Strata corporations and “significantly unfair”

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In Dollan v. The Owners, Strata Plan BCS 1589, a dispute over whether a window should be clear or opaque ended up being appealed all the way to the Supreme Court of Canada. The strata lot owners had bought their unit based on plans which showed a certain window as “vision” glass, but when they took title they discovered that the window had instead been finished with opaque glass, apparently out of concerns for the privacy of adjoining units. The owners asked the strata corporation for approval to change the window (back) to vision glass, but a majority of the other strata owners voted against the change.

The aggrieved owners applied to court for relief under s. 164 of the Strata Property Act, seeking an order that an action of the strata corporation was “significantly unfair” to them. The strata corporation’s main argument in response was that s. 164 protects individual owners from unfair or arbitrary process, but not from decisions which might be contrary to their interests. So long as the process is a fair one, the strata corporation argued, s. 164 does not protect an individual owner from the decision of the majority. The court did not agree and found that in the circumstances the refusal of the strata corporation to allow the windows to be changed to vision glass was “significantly unfair” to the owners affected.

The BC Court of Appeal agreed with the trial court’s decision, although one of the three judges dissented and even the two judges who agreed in the result nevertheless delivered separate reasons. The three appeal judges held differing views on what constitutes “significantly unfair” under s. 164.

On July 19, 2012 the Supreme Court of Canada dismissed the strata corporation’s application for leave to appeal, without reasons. As a result, the Court of Appeal decision, such as it is, remains the latest word on s. 164 and “significantly unfair” actions by a strata corporation.

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