



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Allard v. The Owners, Strata Plan VIS 962,









2019 BCCA 45




Date: 20190205

Docket: CA45323

Between:

James Allard

Respondent

(Petitioner)

And

The Owners, Strata
Plan VIS 962

Appellant

(Respondent)

And

Civil Resolution
Tribunal

Respondent

(Respondent)




Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter




On appeal from: An order
of the Supreme Court of British Columbia, dated
May 4, 2018 (
Allard v. The Owners, Strata Plan VIS 962
, 2018 BCSC 1066,
Vancouver Docket No. S-1711290).




Counsel for the Appellant:



C.D. Wilson





Counsel for the Respondent, James Allard:



C.L. Vickers





Counsel for the Respondent,
Civil Resolution Tribunal:



T. Mason





Place and Date of Hearing:



Vancouver, British
  Columbia

December 14, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

February 5, 2019









Written Reasons by:





The Honourable Madam Justice Kirkpatrick





Concurred in by:





The Honourable Mr. Justice Fitch





The Honourable Mr. Justice Hunter








Summary:

Appeal from an order of the
Supreme Court granting leave to appeal from a decision of the Civil Resolution
Tribunal. The chambers judge had granted leave to appeal under s. 56.5 of the
Civil Resolution Tribunal Act on the basis that (1) the proposed appeal engaged
a question of law and (2) granting leave would be in the interests of justice
and fairness. Held: Appeal allowed. The order under appeal does not identify questions
of law, but rather questions of mixed fact and law. Even if the issues sought
to be raised by the respondent could be reframed as questions of law, leave to
appeal would not be in the interests of justice and fairness. The proposed
appeal was inextricably tied to the unique facts of the dispute and was of
limited importance to the parties as a whole. It would also run afoul the
principle of proportionality as it pertains to alternative forms of dispute
resolution.

Reasons for Judgment of the Honourable
Madam Justice Kirkpatrick:

[1]

By an order made May 4, 2018, the Supreme Court of British Columbia
granted leave to the respondent, James Allard, to appeal from a decision of the
recently established Civil Resolution Tribunal. The appellant strata
corporation appeals from that order.

[2]

The central issue on appeal is the application of the test for leave
under s. 56.5 of the
Civil Resolution Tribunal Act
, S.B.C. 2012,
c. 25. Section 56.5 provides for appeals to the Supreme Court on questions
of law relating to final decisions in strata property claims, either by consent
of the parties or where the Supreme Court determines it to be in the interests
of justice and fairness to grant leave.

[3]

For the reasons that follow, I conclude that:

(i)        the order under appeal does not identify questions
of law, the statutory precondition for the grant of leave to appeal, and

(ii)       even if the issues sought
to be raised by the respondent could be framed as questions of law, the
chambers judge erred in concluding that it is in the interests of justice and
fairness to grant leave in this case.

Accordingly, I would set aside the order granting leave to
appeal.

[4]

I should note at the outset that the current appeal process is slated to
be altered in favour of judicial review: Bill 22,
Civil Resolution Tribunal
Amendment Act
, 3rd Sess., 41st Leg., British Columbia, 2018. The precedential
value of this case is thus significantly attenuated.

Background

[5]

In 2000, Mr. Allard purchased a unit in a 54-unit condominium
building. The unit contained a solarium built by the previous owner, which the
strata had approved on the condition that future repair, maintenance and
insurance costs would be borne by the owner of the unit to which it was
attached. There is nothing to suggest that Mr. Allard, at the purchase
time or anytime thereafter, assumed this condition through an agreement with
the strata.

[6]

Between 2015 and 2016, the strata commenced a renewal project for the
buildings doors and windows, but refused to include two solaria additionsone
being Mr. Allardsin the project. The strata justified the exclusion on
the grounds that it had no responsibility to repair and maintain
owner-constructed improvements on exterior balconies or decks. The project cost
over $4.5 million and was funded by special assessments from the strata owners,
including Mr. Allard. It was completed in December 2016.

A. The Tribunal Decision

[7]

Mr. Allard disputed the exclusion of the solarium from the renewal
project. On September 29, 2016, he brought a claim against the strata under
s. 3.6 of the
Civil Resolution Tribunal Act
, which gives the
Tribunal jurisdiction over certain strata property claims. He contended that
the exclusion of the solarium from the renewal project amounted to significant
unfairness under s. 48.1(2) of the
CRTA
:

Orders
available in strata property claims

48.1



(2)     In
resolving a strata property claim brought to the tribunal under section 3.6 (1)
(e) to (g)
[strata property claims within jurisdiction of tribunal]
, the
tribunal may make an order directed at the strata corporation, the council or a
person who holds 50% or more of the votes, if the order is necessary to prevent
or remedy a significantly unfair action, decision or exercise of voting rights.

[8]

The Tribunal rendered its decision on November 8, 2017. It held that,
while the strata had an obligation to repair and maintain the solarium under
the operative 2015 bylaws, the exclusion of the solarium from the renewal
project was not significantly unfair.

[9]

In reaching its conclusions, the
Tribunal adverted
to a 2017 expert report by an architect named Grant Laing, who had opined that
the solarium currently fulfills its original function without the need for any
repair or renewal work. The Tribunal also noted that the appearance of the solarium
continued to blend in with the new windows and frames.

[10]

On the issue of significant unfairness, the Tribunal applied the test
set forth in
Dollan v. The Owners, Strata Plan BCS 1589
, 2012 BCCA 44 at
para. 30. The
Dollan
test addresses s. 164 of the
Strata
Property Act
, S.B.C. 1998, c. 43, and asks the following two
questions:

1.

Examined
objectively, does the evidence support the asserted reasonable expectations of
the petitioner?

2.

Does the evidence establish that the reasonable expectation of the
petitioner was violated by action that was significantly unfair?

[11]

The Tribunal concluded that, despite the stratas obligation to repair
and maintain the solarium, Mr. Allard lacked any reasonable expectation
that the solarium would be included in the renewal plan. The exclusion, for
this reason, was found to be not significantly unfair.

[12]

The Tribunal went on to order that each party bear their own costs and
that Mr. Allard pay for a portion of the Laing expert report.

B. The Order and Reasons of the Chambers Judge

[13]

Mr. Allard sought leave to appeal the Tribunals decision pursuant
to s. 56.5 of the
CRTA
, which provides for an appeal to the Supreme
Court with consent of the parties or else with leave of the court:

Appeal to
Supreme Court

56.5
(1) Subject to this
section, a party that is given notice of a final decision in a strata property
claim may appeal to the Supreme Court on a question of law arising out of the
decision.

(2)     A party may appeal to the Supreme Court only if

(a)  all parties consent, or

(b)  the court grants leave to appeal.



(4)     The court may grant leave to appeal under subsection
(2) (b) if it determines that it is in the interests of justice and fairness to
do so.

(5)     When deciding whether it is in the interests of
justice and fairness to grant leave, the court may consider the following:

(a)  whether an issue raised by the claim or dispute that is
the subject of the appeal is of such importance that it would benefit from
being resolved by the Supreme Court to establish a precedent;

(b)  whether an issue raised by the claim or dispute relates
to the constitution or the
Human Rights Code
;

(c)  the importance of the issue to the parties, or to a class
of persons of which one of the parties is a member;

(d)  the principle
of proportionality.

[14]

For leave to be granted under s. 56.5, two requirements must be
satisfied. First, the proposed appeal must engage a question of law. Second, it
must be in the interests of justice and fairness to grant leave. Section
56.5(5), reproduced above, provides a list of factors that may be considered
on the second branch of the test.

[15]

On May 4, 2018, the chambers judge granted Mr. Allard leave to
appeal from the Tribunals decision on the basis of four questions of lawtwo
relating to substantive issues and the other two relating to costs. The entered
order under appeal formulates the two substantive questions of law as follows:

i)

The
Tribunal acted without evidence or took an unreasonable view of the evidence
and thereby erred in law when, despite finding that the Strata was responsible
for repair and maintenance of the Solarium under the Strata Bylaws and despite
finding that the Owner was not bound by the conditions of the Solarium
installation, the Tribunal found:

a)

that the
Owner did not have a reasonable expectation that the Strata would include the
Solarium in the renewal project;

b)

the
Stratas decision to exclude replacement of the Solarium in the renewal project
does not amount to significant unfairness;

c)

on the
basis of the Laing report obtained after the renewal project was complete, that
the Strata acted reasonably with the assistance of professionals in determining
the Solarium should not be included in the renewal project.

ii)

The tribunal erred in law by misapplying the test set out in
Dollan
v. The Owners, Strata Plan BCS 1589
, 2012 BCCA 44 for a significantly
unfair action or decision of the Strata Corporation in finding that although
the Strata was responsible for the repair and maintenance of the Solarium under
the Strata Bylaws and that the Owner was not bound by the conditions agreed
with the previous owner for installation of the Solarium, the Owner did not
have a reasonable expectation that the Strata would include the Solarium in the
renewal project and the Stratas decision to exclude the Solarium from the
renewal project was not a significantly unfair action.

[16]

The reasons for judgment address the issue of whether it would be in the
interests of fairness and justice to grant leave to appeal. As to the first
substantive question, the judge said the following:

[66]

This is an issue that would be
beneficial to address by means of a Supreme Court precedent. It is a
significant one for Mr. Allard and there would be no disproportionality in
having it heard on appeal, in light of the significant value of the renewal
project and his contribution. Leave will be granted on this question.

[17]

The judge then went on to address the second substantive question:

[67]

The second substantive ground is closely
related. While the member stated the test for significant unfairness
accurately, it is again at least arguable that he misapplied it, by considering
Mr. Allards reasonable expectations only in light of his awareness of the
conditions of approval of the solarium for the original owner (even although it
was also found by the member that those conditions did not apply to him),
rather than as those expectations might have been modified by the bylaw that
was in effect at the time the renewal was initiated, which the member found
made the Strata responsible.

On Appeal

[18]

The strata alleges that the chambers judge erred in two respects:

(1)

by concluding that the appeal proposed by Mr. Allard engages a
question of law; and

(2)

by holding that granting
leave would be in the interests of justice and fairness.

[19]

Mr. Allard says that the judge did not so err. He submits, however,
that he will not pursue the questions relating to costs unless he is entitled
to appeal on the first two substantive issues identified by the judge.

A. Questions of Law

[20]

Section 56.5(1) of the
CRTA
only permits appeals from a question
of law. The character of a question of law, as opposed to a question of fact or
mixed fact and law, was explained by the Supreme Court of Canada in
Canada
(Director of Investigation & Research) v. Southam Inc.
, [1997] 1 S.C.R.
748 at para. 35:

Briefly stated, questions of law
are questions about what the correct legal test is; questions of fact are
questions about what actually took place between the parties; and questions of
mixed law and fact are questions about whether the facts satisfy the legal
tests.

The Court in that case went on to caution that the
distinction between law on the one hand and mixed law and fact on the other is
difficult.

[21]

I first observe that the alleged questions of law identified in the
order under appeal are quintessentially questions of mixed-fact-and-law. At the
very least, the order frames the pertinent legal questions from the standpoint
of a particular factual matrix. The definition of a question of mixed fact and
law invokes the application of the relevant legal standard to a particular set
of facts: see
Housen v. Nikolaisen
, 2002 SCC 33 at para. 26.

[22]

In addressing this first issue, the jurisprudence on appeals under the
Arbitration
Act
, R.S.B.C. 1996, c. 55the appeal mechanism which likewise requires
the identification of a question of lawprovides general guidance. Notably, in
Elk
Valley Coal Partnership v. Westshore Terminals Ltd.
, 2008 BCCA 154 at para. 17,
this Court reasoned that a court considering an application for leave to
appeal must be careful to grant leave only where questions of law can be clearly
perceived and delineated. This caution is clearly apposite in the present case.

[23]

Even assuming, and without deciding, that the questions  sought to be raised
by the respondent could be reframed as questions of law, I would nonetheless
find that it would not be in the interests of justice and fairness to grant
leave to appeal under s. 56.5. This is the issue to which I now turn.

B. The Interests of Justice and Fairness

[24]

Section 56.5(4) of the
CRTA
provides that the Supreme Court may
grant leave to appeal  if it determines that it is in the interests of justice
and fairness to do so. The judges determination of this question amounts to
an exercise of judicial discretion. While the standard of review for
discretionary decisions is a stringent one, an appellate court may legitimately
interfere with such a decision where the lower court gives no or insufficient
weight to relevant considerations:
Penner v. Niagara Regional Police
Services Board
, 2013 SCC 19 at para. 27.

[25]

In my respectful opinion, the judge erred by failing to advert to three
considerations that militate against the granting of leave in this case. First,
the questions raised by the respondent remain inextricably bound up with the
unique facts of the dispute. Second, although the matter is undoubtedly of
importance to Mr. Allard, it is of less importance to the strata corporation
and the other strata owners. Finally, the granting of leave in this case undermines
the Tribunals mandate to provide, among other things, accessible and speedy dispute
resolution.

1. Precedential Value

[26]

Given the concerns expressed above, it seems to me that the issues
raised by the respondent would not benefit from the establishment of Supreme
Court precedent. The two substantive questions articulated in the order are thoroughly
infected by the particular facts of the dispute at issue. Accordingly, I am
unable to see how an answer to either question, even if they could be reframed
as questions of law, could serve as a guide to strata disputes beyond those
party to the immediate proceedings.

2. Importance to the Parties

[27]

The proposed appeal is of significance to Mr. Allard personally. In
my view, however, the judge erred in principle in failing to consider its overall
significance to the strata corporation and the other strata owners.

[28]

When viewed from the vantage point of the total class of strata owners and
the renewal project at large, the importance of the questions to the parties is
significantly diminished. The class of owners includes the owners of the
buildings other 53 units. Only one solarium besides Mr. Allards was
excluded from the project (and that owner did not seek to challenge the
stratas decision). The renewal project cost over $4.5 million and was meant to
address the buildings original windows and doors. Given the scope of the
project and the inconsequentiality of the solaria issue to the majority of the
other owners, I cannot find that the proposed appeal would be of importance to
the parties taken as a whole or to the class of persons of which Mr. Allard
is a member.

[29]

That is not to say, however, that it will never be in the interests of
justice and fairness to hear an appeal that is of significance to only one of
the parties. But the overall significance of the dispute ought to be a
relevant, even if non-determinative, factor.

3. Proportionality

[30]

In
Hryniak v. Mauldin,
2014 SCC 7, the Supreme Court of Canada
addressed the importance of the proportionality principle as it pertains to
alternative forms of dispute resolution:

27        There is growing support for alternative
adjudication of disputes and a developing consensus that the traditional
balance struck by extensive pre-trial processes and the conventional trial no
longer reflects the modern reality and needs to be re-adjusted. A proper
balance requires simplified and proportionate procedures for adjudication, and
impacts the role of counsel and judges. This balance must recognize that a
process can be fair and just, without the expense and delay of a trial, and
that alternative models of adjudication are no less legitimate than the
conventional trial.

28        This requires a shift in culture. The principal
goal remains the same: a fair process that results in a just adjudication of
disputes. A fair and just process must permit a judge to find the facts
necessary to resolve the dispute and to apply the relevant legal principles to
the facts as found. However, that process is illusory unless it is also
accessible  proportionate, timely and affordable.
The proportionality
principle means that the best forum for resolving a dispute is not always that
with the most painstaking procedure
.

[Emphasis
added.]

[31]

The Court in
Hryniak
was directly concerned with the summary
judgment process. However, the proportionality principle for adjudicating disputes
is consistent with the mandate of the Civil Resolution Tribunal, as set forth
under s. 2(2) of the
CRTA
:

Civil Resolution Tribunal mandate and role

2


(2)     The
mandate of the tribunal is to provide dispute resolution services in relation
to matters that are within its authority, in a manner that

(a)  is
accessible, speedy, economical, informal and flexible,

(b)  applies
principles of law and fairness, and recognizes any relationships between
parties to a dispute that will likely continue after the tribunal proceeding is
concluded,

(c)  uses
electronic communication tools to facilitate resolution of disputes brought to
the tribunal, and

(d)  accommodates, so far as the
tribunal considers reasonably practicable, the diversity of circumstances of
the persons using the services of the tribunal.

[32]

The
Civil Resolution Tribunal Rules
expand upon this mandate. In
particular, Rule 2 provides that the Tribunal must apply its rules in a way
that

a)

takes
reasonable steps to recognize and address the needs of tribunal participants,

b)

is
appropriate in the circumstances of each dispute, including consideration of
fairness and proportionality,

c)

recognizes
any relationships between parties to a dispute that will likely continue after
the tribunal proceeding is concluded,

d)

facilitates
speedy, accessible, inexpensive, informal and flexible processes,

e)

encourages
early and collaborative dispute resolution,

f)

makes
reasonable accommodations for the diverse circumstances of persons using the
tribunal,

g)

recognizes
the value of certainty and finality in the resolution of disputes and
compliance with outcomes, and

h)

promotes understanding of the dispute resolution processes for the
tribunals participants and for the public in general.

[33]

That the Tribunal enjoys a significant degree of procedural flexibility
further accords with the proportionality principle. Pursuant to s. 42 of
the
CRTA
, for example,

the Tribunal is not bound by the rules of
evidence, but may receive, and accept as evidence, information that it
considers relevant, necessary and appropriate, whether or not the information
would be admissible in a court of law.

[34]

The general purpose of the Tribunal was recently summarized by the
Supreme Court of British Columbia in
The Owners, Strata Plan BCS 1721 v.
Watson
, 2018 BCSC 164:

[49]      The
purpose of the CRT is to provide an accessible, flexible and speedy dispute
resolution process to parties involved in strata claims falling within s. 3.6(1)
of the
CRTA
. The CRTs online processes and emphasis on facilitated
dispute resolution are intended to provide the parties with a quick and less
expensive form of decision making than adjudication in the Supreme Court.

[35]

In my view, the chambers judge failed to appreciate the proportionality
principle in light of this purpose. The issues raised by Mr. Allard, as
discussed above, are primarily driven by the particular facts of the dispute. They
are of limited significance to the parties when taken as a whole. An appeal in
the Supreme Court, while affording a more painstaking procedure, would unduly
lengthen resolution of the dispute and thereby negate the many benefits of the Tribunal
proceedings. Given the Tribunals express mandate to provide accessible,
speedy, economical, informal and flexible dispute resolution, the
aforementioned considerations militate strongly against the granting of leave
in this case.

Conclusion

[36]

The chambers judge, in granting Mr. Allards leave application,
failed to consider the limited precedential value of the proposed appeal, the
relative lack of significance to the parties and the Civil Resolution Tribunals
special mandate as it pertains to the proportionality principle. On that basis,
I would find the judge erred in principle in holding that it would be in the
interests of justice and fairness to grant leave to appeal under s. 56.5
of the
CRTA
.

[37]

As indicated at paragraph 19 of these reasons, Mr. Allard does not
seek to proceed with the costs issues decided in the Supreme Court if he cannot
proceed with his appeal. In light of that position, I would allow the appeal
and set aside the Supreme Court order in its entirety.

The Honourable Madam
Justice Kirkpatrick

I AGREE:

The Honourable Mr. Justice Fitch

I AGREE:

The Honourable Mr. Justice Hunter


