendants, the plaintiffs seek, amongst other things:

a) an injunction prohibiting the defendants from continuing any construction or exterior alterations to their residential dwelling;

b) an order requiring the removal of any unapproved construction; and/or

c) damages for breach of a statutory building scheme that is registered against the title to the defendants' property. [ 7 ] The defendants have denied the plaintiffs' claim and have filed a counterclaim of their own against the plaintiffs. [ 8 ] By application filed 19 December 2016, the defendants seek to have the plaintiffs' action dismissed by

summary trial. Background [ 9 ] In October 2015, the defendants purchased a family home in Dean Park Estates. Their lot is located in subdivision number VIP29757. This subdivision is subject to a statutory building scheme that was registered in September 1976, when the development of Dean Park Estates was in its infancy (the “Statutory Building Scheme”). [ 10 ] The clause in the Statutory Building Scheme’s “Schedule of Restrictions” that is critical to the plaintiffs' claim against the defendants, and the one upon which their action rests, is clause 1. That clause reads: 1.

There shall be no commencement of site preparation, including filling and excavation, or construction of any improvement or alteration thereof until a complete set of plans, signed by the owners, has been deposited with Park Pacific Apartments Ltd., or its agent or nominee and approval therefore has been obtained as hereinafter provided, it being the intent of these restrictive covenants that all improvements, including dwellings, fences and landscaping are to be controlled as to design, siting, height, set backs, type of materials used and exterior colour schemes.

For greater clarity and certainty it is the intent of these restrictive covenants to ensure a variety in set backs and dwelling types to be built upon the lots and to ensure that all dwellings and improvements are suited to the particular lot on which they are to be located. [ 11 ] This is also the clause that is the subject of the defendants’ counterclaim.

Specifically, they seek pursuant to s. 35 of the Property Law Act , R.S.B.C. 1996, c. 377, an order modifying the clause by removing all of the words that follow “as hereinafter provided”. [ 12 ] The defendants’ home in Dean Park Estates was built in 1979 and, according to the defendants, it was in need of renovations when they purchased it. Prior to taking possession of their home in mid-December 2015, the defendants hired a professional designer to prepare their renovation plans.

They also hired a professional engineering firm to provide structural engineering advice and a professional contractor to perform all the construction work. [ 13 ] On 9 February 2016, the defendants obtained from the District of North Saanich a building permit allowing them to build a new accessory building on their property.

The permit specifically prohibited the accessory building from being used as a dwelling unit or for the purpose of habitation. [ 14 ] On or around 15 February 2016, construction work on the defendants' property began. [ 15 ] On 9 March 2016, the defendants' designer received a letter addressed to “the New Resident, 8868 Moresby Park Terrace”, from Mr. Richard Nordlund, the chairman of the Association’s Design Review Committee (the “DRC”). Attached to the letter were a copy of the

Schedule of Restrictions from the Statutory Building Scheme, a copy of the “Design Guidelines” the Association had approved at a special general meeting in October 1992 and had amended in October 2005, a 1-page document explaining the DRC's role, and a copy of a recent Association newsletter. [ 16 ] Mr. Nordlund also noted in his letter that: Several neighbours have expressed concerns about the structure being built in the side yard of your property. Please advise me what the structure is intended to be used for, and what the exterior materials and colours will be - see clause 1 of the

Schedule of Restrictions . [ 17 ] The Design Guidelines that Mr. Nordlund referred to include the following: OUTBUILDINGS - all stand-alone outbuildings such as garages, tool/storage sheds, children’s playhouses, etc., should conform to the design and character of existing dwelling and be constructed of similar building materials. Such buildings shall conform to the established District North Saanich zoning regulations.

Before applying for a building permit, the property owner or his agent shall submit to the Design Review Committee three copies of all detailed designs or construction drawings associated with such additions. ADDITIONS TO EXISTING HOUSES - all additions to existing dwellings including external appendages and chimneys should conform to the established design and character of the present dwelling and be constructed of similar building materials. Such additions shall conform to the established District of North Saanich zoning regulations.

Before applying for a building permit, the property owner or his agent shall submit to the Design Review Committee three copies of all detailed designs or constructions drawings associated with such additions. [ 18 ] On 9 March the defendants' designer sent Mr. Nordlund the renovation plans. The note that accompanied the plans included the following: The owners, the general contractor and myself are very sorry we did not contact you before submitting the approved building permit application. To tell you the truth, we were [misinformed].

I stood on the road looking at all the different types of exterior facades [and] I assumed there was [no] design guideline. We were not intentionally not trying to go through your community process. The owner is new [to] the island and is looking forward to making positive connections for him and his young family.

The proposed plan is to renovate the existing home and build [a] bylaw / zoning / code conforming accessory building. As mentioned the above plans have been approved by muni (sic) and signed off by a structural engineer. My client is hoping to match the house and accessory building facades. This way the two co-exist in an appealing manner. [ 19 ] On 18 March 2016, Mr. Nordlund wrote to the defendants informing them that the DRC had significant concerns about what appeared to be the construction of a second dwelling unit on their property.

He offered the defendants the opportunity to clarify their intentions in this regard and reminded them that obtaining design approval was mandatory. As a result of this notification, the defendants put a stop to the work that was being done on their property. [ 20 ] On 27 March 2016, Mr. Wachal spoke with Mr. Nordlund by telephone. During this conversation, Mr. Wachal explained that the proposed accessory building would be used as a quiet area for Mrs. Wachal to do her painting and as an exercise and entertainment area separate from the main house. He further assured Mr.

Nordlund that he and his wife had no intention of using the accessory building as a second dwelling on their property. Mr. Nordlund replied that he did not believe Mr. Wachal, and that he wished to meet with him at his property. [ 21 ] On 29 March 2016, Mr. Wachal attended at the property and met with Mr. Nordlund and Mr. Michael Forster, another member of the DRC. In his first affidavit, sworn 23 November 2016, Mr. Wachal explained what transpired at the meeting: [23] At that meeting both Mr. Nordlund and Mr.

Forster expressed concern over the use of the addition of a second dwelling, and gave me a copy of a document in which they highlighted their concern. [the Statutory Building Scheme

Schedule of Restrictions]. [24] At that meeting I reiterated that we had no intention of using the addition as a second dwelling. Mr. Nordlund stated that I was "in a pile of shit" and that one way or another this will come to an end. [25] At that meeting I asked what would they recommend changing and what was it specifically that was bothering them. Mr. Nordlund and Mr. Forster said they did not really know but that they needed confidence that the addition couldn't ever be used as a second dwelling before they would approve it. [ 22 ] On 15 April 2016, Mr. Wachal delivered a letter to Mr.

Nordlund that contained the following: Further to your letter dated March 18, 2016 and our in-person meeting with yourself and Mr. Forster on the evening of March 29, 2016, we write to formally request your approval of our plans to construct an accessory building on our property. … Your letter expresses a concern that we are constructing what appears to be a second dwelling unit. We wish to assure you, in no uncertain terms, that we are not.

As discussed during our telephone conversation and also during our meeting, the accessory building will be used solely for the purpose of a family exercise room, a games room, and a place of tranquility for my wife to enjoy painting and reading. We have no intention of using this building as a second dwelling. Indeed, the building permit issued by the District expressly states that our building may not contain a dwelling unit or be used for the purpose of habitation.

This condition is also stated on our approved plans. … Upon receiving your letter and reviewing the building scheme you provided, we were quite surprised to learn that an additional approval (over and above the approval of the District) was stated to be required. We note the building scheme states that its intent is to control improvements as to design, siting, height, set-backs, types of materials used and exterior colour schemes. However, the scheme does not set out any particular parameters, so we are unable to ascertain what thresholds are intended or must be met. [ 23 ] On 3 May 2016, Mr.

Nordlund wrote to the defendants informing them that the proposed construction of the accessory building was not approved. He explained the Association’s reasons for rejecting the defendants’ plans as follows: Two Story Design that is Dissimilar to the Existing House and Two Storey Design for accessory building not suited to lots in the scheme - The second story disrupts an established streetscape.

When viewed from the street, the second story of the proposed accessory building appears to dominate the property lot and is disproportionately out of scale with the existing house, including the roof line of the existing house. A proposed second story loft structure is excessive for an accessory building and is not suited to the existing dwelling or to the particular lot. It gives the impression that there has been a small-lot subdivision of the property. Preservation of Character of Dean Park Estates - the

Schedule of Restrictions were created primarily to ensure the preservation of the unique, aesthetic residential character of Dean Park Estates. The design of the proposed two story accessory building is not in keeping with the current character of the neighbourhood and would erode the integrity, the aesthetic continuity, and the single-family residential appearance of Dean Park Estates. [ 24 ] Mr. Nordlund also expressed the DRC’s concerns about the full bathroom that was proposed for the accessory building.

He noted it was excessive and not appropriate, especially given that once the renovations were complete, the defendants’ home would have 3 and one-half bathrooms. He also raised the continuing concern that the accessory building might be used a secondary dwelling, contrary to clause 7 of the Statutory Building Scheme’s

Schedule of Restrictions. [ 25 ] Given the DRC’s rejection of their renovation plans and the concerns raised by Mr. Nordlund, the defendants had their designer prepare new plans that did not have a stand-alone accessory building. In his letter to Mr. Nordlund dated 15 May 2016, that included the defendants’ revised plans, Mr. Wachal explained: To acknowledge the concerns laid out in your letter, you will see the revised plans no longer propose a stand-alone accessory building

which you’ve stated can give the impression of a small-lot subdivision or separate additional dwelling. Instead, we have modified the plans to be a true addition to the primary building and no longer a separate outbuilding. The design of these plans will nicely tie in with the design of the existing house. At the 2016 Dean Park Estates Community Association’s AGM on April 12, 2016, many of the comments from residents included that of finding a way to join additional space to the main building which I’m excited that we are able to include in this revised plan.

As for design, your initial concerns state the design is too “dissimilar”, however the scheme itself specifically states that it is intended to “ensure a variety ”. You have also stated it does not keep up with the character of the “neighbourhood”, however the scheme specifically refers to the improvements are suited to “the particular lot”, not to the neighbourhood. The existing dwelling contains two floors and therefore the expansion plans with a two floor style helps maintain continuity. Your letter also continues to express strong concern that we are constructing what appears to be a second dwelling unit.

Again, we wish to assure you, in no uncertain terms, that we are not. As expressed clearly in our first request for approval, our sole purpose of the additional space is for our family's needs for the purpose of family room, a games room, and a place of tranquility for my wife to enjoy painting and reading. Having this expansion fully join the existing house as an addition helps address our family's needs while also ensures not to set a precedent in the neighbourhood as a stand-alone structure could. [Emphasis in original.] [ 26 ] On 18 June 2016, Mr.

Nordlund wrote to the defendants advising them that the Association had refused to approve their revised plans. In his letter of rejection, he explained: … the height and design appearance detailed in the revised plans are not acceptable on this lot, and cannot be approved. We have provided our reasons below. 1. Height The two story design of the addition is problematic. The second story of the proposed addition is disproportionately out of scale with the existing house, including the roof line of the existing house.

The two story addition does not match the profile of the existing house in that the floor elevations are significantly different. In the revised plans, the roof slopes of the existing house and the proposed addition differ and when viewed from the street, there is an overall incongruity between the profile of the existing house and the proposed addition. 2. Design Appearance a. The design of the proposed addition when compared with the architectural style of the existing house, is incongruous. It appears to be more of an appendage to the exiting house rather than being fully integrated with the house.

The proposed addition does not blend with the surrounding architecture and disrupts the established streetscape. b. Additionally, the Design Review Committee notes that the revised design outlines a second front entrance door in the primary dwelling, just a few feet away from the existing double door front entrance. This additional door give the appearance of a duplex which is (

i) contrary to the single family nature of the Dean Park Estates subdivision, (ii) not permitted in the Dean Park Estates area, and (iii) not consistent with traditional single family house design. [ 27 ] On 14 July 2016, Mr. Wachal wrote to Mr. Nordlund and asked that the Association reconsider its refusal to approve the proposed renovation plans. Included with his letter were photographs of a number of homes within Dean Park Estates that were similar in design to what the defendants were proposing. [ 28 ] On 3 September 2016, Mr. Nordlund responded to Mr.

Wachal and informed him that the DRC had considered his request but had not changed its refusal to approve the proposed construction on the defendants’ property. [ 29 ] Later in September 2016, after receiving a building permit from the District of North Saanich for their amended plans, the defendants recommenced work on their property so as to protect from the impending arrival of inclement weather the work that had already been done. [ 30 ] On 4 November 2016, counsel for the Association wrote to the defendants with the demand that they immediately cease all construction on the property until they had complied with the Statutory Building Scheme and had received the Associations’ approval to resume the work. [ 31 ] Work on the defendants' property ceased in or around the second week of November 2016 and no further work has been performed since then. [ 32 ] In preparation for this

summary trial, the plaintiffs retained Mr. Alan Lowe, a registered professional architect, to prepare an expert opinion on the Statutory Building Scheme and the proposed renovations to the defendants' property. Although the defendants did not object to the admissibility of Mr. Lowe's expert opinion evidence, they correctly pointed out that at times he impermissibly trenched into areas that are the exclusive domain of the court. Be that as it may, with respect to the proposed renovations to the defendants' property, Mr.

Lowe opined: As the buildings were not intended to be connected when construction commenced, the revised plans to connect the building creates an awkward and incongruous design. The floor levels are significantly different, the roof lines are different, the window patterns are different and the flat one storey connection only accentuates the second storey portion of the new addition and the flat roofs. This has created an appearance of two architecturally different structures. Issues [ 33 ] There are three issues that need to be addressed on this application:

a) is this matter suitable for determination by

summary trial?

b) if it is, then is clause 1 of the Statutory Building Scheme enforceable; and

c) if clause 1 is enforceable, then did the plaintiffs properly exercise their discretion when they refused to approve the defendants' renovation plans? Discussion Is this matter suitable for

Summary Trial? [ 34 ] The defendants' application is brought pursuant to Rule 9-7(15) of the Rules of Court , which reads: On the hearing of a

summary trial application, the court may (

a) grant judgment in favour of any party, either on an issue or generally, unless (

i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application . . . [ 35 ] The jurisprudence from this court, as well as our Court of Appeal, makes it abundantly clear that the one of the main purposes of a

summary trial is to lessen the expense and time required to achieve a final resolution of a dispute and that this form of trial can and should be used where the court can determine the facts necessary to render a decision that is just and fair. [ 36 ] Some of the factors the court will consider in assessing whether a matter is suitable for a

summary trial include:

a) the complexity of the matter;

b) any urgency to have the matter resolved expeditiously;

c) any prejudice that might arise on account of delay;

d) the cost of proceeding to a conventional trial;

e) whether the credibility of any of the parties is significantly at issue; and,

f) if proceeding by way of a

summary trial adds a layer of unnecessary complexity to the litigation. [ 37 ] The plaintiffs submit that this matter is not suitable for

summary trial. In advancing that argument, they maintain that proceeding to a

summary resolution of their claim will not assist in the efficient resolution of the parties' legal dispute because, at the very least, the defendants' counterclaim will remain extant. They also point to the fact that document production and examinations for discovery have not been completed, and that these preparatory steps need to be taken before the claim they are asserting can be adjudicated on its merits. Finally, the plaintiffs say I do not have jurisdiction to answer the key question in this dispute, and that is: whether clause 1 of the Statutory Building Scheme is enforceable.

I will address that latter submission in more detail momentarily. [ 38 ] The defendants accept that the relief they seek in their counterclaim can only be sought by petition. On 15 December 2016, counsel for the defendants advised plaintiffs' counsel of this and of their intention not to pursue the relief set out in the counterclaim at the hearing of their

summary trial application. [ 39 ] In his submissions before me, counsel for the defendants addressed the plaintiffs' understandable concern about the extant counterclaim and the risk this caused of inefficiently litigating the parties' dispute in slices. Mr. Lott acknowledged that both the plaintiffs' action and the defendants' counterclaim were before me on this

summary trial application. Candidly accepting that the relief sought in the counterclaim could only be obtained by petition under s. 35 of the Property Law Act , he invited me to dismiss the counterclaim. This, in my view, effectively answers the plaintiffs’ concern about litigating in slices. [ 40 ] In my opinion, the circumstances of this case militate in favour of proceeding with a

summary trial. I find the dispute between the parties is a straightforward one. There is a need for the parties to get an answer, especially the defendants, who have had their home renovations on hold since November of last year. There are the unquestionable costs proceeding to a conventional trial will entail and they would likely be significant for all of the parties concerned. I also note that there is no challenge to any of the parties' credibility and, as I have already touched upon, proceeding by

summary trial will not result in litigation in slices or the creation of any additional layers of complexity. [ 41 ] As for the plaintiffs' submission about the pretrial disclosure not yet being complete, I am not convinced it needs to be in this case. As I have said, the dispute is a straightforward one, and based on the evidence before me I am satisfied I can determine the dispute efficiently and fairly. As such, I will proceed with the

summary trial of the plaintiffs' action. Is clause 1 of the Statutory Building Scheme enforceable? [ 42 ] The plaintiffs acknowledge that their action is founded on clause 1 of the Statutory Building Scheme. However, as an opening

position, they say I do not have the jurisdiction to interpret the clause and to determine whether it is enforceable because the defendantshave adopted a flawed process to obtain the relief they are seeking. The plaintiffs maintain that the defendants’ goal on this

summarytrial is to cancel or negate the effect of the Statutory Building Scheme, and in particular clause 1, that is legally and properly registeredon title to their property. The plaintiffs contend that the defendants can only obtain that result by petition under s. 35 of the Property LawAct, with proper notice given to all property owners who might be impacted by the relief being sought. In support of this argument, theplaintiffs point to Rule 2-1(2)(

a) of the Rules of Court, s. 35(4) of the Property Law Act, as well is the decision of our Court of Appeal inRadcliffe v. Strata Plan KAS1436, 2015 BCCA 448. [43] In the event I find I have the jurisdiction on this

summary trial to interpret clause 1, the plaintiffs argue it is an unambiguousand entirely enforceable restrictive covenant. Moreover, they submit there is ample evidence that the defendants have not obtained theAssociation's approval of their renovation plans and that they have had work done on their property without that approval. All of this, saythe plaintiffs, point to a clear breach of the Statutory Building Scheme which entitles them to the injunction or in the alternative theaward of damages they seek. In other words, the plaintiffs say they have proven their case. [44] In response to the plaintiffs’ first arguments, the defendants assert it is well within my jurisdiction on this

summary trial tointerpret clause 1 and determine whether it is enforceable and can be used as the legal foundation for the plaintiffs’ claim. They furtherassert that they are not seeking to have clause 1 of the Statutory Building Scheme modified or cancelled as against their property or ingeneral. They have accepted that such relief can only be obtained by way of petition under the Property Law Act. It is for that reason thatthey are not pursuing the relief sought in their counterclaim. What they are pursuing is a

summary trial of the plaintiffs’ action againstthem. Importantly, they acknowledge that if they are successful on this

summary trial the result will simply be the dismissal of theplaintiffs’ action. In other words, the defendants acknowledge that irrespective of the result of this

summary trial, the Statutory BuildingScheme as a whole will remain unchanged and in place. [45] The substantive defence being advanced by the Wachals in response to the plaintiffs' claim rests on the proposition thatclause 1 of the Statutory Building Scheme does not contain a true restrictive covenant and as a contractual term it is so vague anduncertain that it is unenforceable and cannot be used as a legal foundation for the relief being sought by the plaintiffs.

In other words,because clause 1 is unenforceable, the plaintiffs have not and cannot prove their claim against the defendants. [46] In response to the defendants' assertion that clause 1 is ambiguous and provides no detail of what is required of Dean ParkEstate homeowners who want to renovate their properties, the plaintiffs say the Design Guidelines along with the Statutory BuildingScheme as a whole perform that role. Consequently, there are no grounds to complain about any ambiguity. In my view, this is not aconvincing answer to the defendants' argument.

It appears to be well settled law that design guidelines of the like the Association hasadopted do not form part of a statutory building scheme and consequently they are not legally enforceable (see: Swiatlowski v. Jackmanand Hansen, 2000 BCSC 553; and Love v. L.A. Fischer Enterprises et al., 2006 BCSC 1572). In light of this, I find the DesignGuidelines to be of no assistance in determining whether clause 1 is ambiguous or not and more importantly whether the clause isenforceable or not. [47] With respect to this question, I find the defendants’ position is the correct one. The defendants simply seek a

summary trial ofthe plaintiffs’ claims against them. They are not seeking, nor will I be making, a declaration that clause 1 or any other aspect of theStatutory Building Scheme should be modified or cancelled. [48] Clause 1 refers to the intent of the Statutory Building Scheme with respect to design, siting, height, setbacks, types ofmaterials to be used, and exterior colours, but it provides no guidelines or assistance as to what a homeowner needs to do with respect tothese items.

A homeowner wanting to make renovations to his or her property gets no help or guidance from the Statutory BuildingScheme in this regard. As Mr. Wachal noted in his letter to Mr. Nordlund, the defendants struggled trying to find the threshold of whatwas required of them to obtain the Association’s approval of their proposed renovations. In my opinion, the vague nature of the clause 1meant the defendants were at the mercy of the DRC's subjective views as to what the Statutory Building Scheme means and what theDean Park Estates community requires.

I also note that what is applicable today may not be applicable tomorrow. By that I mean, if it isup to the DRC and its members to determine what is appropriate without any reference to known and enforceable details or guidelinesfound in the Statutory Building Scheme, then that obviously could change if the membership of the DRC changed. [49] The jurisprudence is settled that a restrictive covenant in a statutory building scheme must be clear, unambiguous and strictlyconstrued (see: Stenmark et al. v. Woywitka’s Building Supplies Ltd. (1978), (BC SC), 86 D.L.R. (3d) 89 (B.C.S.C.);Newco Investments Corp. v.

British Columbia Transit, (BC CA), [1987] B.C.J. No. 1266; Kirk v. Distacom VenturesInc., (BC CA), [1996] B.C.J. No. 1879; Aquadel Golf Course Limited v. Lindell Beach Holiday Resort Ltd., 2009BCCA 5; 585582 B.C. Ltd. v. Anderson, 2015 BCCA 261). Citing the case of Gubbels v. Anderson (1994), (BC SC),91 B.C.L.R. (2d) 379 (C.A.), the plaintiffs submit that restrictive covenants and statutory building schemes differ in the nature and themanner in which they are to be interpreted. More specifically, the plaintiffs contend that the

interpretation of a statutory building schemeincorporates a broader assessment, including a consideration of the intentions of the parties at the time the building scheme was made. Itmay be that in some way their natures are different; however I am not convinced they are subject to being interpreted by different meansor standards. In my opinion, a restrictive covenant, whether it forms part of a statutory building scheme or not, is to be interpreted as it ifit is part of a contractual document. In this regard I rely on Hofer v. Guitonni, 2011 BCCA 393, where Madam Justice Levine explained: [13] Mr. Justice Lambert dealt with the

interpretation of the restrictive covenant in question (without distinguishing the manner ofinterpreting a restrictive covenant or a building scheme) by reference to its “plain meaning”, “without any particular emphasis on thepurpose of the restrictive covenant at the time it was made” (at para. 17). [14] Thus, interpreting a restrictive covenant, whether found in a building scheme or not, involves no special approach. It is acontractual document, and the general principles of contract

interpretation apply. The precise words used must be looked at in the contextof the factual matrix at the time the document was created, taking into account the background and purpose of the document as guides tointerpretation. [15] Mr. Justice Lambert referred (at para. 13) to the argument of the appellants in that case with respect to what the appellants in

this case refer to as the “strict construction” approach, quoting Noble v. Alley, (SCC), [1951] S.C.R. 64 at 74, where theSupreme Court of Canada quoted from the reasons of Lord Dunedin in Anderson v. Dickie, [1915] 84 L.J.P.C. 219 at 227: Far earlier than this it has been held that all conditions restricting the use of land must be very clearly expressed, the presumption beingalways for freedom. [16] He did not find it necessary to comment on the “strict construction” presumption as he found the restrictive covenant in thatcase to be clearly expressed. [17] Thus, there is nothing in Gubbles [sic] that supports the appellant’s argument that the approach to the

interpretation of buildingschemes differs from interpreting restrictive covenants, and that the plain meaning of the words used in restrictive covenants is to giveway to their purpose. [18] This Court again dealt with the

interpretation of a building scheme in Goodwin v. Ridley, 2006 BCCA 581. Quoting Gubbels,Mr. Justice Lowry for the Court said (at para. 8): The restriction is to be interpreted as a contractual term in the context of its factual matrix with guidance being taken from what can besaid to have been its object or purpose at the time the scheme was created. [Citation omitted in original.] [19] After considering the words used and their object, Lowry J.A. found there were two plausible meanings to be given to therestriction. He said: “The wording is not free from ambiguity” (at para. 11).

The ambiguity was to be resolved in accordance with the“strict construction” approach (at para. 2): “A restriction on the use of land must be clearly expressed. If ambiguity exists, it is to beresolved in favour of the free use of the land.” In support of that principle, Lowry J.A. quoted (at para. 12) Anderson v. Dickie, and cited(at para. 13) Noble v. Alley, Kirk v.

Distacom Ventures Inc. (1996), (BC CA), 4 R.P.R. (3d) 240 at para. 23(B.C.C.A.), and Gubbels (C.A.) at para. 13. [50] In my view, clause 1 of the Statutory Building Scheme is unclear and interpreting it as a contractual term, as the jurisprudencesays it should be, I find its ambiguity must be resolved in favour of the defendants and non-enforcement. Moreover, I find because of itsvagueness, clause 1 cannot be successfully used as the legal foundation for the issuance of an injunction or an award of damages; therelief the plaintiffs seek in their lawsuit against the defendants (see: Podwin v.

Gondziola, 2004 SKQB 225). [51] Although the plaintiffs assert that clause 1 is not ambiguous and in fact sets out what a homeowner is required to do to getrenovations approved by the Association, I am not convinced that is the case. The Statutory Building Scheme says nothing about whatarchitectural designs, siting, heights, setbacks, type of materials, or exterior colours are required.

Moreover, while clause 1 indicates thata homeowner must first obtain the approval of the Association before proceeding with construction on their property, and it specificallyreferences the approval being “obtained as hereinafter provided”, there is nothing “hereinafter” in the clause or anywhere else in theSchedule of Restrictions that establishes or describes the means or mechanism to obtain the required approval. [52] Although the opening words of clause 1 attempt to prohibit a homeowner from renovating their property without firstobtaining the consent of the Association, and in that sense the words could be said to form a negative covenant, given the significantambiguity surrounding what is and is not permissible as well as the unmistakable lack of any defined means of obtaining the requiredapproval, I tend to agree with the defendants that the impugned words in the latter portion of the clause provide nothing more than anexpression of intention and they do not establish a true negative covenant that creates an enforceable right to reject renovation plans. [53] The plaintiffs have not convinced me that clause 1 is enforceable and a legitimate basis for their action against the defendants.Consequently they have failed to prove their case on this

summary trial. Did the Association act appropriately when it rejected the amended design plans? [54] I find this litigation can be resolved on the question of the enforceability of clause 1 and the plaintiffs’ ability to use it as abasis for their claim.

For the sake of completeness I will note that had I found the clause to be unambiguous and unenforceable, I wouldstill have concluded that the Association and in particular its DRC acted unreasonably in the manner in which it addressed and rejectedthe defendants’ request for approval of their renovation plans. [55] The parties agree that the test to be applied in determining whether the DRC appropriately exercised its discretion to refuse toapprove the defendants’ plans is “objective manifest reasonableness” (see: Hemani v. British Pacific Properties Ltd., [1992] B.C.J.

No.1195 (S.C.); aff’d [1993] B.C.J. 2569 (C.A.)). In other words, I must be satisfied that the plaintiffs acted in an objectively and manifestlyunreasonable manner when it assessed and refused the defendants’ repeated requests for approval of their renovation plans. [56] In my opinion, the Association created a situation where the defendants never knew where the goalposts were. That is, thedefendants were never clearly and genuinely told what they needed to do to obtain the Association’s approval. Each time they tried toaddress the concerns expressed by the DRC, new ones surfaced or an old one was revived.

At first, the DRC’s concern was the risk thatthe accessory building would be used as a second dwelling. The chair of the DRC, Mr. Nordlund, was not prepared to acceptMr. Wachal’s word that the DRC’s fears of a secondary suite on the property were unfounded. Nor was the fact that the District Bylawsprohibited second dwellings sufficient to assuage the DRC's concerns. Only when the defendants revamped their plans and connected theproposed addition to the main building on the property did the DRC raise the issue that the addition was not in keeping with the characterof the neighbourhood.

I do not know how the DRC squares this position with the fact that the Statutory Building Scheme specificallyencourages a variety of looks in the neighbourhood. [57] In my view, there is more than a whiff of disingenuousness in the plaintiffs' expressed reasons for refusing to allow thedefendants to renovate their home.

While I will not recite all of the evidence on this point, I will say that my assessment of that evidenceleads me to believe that notwithstanding the DRC’s expressed reliance on such things as "character of the neighbourhood", in actual factthey continue to focus unreasonably on the possibility the defendants could use the proposed addition as a secondary suite.

[58] I should also note that resorting to the opinion of Mr. Lowe does not assist the plaintiffs in this case. The fact that theAssociation needed to obtain Mr. Lowe’s opinion, reinforces my view of the DRC’s decision-making process as a purely subjective one,without resort to anything in the Statutory Building Scheme. Clearly the situation is nothing more than what one person may like,another person may dislike.

And, as I have already observed, what one person may dislike today, another person may like tomorrow; ifthere is a changing of the guard. [59] I find the process the defendants were compelled to use to seek the approval from the DRC followed no reasonable orobjective criteria and was so nebulous that it cannot be said the DRC acted in an objectively and manifestly reasonable manner.

Summary / Conclusion [60] The plaintiffs have sued the defendants. Their action is founded on the Statutory Building Scheme and is dependent upon theenforceability of clause 1 of that scheme. They maintain the clause is clear and unambiguous and that Dean Park Estate homeownersknow they must first obtain the Association’s permission before proceeding with renovations to their properties.

Moreover, whenclause 1 is considered in conjunction with the Design Guidelines, those same homeowners know exactly what they must do to obtainapproval of their proposed renovations. [61] The plaintiffs further assert that by not obtaining the Association’s approval, the defendants have breached the terms ofclause 1 of the Statutory Building Scheme. They consequently seek an injunction against the defendants and an order that the defendantsremove any work on their property that has not been approved by the Association.

In the alternative, they seek an award of unspecifieddamages. [62] The defendants say clause 1 of the Statutory Building Scheme is not a true negative covenant and its significant ambiguitymakes it unenforceable. They further submit that as the clause is the legal basis upon which the plaintiffs’ action is based, the plaintiffshave failed to prove their case on this

summary trial. [63] It is important to remember what this hearing has been about and what it has is not been about. This has been a trial of theplaintiffs' claim. Even though the application was brought by the defendants, the onus remains on the plaintiffs to prove their case. AsMadam Justice Smith observed in Gichuru v. Pallai, 2013 BCCA 60: [35] The authorities are also clear that a

summary trial, although heard on affidavits in chambers, remains a trial of the action forwhich the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(

s) and the defendant (even if notthe applicant) retains the burden of establishing any defence that is raised. Mr. Justice Wood, writing for the Court in Miura v. Miura(1992), (BC CA), 66 B.C.L.R. (2d) 345 (C.A.), clarified this issue (at page 352): There is no reason why the onus should be reversed simply because the defendant moves for judgment under Rule 18A, thus requiringthe plaintiff to prove her case in a

summary trial proceeding. ... ... the onus of proof does not shift simply because a trial is conducted summarily under rule 18A [now R. 9-7]. As in an ordinary trial, theparty asserting the affirmative of an issue must prove it on a balance of probabilities. I believe that such a result is also consistent withwhat was said by McEachern, C.J.B.C. in Inspiration Management et al. v. McDermid et al. [citation omitted] at page 215 of the report: The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law and allappropriate legal principles.

If then satisfied that the claim or defence has been established according to the appropriate onus of proof hemust give judgment according to the law unless he has the opinion that it will be unjust to give such judgment. [64] This has not been a hearing to determine whether an order or declaration should be made modifying or cancelling theStatutory Building Scheme or any of its provisions. The defendants have acknowledged that such an order can only be obtained viapetition under the Property Law Act and that they cannot obtain that relief through their counterclaim.

It is for this reason that counselfor the defendants, at the conclusion of his submissions, invited me to dismiss the counterclaim, and I will do so. [65] The relief granted today only addresses the claim and relief sought in the plaintiffs' notice of civil claim. There will be noorder relating to the Statutory Building Scheme, and in particular there will be no order modifying or cancelling any provision of it.Irrespective of my judgment today, the Statutory Building Scheme will remain untouched. [66] The defendants' submissions and arguments with respect to the

interpretation of clause 1 of the Statutory Building Schemeare, in my view, persuasive. Although there was an initial misstep at the outset when the defendants failed to advise the Association oftheir planned home renovations, that error was promptly addressed when it was brought to the defendants’ attention. [67] In my view the defendants have acted reasonably and in a forthright manner throughout their dealings with the Association.Regrettably, I do not hold the same view of the manner in which the Association, and in particular its DRC, has dealt with the defendants.I fail to see how or why Mr.

Nordlund would tell Mr. Wachal at such an early stage in the process that he was "in a pile of shit"; nor hashe or anyone from the DRC attempted to explain what he meant by that comment. I find the defendants attempted at every turn and innumerous ways to genuinely address the varying concerns the Association kept raising with them and it is wholly understandable whythey were baffled and frustrated by the whole process.

The Association kept changing its reasons for denying the defendants’ request,and by doing so continuously thwarted their efforts to get their home renovations approved and completed. [68] In my view clause 1 simply sets out the intention of the developer when it first began developing Dean Park Estates. Asidefrom telling property owners they must provide plans to the Association and obtain its approval before modifying their properties, itprovides no additional guidance.

In my opinion, the significant confusion and ambiguity within the clause renders it unsuitable as ameans of founding an action against the defendants. Consequently I find the plaintiffs have failed to prove their claim against thedefendants.

[ 69 ] I am also satisfied that the manner in which the Association dealt with the defendants and in particular the changing nature of its reasons or excuses for refusing to approve their renovation plans rendered its decision manifestly unreasonable. Order [ 70 ] For all the foregoing reasons, I make the following order:

a) The defendants' application for

summary trial is granted.

b) The plaintiffs' claim against the defendants is dismissed.

c) The defendants' counterclaim against the plaintiffs is dismissed as well. [Submissions on Costs] [ 71 ] THE COURT: If the parties cannot resolve the issue of costs within thirty days of today’s date, they have leave to file written submissions, to a maximum of 10 pages. “G. R. J. Gaul, J.”