Andrews v. Leno, 2003 BCSC 431

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Andrews v. Leno, 2003 BCSC 431 Date: 20030320 Docket: A993089 Registry: Vancouver Between: Donald Andrews Petitioner And Gary Leno and Kaija Leno Respondents Before: The Honourable Madam Justice Brown Reasons for Judgment Counsel for the Petitioner: J.A. Bleay Counsel for the Administrator: S.M. Smith Mr. & Mrs. Leno: In Person Date and Place of Hearing: December 18 & 19, 2002 Vancouver, B.C. [ 1 ] The parties each own one-half of a stratified duplex. For the past several years, since shortly after Mr.

Andrews acquired his half of the duplex, the parties have been at war. Despite numerous attendances in court, their dispute has escalated. [ 2 ] Currently, the Administrator appointed by this court, Mr. Alvin Myhre, applies to be replaced as Administrator because the stress of dealing with these parties is damaging to his health. [ 3 ] The petitioner, Mr. Andrews, seeks an order varying the existing order to extend the powers of the Administrator. [ 4 ] The respondents, Mr. and Mrs. Leno, apply for some 71 items of relief.

Essentially, they wish to have the Administrator removed, to have certain monies necessary for roofing repairs paid into court, documents disclosed and the fees and expenses of the Administrator, Alvin Myhre, assessed. [ 5 ] At the hearing of this matter, I granted Mr. Myhre's application to be removed as Administrator and referred the assessment of his fees and expenses as well as production of documents relating to that assessment to the Registrar. [ 6 ] This matter has a lengthy and unfortunate history. Mr. Andrews moved into his half of the duplex in September 1997.

The property, as I have noted, is stratified. The owners have never complied with the Strata Corporation Act and taken the steps required under that Act to set up a contingency fund, deal with repairs as the Act contemplates. Rather, it appears to have been the practice of the former owners to deal with these matters on an amicable basis as they felt necessary. [ 7 ] Shortly after Mr. Andrews moved in, the Lenos approached him with respect to repairing or replacing the roof. At that time he apparently was short of the funds and was not prepared to expend money on roof repairs/replacement.

The Lenos went ahead with some repairs to their half of the duplex. Subsequently, Mr. Andrews wished to proceed with roof repair/replacement to the entire building. He was not able to reach agreement with the Lenos in this regard. In November 1999 Mr. Andrews filed this petition seeking appointment

of an Administrator. [ 8 ] The petition came on for hearing before Mr. Justice Harvey in January 2000. At Mr. Justice Harvey's suggestion, the parties adjourned for a period of time and came up with a consent order to deal with the cost of roof replacement.

It provided that each owner would provide the Administrator with an estimate of roof replacement; that the Administrator would determine the costs savings, if any, for roof replacement as a result of the roofing work performed in 1997 by the Lenos and apportion to the Lenos' lot a reasonable allowance for the cost savings, if any, for that earlier roof repair. [ 9 ] There were two Administrators appointed pursuant to that order, Alvin Myhre and Valerie Lindstrom. [ 10 ] Despite the efforts of the Administrators, by July 2000, the roof remained unrepaired. In July 2000, Mr.

Andrews reset the matter, this time appearing before Mr. Justice Lowry. [ 11 ] Mr. Justice Lowry ordered that the Administrator (now only Mr. Myhre) would: (

i) select a contractor to perform the work; (ii) prepare and approve a special resolution for the Corporation regarding the work; (iii) levy and collect from the parties the fees and costs provided in the Special Resolution; (iv) pay the contractor. [ 12 ] Once again, despite the efforts of the Administrator, the roof was not repaired. [ 13 ] The Lenos set down a motion before Mr. Justice Scarth which was heard August 31, September 22 and October 6, 2000 to set aside or vary the order of Mr. Justice Lowry. [ 14 ] Mr.

Justice Scarth reserved his decision and issued reasons on June 28, 2001. [ 15 ] He refused to set aside the order of Mr. Justice Lowry, refused to remove Alvin Myhre as Administrator, and ordered that the Administrator would determine the cost savings, if any, for roof replacement as a result of the roofing work that was performed by the Lenos in 1997 and apportion to Strata Lot 2 a reasonable allowance for costs savings, if any. He ordered that the parties promptly sign and return to the Administrator the Special Resolution.

He ordered that the parties should pay the Administrator their respective share of the assessment for remedying roof leakage forthwith. [ 16 ] Despite this order, and despite the efforts of the Administrator, the Administrator has not been able to get the roof repaired. The Special Resolution has not been signed by the Lenos. In his report, the administrator indicates that he obtained roofing estimate from two roofers:

(1) Samra. Bros. Roofing & Insulation Ltd. which offered a fully transferable 30 year material limited warranty and a 10 year warranty on workmanship. The Samra bid for replacing the entire roof was $11,988; (2)Regan Roofing Ltd. offered a five year written guarantee on labour and did not define a warranty on the materials to be used for a partial roof replacement. Regan bid $12,755 to replace "pitched areas only. Not newer areas of the Leno unit".

To re-roof the entire roof, Regan Roofing would charge $15,664.80. [ 17 ] Accordingly, the Administrator concluded that there was no saving to be achieved from the re-roofing which had been done by the Lenos now six years ago. He proposed to proceed with the Samra bid and prepared the appropriate Special Resolution for the two strata titles. That resolution proposed a special levy of $15,000 allocated by unit entitlement to each of the units.

The $15,000 would also include a building contractor to supervise the re-roofing and ensure that it was completed in a proper and workmanlike manner and an administrator's fee. The allocation of the roofing cost alone on a unit entitlement basis would be $6,051.81 to unit 1 and $5,936.19 to unit 2. [ 18 ] This was not acceptable to the Lenos, presumably because their proposed roofer, Mr.

Regan, had allocated a roof cost to them (not repairing all of their roof) of $4,230 net of tax, not the $5,936.19 inclusive of tax which they would be paying were the Samra proposal in place, a difference of $1,700.00. [ 19 ] Now, one and one half years later, the roof remains unrepaired, the Lenos are adamant that they will not execute the Special Resolution prepared by the Administrator, despite the powers given to the Administrator by the court orders to determine the contractor to perform the roofing work and ensure that the roofing work is performed. [ 20 ] The parties to date have wasted far in excess of the $1,700 difference between the two approaches, in their battling and court attendances.

The relationship between the parties continues to deteriorate. While each of the parties before me appeared to be intelligent, pleasant, rational people, it is apparent that they cannot and will not be able to deal with the strata issues in a mature and rational way. The police have been required to attend at the premises on numerous occasions. Their relationship has now deteriorated to shoving dog feces through each other's mail slots. [ 21 ] This relationship will only be remedied by one or both of the parties selling their unit.

Until then the interests of the Strata Corporation can only be served by appointing an Administrator to deal with all matters which would normally be dealt with by the Strata Corporation. Accordingly, it is appropriate that I vary the existing orders (as s. 174 of the Strata Property Act contemplates) to provide: 1. Mr. Gerry Fanaken of Vancouver Condominium Services Ltd. be appointed to replace Mr. Alvin Myhre as Administrator. Mr. Fanaken's resume has been attached to the materials filed by Mr. Myhre. Mr.

Fanaken is very experienced in these matters, has written a number of guidebooks on condominium administration, has been appointed on other occasions by the British Columbia Supreme Court

to act as Administrator for Strata Corporations in trouble. He is an excellent choice for an Administrator. His term will be a one year term, automatically renewable unless the term is ended by mutual agreement or by further order of the court. [ 22 ] Referring now to the draft order prepared by the petitioner and attached to his Notice of Motion, I am ordering numbers 1, 2, 3, 4, 5(

a) and (b), 8, 9, 10, 11 and 12. [ 23 ] With respect to paragraph 5(c), I am not ordering that any increase in costs of Samra be levied solely against unit number 2 (the Leno unit). While the Lenos have been unreasonable in their objection to the Administrator's proposal, I am satisfied that Mr. Andrews has incited them and accordingly, am not prepared to make such an order. [ 24 ] Dealing now with the application of the respondent, as I have noted above, they seek 71 items of relief in their Notice of Motion. Aside from issues relating to production of documents and assessment of Mr.

Myhre's fees and disbursements, which have already been referred to the Registrar, the respondents' motion essentially contemplates the court discharging the Administrator and stepping into that role. The Strata Property Act , of course, does not contemplate the court acting as Administrator and the court is not in a position to do so. The court cannot monitor the day-to-day activities and expenses of this particular strata complex. As their Notice of Motion indicates and the Lenos acknowledged in their submissions, there are many aspects of the relationship between Mr.

Andrews and the Lenos which cause difficulty to the Lenos. These, too, can be addressed by the appointment of an Administrator. Indeed, I do not see that they can be addressed in any other fashion. They have problems such as accessing the sump to ensure ongoing maintenance and avoid damage to the property caused by water, writing on the exterior walls, signs in windows, maintenance of landscaping, maintenance of insurance. There are many problems relating to the administration of these two Strata units.

The only way of resolving them is to appoint an Administrator to do so. [ 25 ] Finally, the Lenos seek costs of the application before Mr. Justice Scarth. The success in that matter was divided. Each party will bear their own costs. [ 26 ] With respect to this application, while Mr. Andrews has been largely successful in terms of the relief sought, each of these parties bears responsibility for their inability to deal with matters in a mature and responsible fashion. Accordingly, there will be no order as to costs. “B.J. Brown, J.” The Honourable Madam Justice B.J. Brown