The BC Court of Appeal has overturned a BC Supreme Court decision that ordered a troublesome owner to put her unit up for sale: LMS 2768 v. Jordison, 2012 BCSC 31 (“Jordison #1“). In making this decision the Court of Appeal has clarified the limits on the orders a court can make against an owner pursuant to s. 173 of the Strata Property Act. This comes on the heels of an earlier decision in the same case in which the Supreme Court refused to give the strata corporation an order for vacant possession of the same strata lot:LMS 2768 v. Jordison, 2012 BCSC 773 (“Jordison #2“).
In Jordison #1, the BC Supreme Court ordered Ms. Jordison to put her unit up for sale after she and her son were found to have repeatedly contravened the strata corporation’s bylaws by verbally abusing and harassing her neighbors with taunts and slurs. The Court in Jordison #1 relied on earlier decisions in other jurisdictions, including the Korolekh decision in Ontario, to conclude that s. 173 of the Act, which permits the court to make “make any other orders it considers necessary” to make an owner “stop contravening the…bylaws”, permitted the court to order an owner to sell her strata lot.
The Court of Appeal disagreed, saying that the wording in the Ontario Condominium Act was broader and included language which permitted the Ontario Courts to “grant such other relief as is fair and equitable in the circumstances.”
In reversing Jordison #1, the Court of Appeal has clarified that s. 173 lays out a two-step remedy to deal with owners who egregiously breach strata corporation bylaws. Step One: the strata corporation must apply for and obtain an injunction. If the owner fails or refuses to comply with the injunction, Step Two requires the strata corporation return to Court for a “contempt order”. The Court of Appeal left open the possibility that an order for sale or an eviction order might be possible as part of the contempt order, but that issue was not before the Court on this particular appeal.
This brings us to Jordison #2.
A key term of the order in Jordison #1 was that if Ms. Jordison failed to abide by the bylaws while her unit was up for sale, the strata corporation could apply for an order for “vacant possession” (i.e. an eviction). The strata corporation found that the owner continued to contravene the bylaws and applied to have her evicted. The Supreme Court in Jordison #2 dismissed the application for vacant possession because the strata corporation had not proven “beyond a reasonable doubt” that the owner and her son had contravened the Court’s Order in Jordison #1.
The decision in Jordison #2 shows the challenge faced Strata Corporations under the two-step process laid out by the Court of Appeal. A finding of contempt, which is quasi-criminal in nature, requires proof “beyond a reasonable doubt”. This is a very high onus to meet when dealing with noise and other problems occurring “behind closed doors”. Findings of contempt of court are likely to be rare.
Although the decision on this appeal is sure to disappoint property managers and strata owners who are dealing with abusive and noisy owners, it underscores the need for legislative reform to bring the Strata Property Act into line with condominium legislation in other jurisdictions, such as Ontario.
It also a cautionary tale for strata councils that are imposing fines for continuing and repeated bylaw infractions by abusive and noisy owners. An issue on this appeal was the validity of thousands of dollars in fines that the strata corporation had imposed on Ms. Jordison. The strata corporation conceded on the appeal that some of the fines were not lawful but asked the Court of Appeal to overlook that fact when it considered the Supreme Court’s order that Ms. Jordison sells her unit. This meant that the strata corporation came to court without “clean hands”.
To impose fines for continuing and repeated bylaw contraventions, the strata council must strictly comply with the due process requirements of the Act. Failing to do so will almost certainly undermine the strata corporation’s bylaw enforcement efforts.
Read the full text of the appeal decision here.
What we do: Lesperance Mendes advises strata corporations and owners on matters such as construction defects, warranty claims, bylaw enforcement and collections. We have also successfully represented strata corporations to obtain injunctions and significant fines against troublesome owners. For more information about our strata law practice, contact Paul G. Mendes at 604-685-4894 or by email at pgm@lmlaw.ca.
Be sure to check out our new website: WWW.LMLAW.CA. Follow me on Twitterwww.twitter.com/stratalawyer.
Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567