Tafti v. Davis, 2024 BCSC 176

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Tafti v. Davis, 2024 BCSC 176 Date: 20240202 Docket: S175641 Registry: Vancouver Between: Mehdi Alaei Tafti Plaintiff And Alan Davis, John Davies, and the Owners, Strata Plan LMS 1866 Defendants Before: The Honourable Mr. Justice Crossin Reasons for Judgment The Plaintiff, appearing in person: M. Tafti Counsel for the Defendants: J. Rees R. Fischer M. Li Place and Dates of Trial: Vancouver, B.C.

February 22-24 & 28, 2022 March 1-4 & 7-11, 2022 July 4, 6-8 & 11-15, 2022 January 9-13 & 17-20, 2023 April 3-5, 2023 June 19-22, 2023 & September 11-14, 2023 Place and Date of Judgment: Vancouver, B.C. February 2, 2024 Table of Contents Introduction .. 3 Overview ... 3 Credibility and Reliability .. 11 The Allegation of the Tort of Battery .. 13 The Evidence Regarding Battery .. 13 The Law ... 23 Analysis .. 24 Statutory Oppression:

Section 164 of the SPA .. 26 The Structure of the Strata Corp. and Governance Model (Two or Three Entities) 29 The Allegations of the Plaintiff re: s. 164 of the SPA .. 37

Repairing and/or Replacing the Air Conditioning Unit .. 41 The Evidence on this Issue .. 43

Summary .. 53 Complaints Regarding Certain Financial Matters .. 54 Window Washing and Washing Machines .. 59 The Treatment of the Plaintiff at Various Meetings of the Strata Council and the Meetings of the Residential Executive .. 61 The General Harassment Allegation .. 66 The AEBC Issue .. 71 The Wages and Salary of Mr.

Davis .. 71 Other Complaints .. 72 Conclusion .. 73 Introduction [ 1 ] The trial in this matter is the culmination of protracted litigation dealing with a litany of grievances raised by the plaintiff over the course of many years, relating to his life in a condominium development located at 989 Nelson Street in Vancouver. The plaintiff owns and resides in a residential strata unit at 989 Nelson Street; unit 604. [ 2 ] The complaints of the plaintiff are wide-ranging.

They include an allegation of assault by one of the personal defendants; but largely the plaintiff’s tribulation is directed at the conduct of various persons he interacts with in his daily life at 989 Nelson Street. [ 3 ] In this regard the plaintiff alleges the governance structure of the strata is flawed and creates unfairness; and in addition he says he was treated unfairly by a variety of persons he interacted with in the building.

The plaintiff seeks remedies pursuant to s. 164 of Strata Property Act , S.B.C. 1998, c. 43 (“ SPA ”), alleging he has suffered significant unfairness at the hands of the defendants. [ 4 ] I conclude, for the reasons that follow, the plaintiff has failed to establish his claims in their entirety. Overview [ 5 ] The condominium development at 989 Nelson Street is known as The Electra Building. It is owned by the defendant, the Owners, Strata Plan LMS 1866 (the “Strata Corp.”). The defendant, Mr. Alan Davis is an employee of the Strata Corp.

He is the on-site manager of the building and has been in that role since 2009. The defendant, Mr. John Davies is the owner of certain commercial units in the building since 2004 and has, over the years, been elected to positions within the governance structure of the development. [ 6 ] The affairs of the development are governed by the provisions of the SPA ; and various bylaws adopted and passed from time to time. [ 7 ] The SPA provides for the creation of separate sections in addition to the Strata Corp. In this regard, the Electra Building consists of a residential

section (Section 1, Owners of Strata Plan LMS 1866); and a commercial

section (Section 2, Owners of Strata Plan LMS 1866). The Electra Building has 21 floors. The residential

section consists of floors 3-21, and the commercial

section occupies floors two down to the basement of the building. [ 8 ] The two sections are separate corporations in accordance with the provisions of the SPA ; with their own bylaws, budgets, and governance structures. Each

section is entrusted with duties and obligations relating to the owners in the respective sections; including matters pertaining to what is referred to as the limited common property designated for the exclusive use of the strata owners of each section. [ 9 ] The Strata Corp. as well has its own governance structures and budgets. The Strata Corp. is responsible for managing the Strata Corp. common property. Strata Corp. common property is property in areas of the building not otherwise the responsibility of the respective sections.

The sections operate independently and have the status to bring an action in the name of the section; enter into contracts in the name of the section; and enforce their own bylaws and rules. [ 10 ] The particulars of the governance structures will be referenced in due course. [ 11 ] The matters before the court have their genesis in a Small Claims action commenced by the plaintiff against Alan Davis and John Davies in May 2015. This claim alleged Mr. Davis assaulted the plaintiff and in so doing injured the foot, or feet, of the plaintiff. It is said this occurred some two years previously, on May 10, 2013.

Briefly, it is alleged in the Small Claims action that Mr. Davis, in attempting to prevent the plaintiff from entering a certain office area, closed the door of the office at the same time the foot of the plaintiff had been placed between the door and the door frame. The plaintiff wanted access to the office, and it is alleged Mr. Davis

prevented this. Two constables from the Vancouver Police Department soon arrived on the scene having been summoned by personnel inside the office area. The plaintiff alleged in the Small Claims action that his foot was injured and sought damages for that personal injury. [ 12 ] Ultimately the Small Claims proceeding was transferred to Supreme Court and a Notice of Civil Claim was filed by the plaintiff in August 2017. The allegation of assault, characterized as the tort of battery, remains extant in the pleadings currently before the court.

In addition, the plaintiff alleges the Strata Corp. is vicariously liable for the alleged battery committed by Mr. Davis in this circumstance. [ 13 ] The current pleadings significantly expand upon the Small Claims action to include more expansive allegations of wrongdoing against the named individuals, and various non-party individuals, and, as well, a claim alleging governance failings on the part of the Strata Corp. that the plaintiff says ‘adversely impacted his interests’. Consequently these grievances are the foundation of an allegation of oppression pursuant to s. 164 of the SPA . [ 14 ]

Section 164 of the SPA reads as follows: 164

(1) On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair (

a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or (

b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.

(2) For the purposes of subsection (1), the court may (

a) direct or prohibit

an act of the strata corporation, the council, or the person who holds 50% or more of the votes, (

b) vary a transaction or resolution, and (

c) regulate the conduct of the strata corporation's future affairs. [Emphasis added.] [ 15 ] In this regard the plaintiff seeks various forms of relief. [ 16 ] The proceedings in Supreme Court were never commenced by petition. It is a petition that in my view is the proper mechanism for proceeding in these circumstances; however the court and the parties, over the years leading to trial, have been content with the current process. [ 17 ] Since August 2017 the parties have made numerous appearances in this court, and the Court of Appeal, regarding various issues.

Primarily the time has been taken up by the defendants applying to have various pleadings of the plaintiff struck; and/or resisting the efforts of the plaintiff to add parties and pleadings. The submissions of the defendants generally concerning these pretrial applications took the form of alleging the pleadings of the plaintiff were prolix, confusing, meritless, and largely incomprehensible. [ 18 ] The circumstances leading up to the trial in this matter are perhaps best, and most succinctly, described by Justice Newbury in Tafti v.

Davis , 2020 BCCA 363 as follows: [1] This case began as a simple personal injury claim in Provincial Court in 2015, but since its transfer to the Supreme Court, it has become stalled in a morass of complex, confusing and repetitious chambers applications regarding amendments the plaintiff wishes to make to his pleadings. Numerous orders have been made, ignored in part or in whole, and remade by other judges. At this point, the underlying action consists of a claim for damages for injuries to one or both of Mr. Tafti’s feet, allegedly caused by the individual defendants, for which Mr.

Tafti says the defendant strata corporation is vicariously liable; and a statutory oppression action brought against the corporation under s. 164 of the [ SPA ]. … [ 19 ] And further: [16] Most important in this case are the intertwined matters of prejudice to the defendants and the interests of justice. The defendants have already experienced an avalanche of chambers applications directed at expanding Mr. Tafti’s causes of action to include every complaint that he has about the building in which he lives and its management by the defendant strata corporation.

He has ignored orders striking out various aspects of proposed pleadings and he has then reintroduced them in another way before another judge hoping to get a different result. … It appears to me that judges have ‘bent over backwards’ to accommodate the fact that Mr. Tafti has been representing himself and suffers from some disabilities.

It is time, however, for this long and expensive pleading process to come to an end and for the parties to turn their attention to the trial of the two basic causes of action brought against the defendants. … [ 20 ] Nevertheless, notwithstanding this invitation from Justice Newbury, throughout the trial the plaintiff sought to introduce evidence that was often not relevant or, where admitted, marginally relevant at its highest.

The plaintiff continued to have little regard for the many orders of the court that determined the parameters of the issues as defined by the pleadings. [ 21 ] The claims that remain in the plaintiff's Further Amended Notice of Civil Claim (“FANOCC”), filed on June 7, 2019, still remain somewhat difficult to navigate. [ 22 ] The plaintiff’s claim continues to seek damages in battery regarding the alleged assault by Mr. Davis.

The remaining claims, while a challenge to follow, were somewhat crystallized throughout the trial and during submissions. [ 23 ] The plaintiff alleges the Strata Corp. “oppressed” the plaintiff through the conduct of its council members. The plaintiff has pleaded particulars in support of a remedy pursuant to s. 164 of the SPA .

[ 24 ] The particulars as contained in the FANOCC (paragraph 5) include: • That Mr. Davies, while a member of the Strata Council, ‘privately’ informed the plaintiff, in 2009, that the plaintiff's objections to the hiring of Mr. Davis as an on-site manager, would be irrelevant; and that the plaintiff (as allegedly stated by Mr. Davies) was reminiscent of Mr. Davies’ little dog, which made a lot of noise but was now dead. • That, also in 2009, and also apparently in relation to the hiring of Mr. Davis, a Mr.

Ray Cousineau said to the plaintiff that if he (the plaintiff) continued to question the process concerning the hiring of Mr. Davis, ‘he’ (the plaintiff) could end up in the hospital. Mr. Cousineau, at this time in 2009 was a member of the Strata Council. Mr. Cousineau had passed away by the time of trial. • The plaintiff alleges that in July 2010, during a meeting of the residential executive, a Mr. Gordon Forrest, a member of the residential executive, but also a member of the Strata Council, grabbed the plaintiff by the neck to remove him from a meeting.

Again, this allegation appears to also be in relation to the plaintiff complaining concerning the process of the hiring of Mr. Davis. It appears the police were notified and attended. • The plaintiff alleges that in August 2010, Mr. Davis attempted to prevent the plaintiff and some guests from using the social club in the building. Consequently, the plaintiff phoned the police. • The plaintiff says that in March 2011 Mr.

Cousineau, unlocked the residential boardroom, allowed the plaintiff to step in, but then closed the door ‘and held it firmly in place’, again, on his foot. • Some months later, in July 2011, the plaintiff alleges that Mr. Forrest said to the plaintiff that he (Forrest) would ‘flatten his ass'. • In March 2012 Mr. Davies, it is alleged, suggested the plaintiff should be eliminated; and it is asserted by the plaintiff that Miss Tanya Paz agreed. Ms. Paz was a member of the residential executive at the time. • In April 2012, at the Annual General Meeting of the residential section, a Mr.

Trevor Boudreau, it is alleged, shoved the plaintiff from behind. Mr. Boudreau was at that point in time a member of the residential executive. [ 25 ] In support of his claim the plaintiff also alleges at paragraph 13: The defendants have interfered with the use and enjoyment of his property, by neglecting to replace and repair his air conditioning unit, wash his outer windows, fix faulty washing machines, constrain short-term tenancy in the electorate; and do so in a timely and effective way … Mr. Davis failed to report and conduct repairs as required. [ 26 ] The plaintiff also alleges the Strata Corp. or Mr.

Davies personally, are liable to pay a certain sum of money to the plaintiff. The allegation of the plaintiff, in this regard, as contained in his pleadings at paragraph 4, is that: They have failed to recover monies owing from the commercial

section to the residential section, including about $60,000 in strata fees owing since 2008, including the plaintiff's proportion of those fees. [ 27 ] The evidence in the trial revealed that, as a matter of governance, the payment of various expenses by each

section would sometimes require one

section to reimburse the other. The above allegation appears to relate to a complaint that monies properly owing the residential

section from the commercial

section were not paid, through the fault of the defendants. [ 28 ] The remaining allegations contained in the FANOCC are so general in nature as to be meaningless. They are set out in paragraphs 9, 11, and 14-15 in the FANOCC as follows: 9. The plaintiff claims that the conduct of directors of Strata Plan LMS 1866, including Mr. Davies in his representative capacity as a fiduciary, constitute bad faith. The plaintiff further alleges willful default, undue influence and/or misrepresentation, on the part of Mr. Davies, though the plaintiff does not have all the particulars at this time.

The plaintiff similarly alleges misrepresentation on the part of Mr. Davis. Furthermore, knowledge of prior assaults and threats, at least in part, clearly demonstrates malice and fraudulent intention on the part of the defendants. … 11. The plaintiff has also experienced, and continues to have, a reasonable apprehension of bias. … 14.

The plaintiff has also been denied mitigating remedies due to defendants’ misrepresentation, malfeasance, violation of procedural fairness, failure to reform the bylaws of LMS 1866 in a timely manner, contravention of the Strata Property Act, S.B.C. 1998, c. 43 , censure of the plaintiff, denial of services, and defamatory remarks. 15.

Unresolved structural problems and defects in governance of the Electra, whether ongoing or intermittent, have made the disposition of the plaintiff’s residence impracticable. [ 29 ] These allegations were not particularized in the FANOCC nor is the court aware that particulars were sought.

Consequently, a good deal of the plaintiff’s evidence, and the response of the defendants, related to complaints of the plaintiff not contained in the pleadings; and/or was evidence relating to pleadings that had been struck from the plaintiff’s claim as alluded to by Justice Newberry. [ 30 ] In the end, there was little or no persuasive evidence led in support of many of these broad allegations. [ 31 ] The plaintiff was urged to focus in final submissions on areas of his primary concern relating to relief pursuant to s. 164 of the SPA . The plaintiff submitted, as best I could discern, the following:

1) A motion passed at an AGM of the Strata Council at some point, that restricted the interior blinds of the building to the colour ofwhite, was based on a fraudulent misrepresentation made at the AGM by a Mr. Hesham Ibrahim, a member of the Strata Council. Theplaintiff stated in argument that the fraudulent misrepresentation was that Mr.

Ibrahim stated that at a meeting two years before, a voteon the same topic, that is the colour of the blinds, by the residential section, was a 50/50 vote; when in fact, says the plaintiff, there hadonly been a single vote at the residential meeting in favour of restricting the colour of the blinds. 2) It appears at some point there was a fire in a room in the building; the room referenced as the craft room. The plaintiff says the craftroom is now being used (presumably after repairs) for purposes other than residential

section purposes. 3) The plaintiff says the parking spaces connected to the outside of the building for guests and visitors were historically Strata Corp.common property. The plaintiff says that the Strata Council, during COVID, decided to have the spaces transformed to pay parking toearn income. It is submitted this has resulted, for instance, in the plaintiff's mother having to pay for parking. He says the changedescribed was done unlawfully or improperly and “impacts relationships”. This, the plaintiff says, falls within his general allegations of‘structural governance defects’.

He says the emails produced by the defendants, describing the context and propriety of this decision tochange the parking circumstances, are fabricated. 4) The plaintiff alleges the back door of the building represents a failing of the Strata Corp. as it is difficult for him to push the dooropen while carrying his bicycle. This issue, says the plaintiff, relates to another issue raised concerning his bicycle (a complaint that wasin fact previously struck from his pleadings). It appears the residential

section passed a bylaw preventing persons from taking theirbicycles up and down the elevators. Storage lockers were provided. Although difficult to follow, the plaintiff says, generally, peoplewere ‘out to get him’ and ‘torture him’; and, consequently he didn't trust that ‘they wouldn't damage his bicycle in the storage locker’. 5) The plaintiff says that he was unsuccessful in one of his many court applications because he was, on the day, upset and stressed andconsequently ineffective in his submissions before the court. This in turn was a result of Mr.

Davies ‘studying him’ upon the plaintiffexiting an elevator after being harassed in the elevator by someone named Jason. 6) The plaintiff complains that the delay in management ‘fixing’ the elevator resulted in longer waits for the elevator, consequentlycausing additional pain to his injured foot due to prolonged waiting times. 7) The plaintiff raised a complaint concerning what has been referred to as the AEBC litigation. This apparently is a lawsuit between anentity referenced as AEBC and the Strata Corp.

The plaintiff complains that the litigation was conducted by the Strata Corp. withoutinforming him of aspects of the litigation as the litigation unfolded. The plaintiff says he ought to have been informed and seeksproportionate indemnification for the costs incurred by the Strata Corp. associated with this dispute. The plaintiff submits that ‘s. 429 ofthe CCC is engaged’.

As an adjunct to this the plaintiff says that Strata Corp. has violated s. 167 of the SPA by not disclosing legal feesexpended in the lawsuit. 8) The plaintiff raises what he references as a structural defect concerning the makeup of the Strata Council and the respectivecontributions of the sections to the common expenses. Contribution to common expenses is approximately 60% attributable to theresidential

section and 40% to the commercial section. The Strata Council is made up of two elected persons from each

section and the president of the council. The plaintiff says this makeupis ‘disproportionate’ and results in a representation on the Strata Council that is unfair; and the expenses are disproportionate i.e. forinstance the salary and benefits of Mr. Davis are contributed by the residential

section in a disproportionate way which the plaintiffalleges results in significant unfairness to the plaintiff. 9) The plaintiff also submits Ms. Tanya Paz, when she was a member of the residential

section (2009–2013), and in fact president ofthat section, defamed the plaintiff in comments she made concerning a number of persons, including, the plaintiff. The plaintiff says Ms.Paz, in the context of a motion to put cameras in the social club, stated that the people voting against the motion are “responsible formost of the damage to the building”. Credibility and Reliability [32] Issues of credibility and reliability of witnesses played a significant

part in this trial. [33] Credibility and reliability are different notions. Credibility concerns the veracity of a witness; to be blunt, an assessment ofwhether the witness is lying. Reliability is an analysis of the accuracy of the evidence of the witness. These two concepts may be, but arenot necessarily, connected. It is unlikely a witness who is not credible is nevertheless found to be reliable, in the absence of independentcorroborative evidence.

It is not axiomatic however that a credible witness provides accurate evidence and is therefore a reliable witness.A credible witness may in fact not provide reliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514(C.A.) at 526. [34] The determination of veracity and accuracy requires consideration of a number of factors and inquiries. [35] It may be a witness did not have an optimum opportunity to hear or see matters unfold. Importantly, the condition of the witnessat the time may be a relevant consideration.

In addition, the memory of a witness may be faulty for one reason or another, including thepassage of time. The trauma of an event can impact the ability of a witness to accurately recall.

The stress and anxiety sometimesassociated with providing evidence in a formal way in an unfamiliar environment, for instance a hearing, an examination for discovery,or a courtroom, can sometimes inhibit the ability to say precisely what one wants to say, and in the way one wants to say it. [36] There will be circumstances, like the case at bar, where a witness has given previous statements that are inconsistent with thecurrent evidence.

Certainly where a witness has provided inconsistent evidence on a previous occasion under oath, the Court willproceed with caution before accepting an invitation to find that person is a witness of truth.

[37] As well, an analysis of whether a witness has remained internally consistent in providing evidence is often a factor that is telling.Inconsistencies in the witness’s own evidence at trial, or with other witnesses, calls for an assessment on the “totality of the evidence toassess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in thecase”: F.H. v.

McDougall, 2008 SCC 53 at para. 58. [38] When presented with conflicting testimony, the Court should assess the evidence with a view to determining whether a particularversion of events is the most consistent with the “preponderance of the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions”: Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354(B.C.C.A.) at 357.

The Court must bring experience to bear in assessing when that evidence of the witness accords with common senseand can live comfortably with the independent evidence that has been accepted by the Court: see also Bradshaw v. Stenner, 2010 BCSC1398. [39] The tone and manner of the witness in providing his or her evidence remains properly a factor to be considered in assessingcredibility and reliability.

Frankly, I found this aspect helpful in the overall consideration of matters, but care must be exercisedconcerning the weight to be afforded what is generally referred to as an assessment of the demeanour of the witness. ` The Allegation of the Tort of Battery [40] The evidence and arguments of the plaintiff, in support of the tort of battery, throughout the trial, focused on the complaint thatMr. Davis closed the door of the office on the foot of the plaintiff thereby causing damage to the foot.

This occurred on May 10, 2013. [41] The detail of this particular event is set out with some precision in paragraphs 7 and 8 of the plaintiff's FANOCC. This is also theevent described in the body of the initial complaint of the plaintiff filed in Provincial Court in May 2015. [42] The theory of the plaintiff relating to the imposition of liability upon Mr. Davies and the Strata Corp., for the alleged batterycommitted by Mr. Davis, is also not particularly precise.

It appears to be captured as follows in the pleadings: The assaults and batteries were committed jointly and in common enterprise, and the corporation took no steps to prevent theiroccurrence. In the alternative Mr. Davies led this campaign to injure, intimidate, discredit, defame, and torture the plaintiff. [43] In my view the theory of liability concerning the alleged battery by Mr. Davis must rest on the legal principle of vicariousliability concerning the conduct of an employee.

I will proceed on this basis notwithstanding the plaintiff did not make coherentsubmissions concerning any theory of liability on the part of the Strata Corp. The Evidence Regarding Battery Context [44] The evidence and pleadings demonstrate the plaintiff interprets many things said or done, by various persons in the orbit of TheElectra Building, through a prism of suspicion.

He perceives the defendants, and many persons, as being motivated by unjustified ill-willdirected towards him; and a desire to ‘harass’ and ‘torture’ him. [45] Conversely, it is clear from the pleadings and evidence the plaintiff was viewed by certain persons in The Electra Building assomeone that was, and is, so irrationally confrontational, obsessive, and unpredictable he was to be physically avoided around thebuilding if at all possible. [46] The immediate circumstances giving rise to the events of May 10, 2013 are reflected in an e-mail exchange shortly before theevent.

The dates on the e-mails are inaccurate but there was little issue the e-mail exchanges occurred in and around May 8, 2013. The e-mails hint at the apparent difficult relationships between the plaintiff and certain management personnel. [47] The system of navigating areas of the building by residential owners and/or tenants is by the use of individual registered fobseffectively acting as keys. It appears from the evidence the plaintiff had a tenant or tenants from time to time in his unit. There had beendifficulties with his tenant and the tenant had been banished from the building. The residential

section determined a fob audit of theplaintiff’s fobs was appropriate in these circumstances to ensure that all was in order. [48] In any event, a Mr. Ray Cousineau, then a member of the residential executive, arranged for a Mr. Luc Boulaine and/or Mr.Davis to advise the plaintiff of such and arrange for the audit. Mr. Boulaine was an assistant to Mr. Davis. Mr. Boulaine e-mailed theplaintiff indicating the fact that he was conducting a fob audit. The plaintiff was asked to bring his fobs to the office anytime – Mondaythrough Friday – so they could be scanned to determine if any fobs were unaccounted for.

The plaintiff apparently had four fobs. [49] Mr. Cousineau also e-mailed Mr. Boulaine and Mr. Davies setting out a ‘suggestion’: that they meet the plaintiff in the hallwayand take his fobs; have the plaintiff wait in the mezzanine while the fobs were checked, and then return the active fobs to the plaintiff.“Find a way to keep him out of the office; keep control of the situation from beginning to end”. And further: “It is not necessary toactually let him in the office”. [50] Mr.

Davis responded that the suggestion “sounded to him like a good idea”. [51] Notwithstanding this goal; it was to no avail; the situation was not kept in control. Evidence

Summary of the Plaintiff

[ 52 ] The plaintiff testified he received an e-mail from Mr. Boulaine on May 8, 2013 seeking to undertake an audit of the fobs in the possession the plaintiff. There is some evidence the plaintiff and one of his tenants had difficulties concerning a dispute. The plaintiff testified the tenant punched the plaintiff. The police were called. The tenant was escorted from the building. This occurred at some point prior to May 8, 2013. [ 53 ] On or around May 8, 2013 the plaintiff had apparently arranged for another tenant.

The fob audit was in aid of tracking and registering the fobs going forward; particularly in light of the previous tenant and that tenant's bad behaviour. [ 54 ] In any event, to this end, the plaintiff arrived in the foyer area of the building referred to as the mezzanine. The mezzanine is a floor one floor up from the lobby of the building that is accessible by a staircase, from lobby to mezzanine. The manager's office is off the mezzanine on this floor. There is a seating area in the mezzanine area.

The plaintiff testified there is a device for registering fobs (the “fob reader”) outside the manager's office. [ 55 ] The plaintiff arrived for the meeting with the new tenant in tow. It appears at this time Mr. Boulaine was in the office but Mr. Davis was not. The plaintiff testified Mr. Boulaine engaged with the plaintiff in the mezzanine area and the fobs of the plaintiff were duly audited in the fob reader. The plaintiff requested a fob for his new tenant. The plaintiff testified that Mr. Boulaine returned to the office and closed the door and the plaintiff and tenant sat in the waiting area.

After about 30 minutes the tenant left and the plaintiff remained in the mezzanine. He felt Mr. Boulaine was acting ‘cagey’. [ 56 ] The plaintiff testified he then observed Mr. Davis arrive in the area coming up the staircase with a coffee. The plaintiff testified Mr. Davis did not acknowledge the presence of the plaintiff but simply walked past and entered the office. [ 57 ] He felt he was being ignored by Mr. Davis. This made him ‘quite upset’.

He testified he was in a ‘bad way’ emotionally even leading up to this event in question. [ 58 ] The plaintiff gave evidence he observed a person (an employee of an outside cable company) arrive in the area. The plaintiff says he knew the employee would have to deal with the people in the office and so he followed the cable person towards the office. When the office door was opened to let the cable person into the office the plaintiff testified he attempted to enter the office as well. As he attempted to enter the door, the door was closed by Mr. Davis on the plaintiff's left foot.

I gather from the evidence of the plaintiff that matters remained like this until the cable person was let out of the office. In so doing the door was opened, the person was let out, and then the plaintiff stepped in with his right foot. [ 59 ] The plaintiff testified Mr. Davis then closed the door again, trapping his right foot. There matters stood (so to speak) for a short period until the Vancouver Police arrived on scene. He also testified it was his ‘perception’ that it was Mr. Davis that closed the door. [ 60 ] The standoff ended when the police attended. The police stayed while Mr.

Boulaine completed the fob registration for the tenant. The plaintiff recorded all or some of the interaction with the police on his phone during their attendance. He testified he had a ‘reasonable apprehension of bias regarding the VPD’. [ 61 ] In any event, the plaintiff testified that the manager’s office was considered residential common property (this characterization was common ground).

In this regard, the plaintiff quoted apparent comments by Justice Newbury, upon the appearance by the parties in the Court of Appeal, that residential common property is owned, in proportion to the unit entitlement of the residential owners. The plaintiff testified therefore that he had a legal right to be in the office. [ 62 ] It was put to the plaintiff in cross-examination that his evidence at trial, that is, that his left foot and then his right foot was closed upon during the sequence, is inconsistent with his evidence provided at the examination for discovery.

The plaintiff agreed he testified at his examination for discovery that his foot “went through the door twice” and closed on his right foot. The plaintiff also testified at his examination for discovery the door was closed twice on his right foot. [ 63 ] It was also put to the plaintiff that he had told the police at the scene the door closed on his left foot. The plaintiff agreed he told this to the police. The plaintiff stated however when discussing these matters with the police and at his examination for discovery, he was also referencing another alleged incident with Mr.

Cousineau. [ 64 ] In addition, the plaintiff agreed that his evidence at the examination for discovery that the door had closed twice on his foot was not referenced in his pleadings, at any time, during the various iterations of the pleading. He agreed the first time he raised the fact that the door was closed twice on his foot, regardless of which foot, was six years after the event, in November 2019, at his examination for discovery. [ 65 ] The plaintiff was granted leave to “recall himself” to provide further evidence upon the continuation of the trial in July 2022.

He testified then that when he had his foot in the door he may have “twisted” and “leaned and turned when the police arrived”. He agreed this was the first time he had, either through pleadings or evidence, testified to the prospect of himself twisting or turning his body with his foot in the door. [ 66 ] The plaintiff also agreed he was frustrated concerning the issues associated with the fob. He agreed he said to Mr. Boulaine, after the event, that “you” put the door on his foot, but later testified when he said that he must have meant “the plural” you, because he maintains it was Mr.

Davis that closed the door on this foot. [ 67 ] The plaintiff agreed he secretly recorded a discussion he had with Mr. Boulaine after the event where he stated to Mr. Boulaine that “you crushed my foot with the door”. The plaintiff again says however he meant “the plural”; that it was Mr. Davis; and that he was not trying to secretly record the discussion in hopes of obtaining some kind of admission. [ 68 ] The plaintiff also offered evidence in this context that he had suffered a brain injury at one point in his life, and also testified he had a history of alcohol abuse and self-medication.

[ 69 ] He testified he reported the May 10, 2013 incident to his father. His father provided the plaintiff with medication that his father had obtained in Iran; specifically Tylenol 3. [ 70 ] The evidence of the plaintiff is that he is uncertain when he reported the May incident and injury to any medical person. The plaintiff stated ankle pain caused him to lose his balance some weeks after the incident and that in turn caused him to drop a glass which in turn caused him to cut his toe. He testified he attended a clinic as a result and was seen by a Dr. Marshall. This occurred in July 2013.

This is the first medical person he saw following the May incident. [ 71 ] The plaintiff stated in treating the cut, Dr. Marshall at some point recommended a wobble board for his right ankle. He agreed, he never, at any time, reported any injury to his left foot or ankle. [ 72 ] The plaintiff testified he suffered a right ankle sprain or inversion in March 2014. He testified he received a recommendation for a wobble board from Dr. Marshall prior to spraining his right ankle. [ 73 ] The plaintiff was taken to the notes of a Dr. Faraday. Dr. Faraday was an expert witness called by the plaintiff.

It was put to the plaintiff that the notes and report of Dr. Faraday indicated that Dr. Marshall had provided a prescription for a wobble board after the March 2014 inversion injury. The plaintiff testified he could not recall. [ 74 ] The plaintiff said he could not recall when he reported the May incident to his family physician, Dr. Willaeys. [ 75 ] He confirmed he sought treatment for his right ankle at Red Card Physiotherapy between February 2016 and August 2016. Evidence

Summary of Dr. Trent Faraday [ 76 ] Dr. Faraday was called by the plaintiff and qualified as an expert in the area of treating musculoskeletal injuries and occupational medicine. The evidence of Dr. Faraday relevant to the issue of liability for battery was marginal, although Dr. Faraday did address the medical records the plaintiff had provided to him. [ 77 ] Dr. Faraday testified that the medical records in the matter indicated that there was no medical record of any treatment for an ankle injury until March 2014, after the plaintiff had sustained an ankle inversion. The notes included Dr.

Marshall seeing the plaintiff on March 24, 2014, and diagnosing a Grade 3 ankle sprain. This was following the plaintiff’s initial attendance for his injury at St. Paul’s emergency on March 19, 2014. [ 78 ] Dr. Faraday confirmed the first reference, in any medical records, to a ‘foot in door’ incident was January 7, 2016, in the records of Dr. Willaeys. Evidence

Summary of Ms. Souvoursadot Mirebrahimi [ 79 ] The mother of the plaintiff testified that the plaintiff had difficulty walking and complained of pain from time to time. Evidence

Summary of Mr. Luc Boulaine [ 80 ] The plaintiff called Mr. Boulaine as an adverse witness. Mr. Boulaine, at the time of this event, was a part-time employee of the defendant. Mr. Boulaine would assist Mr. Davis with various matters. Mr. Boulaine habitually arrived at the building about 8:30 a.m. and opened the office, turned on the computers, checked e-mails and the like. He would from time to time perform certain administrative functions for instance the sale of fobs, rental of guest suites, and cleaning staff issues. [ 81 ] Mr. Boulaine confirmed that following the incident with the plaintiff's tenant, the executive of the residential

section asked Mr. Boulaine and Mr. Davis to contact the plaintiff and arrange to conduct the fob audit. [ 82 ] Mr. Boulaine testified the plaintiff arrived approximately 10:30 a.m. that morning and knocked on the office door. Mr. Boulaine was on the phone. Mr. Davis had gone to Tim Hortons. Mr. Boulaine asked the plaintiff to have a seat outside in the mezzanine. The plaintiff obliged. Mr.

Boulaine finished his call, confirmed the plaintiff’s fob numbers, and met with the plaintiff and another gentleman in the mezzanine area. [ 83 ] The plaintiff had four fobs and the instructions from the residential executive was to confirm the state of affairs concerning the fobs and deactivate fobs where appropriate. This was accomplished on the fob reader outside the office. [ 84 ] Mr. Boulaine testified the plaintiff then wanted to arrange for a fob for his new tenant. He testified he did not know the plaintiff wanted to make this arrangement until the plaintiff told him in the mezzanine. [ 85 ] Initially Mr.

Boulaine testified the plaintiff was calm and cordial. However, upon the plaintiff being told he would have to purchase a new fob, and that Mr. Boulaine would require his credit card information, the demeanour of the plaintiff significantly changed. Mr. Boulaine testified, for some reason, something sent the plaintiff into a tirade; yelling, screaming and insisting that the continuing business of the fobs be conducted inside the manager's office. [ 86 ] Mr. Boulaine testified this unsettled him and he became fearful. Mr. Boulaine stepped away from the plaintiff and retreated to the office a few metres away.

He closed the door. The plaintiff began banging on the door insisting he be let into the office. Mr. Boulaine testified he said nothing, not wanting to agitate the plaintiff further. Mr. Boulaine attempted to contact Mr. Davis by phone but could not reach him. [ 87 ] In any event, as it happens, Mr. Davis arrived back in the building around this time. Mr. Boulaine testified that when Mr. Davis opened the door to enter the manager's office the plaintiff was behind Mr. Davis and attempted to force his way around Mr. Davis and into the office. Mr. Boulaine attempted to allow Mr.

Davis in the office and then close the door. Mr. Davis did enter and Mr. Boulaine attempted to close the door several times to no avail. On the last attempt the door came to a stop, Mr. Boulaine looked and saw the

plaintiff had stuck his foot in the door. Mr. Boulaine testified that at one point he observed the plaintiff stick his arm through the opening and then withdraw it. Mr. Boulaine testified he was concerned for his safety and asked Mr. Davis to phone the police, which Mr. Davis did. [ 88 ] Mr. Boulaine could not say whether it was the plaintiff's left or right foot in the door but did testify he did not see the plaintiff remove his foot when Mr. Boulaine released the pressure several times to allow the plaintiff to extract himself. Mr.

Boulaine also testified the door was against the sandal on the plaintiff's foot and at no time did Mr. Boulaine see the door actually come in contact with the plaintiff's foot. [ 89 ] He stated he did not intend to close the door against the plaintiff's foot. He testified the plaintiff, and he, pushed back-and-forth with the door initially and then it was the plaintiff that stuck his foot between the door and the door frame. [ 90 ] In this regard, in answer to the plaintiff, Mr. Boulaine testified “you stuck your foot in the door to prevent me from closing the door”. [ 91 ] The plaintiff suggested to Mr.

Boulaine whether it had occurred to Mr. Boulaine that the reason the plaintiff did not remove his foot was because the plaintiff really wanted a fob. Mr. Boulaine testified “no, you wanted access, I was concerned about my safety, that was the only thing on my mind”. [ 92 ] Mr. Boulaine testified he did not observe the plaintiff have any physical difficulties for some months following the incident and then one day saw the plaintiff with a cane. Evidence

Summary of Constable Jason Doucette [ 93 ] The plaintiff called Cst. Doucette. Cst. Doucette had little if any independent recollection of his attendance at The Electra Building the morning of the incident. He and Cst. Keith MacDonald, both members of the VPD, attended. Cst. Doucette confirmed it was Mr. Davis that called the police. [ 94 ] The plaintiff played a recording he had made from his phone during the police attendance for the benefit of Cst. Doucette. Cst. Doucette confirmed that he told the plaintiff at the scene the plaintiff could be charged with assault or trespass. Evidence

Summary of Constable Keith MacDonald [ 95 ] Cst. MacDonald confirmed he had been a member of the VPD for many years. Cst. MacDonald as well had little independent recollection of the incident in issue. Cst. MacDonald testified that had he received a report of any injury as a result of the incident he would have recorded that fact in the occurrence report and no such note is contained in the report. Evidence

Summary of Alan Davis [ 96 ] Mr. Davis is the property manager of the building. Again, he was called by the plaintiff as an adverse witness. [ 97 ] Mr. Davis confirmed that the residential executive had directed the plaintiff to present his fobs for audit. He agreed and carried out the directive contained in the e-mails, that is to keep the plaintiff in the mezzanine while conducting the audit. [ 98 ] Mr. Davis testified that he was returning to his office the morning of May 10, 2013, having been at Tim Hortons, when Mr. Tafti passed him coming down the stairs as Mr. Davis was walking up the stairs. [ 99 ] Mr.

Davis testified that as he approached the office the plaintiff had turned and followed him to the office and indeed attempted to push past Mr. Davis into the office at the doorway. Mr. Davis testified he made his way into the office and went to the other side of the office while Mr. Boulaine stayed at the door and attempted to close the door. [ 100 ] He stated he could see that Mr. Boulaine could not close the door and confirmed that Mr. Boulaine asked him to call the police, which Mr. Davis did. [ 101 ] Mr.

Davis denied that any person, including a cable person, was in and around the office at this time. [ 102 ] Mr. Davis conceded he could not see precisely what occurred to prevent the door from closing, as a desk in the office blocked that particular view from his perspective. [ 103 ] Mr. Davis repeatedly denied the suggestions by the plaintiff that it was he, Mr. Davis, that attempted to close the door. Evidence

Summary of Trevor Boudreau [ 104 ] Mr. Boudreau was a member of the residential executive and a member of the Strata Council at the time of this incident. [ 105 ] He confirmed that the residential executive had asked the on-site office to conduct a fob audit for the plaintiff’s unit. He testified that this request was motivated by an earlier incident where a tenant of the plaintiff had caused damage to property in the building and the concern was ensuring that all fobs were accounted for. [ 106 ] Mr. Boudreau confirmed that Mr. Boulaine and Mr.

Davis had raised security concerns in having to deal directly with the plaintiff. Consequently the executive directed that dealings with the plaintiff take place out of the office in the public mezzanine area. The Law

[107] To establish battery a plaintiff must prove an intentional infliction of harm or offensive conduct. The issue of intention isaddressed in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 , [2000] 1 S.C.R. 551 at para. 10: To base the law of battery purely on the principle of fault is to subordinate the plaintiff's right to protection from invasions of herphysical integrity to the defendant's freedom to act: see R. Sullivan, "Trespass to the Person in Canada: A Defence of the TraditionalApproach" (1987), 19 Ottawa L. Rev. 533, at p. 546.

Although I do not necessarily accept all of Sullivan's contentions, I agree with hercharacterization, at p. 551, of trespass to the person as a "violation of the plaintiff's right to exclusive control of his person." This right isnot absolute, because a defendant who violates this right can nevertheless exonerate himself by proving a lack of intention or negligence:Cook, supra [Cook v. Lewis, (SCC), [1951] S.C.R. 830, [1952] 1 D.L.R. 1], at p. 839, per Cartwright J.

Althoughliability in battery is based not on the defendant's fault, but on the violation of the plaintiff's right, the traditional approach will notimpose liability without fault because the violation of another person's right can be considered a form of fault. … Also see: T.O. v. J.H.O., 2006 BCSC 560. [108] The plaintiff need only prove a defendant voluntarily and deliberately caused direct physical interference with his body toestablish a prima facie case of battery. He is not obliged to prove the defendant was also at fault.

Once it is established there was abattery and injuries were caused, the defendant has the onus of establishing any defence that may arise in the circumstances. [109] In the case at bar, the issue of self-defence arises on the evidence. A person will be permitted to use force where it is taken indefence of himself so long as no more force is used than is necessary for the purpose at hand. The force cannot be unreasonablydisproportionate, but the assessment of the force will not be unduly critical (see: Saether v. Irvine, 2011 BCSC 1497).

Analysis [110] It is abundantly clear on the evidence that at all times the person on the other side of the door during this event was Mr. Boulaine;not Mr. Davis. Mr. Boulaine and Mr. Davis I find to be straight-forward witnesses of truth. Why the plaintiff continues to insist it wasMr. Davis is unknown, but it clearly was not Mr. Davis. In this regard, the plaintiff, at least at one point in his evidence, testified heassumed it was Mr.

Davis on the other side of the door; at another point, he testified to his perception in this regard. [111] It was clear during the course of the trial the plaintiff holds feelings of personal animosity towards Mr. Davis. This was evident inthe words, demeanour and tone of the plaintiff throughout the trial. Whether this plays a role in the plaintiff maintaining the allegationagainst Mr. Davis is not known; but, in any event, I find Mr. Davis committed no such act of battery as alleged by the plaintiff or at all. [112] This finding alone is sufficient to dispose of the battery allegation.

There were no submissions concerning the liability of Mr.Boulaine and/or how that might translate to a finding of liability on the part of the defendants. [113] Nevertheless, I will add that I am not satisfied it has been established that Mr. Boulaine intentionally shut the door on either footof the plaintiff. I accept the evidence of Mr. Boulaine in this regard. He testified in a forthright manner without regard to self-interest. Ifind that in the course of closing the door, the plaintiff placed his foot in a position that prevented the door from closing.

I find that Mr.Boulaine, on more than one occasion, allowed the plaintiff the opportunity to remove his foot from the door, but the plaintiff chose notto. [114] In addition, I reject the evidence of the plaintiff on this issue. I find the plaintiff’s evidence inconsistent, self-serving and steepedin a palpable bias directed towards Mr. Davis, Mr. Boulaine, and many others. [115] The plaintiff’s evidence concerning how many times his foot was trapped by the door and how that occurred was inconsistent tothe point of absurdity. His explanations for those inconsistencies was not persuasive. I am not convinced Mr.

Boulaine actedintentionally or deliberately, much less inflicted harm upon the plaintiff. [116] I also conclude Mr. Boulaine was justified in using force to prevent the plaintiff from entering the office; notwithstanding theplaintiff’s assertion of his rights in this regard. [117] Mr. Boulaine testified he feared for his safety due to the behavior of the plaintiff. I accept this evidence. This is supported bysome evidence of expressed concern on the part of Mr. Boulaine and Mr.

Davis, prior to the plaintiff arriving on the scene that morning.Indeed, the plaintiff’s own evidence is that he arrived on the scene in a ‘bad way’ emotionally; which emotional state apparently evolvedinto being ‘quite upset’ at being ignored by Mr. Davis. [118] I conclude that any discomfort to the foot or feet of the plaintiff on this day, was a product of his own unreasonable behavior; andMr. Boulaine was perfectly entitled, under the circumstances, to protect himself from the plaintiff on that particular morning. I concludeMr.

Boulaine did just that in a reasonable, lawful manner. [119] Finally, in any event, I am, as well, not convinced the plaintiff suffered harm. The evidence of the plaintiff’s complaintconcerning his injury gives rise to a good deal of hesitation and skepticism. I find it more likely than not his complaints over the yearsconcerning his foot were as a result of his ankle sprain in 2014; rather than a door against his footwear. In addition, the evidence does notsupport a finding that whatever occurred on May 10, 2013 was causally connected in any way to the circumstances of the ankle sprain inMarch 2014.

The evidence as a whole, including the evidence of the plaintiff is simply too vague, uncertain and unreliable to concludethe plaintiff suffered any injury during the events of May 10, 2013. [120] To repeat, for all of the above reasons, the claim in battery as against the defendants is dismissed. In the circumstances I need not,and do not, address the evidence of alleged damages.

Statutory Oppression:

Section 164 of the SPA [ 121 ]

Section 164 of the SPA creates in an owner or tenant a statutory cause of action against a strata corporation, including its council. Its purpose is to provide an avenue of judicial oversight to prevent or remedy actions on the part of the strata corporation that is found to be significantly unfair in relation to that owner or tenant. It has, over the years, been variously described, but is now consistently referred to as an oppression remedy. [ 122 ] The required assessment to be undertaken by the court has been well-settled.

The central theme of the legislation is the requirement of fair treatment of owners or tenants on the part of strata corporations, including its council. An animating feature of the analysis is a consideration of what the owner or tenant is entitled to reasonably expect from the strata corporation in its oversight of the affairs of the strata. [ 123 ] The reasonable expectation of an owner is not to be assessed only by the owners subjective notions of what is or is not fair treatment. The expectations are to be assessed objectively and contextually in light of all the circumstances.

The expectations must be realistic and considered as a factor in determining the manner of fairness. [ 124 ] The court must then determine whether the evidence establishes that the reasonable expectations of the owner or tenant were violated by conduct that was significantly unfair. [ 125 ] The Court in King Day Holdings Ltd. v. Strata Plan LMS3851 , 2020 BCCA 342 (“ King Day ”) confirmed that the reasonable expectation of the petitioner is one relevant factor to be taken into account under a s. 164 analysis.

The salutary concern under s. 164 was said to be one of achieving fairness in the resolution of conflicting interests between community stakeholders in the matter that is highly fact specific ( King Day at paras. 88-89 ). [ 126 ] In other words, the issue is whether the expectation is reasonable having regard to the circumstances of the specific case, the relationship at issue, and the entire context of the matter. [ 127 ] The concept of what activity constitutes significant unfairness is, again, a contextual assessment.

It appears our courts, both at the trial and appellate level, have for some years been guided by the decision in our Court of Appeal in Reid v. Strata Plan LMS 2503 , 2003 BCCA 126 (“ Reid ”). [ 128 ] In assessing what is necessarily a threshold degree of unfair conduct, the Court determined the activities of the Strata Council should not be interfered with unless the action results in something more than mere prejudice or trifling unfairness. Reid , cited with approval the analysis of Justice Masuhara in Gentis v.

Strata Plan VR 368 , 2003 BCSC 120 (“ Gentis ”). [ 129 ] The Court in Gentis recognized that decisions and actions of a strata corporation are often discretionary, having to take into account the overall interests of the owners; whose interests may not necessarily align with the personal interests of a particular individual owner or tenant. [ 130 ] It was put this was by Masuhara J. in Gentis at para. 28 : I would add to this definition only by noting that I understand the use of the word ‘significantly’ to modify unfair in the following manner.

Strata Corporations must often utilize discretion in making decisions which affect various owners or tenants. At times, the Corporation’s duty to act in the best interests of all owners is in conflict with the interests of a particular owner, or group of owners. Consequently, the modifying term indicates that court should only interfere with the use of this discretion if it is exercised oppressively […] or in a fashion that transcends beyond mere prejudice or trifling unfairness.

Again Some Context [ 131 ] The defendants in this action are of course the Strata Corp. and the two individual defendants. [ 132 ] The pleadings in this matter, at one point prior to trial, were comprised of a significant number of complaints by the plaintiff, stretching over the course of some years, directed at the conduct of a host of personnel; aside from Mr. Davis and Mr. Davies, that either resided at The Electra Building or attended The Electra Building from time to time to perform services.

None of whom are defendants. [ 133 ] In addition, a good deal of the umbrage taken by the plaintiff, relating to how he was allegedly treated and ‘oppressed’, relates to his interaction with the executive of the residential

section of the building, and the alleged wrongful conduct of the residential executive. [ 134 ] Indeed, in order to pursue these complaints the plaintiff ultimately brought an application some time prior to trial to add the residential

section as a party. The application was dismissed. In addition the allegations contained in the FANOCC that were directed at the residential executive were struck. [ 135 ] In spite of the decision of the court, the plaintiff largely continued to press many of the same complaints against the residential

section throughout the trial, and sought to introduce evidence relevant to the struck pleadings. The objections of the defendants to this evidence were often upheld, however some of the evidence was allowed to be introduced on the basis that the evidence might nevertheless have some relevance relating to the plaintiff’s apparent theory of liability against the named defendants. In the end the evidence largely proved to be irrelevant. [ 136 ] The plaintiff also approached his claim, at least as far as I could discern, by submitting the complaints that appeared to be related to the actions of the residential

section were in fact the responsibility of the defendant Strata Corp.; and not the residential

section after all. The plaintiff took the position the operation of the separate entities within the governance model of The Electra Building is a fiction and in fact it was the Strata Corp. that had the oversight and responsibility of matters that have been historically referenced as the domain of the residential section.

[ 137 ] In pursuit of this theory the plaintiff submitted there is not three separate entities, but in fact only two. The plaintiff says the position of the defendants that there are three entities is a ‘cover up’ to hide the fact it was the Strata Corp. actually having responsibility for much of the conduct that formed the basis for the complaints of the plaintiff against the residential executive. Consequently, the broad issue of separate entities must be addressed. I address that issue now.

The Structure of the Strata Corp. and Governance Model (Two or Three Entities) [ 138 ] The starting point is the Act itself. The SPA provides for the creation of separate entities. [ 139 ] In this regard the SPA reads as follows: Sections allowed 191

(1) A strata corporation may have sections only for the purpose of representing the different interests of (

a) owners of residential strata lots and owners of nonresidential strata lots, (

b) owners of nonresidential strata lots, if they use their strata lots for significantly different purposes, or (

c) owners of different types of residential strata lots. … Creation of sections by owner developer 192 An owner developer may create sections for a strata corporation at the time the strata plan is deposited by filing in the land title office (

a) bylaws that provide for the creation and administration of each section, and (

b) any resolutions to designate limited common property, in accordance with

section 74, for the exclusive use of all the strata lots in a section. Creation or cancellation of sections by strata corporation 193 (1)To create or cancel sections, the strata corporation must hold an annual or special general meeting to consider the creation or cancellation.

(2) The notice of meeting must include (

a) a resolution to amend the bylaws to provide for either the creation and administration of each

section or the cancellation of the sections, and (

b) any resolutions to designate limited common property, in accordance with

section 74, for the exclusive use of all the strata lots in a

section or to remove a designation in accordance with

section 75.

(3) The resolution referred to in subsection (2) (

a) must be passed (

a) by a 3/4 vote, and (

b) by a sectional 3/4 vote. …

(4) On the filing in the land title office of a bylaw amendment creating a section, a

section is created bearing the name "Section [number of section] of [name of strata corporation]".

(5) On the creation of a

section the registrar may establish a general index for the section. Powers and duties of section 194 (1) After the creation of sections, the strata corporation retains its powers and duties in matters of common interest to all the owners.

(2) With respect to a matter that relates solely to the section, the

section is a corporation and has the same powers and duties as the strata corporation (

a) to establish its own operating fund and contingency reserve fund for common expenses of the section, including expenses relating to limited common property designated for the exclusive use of all the strata lots in the section, (

b) to budget and require

section owners to pay strata fees and special levies for expenditures the

section authorizes,

(

c) to sue or arbitrate in the name of the section, (

d) to enter into contracts in the name of the section, (

e) to acquire and dispose of land and other property in the name of or on behalf of the section, and (

f) to enforce bylaws and rules. … Bylaws and rules for section 197 (1)The strata corporation's bylaws apply to the

section unless they have been amended by the section.

(2) The bylaws may only be amended by the

section if the bylaw amendment is in respect of a matter that relates solely to the section. …

(4) The executive of a

section may make rules governing the use, safety and condition of (

a) land and other property acquired under section 194 (2) (e), and (

b) limited common property designated for the exclusive use of all the strata lots in the section. … Judgments against strata corporation relating to section 198 (1)If a judgment against the strata corporation relates solely to the strata lots in a section, the judgment is against only the owners of strata lots in the section. [ 140 ] In addition, the strata’s bylaws filed with the land title office on May 8, 2003, following an AGM, confirm and describe the two-

section model that has been extant at The Electra Building for the past 20 years. It reads as follows (Exhibit 98): 1. Duties of Owner

a) The owners of all the residential strata lots shall form a separate

section within the Strata Corporation consisting of all the residential lots in the strata plan, being specifically strata lots 1 through 243 inclusive and bearing the name “Section 1 of The Owners, Strata Plan LMS 1866” (the “Residential Section”).

b) The owners of the non-residential lots shall form a separate

section within the Strata Corporation consisting of all the non-residential strata lots, being specifically strata lots 245 through 449 inclusive, and bearing the name “Section 2 of The Owners, Strata Plan LMS 1866” (the “Commercial Section”). [ 141 ] The circumstances and ramifications of the two-section model; in conjunction with the separate responsibilities of the Strata Corp. was addressed in Norenger Development (Canada) Inc. v. Strata Plan NW 3271 , 2018 BCSC 1690 . Justice Iyer concluded as follows: [60] …

Part 11 of the Act contains express provision for the creation of sections and establishes

section autonomy over matters that relate solely to the section. [61] Section 190(1) states that the provisions of the Act apply to a strata corporation with sections. Section 194(2) states: 194

(2) With respect to a matter that relates solely to the section, the

section is a corporation and has the same powers and duties as the strata corporation (

a) to establish its own operating fund and contingency reserve fund for common expenses of the section, including expenses relating to limited common property designated for the exclusive use of all the strata lots in the section, (

b) to budget and require

section owners to pay strata fees and special levies for expenditures the

section authorizes, (

c) to sue or arbitrate in the name of the section, (

d) to enter into contracts in the name of the section, (

e) to acquire and dispose of land and other property in the name of or on behalf of the section, and (

f) to enforce bylaws and rules. [62] The subsections of s. 194(2) do not expressly refer to the other sections of the Act that relate to the powers conferred by s. 194(2). For example, s. 194(2)(

a) does not expressly refer to the sections governing operating and contingency reserve funds (ss. 95 - 98). It is clear from the language of ss. 190(1) and 194(2) that the other provisions of the Act relating to the matters listed in s. 194(2) are intended to govern a section’s exercise of those powers in the same way that they would govern the strata corporation’s exercise of those powers in a strata corporation that does not have sections.

Otherwise, the sections of a strata corporation would effectively be exempt from limitations on their powers that the legislature deemed necessary for the strata corporation as a whole. [63] It follows from this that, when applied to a strata with sections, s. 72 does not prohibit allocation to a

section of responsibility for the

repair and maintenance of common property that relates solely to that section. [ 142 ] It is quite clear the sections operate as autonomous entities. Indeed, this was the principle that underpinned the unsuccessful application before Justice Russell seeking to add the residential

section as a party to the litigation. [ 143 ] In addition, a number of witnesses provided viva voce evidence concerning the operations of the sections; the relationship of the sections to one another, and to the Strata Corp.

This evidence also touched on how the affairs and responsibilities of the sections are governed within the respective sections and the overall operations of the building. [ 144 ] The evidence of the plaintiff concerning this discrete issue concerning the governance model was somewhat sparse, and largely based on suspicion. [ 145 ] The plaintiff testified, broadly, that in his view the Strata Corp. does not have a democratic process in place. [ 146 ] The general position of the plaintiff was that notwithstanding the legislation and the day-to-day operation of the building over the years, the actual operation of the building integrating three sections was a charade.

The plaintiff testified that there are only two sections; the residential

section and the commercial section. The plaintiff says there is no entity known as the Strata Corp. with distinct and separate responsibilities. [ 147 ] This belief appears to rest almost exclusively on certain minutes of the Strata Corp. AGM dated April 9, 2003. The minutes reference attendance by representatives of the commercial

section and the residential section. The minutes also reflect various issues and responsibilities of those two sections. The minutes do not reference the Strata Corp. The minutes in this regard are silent. [ 148 ] Upon my reading of the minutes one cannot infer there is not three entities in the governance model. In any event, the SPA and bylaws make clear that for years, three separate sections or entities have operated in the building. [ 149 ] In addition, other witnesses gave evidence concerning this issue. [ 150 ] Mr. Davies provided evidence. Mr. Davies’ company has owned, for some years, a number of commercial units in the building. He has been president of the commercial

section and has been both president and vice president of the joint Strata Council. [ 151 ] Mr. David Van Doorn testified. Mr. Van Doorn as well was experienced in the governance of the building. He is, and has been for many years, a member of the joint Strata Council. He has also served on the residential executive. [ 152 ] Mr. Trevor Boudreau gave evidence. He was on the residential executive from 2011 to 2013 and on the joint Strata Council for a short while. Mr. Boudreau sold his residential unit in 2014.

He is currently a director of governmental affairs and relations at the Vancouver International Airport. [ 153 ] The evidence of these witnesses was in my view straight forward and completely consistent with the SPA and bylaws governing these matters. [ 154 ] The purport of the evidence of these witnesses is that the operation of The Electra Building is undertaken and shared by three entities; a joint Strata Council, the residential executive, and the commercial executive. These entities operate independently; and in particular the two sections operate independently. Mr. Davies, Mr. Van Doorn, Mr. Ibrahim and Mr.

Boudreau all testified in this regard. Both sections are governed by respective elected executives. Both are governed and both apply bylaws that relate to their

section and address concerns, complaints, and issues of and by the owners of residential units or commercial units. The joint Strata Council operates independently in matters that are of common interest to both sections; that is in relation to what is designated as, and referenced throughout the trial, as strata common property. [ 155 ] The residential

section and the commercial

section each elects its own executive to manage the affairs of their own section. Of course, there is interaction in operations. [ 156 ] The owners of residential units are entitled to attend the residential executive meetings. Similarly the owners of commercial units are entitled to attend the commercial executive meetings. All owners are entitled to attend Strata Corp. meetings. [ 157 ] Protocols are in place for individual owners to arrange to have matters placed on the agenda and spoken to with regards to the three entities. For instance, Mr.

Ibrahim testified in particular that in the event the joint Strata Council receives an inquiry or complaint of some nature, the Strata Council will investigate the matter and correspond with the owner. In the event consultation with the management company of the building is required, or perhaps legal advice is required, then the Strata Council will so consult. [ 158 ] The joint Strata Council is made up of two members from each section. This has been the governing structure since inception although the process of election to the Strata Council has changed slightly over the years.

For some years the executive of each

section met and elected two representatives from each

section to sit on the joint Strata Council. Currently the election of the joint Strata Council members occurs at the Annual General Meeting of the Strata Corp. The owners in attendance, or by proxy, elect the joint Strata Council at that meeting. [ 159 ] Mr. Boudreau testified that the two-member make-up concerning the joint Strata Council worked well from his perspective over the years and in his view operated fairly, efficiently and professionally. Mr.

Boudreau confirmed the plaintiff had, on many occasions, requested hearings before the residential executive concerning a host of personal grievances; including taking issue with fines that had been imposed against the plaintiff for his bylaw infractions. [ 160 ] It is common ground each owner pays two sets of fees. One set of fees to the respective sections, and one set to the Strata Corp. [ 161 ] The sections have a proportionate fee obligation concerning fees in support of the expenses of the Strata Corp. The commercial

section is responsible for 40.85% of those expenses; the residential

section 59.15%. At one time the commercial executive collected all strata fees and dealt directly with the Strata Corp. The reasons for this were unclear. As well, it was explained that in the event the Strata Corp. required additional funding for various expenses, the commercial

section would fund those expenses and then seek reimbursement from the residential

section in accordance with the percentage share. [ 162 ] Currently the Strata Corp. deals directly with the owners. The joint Strata Council presents a budget at the Annual General Meeting; and receives funding from the owners that is deposited into accounts controlled by the Strata Corp. This change occurred, as I understand the evidence, in 2019. [ 163 ] The strata plan, including the building design (sometimes referred to in the trial as the “blueprints”); and the disclosure statements filed by the developer, designate and allocate the common property of the residential

section and the commercial section; as well as the common property of the Strata Corp. [ 164 ] Mr. Davies took some time in evidence to identify the designations in this regard. [ 165 ] “RES”, circled on the plan, indicates residential property for the use of the residential section, and the responsibility of the residential section.

Similarly “COM” circled, indicates the commercial property. “c” circled on the plan designates joint strata corporation property and the requisite responsibilities. [ 166 ] A good deal of evidence was heard relating to the designations and in particular relating to the plaintiff’s air conditioning unit and the HVAC system in the building generally. In addition, a piece of equipment referred to as a chiller played a role in the focus of the plaintiff. This was relevant to the plaintiff’s complaint concerning his air conditioning unit and related alleged difficulties. [ 167 ] In this regard, Mr.

Ibrahim testified concerning the residential designations, including the air conditioning unit, the HVAC systems, window washing, and bicycle bylaws. In particular Mr. Ibrahim testified that the air conditioners in the units are part of an overall HVAC central system with individual heat exchanges in each unit. In any event Mr. Ibrahim testified it all belongs to the residential section. [ 168 ] Mr. Van Doorn provided similar evidence.

The HVAC system and heat pumps are residential property. [ 169 ] The evidence also disclosed, for instance, certain electrical and mechanical rooms were designated as residential property; as were various meeting rooms, storage rooms, bicycle storage areas, and laundry rooms. [ 170 ] Finally, certain property or areas can be seen on the plan as for the use of both sections, for instance, the window washing equipment, vehicular and pedestrian access routes, loading areas, exterior landscaping, and plazas and terraces.

This is the common property of the Strata Corp. [ 171 ] I conclude the overwhelming weight of the evidence makes clear The Electra Building operates as envisioned by the SPA and bylaws; and as testified to by the witnesses intimately involved with the governance of the building over many years. It is a governance model made up of three entities with distinct duties and obligations.

The Allegations of the Plaintiff re: s. 164 of the SPA [ 172 ] One of the challenges in addressing the claims of the plaintiff is that often it was unclear what aspects of his claims were being addressed by the plaintiff, at any given moment, in the course of providing his evidence.

In addition, in the event the evidence could be linked to a particular complaint, it was often difficult to appreciate the connection between the complaint and a theory of liability connected to the defendants; as opposed to the residential section, or other individuals. [ 173 ] As well, the plaintiff had a most difficult time articulating his complaints in a way that was comprehensible.

The testimony was often rambling and disjointed, interspersed with vitriol, notwithstanding attempts by the court to focus the plaintiff in order to understand how his evidence related to a particular complaint he had made against the defendants. [ 174 ] The final submissions of the plaintiff did not bring any clarity. [ 175 ] As an overarching issue, the evidence of the plaintiff included attempting to address how Mr. Davis failed in his responsibilities when it came to dealing with a variety of issues within the building.

The plaintiff testified concerning certain examples of this failure, including matters relating to the plaintiff’s windows and washing machines. In addition an extraordinary amount of time was taken up with the evidence of the plaintiff concerning the circumstances of the replacement of his heat pump and water damage in his apartment. [ 176 ] The overall attack included a somewhat ambiguous complaint about the process of hiring Mr. Davis in the first place. [ 177 ] I will begin with the apparent position of the plaintiff concerning the hiring of Mr.

Davis. [ 178 ] I commence by observing the circumstances of the hiring of Mr. Davis was struck from the pleadings of the plaintiff. Certain evidence in the trial was admitted on the basis it might somehow, in due course, be linked to an issue that was still alive and well as an issue in the remaining pleadings. That said it was difficult to discern just what it was about the hiring of Mr. Davis that appeared to roil the plaintiff. In assessing this point, the testimony of the plaintiff, similar to the plaintiff’s testimony generally, was more often than not repetitive.

It was, as well, often interspersed with argument and opinion. Consequently it is a challenge crystallizing the admissible evidence of the plaintiff in relation to discreet issues, including this issue. This seriously impacted the overall reliability of his evidence. [ 179 ] In any event, the plaintiff testified during the trial that at some point in the narrative of events, around early-December 2009, the plaintiff received a copy of a letter authored by a Mr. Peter Daubrey. The letter apparently raised concerns on the part of Mr.

Daubrey relating to the process undertaken by the Strata Council and/or the sections in the hiring Mr. Davis. The plaintiff testified he received a

copy of the Daubrey letter from a Dr. Howard Burton. It is my understanding Dr. Burton is, or at least at one point was, a resident of the building. The plaintiff testified the letter raised concerns in his own mind relating to the hiring of Mr. Davis. [ 180 ] Mr. Davies provided evidence concerning the hiring of Mr. Davis. Mr. Davis was initially hired as the caretaker type person for the commercial section. In 2009 the residential

section determined to replace their then caretaker, Mr. Macapinlac. Mr. Cousineau and Mr. Boulaine interviewed Mr. Davis. Mr. Davis was subsequently hired as the caretaker for the residential

section as well. Mr. Davis then performed tasks on behalf of both sections. The two sections, as well as the Strata Council, could direct Mr. Davis. [ 181 ] Mr. Davis provided evidence. Mr. Davis is 65 years of age and has been, what he referred to as the ‘opera

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