Corner et al. v. Strata Plan KAS833 Date:, 2014 BCPC 206

Citation: Corner et al. v. Strata Plan KAS833 Date: 20140916 2014 BCPC 0206 File No: 40165 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ELAINE CORNER, JEAN CLEMENTS, JOHN LINFOOT, MARY LONDON and ROSALIE JOHNSON CLAIMANTS AND: THE OWNERS, STRATA PLAN KAS833 DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing for the Claimants: Ms. Elaine Corner and Ms. Jean Clements Counsel for the Defendants: Mr. Stephen Bosdet Place of Hearing: Kamloops , B.C.

Date of Hearing: September 8, 2014 Date of Judgment: September 16, 2014 [1] This is an application by the Defendant Strata Corporation to dismiss the claim for want of jurisdiction. A settlementconference was held on August 5, 2014 at which time the strata corporation was given leave to bring a preliminary objection to thejurisdiction of this court in advance of the trial. This is the application. [2] While applications to dismiss claims should not be made with great frequency in this court, leaving it to the trial judge todetermine such issues, there are occasions when it is entirely appropriate to do so.

One such occasion is where this court lacksjurisdiction to hear a case. Bringing a preliminary application either before the settlement conference, at the settlement conference, orbefore the trial, results in a considerable savings of time and expense to the parties. [3] In this case, the Claimants have sued the strata corporation for levying fees against the Claimants in relation to some dryer ventalterations and cleaning. Apparently the Claimants own what are called super suites which were created by combining two separatesuites.

Upon combining the suites, the owners or original owners converted one of the range hood vents in the suites to dryer vents.These changes were made without the consent of the strata corporation. The Claimants object to being charged for alterations madenecessary to address fire hazards that came to light following the alterations. They have also been charged pursuant to a bylaw passed bythe strata corporation for cleaning of those vents.

The Claimants also seek compensation of their legal fees paid. [4] The strata corporation argues that the claim is in the nature of injunctive relief because it seeks to prevent the strata councilfrom imposing the fees because they were not approved by the members in a unanimous vote. The Claimants seek to have the StrataProperty Act upheld and the strata corporation to pay for all the cleaning and maintenance of the dryer vents. [5] By the wording of the Notice of Claim, this appears to be injunctive relief.

Although the Claimants want financialcompensation for money paid pursuant to an unlawful bylaw, the nature of the relief sought does not constitute a purely debt claim orany other claim over which this court has jurisdiction. [6] The Claimants wish to continue in Provincial Court because they do not have the finances to commence the necessary SupremeCourt proceeding. They argued that Fudge v.

Strata Plan NW 2636, 2012 BCPC 409 , 2012 B.C.P.C. 409, and Paul et al. v.Riding and Strata Plan NW 612, 2013 BCPC 292 , 2013 B.C.P.C. 292, are identical cases to the case before the court whichwere determined in Provincial Court. Finally, they also argued that while the Notice of Claim refers to Strata Property Act sections 69and 100, they are only seeking return of the money paid. This does not make it a debt claim or any other contractual claim. [7] While it is clear that the Claimants are seeking return of money they have paid, the matter does not end there.

It is the nature ofthe dispute leading to the demand for the return of the money which must first be examined. That demand for the return of the money ispremised on an argument that the strata corporation is responsible for the maintenance and repair of the dryer vents because these formpart of the common property. In addition, the strata council has passed a bylaw based on a resolution passed by the members of the stratacorporation to charge such amounts to the Claimants.

In order to determine whether the monies are owing to the Claimants, there has tobe a fulsome examination not only of the legality of the resolution passed, but also of the strata corporation’s obligation to repair andmaintain vents which were altered without the consent of the strata corporation. [8] Dealing next with the cases provided by the Claimants, they are not precisely on point with this case. The Fudge case wasabout a flood resulting from a washing machine discharge hose. Ms. Fudge had left her washing machine running but was not home.

Thewaste water flowing through the discharge hose backed up and out of the discharge pipe. It flowed back into Ms. Fudge’s unit, causingdamage in her unit. Ms. Fudge alleged that the flood was caused by breaches of duty on the part of the strata corporation to repair andmaintain the waste water piping infrastructure of the building. The cause of action was in negligence. Judge Woods refers to s. 72 of theStrata Property Act because it appears the pleadings inferred there was a duty of care owed under that section. However, the nature ofthe claim is in negligence, not statutory duty.

Negligence is not covered in the Strata Property Act and therefore not specificallyidentified as being within the sole jurisdiction of the Supreme Court. [9] As stated in Valana v. Law et al., 2005 BCPC 587 , 2005 B.C.P.C. 587, it is well established that this court does havejurisdiction if the Supreme Court has not been given exclusive jurisdiction. [10] Counsel for the strata corporation argued that the Claimants are effectively seeking relief from unfair actions by a stratacorporation or seeking injunctive relief compelling a strata corporation to perform duties required of it under the Act.

In other words, ifthere were damages which flowed from the negligence of the strata corporation as a result of a failure to perform their duties, theseClaimants could sue for those damages. However, they cannot sue in this court to compel the strata corporation to stop charging themand to compel them to perform their obligations under s. 72 of the Strata Property Act. [11] In Clappa v. Parker Management Ltd. et al., Judge Meyers dealt with a building envelope repair which included a balcony onthe Claimant’s unit. The Claimant alleged that the repairs were done negligently.

She sued the contractor and the strata corporation. Inthat case, the claim was also in negligence but the question was raised whether the Provincial Court had jurisdiction to hear a case wherethe owner of a strata lot sues the strata corporation for negligence and the performance of its duty to maintain and repair commonproperty under s. 72(1) of the Strata Property Act. [12] At paragraph 9, Judge Meyers commenced an examination of sections 163 to 173 of the Strata Property Act which define whichcourt has jurisdiction to resolve disputes between strata lot owners and the strata corporations.

The Supreme Court is specificallydesignated as the appropriate court. At paragraph 12, he said: [12] It is in my view, it is clear that the new Strata Property Act attempts to create a scheme whereby all disputes between strata propertyowners and their strata corporations which involve the strata corporation's "governance" of the common property, must be resolved in the

Supreme Court of British Columbia and not in the Provincial Court of British Columbia. [13] Judge Meyers continued at paragraph 21: [21] Having reviewed the foregoing sections of the new Strata Property Act, it is my finding that the Legislature intended to outline theprocedures which must be followed when there is a dispute between the strata corporation and an owner involving the stratacorporation's governance of the strata properties. The strata corporation is to be sued in the Supreme Court by an owner with respect toany matter relating to the common property.

An owner must sue the strata corporation in the Supreme Court if it is alleged that the stratacorporation failed to perform the duties which it was required to perform, pursuant to its obligations under the Strata Property Act. TheSupreme Court can make any order necessary to direct the strata corporation to fulfil its statutory duty to maintain and repair thecommon property. [14] This does not include claims in breach of contract or tort: David v. Vancouver Condo Services Ltd., [1999] B.C.J. 1869 andValana. [15] I was also referred to Stettner v.

The Owners, Strata Plan PG 56, 2011 BCPC 82 , 2011 B.C.P.C. 82, which simplysets out the authority of the court to dismiss a claim if the court does not have jurisdiction to hear it. [16] Finally, the Paul decision was a claim for damages brought by the owners of two suites against the strata corporation allegingthe duty of care by the strata corporation to ensure that the common property of their suite was properly maintained and repaired.Because this maintenance and repair was not done, water ingress resulted in damage to the suite. This case is akin to the Fudge case butnot similar to the one before me.

I am satisfied that if a claim for damages resulting from a failure of a strata corporation to perform itsduties to maintain and repair common property is made, this court has jurisdiction to hear that claim. That is not the case where ownerswish to compel their strata corporation to do or not do something. [17] It is not enough to say that there are damages resulting where the only damages alleged are fees charged to strata lot owners as aresult of a bylaw passed by the strata corporation.

The court cannot determine whether the Claimants are owed the money without firstdetermining whether the resolution was properly passed and whether the strata corporation is entitled to charge the owners formaintenance and repair of those vents.

There is an additional issue compounding the matter in that the strata corporation alleges theClaimants or the prior owners of their units made unauthorized alterations to the units resulting in these additional charges. [18] While it is regrettable that the Claimants will have to pursue this matter in the Supreme Court, I am satisfied this court does nothave jurisdiction to hear the case. The case is dismissed for want of jurisdiction and the strata corporation shall have its reasonable coststo be assessed by the Registrar. _____________________________ S.D. Frame Provincial Court Judge