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Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

OWNERS STRATA PLAN LMS 2769 v. JORDINSON, 2013 BCCA 484

1. CASE SUMMARY

Areas Of Law: Property Law; Strata Units; Duty of Unit Holders to Comply with Legislation and Strata Rules and By-laws; Power of Court to Order Sale of Unit Where Unit Holder Failing to Adhere to Injunctive Order Requiring Compliance

 Court having power to order sale of strata unit where strata owner/tenant failing to comply with prior court order requiring tenant to desist from abusive conduct and to comply with rule and by-laws of strata corporation ~

Background: The appellants were residents of a condominium complex owned by the respondent. Over the years they behaved outrageously towards other residents in the complex. The behaviour included obscene language and gestures, interfering with the activities of others, unacceptably loud and unnecessary noise, and spitting at other residents. The chambers judge found that the appellants’ conduct constituted a nuisance and was sufficiently abusive as to amount to an “assault” on the other residents. He issued an order compelling the sale of the appellant’s unit and an injunction restraining their abusive conduct pending sale. The order of sale was made under s. 173(3) of the Strata Property Act, S.B.C. 1998 (the “Act”), which gives a court the power to make any order it considers appropriate to give effect to orders made under s. 173(a) and (b) (orders that a resident comply with, or cease contravening, the Act, by-laws or rules of the strata corporation). The appellants appealed the order. Hall J.A. sustained the injunction but set aside the order of sale. The appellants continued to act outrageously and the respondent applied for a declaration that the appellants were in contempt of the injunction and an order for the sale of the property. The application was allowed and the appellants appealed. They argued that the judge erred in finding that s. 173(c) provided the jurisdiction to make an order for vacant possession and sale in the absence of clear legislative language permitting such an interference with the appellants’ property rights. In this regard, the appellants argued that the Act provides remedies for default which do not include an order of sale, such as the filing of a certificate of lien or the imposition of a fine. The respondent argued that the general words of s. 173(c) should be given a remedial construction enabling a court to order a sale to bring an end to disruptive and uncivil behaviour when all else fails.

Appellate decision: Appeal dismissed. An order under s. 173(c) must not be freestanding, but rather should be tied to an order under s. 173(a) or (b), that is a mandatory injunction or a simple injunction. Where an injunction is ignored, as it was in the present case, it follows that the court can take the next step and enforce compliance with the injunction. If the objects of the injunction, having regard to the subject matter of s. 173(a) and (b) cannot be realized other than by a forced sale, then a court must be empowered by subsection (c) to take this final step. Otherwise, the enforcement process would be stymied. A large and liberal interpretation of section 173(c) should empower the court to provide an effective remedy. The competing private property interest which supports a strict interpretation must yield to the rights and duties of the collective as embodied in the bylaws and enforceable by court order. The old adage “a man’s home is his castle” must be subordinated to the exigencies of modern living in a condominium setting.

2. COMMENT BY THE COUNSEL FOR THE RESPONDENT, OWNERS STRATA PLAN LMS 2769, Phil Dougan:

The Court of Appeal has now finalized the interpretation of s.173 of the Strata Property Act. If you have been following the Jordison case, you will know the issue was ‘What can a strata do to enforce its bylaws against an owner who will not obey the rules when every form of enforcement has failed?’

Beginning in 2006, the Jordisons were a problem in their Strata: harassing people, creating a nuisance, spitting, calling names, throwing water at people, banging on walls and floors. The Strata had sent warning letters, had meetings, fined the Jordisons (about $30,000) and threatened law suits.

Mr. Justice Blair gave judgment in January 2012 based on Ontario case law that allows a condo corp. there to seek an order removing an owner from their own home if they cannot obey the rules.

The Court of Appeal in July 2012 overturned that order considering the Ontario Act – the Condominium Act, sufficiently different in wording and scope as to be inapplicable here in B.C. The Court of Appeal did, however, uphold the injunction included in Mr. Justice Blair’s order requiring the Jordisons to obey the bylaws, the Act and the rules, and to keep the peace. This turned out to be key. Despite admonishment from the Appeal Court to stop causing problems, the Jordisons ignored the Court’s order.

Such a disobedience would ordinarily call for a contempt hearing; and, indeed, Mr. Justice Hall, who wrote the judgment for the Appeal division, suggested as much. Contempt is about a disobedient litigant and the Court. It is not considered a remedy to assist an aggrieved party. After several months of the injunction being ignored by the Jordisons, the Strata returned before Mr. Justice Blair seeking enforcement of the injunction.

The Strata presented the option of contempt to Mr. Justice Blair and evidence of the Jordisons’ disobedience to the order. However, whilst arguing contempt, the Strata submitted that fines or imprisonment would not assist the Strata with the problem it faced. The Strata argued that the Jordisons had to be completely removed from the Strata community to avoid further problems.

On the evidence, Mr. Justice Blair found the Jordisons in contempt but ordered remedies related to s. 173. In that section, the Court may impose mandatory or simple injunctions to require owners to keep the law and to stop specific impugned behaviour. Section 173 (c) provides the Court jurisdiction to provide ‘any other orders it considers necessary to give effect to an order’. Under this jurisdiction, Mr. Justice Blair considered the right to impose a sale of their unit upon the Jordisons an appropriate and necessary order.

The Jordison’s appeal revolved totally around that point: does the Court have jurisdiction under s. 173 (c) to order the forced sale of a strata unit? The Jordisons argued that without specific empowerment in the statute that clearly gives the Court the right to interfere with property rights, the Courts should not disenfranchise homeowners.

The legal maxim of “a person’s home is their castle” was cited to the Court of Appeal as a long-standing principle that the common-law has upheld.

The Strata, however, argued that stratas are not castles, and as a condition precedent to ownership in a strata, a prospective buyer must agree to obtain property rights subservient to the legal construct created by the Strata Property Act and the bylaws of each building. The Strata argued that without such a condition, owners could ultimately ignore the law for stratas and do so with impunity. The Court of Appeal agreed. The Court said:

A large and liberal interpretation of Section 173 (c) should empower the Court to provide an effective remedy. The competing private property interests, which supports strict interpretation, must, in my opinion, yield to the rights and duties of the collective as embodied in the bylaws and enforceable by court order. The old adage “A man’s home is his castle,” is subordinated by the exigencies of modern living in a condominium setting. [25]

This is a tremendous precedent for Strata law. It now allows councils and owners a strong tool to deal with belligerent owners who, for whatever reasons, cannot live within the otherwise generous and not-at-all onerous confines of a strata’s bylaws.

With patience, evidence, and an injunction, the days of the strata bully are numbered!

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