Arbabi v. McLelland, 2024 BCSC 91

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Arbabi v. McLelland, 2024 BCSC 91 Date: 20240119 Docket: S236788 Registry: Vancouver Between: Naomi Arbabi Plaintiff And Colleen McLelland Defendant Before: Associate Judge Hughes Reasons for Judgment Plaintiff: N. Arbabi Defendant: C. McLelland Place and Date of Hearing: Vancouver, B.C. November 29, 2023 Place and Date of Judgment: Vancouver, B.C.

January 19, 2024 Table of Contents Introduction .. 3 Background .. 3 Notice of Civil Claim .. 4 Defendant’s application .. 5 Discussion .. 7 Standing . 7 Civil Resolution Tribunal 9 OPCA .. 10 Result .. 12 Costs .. 13 Introduction [ 1 ] The defendant applies for an order striking the plaintiff’s notice of civil claim pursuant to Rule 9-5 of the Supreme Court Civil Rules [ Rules ]. [ 2 ] Although both the plaintiff and defendant are self-represented in this action, it is important to note that the plaintiff is a practicing member of the Law Society of British Columbia.

Background [ 3 ] The background facts are not clearly set out in the pleadings or application materials. What follows are the facts that I have pieced together from those documents and from the parties’ oral submissions. The facts do not appear to be particularly controversial. [ 4 ] The plaintiff and defendant are owners of non-adjacent units in a condominium building located on West 8 th Avenue in Vancouver, BC. The defendant has resided in the building for approximately 35 years, and is the owner of unit #302. The plaintiff purchased unit #304 in June 2021. Units #302 and #304 are separated by unit #303.

Each of the strata lots in question have access to a rooftop deck. It is undisputed that the rooftop decks are limited common property as defined in the Strata Property Act , SBC 1998, c 43 [ SPA ]. [ 5 ] When the plaintiff viewed unit #304 prior to purchasing it, there was a clear glass divider between the rooftop decks of units #302 and #303.

The plaintiff claims that the clear glass divider afforded her views of the ocean, mountains, bridges and Stanley Park, and that those views influenced her decision to purchase unit #304. [ 6 ] The defendant’s evidence is that, years ago, the original rooftop privacy divider between units #302 and #303 was removed and disposed of by the owner of unit #303, without any authorization from the building’s strata council. [ 7 ] Strata council minutes (the “Minutes”) from September 25 and December 19, 2019, were in evidence.

No other Minutes were provided, nor were the strata corporation bylaws or rules. [ 8 ] The September 25, 2019 Minutes indicate the following under the heading “Third Floor Decks”: The council is developing standards for deck repairs and maintenance as well as a policy for the repair and maintenance of deck dividers. Council will talk to each affected individually and work out the most reasonable solution.

The staining, repair and maintenance of the decks are owner responsibility. [ 9 ] Minutes from December 19, 2019 indicate the following under the heading “Deck Dividers”: Strokes Renovation will be providing pricing on deck dividers.

Once the plans have been finalized, a meeting will be set up with the third floor owners and the plans will be implemented. [ 10 ] It is clear from the Minutes that replacement of the deck dividers was on the strata council’s agenda long before the plaintiff purchased her unit. [ 11 ] On or about September 5, 2023, a contractor hired by the strata council re-installed a privacy divider on the limited common property adjoining the defendant’s strata unit, which has partially obstructed the view previously enjoyed by the plaintiff.

The plaintiff claims that the defendant somehow influenced or caused the strata council to install an opaque divider to replace the transparent divider. [ 12 ] Neither of the parties to this action is a member of the strata council. Notice of Civil Claim [ 13 ] In her notice of civil claim filed October 5, 2023, the plaintiff claims that the defendant “… caused to be installed a 66 ½ inch tall privacy wall at the border of her part of the rooftop deck … thereby blocking the view of the ocean, mountains, Stanley Park, bridges and more …”.

She seeks compensation from the defendant for trespass, which she quantifies at $1,000 per day for each day until the alleged trespass is remedied. The “trespass” alleged is the blocking of the plaintiff’s views. [ 14 ] The plaintiff’s notice of civil claim sets out the following under

Part 3: Legal Basis: 1. this is a claim of trespass by way of loss as pressed by a woman: naomi arbabi, against a woman: colleen mclelland; 2. this is a claim based on law of the land, and not a complaint based on legal codes acts or statutes; 3. a claim of trespass by way of loss did arise when after many attempts to keep this matter private and resolve the dispute peacefully in a manner that preserves the rights of both sides to the use and enjoyment and administration of their own property, the woman: colleen mclelland did not provide a remedy or a lawful excuse; 4. i, state i, did acquire my property at a time when a much lower, clear glass divider that was installed previous to this 66 ½ inch wall allowed the addition of the aesthetic appeals of the said view to the property of i, and i, did rely on views in making the decision to purchase the property of i, and in negotiating a purchase price for the property of i; 5. i, state i, did conduct due diligence searches to inquire about the conditions of the property of i, and the neighbouring properties and did not find any evidence of the woman: colleen mclelland having the right to block the view of other properties behind her property; 6. therefore, the woman: colleen mclelland, is estopped from asserting a right to install such a wall on her property that will block the view from the property of i; 7. i, say herein and verify in open court all to be true. [ 15 ] To the end of the notice of civil claim are appended two documents, titled “Notice of requirement of court” and “Rules of Court”, which are attached to these reasons as Appendix A and B respectively.

Defendant’s application [ 16 ] The defendant applies to strike the notice of civil claim pursuant to Rule 9-5(1), which reads as follows: Scandalous, frivolous or vexatious matters

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (

a) it discloses no reasonable claim or defence, as the case may be, (

b) it is unnecessary, scandalous, frivolous or vexatious, (

c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (

d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. [ 17 ] In Save-A-Lot Holdings Corp. v. Christensen , 2022 BCSC 261 , the court summarized the authorities regarding applications to strike: [40] In Rose v. British Columbia Life & Casualty Company , 2012 BCSC 1296 at para. 3 , Mr. Justice Voith (as he then was) summarized as follows regarding the predecessor to what is now rule 9-5(1)(a): 3 The recent and leading case of R. v.

Imperial Tobacco Canada , 2011 SCC 42 , [2011] 3 S.C.R. 45, confirmed the following propositions in relation to the former Rule 19(24)(a): (

i) A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action (at para. 17); (ii) The power to strike claims that have no reasonable prospect of success promotes efficiency in the conduct of the litigation and contributes to more effective and fair litigation (at para. 19); and (iii) The motion to strike is a tool that must be used with care, as the law is not static and actions previously were deemed hopeless may in the future succeed.

Therefore, it is not determinative that the law has not yet recognized the particular claim. In its analysis the court must be generous and err on the side of permitting a novel but arguable claim to proceed to trial (at para. 21). [41] In Dempsey et al. v. Envision Credit Union et al , 2006 BCSC 750 at para. 17 , the following

summary of general propositions extracted from authorities was set out regarding circumstances under which pleadings will be struck [citations omitted]: (

a) the pleadings are unintelligible, confusing and difficult to understand; (

b) the pleadings do not establish a cause of action and do not advance a claim known in law; (

c) the pleadings are without substance in that they are groundless, fanciful and trifle with the Court’s time; (

d) the pleadings are not bona fides , are oppressive and are designed to cause the Defendants anxiety, trouble and expense; and (

e) the action is brought for an improper purpose, particularly the harassment and oppression of the Defendants. [ 18 ] The defendant submits that the claim should be struck for the following reasons:

a) The plaintiff has no standing to bring a claim against the defendant regarding her alleged interference with limited common property, as any such claim can only be brought by the strata corporation;

b) The claim should have been brought in the Civil Resolution Tribunal; and

c) The claim is in the nature of an organized pseudo-legal commercial argument (“OPCA”), which claims have been found to be frivolous and vexatious by a number of courts. Discussion Standing [ 19 ] The defendant relies on Ang v. Spectra Management Services Ltd. , 2002 BCSC 1544 , Extra Gift Exchange Inc. v. Collins , 2004 BCCA 588 , and Cheikes v. BM Clubhouse 40 Ltd., 2023 BCSC 14 as authority for the proposition that the strata corporation is the proper party to enforce the interests of individual strata unit owners with respect to the use of common property.

Section 171 of the SPA empowers the strata corporation to sue as a representative of all owners. In each of the foregoing cases, the court held that where the

wrong alleged is to the strata corporation, the rule in Foss v. Harbottle, [1843] J.C.J. No. 1 applies such that only the strata corporation,and not an individual owner, is the proper party to seek relief. [20] However, the foregoing cases can be distinguished from the case at bar in that Ms. Arbabi is not alleging a wrong to the stratacorporation, but to her own interest in limited common property. [21] The Court of Appeal in Hamilton v. Ball, 2006 BCCA 243 considered the rights of individual strata owners to sue for damages totheir interest in common property.

In that case, the plaintiffs, being individual strata unit owners, alleged that the defendants hadmaintenance and repair work done on common property without their approval. The work was allegedly defective and done by unskilledpersons, rendering some warranties void and ultimately leading to damages requiring the entire building envelope to be renovated, atconsiderable cost.

The lower court granted the defendants’ application to strike the claim on the basis that the plaintiffs did not havestanding. [22] In allowing the appeal, the court said: [26] Clearly, the Court was proceeding on the basis that the wrong being alleged was one to the strata corporation, rather than toindividual owners or all the owners as a group. This is enough to distinguish Extra Gift from the case at bar. I take the view, however,that Foss v. Harbottle does not apply to strata corporations in respect of an action for injury to common property.

As has been seen, inthis province the common property is not owned by the strata corporation, but by the strata owners in proportion to their respective unitentitlements. The concept of injury to the corporation is not engaged by the circumstances of this case. (See also Pender v.Lushington [1877] 6 Ch. D. 70 at 80 and Hercules Managements Ltd. v. Ernst & Young (SCC), [1997] 2 S.C.R. 165,at paras. 62-3.) The other side of this coin is that the strata corporation’s ability to sue under s. 171 is purely a creation of statute. Thusas Garson J. noted in Strata Plan LMS 1468 v.

Reunion Properties Inc. (2002) 3 B.C.L.R. (4th) 79, 2002 BCSC 929, the only way inwhich the strata corporation could sue for damage to common property of the owners is by means of s. 171 of the Act. As she observed: The common property of a strata corporation is owned by all owners as tenants in common (s. 12(1) of the Condominium Act). The claim for damage to the common property in this case is not one for which the strata corporation could assert a claim otherthan as a representative plaintiff.

The strata corporation does not have its own cause of action for defects in or damage to stratalots or to common property, because neither the common property nor the units are owned by the strata corporation. [At paras. 23-4; emphasis added.] [27] As for the notion that individual owners should not be permitted to "circumvent" s. 171 and sue directly for injury or damageto their interests in common property, I see nothing in the Act taking away that right, which I view not as statutorily created, but as acommon law incident of the ownership of property, albeit a type of property unknown to the common law.

Section 171 creates amechanism by which a three-fourths majority of owners may use the strata corporation as their vehicle for suing and spread the expensesthereof. But in the words of Seaton J.A. in Strata Plan No. VR 368 v. Marathon Realty Co. (1982) (BC CA), 41B.C.L.R. 155 at para. 14, "that is as far as the legislation goes." It would take much clearer language, in my respectful view, to removethe right of individual owners to enforce their rights "on their own hook".

Section 171 is not thereby “circumvented”, but is simplyinapplicable.

Nor do I foresee that frivolous actions and multiple claims are likely to result, since the court retains the ability to makeorders as to costs, and the owners who do take legal action must bear the expenses of the litigation themselves, like any other co-ownersof property. (In the case at bar, since the plaintiffs have alleged fraud on the defendants’ part, they run the risk of special costs.) Aswell, it is open to the court to respond to any multiplicity of actions by authorizing a representative action under R. 5(12), or by followingthe course ordered in Beck, supra, at paras. 30-36.

Short of this, all parties that should be before the court can be joined under R. 5(3) asdefendants if they do not consent to be plaintiffs. [28] Finally, I note as a matter of statutory construction the juxtaposition of, and similarity between, ss. 171 and 172 of the Act. Both employ the same introductory wording and permit the strata corporation to sue – s. 171 on behalf of all owners, and s. 172 onbehalf of some owners. Both require a 3/4 majority vote before the suit is commenced. As Mr.

Holmes contended, it could hardly beargued that s. 172 takes away the right of individual owners to sue "about matters affecting only their strata lots". If this is correct, it isdifficult to see why s. 171, which uses parallel wording, should be taken to mean that the rights of owners in respect of their interests inthe common property are abrogated and vested solely in the strata corporation. [23] Accordingly, the plaintiff has standing to commence an action with respect to injury or damage to her interest in commonproperty.

Civil Resolution Tribunal [24] Although not addressed in oral submissions, the notice of application refers to the Civil Resolution Tribunal (“CRT”) havingjurisdiction over strata property claims. [25]

Section 121 of the Civil Resolution Tribunal Act, SBC 2012, c 25 [CRTA], defines the CRT’s jurisdiction in relation to certainstrata property claims: 121

(1) Except as otherwise provided in

section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction overa claim, in respect of the Strata Property Act, concerning one or more of the following: (

a) the

interpretation or application of the Strata Property Act or a regulation, bylaw or rule under that Act; (

b) the common property or common assets of a strata corporation; (

c) the use or enjoyment of a strata lot;

(

d) money owing, including money owing as a fine, under the Strata Property Act or a regulation, bylaw or rule under that Act; (

e) an action or threatened action by a strata corporation, including the council, in relation to an owner or tenant; (

f) a decision of a strata corporation, including the council, in relation to an owner or tenant; (

g) the 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 this Act, the tribunal is to be considered to have specialized expertise in respect of claims within the jurisdiction of the tribunal under this Division. [ 26 ] Under s. 16.4 of the CRTA , a party presumptively must not bring or continue a claim in this court over a subject matter that is within the jurisdiction of the CRT ( Downing v. Strata Plan VR2356, 2019 BCSC 1745 at para. 30 ). [ 27 ] Although the notice of civil claim asserts that “this is a claim based on law of the land, and not a complaint based on legal codes acts or statutes”, the dispute falls under several of the s. 121 categories over which the CRTA confers jurisdiction on the CRT, including: (

a) the

interpretation or application of the Strata Property Act or a regulation, bylaw or rule under that Act; (

b) the common property or common assets of a strata corporation; (

c) the use or enjoyment of a strata lot; … (

e) an action or threatened action by a strata corporation, including the council, in relation to an owner or tenant; (

f) a decision of the strata corporation, including the council, in relation to an owner or tenant… [ 28 ] Despite the plaintiff framing her claim as one in trespass based on the natural law of the land, the factual basis of the claim is the erection of a divider wall on limited common property, which has allegedly affected the plaintiff’s use or enjoyment of her strata lot. The mere assertion by the plaintiff that she is not bringing her claim pursuant to statute does not mean that the SPA is inapplicable, nor does it oust the authority of the CRT.

OPCA [ 29 ] The plaintiff began her oral submissions with the following statement: First, I must address that I make reference to “i” as a lower case “i” because I am here present in the highest and most humble form. I’m not a free man on the land, not hung up on a juxtaposition as a sovereign citizen, I don’t follow a guru or a teacher, I’m not a member of a church, never heard of the Moorish law, I am not a freedom fighter, and I’m not part of any group or movement, commercial or otherwise.

I am not so naïve to think that we do not need a legal system, but I do think that our legal system has a lot of flaws, but who doesn’t. I am not here to discuss those flaws. [ 30 ] Despite this disclaimer, the plaintiff’s actions bear many of the hallmarks of claims made by OPCA litigants. Such litigants employ a collection of techniques and arguments to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations and individuals: Meads v. Meads , 2012 ABQB 571 at para. 1 .

The indicia of such actions were canvassed extensively by Rooke A.C.J. in Meads . [ 31 ] Some of those indicia displayed in the plaintiff’s notice of civil claim are as follows:

a) The plaintiff has adopted a type of ‘double/split person’ strategy, wherein she identifies the parties as “the woman: naomi arbabi” and “the woman: colleen mclelland”. She has used these terms in the style of cause and throughout the notice of civil claim. The plaintiff’s correspondence with a process server hired by the defendant explains her rationale for this split persona as follows: i: a woman; naomi arbabi; am a living breathing woman, and not a name; when you ask if i am Naomi Arbabi the answer is always no as Naomi Arbabi is an incorporated name and does not refer to a living breathing woman.

In a follow-up email, the plaintiff goes on to say: … Naomi Arbabi is an incorporated name that refers to a dead entity. The same is true for all names, including yours. Therefore when you ask someone to identify as a name they identify as the dead entity corporation which was created by their birth certificate. I, a woman, am not Naomi Arbabi, but Naomi Arbabi is the name I am called. There is a subtle but crucial difference between the two. Unfortunately this is not common knowledge, yet.

b) The plaintiff addresses court officials in an atypical manner. The “Notice of requirement of court” attached to the notice of civil claim is addressed “Greetings to the man or the woman, who at times acts as the clerk of the court”. Her “Rules of Court” refer to “the man who at times acts as judge or magistrate”.

c) The plaintiff purports to demand a court process with her own rules, whereby she can “move this claim through the naomi arbabi court”. The “naomi arbabi court … will not accept any legal arguments, codes, acts and or statutes as this is a court in law based on the law of the land and therefore a presumption of contract does not apply to i”.

d) The rules of the naomi arbabi court, appended to the notice of civil claim, include a requirement that the judge give a specific oath prepared by the plaintiff.

e) Although she has commenced a claim in this court, the plaintiff also seems to deny that this court has jurisdiction over her, as the claim says that her use of mandated court forms “should not be construed by any man or woman as the submission of i, to any legal titles, legal codes, acts or statutes”. Result [ 32 ] I am satisfied that the plaintiff’s claim falls within several of the grounds set out in R. 9-5(1). In particular:

a) The plaintiff’s claim does not set out a reasonable legal basis for the claim brought in this court;

b) It is frivolous and vexatious insofar as it denies the authority of the Court. Such a denial is intrinsically frivolous and vexatious: Meads , at para. 556 ; and

c) It is an abuse of process insofar as the plaintiff has filed her initiating document as an attempt not to litigate legitimately in this Court, but instead to utilize this Court's infrastructure for the purposes of her fictional court: Parhar v. British Columbia (Attorney General) , 2021 BCSC 700 at para. 33 (d). [ 33 ] Accordingly, the application to strike the notice of civil claim as an abuse of process is granted, and the action is dismissed. Costs [ 34 ] Rule 14-1(9) provides that costs follow the event.

The defendant seeks increased or special costs as permitted by Rule 9-5(1). [ 35 ] Given that the plaintiff is a member of the Law Society of BC, she has an enhanced obligation to uphold the rule of law. The introduction to the Law Society’s Code of Professional Conduct for British Columbia provides that “a special ethical responsibility comes with membership in the legal profession”. Indeed, the oath taken by all lawyers called to the bar in BC includes a term that the lawyer “will not promote suits upon frivolous pretences”. [ 36 ] I find that an award of special costs is appropriate.

The defendant shall receive special costs of this proceeding payable by the plaintiff. “Associate Judge Hughes” Appendix A

Appendix B