Strata Alert: ¾ Votes May be Required to Keep Gyms and Pools Closed During COVID-19 Pandemic

¾ Votes May be Required to Keep Gyms and Pools Closed During COVID-19 Pandemic

Alex J. Chang, Associate
Phone:  604-685-1255
Email: ajc@lmlaw.ca

In response to the COVID-19 pandemic, many strata corporations made the responsible choice to close common amenities, such as pools, gyms, saunas and party rooms. However, in the recent decision of Brogan v. The Owners, Strata Plan 845, 2020 BCCRT 1196, the Civil Resolution Tribunal (CRT) ruled that a strata needed to pass a ¾ vote at a general meeting to keep them closed.

The applicant in Brogan argued that a ¾ vote was required under s. 71 of the Strata Property Act (the “SPA”) to keep the pool in his strata closed. The strata responded that it had closed the pool in March 2020 to ensure safety due to the pandemic.

Strata corporations cannot significantly change the use or appearance of the common property unless it meets the conditions of s. 71 (a) or (b) of the SPA. Section 71(a) says that a strata can significantly change the use of common property if the change is approved by a ¾ vote of owners at a general meeting. Section 71(b) states that a strata can also significantly change the use of common property if “there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage.”

The CRT concluded that given the public health order, the public health guidelines relating to COVID-19, and how little was known of the COVID-19 virus in March 2020, the strata had reasonable grounds to believe that immediate pool closure was necessary to ensure the safety per s. 71(b).

However, the CRT also ruled that several months after the closure, the safety concerns could no longer be considered “immediate” to meet the requirement of s. 71(b) and therefore, the strata needed to comply with s. 71(a) and pass a ¾ vote if it wanted to keep the pool closed. The CRT found that the Vancouver Island Health Authority provides guidance on how pools can be safely reopened by implementing rules, policies and procedures to comply with public health orders and public health guidelines.

The CRT ordered the strata to, within 30 days of the decision, to reopen the pool with appropriate safety measures in place or call a general meeting for the purpose of proposing a ¾ vote resolution to keep it closed. The CRT also dismissed the owner’s claim to be reimbursed a portion of his strata fees that went towards maintaining the pool while it was closed, on the basis that the decision to close the pool was not significantly unfair to the owner.

As a result of this decision, strata corporations that have not begun considering how they may safely reopen common facilities should do so or pass ¾ votes to keep them closed indefinitely.

In addition to the regional health authorities’ guidelines, all stratas weighing whether to reopen should consider WorkSafeBC’s Protocols for the return to operation of gyms and fitness centres. WorkSafeBC protocols also apply because a strata’s common facilities are workplaces for those that maintain them. As well, pools in strata corporations with four or more strata lots are subject to the BC’s Pool Regulation, which remains unchanged.

Implementing WorkSafeBC and regional health protocols may require significant changes and increased cost to operate those facilities safely. If a strata council wants to keep their facilities closed because those burdens are too great, then it should present information to the owners at a general meeting so they understand the costs and limitations of reopening. If there are increased costs to reopening, then the strata may also want to consider presenting ¾ votes at the same general meeting to ensure those costs are funded.

Caution: As the circumstances surrounding the COVID-19 pandemic is rapidly evolving, we encourage readers to monitor official government and court websites and seek current legal advice based on their particular circumstances.