IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
McKnight v. Bourque, |
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2018 BCSC 1342 |
Date: 20180810
Docket: S172587
Registry: Victoria
Between:
Wendy McKnight and
The Owners, Strata Plan VIS 2963
Petitioners
And
Joseph (Wayne)
Bourque, Anne Lloyd,
and the Civil Resolution Tribunal
Respondents
Corrected
Reasons: The text of this judgment was corrected at
paragraphs 5, 108, and 140 where changes were made on August 16, 2018.
Before: The Honourable Madam Justice DeWitt-Van Oosten
Reasons for Judgment
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Counsel for the Petitioners: |
Andrew J. Broadley |
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Counsel for the Respondents Joseph Bourque and Anne Lloyd: |
Justin Hanson |
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Counsel for the Respondent Civil Resolution Tribunal: |
Tyna A. Mason |
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Place and Date of Hearing: |
Victoria, B.C. June 26, 2018 |
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Place and Date of Judgment: |
Victoria, B.C. August 10, 2018 |
[1] This is an appeal from a decision rendered by the Civil Resolution Tribunal (CRT) on a strata dispute involving the owners of a waterfront duplex in Sooke.
[2] Since 2010, the duplex owners have disagreed on maintenance and repair issues, including the nature and extent of repairs necessary to address the dilapidation of a seawall that spans both strata lots. In 2016, the respondent owners, Joseph Bourque and Anne Lloyd, brought the disagreement to the CRT for resolution.
[3] Mr. Bourque and Ms. Lloyd asked the CRT to compel an inspection of the petitioner, Wendy McKnight's, strata lot; impose bylaw revisions for the strata corporation that establish maintenance standards and a dispute resolution process; and direct stabilization of the seawall. They also sought an order for the removal of weeds, debris and personal belongings from Ms. McKnight's lot, and a directive mandating regular maintenance of grass, trees and bushes on her side of the property.
[4] Ms. McKnight filed a response to the dispute. The parties proceeded through the CRT's resolution process, engaging in negotiation, facilitated mediation and, finally, adjudication by a single-member tribunal.
[5] On June 6, 2017, the CRT issued a final decision resolving the claims (the Decision).
[6] Among other things, the tribunal ordered that the strata corporation arrange for annual inspections of each lot by a professional inspector. Within 30 days of receiving the inspector's reports, the strata was to retain a contractor to implement the inspector's recommendations. Ms. McKnight was to be consulted; however, her agreement on implementation was not required before the work could be performed. The CRT gave Mr. Bourque final authority to manage this issue on behalf of the strata.
[7] The CRT also ordered that further disputes between the strata owners may be referred for resolution to the Condominium Home Owner's Association of BC (CHOA). Initially, the CRT directed that any decision made by CHOA, once the Association was engaged, would be "binding".
[8] On June 8, 2017, the CRT amended the Decision of its own accord: Bourque et al v. McKnight et al, 2017 BCCRT 26 (the Amended Decision). The amendment was said to be necessary to clarify the intention surrounding the involvement of CHOA as a mechanism for dispute resolution. In the Amended Decision, the tribunal removed the binding nature of any opinions provided by CHOA. The other orders flowing from the Decision remained intact.
[9] In July 2017, the petitioner McKnight filed an appeal of the CRT's Amended Decision.
[10] On December 11, 2017, the petitioner was granted leave under the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25 [CRTA], to advance five grounds of appeal. The reasons for granting leave are reported at McKnight v. Bourque, 2017 BCSC 2280.
[11] The petitioner asks that the whole of the CRT's Amended Decision be set aside.
[12] The respondent owners argue that if parts of the Amended Decision are found to warrant judicial intervention, the directly impacted orders should be varied or severed, but the remainder of the Amended Decision and its related orders should remain in place. From their perspective, to send this matter back to the CRT for reconsideration, in whole or in part, would only further delay an already prolonged and expensive attempt to resolve longstanding issues for which there is no realistic possibility of cooperation from Ms. McKnight.
[13] On the Appeal Record, I am satisfied that the CRT rendered an unreasonable decision on a question of law that warrants judicial intervention under s. 56.5(6) of the CRTA.
[14] However, I do not consider it necessary to set aside the entirety of the Amended Decision and its related orders, or refer the matter back to the CRT for reconsideration.
[15] In my view, it is in the interests of justice that I vary the directly affected orders and leave the remainder in effect. Once done, the result of the CRT's adjudication falls within a range of possible, acceptable outcomes that are defensible in respect of the facts, as found by the CRT, as well as the law: Dunsmuir v. New Brunswick, 2008 SCC 9.
[16] The issues on appeal are appropriately stated as whether the CRT:
a) accepted expert opinion evidence contrary to the CRT's rules of procedure;
b) applied an erroneous legal test in determining that the petitioner McKnight's conduct on her strata lot constitutes a "nuisance" within the meaning of the strata's bylaws;
c) was without authority to order that a home inspector make binding recommendations for implementation on maintenance and repair issues;
d) was functus officio at the time the Decision was amended and re-issued; and,
e) if so, whether the Decision erroneously sub-delegated a binding dispute resolution power to CHOA.
[17] The CRT is participating in the appeal. Consistent with the principles enunciated in 18320 Holdings Inc. v. Thibeau, 2014 BCCA 494, the tribunal has restricted its submissions to the nature of appeals brought under the CRTA; standards of review; the doctrine of functus officio within the administrative law context; and the rules governing costs in administrative proceedings.
[18] This appeal involves questions of law, including alleged jurisdictional error, and procedural fairness.
[19] The petitioner was denied leave to challenge the factual findings made by the tribunal. See, for example, paras. 65–67 of 2017 BCSC 2280, in which Masuhara J. denied leave to argue that the factual foundation did not justify an order for mandatory annual inspections.
[20] For the purposes of the appeal, it is therefore sufficient to recite the background to the dispute as laid out by the tribunal in its Amended Decision, at paras. 12–59.
[21] I will include only as much of the background as I consider necessary to provide an explanatory context for the issues raised by the petitioner. In the recitation, the "applicants" are the respondents to the appeal, Joseph Bourque and Anne Lloyd. The "respondent owner" is the petitioner, Wendy McKnight:
BACKGROUND AND EVIDENCE
12) The duplex is a one-storey oceanfront building. The applicants bought Lot B in 1994, shortly after the strata plan was filed in 1993. In 2008, the respondent owner became the 4th owner of Lot A.
13) To date, the strata has operated informally without complying with the SPA [Strata Property Act, S.B.C. 1998, c. 43] and the applicable bylaws. In particular, there have been no regular strata council meetings, no regular annual general meetings, no strata fees collected, no contingency reserve fund, and no strata bank account …
14) The strata plan shows Lot B is to the north of Lot A, with waterfront yards to the west, side yards at the outer north and south boundary edges, and front or street-facing yards to the east. The parties agree that these "private yards" on the strata plan form part of the respective strata lots, as identified on the strata plan. There is an oceanfront seawall that runs the length of the entire strata property. Apart from certain parts of the duplex building itself, the only common property is a paved driveway to the building from the street to the east, which serves to divide the two strata lots, along with an area at the top of the driveway in front of both strata lots …
15) The strata has never adopted bylaws that replace or amend the Schedule of Standard Bylaws under the SPA. Thus, the Schedule of Standard Bylaws (bylaws) applies …
16) There is nothing in the bylaws that specifically addresses how alleged unsightly conditions may be determined and whether or at what point they cause a nuisance or an interference with the use and enjoyment of property …
19) The seawall was in place when the applicants first bought Lot B in 1994. The original seawall was made of interlocking large concrete blocks, two rows high for a total height of 1.5 metres. The seawall runs north to south along the harbor edge, across the entire lengths of both Lot A and B. In 2010, some repairs were done to the seawall with more extensive repairs being done on the Lot B side. At issue now is whether the Lot A side of the seawall has since then sustained significant further erosion and if it should be repaired to the same extent as the Lot B side …
Inspection and unsightly conditions
34) In 2015, the applicants' realtor told them that potential purchasers of Lot B may require an inspection of Lot A, of anything falling under the strata's obligation to repair, maintain, or insure. The applicants in particular want an inspection because they are concerned there may be mould and hoarding inside the Lot A residence. While bylaw 7 permits the strata to do the inspection, the respondent owner has refused and in her council member role blocked the strata from acting. In addition, the realtor described various "unsightly" conditions on the Lot A yard and on the common property that put off potential buyers. Those conditions have in part caused the applicants' suspicion of hoarding in Lot A, along with "significant piles of clutter" the applicants saw inside the Lot A residence when they spoke with the respondent owner at her door …
51) The applicants say the neighbours take pride in their properties and take considerable effort to maintain them. Photos of several neighbouring properties show groomed yards and well-kept homes. The applicants say that the respondent owner's unsightly conditions are a breach of the "social code" of the neighbourhood, noting that prior owners of Lot A had properly maintained the property.
52) The applicants say they have repeatedly asked the respondent owner to stop parking on the common property driveway, because the noise of the car disrupts their sleep as their bedroom window is close by. The respondent owner has not disputed that despite this request she continued to park there.
53) Since March 2015, the applicants say they have demanded a professional inspection of Lot A, including through legal counsel. At the same time, the respondent owner was advised of the moisture concerns and general state of disrepair. The respondent owner refused to cooperate in March and May 2015. Similar repeated efforts were made by the applicants to address the issues, at times through legal counsel, through 2015 and 2016, and for the most part the respondent owner did not respond at all, although at least one letter was sent through a legal representative that did not propose any particular resolution or offer any agreement.
54) On May 3, 2015 the applicants obtained a market analysis from a realtor. There is no contrary realtor opinion before me. The applicants' realtor wrote that the sale of Lot B was hampered by the lack of maintenance on Lot A. In particular, the realtor identified the "overgrown gardens, debris build-up, moss on the roof, and overgrown weeds" on Lot A would be "hard to ignore for any potential buyer" coming to look at the Lot B property. The realtor wrote that these matters would greatly affect the buyers even wanting to put in an offer. During the summer of 2015 when Lot B was listed for sale, the applicants say there were only 4 showings and 3 "drive-bys" from potential purchasers. The realtor further advised she had spoken with the potential buyers' realtors who advised that the buyers were "put off" by the condition of Lot A as being "very unkempt" with a lack of roof maintenance, 'garbage and refuse … all over the lawn" and that no buyer would want "to move next to that". The realtor stated that the 3 drive-bys did not make appointments to view the inside of Lot B because they were not prepared to live next to someone who had no pride of ownership. The realtor stated she believed the state of Lot A was a contributing factor as to why Lot B did not sell during its listing. Because Lot B could not be sold due to these issues, the applicant Mr. Bourque assumed half ownership from his brother who needed to move away. Land Title Office documents indicate the property value for Lot B was around $285,000.
Revised bylaws and dispute resolution mechanism
55) The history of the specific issues is summarized above, as is the impact of the "duplex deadlock" and the strata's inability to enforce any bylaws or take any action without unanimous agreement between the two council members.
56) In around October 2015, the applicants asked legal counsel to draft revised bylaws that would permit the strata to exercise its duties under the SPA. Generally, the proposed bylaws are more specific in maintenance standards and allow for the objecting owner to remedy the situation, at the offending owner's expense, if the offending owner does not do so themselves.
57) In late 2015, the applicants were unsuccessful in having the bylaws considered or approved at a special general meeting they called, at which the respondent owner ultimately sent a proxy. The applicants shortly thereafter decided to pursue dispute resolution with the tribunal.
58) The respondent owner objects to the proposed new bylaws, saying that effectively such new bylaws could unfairly give the applicants unilateral power. In turn, the applicants say that their several claims have only come to the tribunal because the respondent owner has to date acted unilaterally, in that she has exercised a veto power preventing the strata from acting to enforce the existing bylaws.
59) The applicants say "falling short of asking the courts to appoint an administrator" or applying to the tribunal each time there is a dispute, they ask that I order that the bylaws be amended, possibly through mediation between the respondent and the applicants. In addition to objecting to any revision that gives the applicants any ability to act without her agreement, the respondent says mediation is unlikely to assist, although elsewhere she says the strata is not permanently deadlocked.
[22] The CRT made a number of factual findings. These include the ones listed below, taken from the Amended Decision:
· since 2010, the respondent owners have "spent thousands of dollars in professional and legal assistance in numerous unsuccessful attempts to resolve" their disputes with the petitioner;
· the petitioner McKnight has refused to permit the strata to act in respect of these disputes on grounds that she did not agree with the respondent owners' requests;
· the respondent owners' requests "reflected a reasonable and fair reading" of the bylaws;
· they have "acted more than reasonably in their communications" with the petitioner;
· the "waterfront yards" of each party are "part of the respective strata lots" and the seawall "sits on the strata lots' side of the high water mark, spanning both [lots]". The seawall constitutes a "yard enclosure";
· "significant erosion" has occurred on the petitioner's lot since the seawall was last repaired in 2010;
· the petitioner's portion of the seawall has "significantly eroded both on the water side underneath the concrete blocks and on the yard side with a large void between the yard and the seawall";
· it requires repair "in the same manner as was done on the [respondent owners'] side in 2010";
· Scotch broom on the petitioner's lot "impedes the [respondents'] ocean view". It is invasive in nature, "may well have aggravated" erosion around the seawall and should be removed and controlled;
· between 2010 and December 2016, the petitioner's lot was "unsightly". There was "a significant clutter of a wide variety of disorganized items collected in and around [the petitioner's lot], particularly in the area immediately adjacent to the residence entrance and near or on the common property driveway, but also in the yard facing the street and some unused fencing left lying on the waterfront yard";
· in January 2017, the petitioner did a "significant clean-up of her yard", but in March 2017, she "allowed the clutter to somewhat build up in her yard again";
· as at the date of the CRT hearing, "there remain some items that amount to clutter that at least appear to be a nuisance or unreasonably interferes with the [respondent owners'] use and enjoyment of their strata lot";
· the petitioner "wants the strata to remain unable to act without her agreement, even where she may be in violation of the bylaws";
· the petitioner has not "demonstrated a strong interest in the upkeep of her home";
· the current situation, "which effectively gives the [petitioner] a veto power before the strata can take any action, is untenable and the lengthy history of the disputes [between the parties] culminating in [the CRT hearing] is clearly evidence of that conclusion"; and,
· the petitioner "cannot be relied upon to properly maintain "sightly conditions".
[23] In light of these findings, as well as others, the CRT issued various orders applicable to both strata lots, delineated at paras. 120–123 of the Amended Decision.
[24] These include (but are not limited to) an order that the seawall on the petitioner's lot be repaired in substantially the same way as done to the respondent owners' side in 2010, with the petitioner bearing the entirety of the expense.
[25] The CRT also ordered that the strata arrange for annual inspections of each lot and yard, with the first inspection completed by July 31, 2017. Inspection reports must be shared between owners and, within 30 days of receipt, the strata is to retain a qualified contractor to implement the recommended "remedies". If the owners cannot agree on the work, one of the respondents, Mr. Bourque, has final authority on behalf of the strata to hire a contractor and set the date for work to be done.
[26] The strata owners were ordered to "maintain their respective yards free of excessive clutter and garden overgrowth": Amended Decision at para. 121(i).
[27] The CRT also directed that the strata become a member of CHOA for the purposes of possible dispute resolution. Moreover, "If the parties agree, the parties should follow CHOA's opinion if one is provided, which should address any associated costs": Amended Decision at para. 122(c).
[28] The appeal is brought under s. 56.5(1) of the CRTA:
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 …
[29] All parties (including the CRT) agree that the standard of review on questions of law "arising out of [a CRT] decision" is reasonableness, as set out by Pearlman J. in The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164:
Conclusion on Standard of Review
[54] In this case, where the CRT interpreted and applied its own statute and the SPA, a statute closely connected to its function, the presumptive standard of review is reasonableness. Weighing all of the relevant factors, I find that on balance, the contextual analysis does not indicate that the legislature intended the standard of review to be correctness. While the jurisdiction of the CRT is not protected by a strong privative clause, the tribunal's purpose, its specialized jurisdiction for the economical resolution of strata property claims and the particular questions at issue on this appeal all weigh in favour of the reasonableness standard of review.
Application of the Reasonableness Standard
[55] In Dunsmuir, the Court explained the reasonableness standard at para. 47:
47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[56] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 15, Justice Abella wrote:
15 In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
[57] If the reasons of the tribunal allow the reviewing court to understand why the tribunal made its decision and permit the court to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met: Newfoundland and Labrador Nurses' Union at para. 16.
[58] The standard of reasonableness does not require perfection. Not every flaw in a tribunal's reasoning will attract judicial intervention. As the Court observed in Kenyon v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 485 at para. 55:
55 . . . The fact that the adjudicator's reasoning is flawed in one respect does not necessarily lead to the conclusion that the reasoning as a whole is unreasonable. It is necessary to consider the reasons as a whole and determine whether the flaw is central to the conclusion.
[30] In light of the positions taken, and the Watson analysis, I accept that the standard of review applicable to the questions of law in this case is reasonableness.
[31] As noted in Dunsmuir at para. 57, an "exhaustive review is not required in every case to determine the proper standard of review". Justice Pearlman has performed a contextual analysis and I do not consider it necessary, within the circumstances of this case, to repeat the enquiry.
[32] I note that four of the five grounds of appeal on which leave was granted involve the CRT's interpretation of its enabling statute or the closely connected Strata Property Act, S.B.C. 1998, c. 43 [SPA]; the application of common law principles within the confines of a specialized area, strata dispute resolution; or, a combination of the two. On my reading of Dunsmuir at para. 54, the analysis conducted on these types of issues appropriately attracts deference from the reviewing court.
[33] There are no pure questions of jurisdiction before me; rather, the "jurisdictional" issues that arise on the appeal focus on the CRT's authority to issue a particular order while acting within its jurisdiction, or its authority to act in a particular way during the course of an adjudication. No one argues that the tribunal that issued the Amended Decision did not have the vires to hear and decide the strata dispute: Dunsmuir at para. 59.
[34] Finally, the appeal does not raise questions of "general law" that fall outside the CRT's specialized area of expertise and are central to the legal system as a whole: Dunsmuir at para. 60, referencing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 62.
[35] A fifth ground of appeal, the admissibility of evidence provided by a realtor, raises a question of procedural fairness. The petitioner says the standard of review on this issue is correctness: Mission Institution v. Khela, 2014 SCC 24 at para. 79.
[36] The respondent owners do not address the standard in their written submissions. The CRT describes the standard of review as one of "fairness". Relying on Seaspan Ferries Corporation v. British Columbia Ferry Services Inc., 2013 BCCA 55 at para. 52, the CRT argues in its written submissions that in applying a "fairness" standard the:
reviewing court does not owe any deference to a decision maker's own assessment that its procedures were fair; however, where the Court concludes that the procedures in question met the requisite level of procedural fairness owed, it will not interfere with the decision maker's choice of procedure.
[37] Consistent with the approach taken in Bradshaw v. Workers' Compensation Board, 2017 BCSC 1092 at para. 122, I am of the view that the standards of correctness and fairness are functionally the same. In this regard, I note the comments of Fitch J.A. in The Cambie Malone's Corporation v. British Columbia (Liquor Control and Licensing Branch), 2016 BCCA 165, wherein he noted at para. 14 that:
… On the issue of procedural fairness, the standard of review is, indeed, correctness (Mission Institution v. Khela, 2014 SCC 24 at para. 79), a standard that has also been described simply as "fairness": Silverfox v. Chief Coroner, 2013 YKCA 11 at para. 33-38; Seaspan Ferries Corporation v. British Columbia Ferry Services Inc., 2013 BCCA 55 at paras. 49 and 52 … [Emphasis added.]
[38] In light of Khela, Bradshaw and Cambie Malone's, all of which post-date Seaspan Ferries, I will apply a standard of correctness to the procedural fairness issue.
[39] As noted, the petitioner McKnight was granted leave to advance five grounds of appeal. I will address each ground in turn, summarizing the positions of the parties as part of the discussion.
[40] Section 42 of the CRTA governs the admissibility of evidence at tribunal hearings:
Evidence in tribunal hearing
42(1) In conducting a hearing, the tribunal may do any or all of the following:
(a) 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;
(b) ask questions of the parties and witnesses;
(c) inform itself in any other way it considers appropriate.
(2) The tribunal is not bound by the rules of evidence, but may not admit evidence that is inadmissible in a court because of a privilege under the law of evidence or otherwise …
(4) Nothing in this section overrides the provisions of this or any other Act that expressly limit the extent to which or purposes for which any oral testimony, information, records or things may be admitted or used in evidence.
[41] Under s. 62(1) of the CRTA, the tribunal is empowered to "make rules respecting practice and procedure in tribunal proceedings to facilitate the resolution of disputes before it in accordance with its mandate".
[42] Acting on this authority, the CRT has established a set of rules. This includes rules on the acceptance of expert opinion evidence. At the time of the adjudication in this case, Rule 110 of the Civil Resolution Tribunal Rules (the Rules) was in effect:
Expert Evidence
110) Expert opinion evidence will only be accepted from a person the tribunal decides is qualified by education, training, or experience to give that opinion …
[43] Under the current version of the Rules, expert opinion evidence is governed by Rule 113, using the same language.
[44] The petitioner argues that the CRT failed to comply with Rule 110 in accepting an April 2016 letter produced by a realtor, Stacey Scharf, who acted as a realtor for the respondent owners in 2015.
[45] In the letter, Ms. Scharf commented on the impact that the condition of the petitioner's lot had on the ability of the respondents to sell their property in 2015. The CRT relied upon this letter to conclude, inter alia, that the manner in which the petitioner maintained her lot contravened Standard Bylaw 3(1) under the Schedule of Standard Bylaws found in the SPA.
[46] The petitioner says the:
… letter provides no statement of [the realtor's] qualifications and offers opinions of potential buyer's perceptions, including [the realtor's] belief that the appearance of the Appellant's [strata] lot was a contributing factor as to why no sale took place …
The CRT member did not consider [the realtor's] qualifications before accepting her evidence and provided no finding of her independence in giving an expert opinion. None of the safeguards the CRT itself found fit to implement in its rules were observed and the CRT member failed to act in a gate keeper role to preserve procedural fairness. This non-compliance has directly resulted in prejudice to the Appellant …
[47] In response to this ground of appeal, the respondent owners point out that the petitioner was represented by legal counsel at the CRT and raised no objection to the admissibility of the letter. Ms. McKnight does not dispute this assertion.
[48] Moreover, the respondent owners query whether the letter is appropriately characterized as expert opinion evidence. From their perspective, the information contained in the letter consists predominantly of lay opinion. If they are correct, Rule 110 has no application.
[49] In its written submissions, the CRT does not address the admissibility of the realtor's letter or the construction of Rule 110.
[50] A copy of the impugned letter is contained in the Appeal Record:
My name is Stacey Scharf and I am a Realtor with Pemberton Holmes Ltd. In July of 2015 I listed a property located at 1968B Glenidle Rd in Sooke, BC on MLS to try and sell for the owner. The owner of the property is Anne Lloyd. Prior to listing the property, I went to the property and took photos of both the exterior and interior of the property. I have included those to show the shape of the property when this was done.
During the time of the listing, there were 4 showings and an additional 3 drive-bys from potential purchasers. After the showings, I contacted the Realtors who had shown the property asking for feedback. During each conversation it was discovered that the realtors as well as the potential purchasers were extremely reluctant and put off by the condition of the exterior of the neighbour's property. The lawn was not maintained, garbage and refuse was all over the lawn, her roof had no maintenance done to it which had led to excessive moss growing on it. The overall perception of the neighbours lawn and home was that it was very unkempt and in a state of disrepair and potential purchasers would not want to move next to "that".
Due to the comments that I received, I went to the property to investigate myself and took photos of the condition of the neighbour's yard. I have included them as evidence to show what a potential purchaser would view as a "first impression" of the neighbour's property and surrounding area.
I believe that this was a contributing factor as to why the home did not sell during the time it was listed.
The 3 individuals who did the drive-bys did not make appointments to view the inside of the home because they were not prepared to live next to someone who had no pride of ownership in their home. [Emphasis added.]
[51] It is the underlined sentence of Ms. Scharf's letter with which the petitioner takes greatest issue, arguing it was not properly before the tribunal.
[52] Expert opinion evidence is evidence that provides information likely to be outside the experience and knowledge of the fact finder: R. v. Mohan, [1994] 2 S.C.R. 9. This form of evidence is presumptively inadmissible at common law, but if the criteria for admissibility are established, the opinion is admitted to assist the trier of fact with issues of a unique or technical nature that call for specialized knowledge — matters that are not understood by the average person: Mohan at pp. 23–24. See also R. v. Bingley, 2017 SCC 12; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
[53] Lay opinion evidence, on the other hand, consists of an impression formed or inference drawn by a witness in a non-specialized area, based on personal observations or information gathered by that individual. The impression or inference is conveyed to the fact finder in the form of an opinion: Graat v. The Queen, [1982] 2 S.C.R. 819 at p. 837. The opinion sometimes takes into account the witness's practical experience.
[54] A classic example of lay opinion evidence is a police officer who expresses an opinion on someone's level of impairment by alcohol based on observable symptoms of intoxication, and the officer's experience. Other examples might include an estimate of age based on appearance; an inference drawn about an emotional state relying on facial expressions or body language; the physical condition of tangible items (for instance, that they appeared worn, shabby or used); or, estimates of speed and distance: Introducing Evidence at Trial: A British Columbia Handbook, 3rd ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2016) at p. 274.
[55] The list is not exhaustive.
[56] In my view, the evidence from Ms. Scharf more closely resembles lay opinion than expert opinion. She conveyed an inference or conclusion drawn about the contributing impact of the petitioner's lot on the inability to sell the respondent owners' home, based on conversations she had with the representatives of potential buyers who viewed the lot, as well as her own observations of the petitioner's side of the duplex.
[57] Ms. Scharf's opinion may well have been informed by her experience as a realtor, but this was not an opinion that required specialized expertise. Instead, I am satisfied that any lay witness could have reached this same conclusion by applying deductive reasoning to the underlying facts, as known to them. In this sense, the evidence fits well with the criteria for the admissibility of lay opinion evidence as described in Expert Evidence in British Columbia Civil Proceedings, 4th ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2015) at §1.14:
(1) an inference or conclusion drawn by a witness who personally observed the facts from which the inference is drawn, and
(2) the inference or opinion is one that an ordinary lay witness is capable of drawing, being based on a matter of common knowledge and experience.
Cited in Ganges Kangro Properties Ltd. v. Shepard, 2015 BCCA 522 at para. 75.
[58] Potential buyers who viewed the respondent owners' lot in 2015 did not make an offer to purchase and conveyed to Ms. Scharf, through their representatives, that they were "put off by the condition of the exterior of the neighbour's property". Ms. Scharf then made her own observations of the property that provided visual confirmation for those assertions. I see nothing wrong with this evidence being before the CRT without the necessity of applying Rule 110. How much weight was assigned to it was a matter up to the discretion of the tribunal.
[59] In my view, this evidence is qualitatively different from the expert opinion evidence that was tendered in Zhang v. Davies, 2018 BCCA 99, for example, where real estate appraisers were qualified as expert witnesses to address "real estate values" and quantify the actual loss or decline in market value of a property based on the adverse effects of a neighbouring lot's construction.
[60] I do not consider the April 2016 letter to meet the criteria for expert opinion evidence. As such, Rule 110 of the CRT's Rules was not engaged in the circumstances of this case.
[61] This is the only procedural fairness complaint that the petitioner makes as a basis for judicial intervention. I would not give effect to this ground of appeal.
[62] The strata corporation did not adopt bylaws that replace or amend the Standard Bylaws found in the SPA. As such, the parties agree that the Standard Bylaws were operable at the time of the dispute. Section 120(1) of the SPA stipulates, "The bylaws of the strata corporation are the Standard Bylaws except to the extent that different bylaws are filed in the land title office".
[63] Section 3.6(1) of the CRTA grants a tribunal authority to interpret the SPA, or a regulation, bylaw or rule enacted under that Act. By necessary implication, this includes the Standard Bylaws.
[64] Section 3(1) of the Standard Bylaws governs the "use" of strata property:
Use of property
3(1) An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that
(a) causes a nuisance or hazard to another person,
(b) causes unreasonable noise,
(c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot ...
[65] The CRT found that on the facts of this case, the "unsightly" condition of the petitioner's lot put her in contravention of s. 3(1):
… I find the laws of private nuisance are not necessarily determinative here. Rather, the SPA governs this dispute and bylaw 3 clearly prohibits a party from causing a nuisance or interfering with another owner's right to use and enjoy their property. Further, the respondent owner's conduct in leaving the property in an unsightly state was significantly unfair, because it was burdensome, lacked in fair dealing, and was more than a mere prejudice or trifling unfairness … The respondent owner's conduct meets that threshold. Aesthetic appearance, including the unreasonable obstruction of a view, may well be relevant and in this case I find it is, particularly given the photos and the realtor's opinion. That the District of Sooke's bylaw exists supports this conclusion as does the applicants' inability to sell their property. I also accept the applicants' undisputed evidence about the social standard in the neighbourhood: Amended Reasons at para. 106. [Emphasis added.]
[66] Relying on Christensen v. District of Highlands, 2000 BCSC 196 and Andrushko v. The Owners Strata Plan KAS 1041 McIntosh Grove, 2015 BCSC 2445, the petitioner argues that a lot's aesthetic appearance, standing alone, cannot ground a contravention of Bylaw 3(1). Unsightly or unkempt conditions do not meet the test for nuisance.
[67] She says the CRT ignored this well-established jurisprudential principle in its consideration of Bylaw 3(1) and, in so doing, endorsed and applied an overly broad definition of nuisance that is not supported at law. This is important, says the petitioner, because the finding of nuisance played a material role in the orders made by the CRT.
[68] In Christensen at para. 11, this Court defined a "private nuisance" as an "unreasonable interference with the use and enjoyment of land". In reaching this conclusion, the Court relied, at least in part, on the following passage from Allen M. Linden, Canadian Tort Law, 3rd ed. (Toronto: Butterworths Canada Ltd., 1982) at pp. 539–540:
... Thus, just because a person's peace of mind may be affected, an action in nuisance does not necessarily lie. For example, the use of land for an isolation hospital, however unpopular and disconcerting that may be, rarely amounts to a nuisance. Neither does a defendant cause a nuisance if he fails to preserve the aesthetic appearance of his land for his neighbour's benefit. [Cited at para. 13 of Christensen, emphasis added.]
[69] Andrushko involved a consideration of nuisance within the specific context of a strata bylaw with the same wording as Standard Bylaw 3(1)(a). There, the petitioner sought an order compelling a strata council to remedy a nuisance said to result from second-hand smoke. Pearlman J. noted:
[50] Bylaw 3(1)(a) prohibits an owner from using a strata lot common property or common assets in a way that causes a nuisance or hazard to another person.
[51] In Antrim Truck Centre ltd. v. Ontario (Transportation), [2013] 1 S.C.R. 594, the Supreme Court of Canada defined the elements of the tort of private use [sic] at para. 19:
The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance the interference with the owner's use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances. This two-part approach found favour with this Court in its most recent discussion of private nuisance and was adopted by the Court of Appeal in this case, at para. 80: [citations omitted]
[Emphasis added.]
[70] Justice Pearlman concluded, at para. 57 of Andrushko, that the petitioner had not established a nuisance because, on the evidence, he had not shown a "substantial or unreasonable interference with [the petitioner's] enjoyment of his property as a result of other owners smoking within the confines of their own units". [Emphasis added.]
[71] In this case, the petitioner argues that the CRT approached Standard Bylaw 3(1) in a manner inconsistent with both Christensen and Andrushko. She says that in addressing nuisance under the Bylaw, the tribunal was bound to apply the two-part test endorsed in Andrushko. Before it could find non-compliance with Bylaw 3(1)(a), in particular, the tribunal had to ask itself whether the state of the petitioner's lot was shown to have substantially interfered with the use of the respondent owners' lot, or the strata's common property, and, if so, whether that interference was unreasonable in all the circumstances.
[72] The petitioner argues that the tribunal did not apply this test and, as a result, its interpretive approach to, and application of, Bylaw 3(1) was unreasonable. In the result, the petitioner was found to have committed nuisance based solely on the aesthetic appearance of her lot, and she says this is wrong in law.
[73] The respondent owners did not seek a declaration from the CRT that the state of the petitioner's yard constitutes a nuisance or otherwise violates Bylaw 3(1) of the Standard Bylaws. However, in their response to the petitioner's position on appeal, the respondent owners argue that even if the tribunal erred in its interpretation:
… the significant clutter consisting of a wide variety of items including: broken or unused fencing, piping, rolls of wire mesh, various buckets and bins often in apparent need of repair or disposal, wood and metal pieces, bricks, a washing machine, some old furniture and used cat litter, in the area immediately adjacent to the [petitioner's] entrance and near or on the common property driveway, but also in the yard facing the street would still have constituted a failure by the Appellant to maintain her yard to a reasonable standard contrary to Standard Bylaw 2(1) and the resulting Order for the Appellant to clean up the private yard of [her strata lot] would be the same regardless of whether the violation occurred under section 3(1) of the Standard Bylaws or section 2(1).
[74] In its submissions, the CRT does not address the meaning of Bylaw 3(1) or the interpretation applied by the tribunal.
[75] On reading the CRT's Amended Decision, as a whole, I am satisfied that although the tribunal stated it did not view the law of private nuisance to be "determinative" of the matter before it, the tribunal nonetheless considered, and applied, a functionally equivalent analytical framework under Standard Bylaw 3(1).
[76] For instance, at the start of its Amended Decision, the tribunal framed the nuisance question as whether the petitioner had "improperly used and caused "unsightly conditions" on [her] yard and on common property, which the [respondent owners] say have caused a nuisance and interfered with their right to enjoy the property": Amended Decision at para. 11. [Emphasis added.]
[77] In its essence, this is the Andrushko analysis. Assessing the merits of the respondent owners' claim required that the tribunal consider two component pieces, with a causal nexus between them. The tribunal had to determine "improper" (or unreasonable) use of the petitioner's lot, including "unsightly conditions", which, in turn, caused interference with the respondent owners' enjoyment of their property.
[78] The respondent owners alleged before the CRT that the petitioner is a "hoarder", including inside her residence, and this fact warrants mandated inspections of the interior of her home. The CRT refused to order inspections of the inside of the petitioner's home on this basis: "… the evidence before me does not sufficiently establish that any hoarding inside [the petitioner's lot] is reasonably likely to cause harm to common property or to other strata lot owners or the property": Amended Decision, para. 99. [Emphasis added.] Again, it is apparent from the determination on this point that the tribunal looked for something more than just clutter or unkempt conditions before finding a basis for intervention. An order would be justified only if the clutter gave rise to harm or interference.
[79] The member found that post-January 2017, after the petitioner had cleaned up some of her lot, "there remain[ed] some items that amount to clutter which at least appear to be a nuisance or unreasonably interferes with the [respondent owners'] use and enjoyment of their strata lot": Amended Decision at para. 104. [Emphasis added.] The notions of interference and unreasonableness informed the fact-finding process.
[80] The CRT explicitly acknowledged, and was alive to, the petitioner's argument that aesthetic appearance, standing alone, cannot ground a nuisance claim: Amended Decision at para. 105.
[81] Finally, it is apparent from para. 107 of the Amended Decision that in assessing whether Bylaw 3(1) had been contravened, the CRT considered the "reasonableness" of the manner in which the petitioner's lot was maintained.
[82] The petitioner pointed out to the CRT that the respondent owners also had items in their yard from time to time, and argued that in light of this reality, the petitioner's conduct was reasonable. The tribunal did not ignore this submission, on the basis that reasonableness was an irrelevant consideration to the nuisance analysis or otherwise. Instead, it did a comparative assessment between the two lots based on the evidence before it and found that any "unkempt appearance[s]" on the respondents' lot were "isolated in time" and "far less significant" than the condition of the petitioner's lot. [Emphasis added.]
[83] In other words, the petitioner's lot was not assessed in isolation; rather, it was considered within the context of its surrounding environment, using differences in degree to inform a determination on reasonableness.
[84] In my view, the test applied under Bylaw 3(1), although not clearly articulated, was not unreasonable.
[85] As I read Christensen and Andrushko, they do not preclude consideration of a property's aesthetic condition in deciding whether a nuisance has occurred. Rather, these cases stand for the proposition that whatever may be said to underlay the nuisance, including unkempt or unsightly conditions, a finding of nuisance does not arise unless and until the supporting factual foundation for the complaint, as established on the evidence, shows interference with use and enjoyment of property that is both substantial and unreasonable in all the circumstances.
[86] From the paragraphs of the Amended Decision, cited above, I am satisfied that the CRT interpreted and applied Bylaw 3(1) in a manner consistent with this jurisprudentially endorsed analytical framework.
[87] In their cumulative effect, these paragraphs reveal that the tribunal reviewed the evidence about the condition of the petitioner's lot with an appreciation of the need to determine whether the state of her yard gave rise to non-trivial and unreasonable interference with the enjoyment and use of the respondent owners' lot.
[88] At para. 118 of the Amended Decision, the tribunal described its determination under Bylaw 3(1) as making it "clear to the parties that unsightly conditions may constitute a nuisance and interfere with an owner's right to use and enjoy the property …". [Emphasis added.] There is nothing about this statement, in my view, that takes away from the two-part test for nuisance endorsed in Andrushko.
[89] Whether a nuisance has, in fact, been established, requires a case-by-case, multi-factorial analysis that is contextually applied. See, for example, Sutherland v. Attorney General of Canada, 2001 BCSC 1024 at para. 27:
Nuisance is to be determined within context, and what might be a nuisance in one locale cannot be assumed a nuisance in another … [Emphasis added. Internal references omitted].
[90] See also St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 at para. 77, and Royal Anne Hotel Co. v. Ashcroft (Village) (1979), 95 D.L.R. (3d) 756 (B.C.C.A.), wherein McIntyre J.A. noted at pp. 760–61:
What is an unreasonable invasion of an interest in land? All circumstances must, of course, be considered in answering this question. What may be reasonable at one time or place may be completely unreasonable at another. [Emphasis added.]
[91] In finding non-compliance with Bylaw 3(1), the CRT took a contextual approach and considered more than one factor in arriving at a determination in favour of nuisance. This necessarily included the fact that the petitioner and respondent owners, as members of a strata duplex, live in close proximity to one another.
[92] The Bylaw 3(1) determination was not grounded in aesthetic appearance alone.
[93] The tribunal found as a fact that Scotch broom growth on the petitioner's lot was large enough to obstruct the respondent owners' ocean view. More importantly, it is invasive and "may well have aggravated" erosion around the seawall.
[94] She found that in 2015, the aesthetic appearance (or condition) of the petitioner's lot adversely affected the respondents' ability to sell their property. According to the realtor's observations, the petitioner's lawn was not maintained; there was garbage and refuse all over the lawn; and the roof had excessive moss growth. Prospective purchasers indicated, through their representatives, that they did not pursue the property because of these factors.
[95] The CRT found that the "cluttered" conditions of the petitioner's lot, at least until December 2016, "indicated some signs of hoarding". There was a "significant clutter of a wide variety of disorganized items collected in and around" the lot. This included, without limitation: "[B]roken or unused fencing, piping, rolls of wire mesh … various buckets and bins … wood and metal pieces, bricks, what is said to be a washing machine, and some old furniture".
[96] The member accepted, based on photographic evidence, that the shrubbery on the petitioner's lot was overgrown.
[97] There was undisputed evidence that although asked not to, the petitioner regularly parks on the common property driveway, disrupting the respondent owners' sleep.
[98] Finally, it is apparent from the Amended Decision that the tribunal accepted the respondent owners' assertion that the petitioner's lot stood in material contrast to the "well kept nature of the neighbouring properties", as well as the condition of the lot before the petitioner took occupancy.
[99] These factual findings are not open to review by this Court.
[100] In White v. LeBlanc, 2004 NBQB 360, the applicants for injunctive relief in a non-strata context alleged that a tractor-trailer parked in front of their home, on someone else's lot, constituted a "nuisance" and "adversely affect[ed] the beneficial enjoyment of their property": para. 21.
[101] The hearing judge, Riordon J., instructed himself on the legal test for a private nuisance at para. 25:
To succeed in a claim for nuisance the Plaintiff or Applicant must establish … first that some significant interference with the beneficial use of these premises will occur or second, that some injury or perhaps some material injury to those premises or the property located thereon will take place … [Emphasis added.]
[102] Applying this test to the evidence, the judge held that a nuisance had been established:
[35] It is my conclusion, for the foregoing reasons, that the placing of the large commercial trailer, the size that we are all familiar with an encounter on the highways all the time, in such close proximity to the front of the Applicant's dwelling as is shown in the photographs does constitute a private nuisance.
[103] Ultimately, he granted the injunction. A material factor in his consideration was that the applicants wanted to sell their property, but the "chances of sale for its true market value [were] in fact diminished by the presence of the trailer": White at para. 38.
[104] This same type of evidence was before the CRT. Possible purchasers turned away from the respondent owners' property because of the condition of the petitioner's lot.
[105] Whether this Court would have reached the same conclusion under Bylaw 3(1) as the CRT is not the issue before me.
[106] Rather, the question for my determination is whether the petitioner has persuaded me that the CRT's approach to Bylaw 3(1) was unreasonable, generating a decision outside the range of possible, acceptable outcomes and inconsistent with established jurisprudential principles. In my view, the petitioner has not discharged this burden.
[107] Accordingly, I would not give effect to this ground of appeal.
[108] The CRT ordered at para. 121 of the Amended Decision:
a) Unless the parties agree in writing otherwise, the strata must arrange for annual inspections of each strata lot's residence and yard, to be completed by an appropriately qualified professional home inspector in accordance with bylaw 7 notice requirements …
c) The inspection reports should provide detailed recommendations for repair and maintenance, bearing in mind the District of Sooke's bylaw, including the care of the building, the air exchange units, shrubbery and lawn, address standards at the property entrance, and removal of any excessive yard clutter or unsafe or broken equipment …
e) The strata must provide the inspection repots for each strata lot to both the [petitioner] and [respondent owners].
f) Each strata lot will bear the expense associated with the inspection of their strata lot.
g) Within 30 days of receiving the inspection reports, the strata must retain an appropriately qualified contractor to implement the remedies recommended by the home inspector, unless otherwise agreed by the parties in writing.
i. In his role as council member, the [respondent Mr. Bourque] must in writing consult with the [petitioner] regarding the hiring of the contractor, but if they cannot reasonably agree within 14 days of consultation, Mr. Bourque may act on behalf of the strata to hire the contractor and set the dates for work to be done, including work on [the petitioner's lot], although bylaw 7 notice requirements must be followed ...
h) The expense of any remedies recommended by the home inspector are to be borne as follows:
i. Any Lot A yard maintenance is solely at the expense of the [petitioner].
ii. Any Lot B yard maintenance is solely at the expense of the [respondent owners].
iii. Each strata lot bears the expense of any necessary repairs to their air exchange unit, which unit is to be repaired, maintained and operated by the strata lot owner if that is the recommendation of the inspector.
iv. The expense for any necessary repairs to all common property, including the driveway and roof (including moss removal), windows skylights, is to be shared equally by the [respondent owners] and the [petitioner],
as is the expense for any necessary repairs to the interior wall dividing Lot A and Lot B.
[Emphasis added.]
[109] It is the petitioner's position that these orders exceed the tribunal's authority. She says the CRT has effectively made a professional home inspector the equivalent of an "administrator" under the SPA.
[110] In her application for leave to appeal, the petitioner argued there was no factual foundation to justify annual inspections. She was denied leave to raise this argument.
[111] As such, whether inspections are warranted on the facts of this case is not in issue: 2017 BCSC 2280 at paras. 65–67. Instead, the sole matter for determination on the third ground of appeal is whether the binding nature of the inspector's recommendations renders this part of the Amended Decision, and its related orders, outside the authority of the CRT.
[112] Section 174(1) of the SPA allows for the appointment of an administrator to "exercise the powers and perform the duties of [a] strata corporation". However, it is only this Court that can make such an appointment, once it has determined that doing so is in the best interests of the strata corporation: SPA, s. 174(2).
[113] The petitioner accepts that the CRTA confers broad powers to make orders in strata property disputes:
Order giving effect to final decision
48(1) The tribunal may make an order giving effect to a final decision on terms and conditions the tribunal considers appropriate …
Orders available in strata property claims
48.1(1) In resolving a strata property claim, the tribunal may make one or more of the following orders:
(a) an order requiring a party to do something;
(b) an order requiring a party to refrain from doing something;
(c) an order requiring a party to pay money …
[114] However, she says these powers must be exercised within the jurisdictional confines of the CRTA and cannot usurp the exclusive authority of other entities, including this Court. Nor can s. 48.1 be used to put something in place that exceeds the legislature's intended limits on external intervention in strata matters.
[115] The petitioner puts it this way in her written submissions:
The CRT member's order grants the authority to a home inspector, a party that has no interest in the governance of this strata, to set the de facto budget [of the strata] without regard for majority approval. There is expressly no limit on the recommendations the home inspector can make and no exception is made for any major capital expenditures that would usually attract a special levy, such as major repairs to the roof or the building envelop and structure.
It is submitted that the practical effect of this order is to go beyond the powers contemplated under the SPA's administrator provision and provide ongoing pre-approval of decisions yet to be made and that would otherwise be subject to either the scrutiny and approval of the majority of the strata owners, or alternatively, this Court …
[116] When they filed their dispute with the CRT, the respondent owners did not seek to have the inspector's recommendations implemented on a mandatory basis. Instead, they asked for a compelled inspection.
[117] However, they argue that the inspection-related orders made by the tribunal reasonably respond to the "duplex-deadlock" they find themselves in, as well as the finding of fact that the petitioner will continue to veto any repairs and/or maintenance required of the strata corporation.
[118] At para. 63 of the Amended Decision, for example, the CRT notes as "undisputed" the fact that the petitioner "has refused to permit the strata to act [in relation to matters of dispute] because she has never agreed to the [respondent owners'] requests".
[119] From the respondent owners' perspective, the CRT has not created a novel situation in shaping the impugned order the way it has. For instance, they say that ss. 164–165 of the SPA authorizes this same type of broad, remedial intervention, even in the face of a contrary majority vote:
Preventing or remedying unfair acts
164(1) On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair
(a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or
(b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.
(2) For the purposes of subsection (1), the court may
(a) direct or prohibit an act of the strata corporation, the council, or the person who holds 50% or more of the votes,
(b) vary a transaction or resolution, and
(c) regulate the conduct of the strata corporation's future affairs.
Other court remedies
165 On application of an owner, tenant, mortgagee of a strata lot or interested person, the Supreme Court may do one or more of the following:
(a) order the strata corporation to perform a duty it is required to perform under this Act, the bylaws or the rules;
(b) order the strata corporation to stop contravening this Act, the regulations, the bylaws or the rules;
(c) make any other orders it considers necessary to give effect to an order under paragraph (a) or (b).
[Emphasis added.]
[120] The respondent owners also point to Standard Bylaw 7(1), which authorizes entry into a strata lot without the owner's consent in defined circumstances, including the need to "inspect, repair or maintain common property". Sections 84–85 of the SPA (work order from public or local authority), and s. 133 (remedying a bylaw contravention), are similarly held out as circumstances in which repairs can be made to, or work performed on, an owner's lot by a strata corporation without the owner's cooperation.
[121] Mr. Bourque and Ms. Lloyd take issue with the petitioner's restrictive characterization of this aspect of the CRT's decision, arguing that it preserves sufficient flexibility to ensure the parties are not forced to comply with an unreasonable process. In their words:
The inspector is simply an inspector who makes recommendations. The inspector cannot compel the parties to carry out the repairs. The parties do not have to follow those recommendations if they jointly agree not to.
[122] In its written submissions on the appeal, the CRT does not address the third ground of appeal.
[123] I do not consider what occurred here to equate to the appointment of an administrator under s. 174 of the SPA.
[124] No suggestion was made to the CRT that an administrator is necessary; there is no discussion in the Amended Decision about the need for an administrator, other than to acknowledge that an application for an appointment may be the only solution if the parties' lack of cooperation continues, and, there is no advertence by the tribunal to the factors typically considered on this issue. See, for example, Lum et al. v. The Owners, Strata Plan VR519, 2001 BCSC 493 at para. 11. Indeed, at para. 72 of the Amended Decision, the tribunal specifically acknowledges that the appointment of an administrator is "a matter outside the tribunal's jurisdiction". See also: CRTA, s. 3.6(2)(i).
[125] Instead, I agree with the respondent owners that what the CRT attempted to do is put a mechanism in place that would enable the strata corporation to fulfill its statutory and bylaw obligations where the "democracy in a duplex has resulted in the [petitioner's] refusal to permit the strata to enforce its bylaws": Amended Decision at para. 66.
[126] Administrators are empowered to exercise the powers and perform the duties of a strata corporation. The orders made in this case do not require that the home inspector exercise authority or powers on behalf of the strata; rather, the clear intent of the order is that the inspector will make objective recommendations on what needs to be done to adequately maintain the property, both common and non-common, and it is the strata corporation, in exercise of its statutory and bylaw obligations, that must take the steps necessary to give meaningful effect to those recommendations.
[127] The real issue on this ground of appeal is whether the CRT went too far in ordering that within 30 days of receiving the inspection reports, "the strata must retain an appropriately qualified contractor to implement the remedies recommended by the home inspector, unless otherwise agreed by the parties in writing". [Emphasis added.]
[128] I accept that s. 48.1(1) of the CRTA is broad enough to order inspections and, further, to order that a strata corporation exercise due diligence in light of recommendations made by an inspector that reasonably fall within the scope of the strata's legal obligations and areas of responsibility.
[129] I also accept that pursuant to s. 48.2(1) of the CRTA, a tribunal may make orders that "override SPA provisions that otherwise require strata council approval": Amended Decision at para. 66.
[130] This section stipulates that in resolving a strata claim that falls within the CRT's jurisdiction, "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." [Emphasis added.]
[131] The language is similar to the wording found in s. 164(1) of the SPA, which has been broadly construed, and allows intervention with a strata's affairs even where a vote has been held and the result imposed is contrary to the majority's choice.
[132] In Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, s. 164 was described by Smith J.A. as:
[24] … remedial. It addresses that, despite using a fair process and holding a democratic vote, the outcome of majoritarian decision-making processes may yield results that are significantly unfair to the interests of minority owners. Section 164 provides a remedy to an owner who has been treated significantly unfairly by co-owners or the strata council that represents them. The view that significantly unfair decisions reached through a fair process are insulated from judicial intervention would rob the section of any meaningful purpose …
[133] However, consistent with the decisions of this Court in Sterloff v. Strata Corp. of Strata Plan No. VR 2613 (1994), 38 R.P.R. (2d) 102 (B.C.S.C.) and Browne et al. v. The Owners, Strata Plan 582, 2007 BCSC 206 at para. 30, I am of the view that orders of the nature made in this case, including ones that are prospective, must not unreasonably interfere with the strata corporation's ultimate discretion on how best to manage its maintenance and repair obligations, as informed by an inspector's recommendations. The corporation, even when functioning under the authority of one owner, should be entitled to determine which of the outside recommendations to implement and how, recognizing that it has an obligation to conduct itself in the best interests of all owners.
[134] In my view, the CRT was entitled to order under s. 48.1(1) of the CRTA that the strata corporation arrange for annual inspections by a qualified home inspector; that the inspection reports be produced and shared with the strata owners, including recommendations for maintenance and repair; and that the strata retain a qualified contractor to implement the recommendations.
[135] However, the strata must be able to maintain an element of control over which of the recommendations it will act upon, when and in what form. It is reasonable to order that the strata corporation have regard to the specifics of the recommendations in determining next steps, but the recommendations themselves cannot completely fetter the strata's discretion. In my view, that would constitute an unreasonable outcome.
[136] The wording of the Amended Orders, as issued by the CRT, allows no room for the strata to obtain a second opinion; choose between recommendations made by the home inspector; complete only part of a particular recommendation; or refrain from, or defer, the implementation of remedial steps based on cost or additional strata-related expenses bases of particular significance to the strata owners. This is not a reasonable approach, as informed by the guiding jurisprudence.
[137] In my view, this order should have been crafted in a manner that respects the strata's obligation to act in the best interest of all owners, including "implementing necessary repairs within a budget that the owners as a whole can afford and balancing competing needs and priorities": Weir v. Strata Plan NW 17, 2010 BCSC 784 at para. 29, citing Sterloff and Browne.
[138] Accordingly, I am satisfied that this ground of appeal should be given effect. The binding nature of the inspector's recommendations is not defensible on a standard of reasonableness.
[139] Pursuant to s. 56.5(6)(a) of the CRTA, when the Court allows an appeal, it has authority to "confirm, vary or set aside the decision of the tribunal". [Emphasis added.]
[140] In light of my conclusion, and the fact that it is only the binding nature of the inspector's recommendations that is at issue on this ground of appeal, not the existence of mandated inspections, per se, the remedy I consider appropriate is to vary the wording of paragraphs 14, 15 and 18 of the Amended Order as follows:
14) Within 30 days of receiving the inspection reports, the strata must retain an appropriately qualified contractor to implement, in whole or in part, those remedies recommended by the home inspector that the strata determines necessary and appropriate in fulfillment of its obligations under its bylaws and the Strata Property Act, unless otherwise agreed by the parties in writing.
a) In his role as council member, the applicant Mr. Bourque must in writing consult with the respondent owner regarding the hiring of the contractor, but if they cannot reasonably agree within 14 days of consultation, Mr. Bourque may act on behalf of the strata to hire the contractor and set the dates for work to be done, including work on Lot A, although bylaw 7 notice requirements must be followed …
15) The expense of any remedies recommended by the home inspector, as determined necessary and appropriate for implementation by the strata, are to be borne as follows:
a) Any Lot A yard maintenance is solely at the expense of the respondent owner.
b) Any Lot B yard maintenance is solely at the expense of the applicants.
c) Each strata lot bears the expense of any repairs to their air exchange unit that are determined necessary and appropriate by the strata having regard to the recommendations of the home inspector.
d) The expense for any repairs to all common property, including the driveway and roof (including moss removal), windows, skylights, as determined necessary and appropriate by the strata having regard to the recommendations of the home inspector, is to be shared equally by the applicants and the respondents, as is the expense for any necessary repairs to the interior wall dividing Lot A and Lot B.
…
18) I order the respondent owner to immediately remove the clothesline from the common property electrical pole, and if the strata identifies any repairs that are necessary and appropriate to the pole, having regard to the recommendations of the home inspector, the respondent owner must bear the expense of those repairs.
[141] The CRT issued its Decision under s. 46(1) of the CRTA on June 6, 2017. The orders accompanying the Decision included:
23) I order the strata to become a member of the Condominium Homeowners Association (CHOA), with the owners to share the membership cost equally.
24) I order that a complaining owner may refer a dispute to CHOA and the parties are bound by CHOA's opinion, which should address any associated costs.
25) Any party may use CHOA as a resource for the selection of professional inspectors or contractors.
26) I order that, if in a particular dispute the parties agree in writing, the parties may together choose a third party to provide a binding decision in a dispute referred by a complaining owner, except that a party remains free to bring a dispute to the tribunal or a court. [Emphasis added.]
[142] Two days later, on June 8, the CRT advised the strata owners of an Amended Decision and Amended Order. The tribunal provided its explanation for the amendments:
Pursuant to sections 51 and 64 of the Civil Resolution Tribunal Act that permits an amendment to a final decision to provide clarification, the attached decision and order have been amended to clarify my intention regarding the parties' access to CHOA as a dispute resolution mechanism. I have also spelled out "DFO" in the Order. In particular, the following paragraphs have been amended:
Decision: paras. 118, 122(c), (e), and (f)
Order: paras. 2, 24, 26, and 27
[Emphasis added.]
[143] The petitioner argues that in the Decision, the CRT exceeded its statutory authority, and acted contrary to the rule against sub-delegation, by referring future disputes between the strata owners to CHOA in the role of binding decision maker.
[144] The petitioner further argues that after the CRT issued its Decision, the tribunal likely recognized it had made an error, within its jurisdiction, and sought to remedy the situation by issuing the Amended Decision and Amended Order. Specific to CHOA, the Amended Order reads:
23) I order the strata to become a member of the Condominium Homeowners Association (CHOA), with the owners to share the membership cost equally.
24) I order that a complaining owner may refer a dispute to CHOA and if the parties agree, the parties should follow CHOA's opinion if one is provided, which should address any associated costs.
25) Any party may use CHOA as a resource for the selection of professional inspectors or contractors.
26) I order that, if in a particular dispute the parties agree in writing, the parties may together choose a third party to provide a decision in a dispute referred by a complaining owner.
27) Nothing in this decision prevents a party from bringing a dispute to the tribunal or a court, and any opinion from CHOA or a third party is not binding on the tribunal or court.
[145] At para. 118 of the Decision, the incorporation of CHOA as a dispute resolution mechanism was explained:
… while I find that [Standard] bylaw 29 [referral to a dispute resolution committee] is inadequate because it is essentially voluntary dispute resolution or mediation that has already proven unsuccessful, I find bylaw amendments are presently unnecessary. Rather, to address the dispute resolution mechanism problem, I order the strata to become a member of the Condominium Homeowners Association (CHOA), and upon referral by a complaining owner the parties are bound by CHOA's opinion, which should address any associated costs. An alternative, if the parties agree in a particular dispute, is for the parties to together choose a third party to provide a decision in a dispute referred by a complaining owner. Here, my intention is for a less formal process than is described in sections 175 to 189 of the SPA. The third party's decision would be binding on the parties, except that either party would remain free to bring the dispute to the tribunal or the court. Finally, given my conclusions above, I find it should be clear to the parties that unsightly conditions may constitute a nuisance and interfere with an owner's right to use and enjoy the property, within the meaning of bylaw 3. I do not find that bylaw amendments are presently further required in that respect. My detailed orders are set out below.
[146] At para. 118 of the Amended Decision, changes were made to the explanation (as underlined):
Second, while I find that bylaw 29 is inadequate because it is essentially voluntary dispute resolution or mediation that has already proven unsuccessful, I find bylaw amendments are presently unnecessary. Rather, to address the dispute resolution mechanism problem, I order the strata to become a member of the Condominium Homeowners Association (CHOA). Upon referral by a complaining owner, if the parties agree, the parties should follow CHOA’s opinion if CHOA provides one, which should address any associated costs. An alternative, if the parties agree in a particular dispute, is for the parties to together choose a third party to provide a decision in a dispute referred by a complaining owner. Here, my intention is for a less formal process than is described in sections 175 to 189 of the SPA. Again, the goal is for an informal but practical solution for day-to-day disputes that may arise. The parties should follow the third party’s decision. Finally, given my conclusions above, I find it should be clear to the parties that unsightly conditions may constitute a nuisance and interfere with an owner’s right to use and enjoy the property, within the meaning of bylaw 3. I do not find that bylaw amendments are presently further required in that respect. My detailed orders are set out below. For clarity, nothing in this decision prevents a party from referring a dispute to the tribunal or the court, and in particular, any opinion from CHOA or a third party is not binding on the tribunal or a court. [Emphasis added.]
[147] It is the petitioner's position that when the Amended Decision and Amended Order issued, the tribunal was functus. It made substantive amendments to its final decision, and the related orders, when it no longer had authority to do so. The CRTA allows for post-facto amendments in defined circumstances, but the petitioner says none of those exceptions apply here. As such, the Amended Decision and Amended Order cannot stand.
[148] The petitioner says that if she is correct on this point, and the Amended Decision is effectively a nullity, the Decision issued by the tribunal on June 6 captures the CRT's adjudicated outcome and, as stated earlier, it is her position that the binding authority given to CHOA in the Decision offends the rule against sub-delegation.
[149] In response to the fourth ground of appeal, the respondent owners take no position on the substantive issues. As I understand it, they are content with the amended form of the CHOA orders, whether through this Court's confirmation of the Amended Decision and Amended Order, or variation of the Decision to remove the orders' binding nature should it be determined that the CRT was without authority to impose the latter requirement.
[150] In its written submissions, the CRT addresses only the doctrine of functus officio. Although it takes no position on whether the tribunal acted unreasonably in making the impugned amendment, the CRT says there are both statutory and common law bases on which the CRT may legitimately amend a decision after-the-fact. The CRT asks that this Court take all of these bases into account in deciding whether the petitioner has met her burden on the appeal.
[151] The CRT furthermore reminds the Court that the doctrine of functus officio has jurisprudentially received a relaxed application within the context of administrative proceedings.
[152] The following provisions of the CRTA are relevant:
Order giving effect to final decision
48(1) The tribunal may make an order giving effect to a final decision on terms and conditions the tribunal considers appropriate …
(4) The tribunal may make an order varying the terms and conditions of an order giving effect to a final decision, but may not vary the final decision.
Amendment of final decision or order to clarify
51(1) Subject to the rules, the tribunal may amend
(a) a final decision under section 46 [final decision following hearing], or
(b) an order giving effect to a final decision
for the purpose of clarifying the decision or order.
(2) The tribunal may not amend a final decision or order referred to in subsection (1) other than as provided under this section, section 48(4) [order giving effect to final decision — authority to vary terms and conditions] or section 64 [authority to correct decisions and orders].
(3) This section must not be construed as limiting the tribunal's ability, on request of a party, to reopen a tribunal proceeding in order to cure a jurisdictional defect.
Authority to correct decisions and orders
64 On its own initiative or on request by a party, the tribunal may amend a decision or order to correct any of the following:
(a) a clerical or typographical error;
(b) an accidental or inadvertent error, omission or other similar mistake;
(c) an arithmetical error made in a computation.
[Emphasis added.]
[153] The CRT cites Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 as a leading authority on the common law bases for amending a decision. In that case, the majority noted the following at pp. 860–864, per Sopinka J:
The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
1. where there had been a slip in drawing it up, and,
2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.
In Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, Martland J., speaking for himself and Laskin J., opined that the same reasoning did not apply to the Immigration Appeal Board from which there was no appeal except on a question of law …
I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation … [Emphasis added.]
[154] See also Fraser Health Authority v. Workers' Compensation Appeal Tribunal, 2014 BCCA 499 at paras. 130–172; reversed on other grounds, 2016 SCC 25.
[155] On a combined reading of ss. 48(4), 51 and 64 of the CRTA, it is apparent that the legislature intended the CRT to have relatively broad discretion to make amendments to its final decisions, as well as the orders crafted to give effect to those decisions. This includes the authority to amend for the purposes of "clarification".
[156] Establishing a regime to this effect is consistent with the "less formalistic" approach to the doctrine of functus officio spoken of by the Supreme Court in Chandler, within the administrative law context, as well as the spirit and intent of the CRTA. As noted in Watson:
[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 CRT's 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 … [Emphasis added.]
[157] The CRT issued its Amended Decision with an explanation; namely, it considered the impugned amendment necessary to "clarify [the member's] intention regarding the parties' access to CHOA as a dispute resolution mechanism".
[158] Section 51(1) of the CRTA explicitly authorizes an amendment for this purpose.
[159] In Westnav Container Services Ltd. v. Freeport Properties Ltd., 2010 BCCA 33, leave to appeal refused, [2010] S.C.C.A. No. 95, the Court of Appeal addressed the allowable scope of a statutory power to amend for the purpose of clarification:
[28] Section 27 [of the Commercial Arbitration Act, R.S.B.C. 1996, c. 55], in permitting correction of accidental errors and slips, and in permitting clarification, contemplates amendment of an original award through change to the reasons for the decision, whether or not the change affects the result. Yet there is a line between permitted correction and clarification, and alteration that strays into the thought processes. ... While the expanded language in s. 27 from the provisions of the former legislation is intended to assist with finality of the arbitration process and limit applications that bounce the final determination between the arbitrator and the courts, it does not contemplate any shift of the well understood prohibition, founded in the concept of functus officio, against subsequent alterations in either the thought processes or the basis of the award. Such amendments step beyond correction of an accidental slip or error, and beyond clarification. Indeed the word "clarification" implies adherence to the same thought processes, but with more precise expression of the thought.
[Emphasis added. Internal reference omitted.]
[160] In my view, the amendment challenged on this appeal came close to "[stepping] beyond clarification". The tribunal substantively altered the effect that an opinion from CHOA would have as part of a dispute resolution process that it incorporated into the CRT's order. Indeed, this alteration was done twice in the Amended Decision. The same change was also made in respect of decisions obtained through the second alternative resolution mechanism fashioned by the CRT in para. 118 of the Amended Decision – a "third party" chosen by the strata owners.
[161] However, on balance, I am satisfied that in the circumstances of this particular case, as informed by Chandler and a deferential standard of review, the changes given effect in para. 118 of the Amended Decision, and reflected in the Amended Order, did not alter the "thought processes or the basis of the [Order]" within the meaning of Westnav to the extent that judicial intervention is warranted.
[162] In making its amendments, the tribunal did not raise new issues; reconsider its initial determination to establish dispute resolution mechanisms; make new findings of fact, or revisit findings of fact already made; consider new evidence; or bring a different reasoning process to bear on the necessity of dispute resolution, generally. The tribunal did not add a burden or consequence for the parties that did not previously exist, or, fundamentally shift the outcome of its decision.
[163] Instead, the amendments altered one component of the CRT's orders and removed the binding nature of the decision-makers' opinions, should these persons be engaged for the purpose of dispute resolution. In my view, the amendments were not inconsistent with the tribunal's initial intention, as manifested at para. 118 of the Decision. The changes remain aligned with the CRT's objective of establishing "a less formal process than is described in sections 175 to 189 of the SPA".
[164] What occurred here was profoundly different from the situation in Ford Motor Co. of Canada Ltd. v. Sheriff, 2012 BCSC 891, for example, where an arbitrator initially dismissed a claim, but later issued supplementary reasons that reversed the decision. Relying on Westnav, this Court set the supplementary reasons aside, on grounds that the arbitrator was functus when they issued. The supplementary reasons went much further than expressing or clarifying the arbitrator's intent. Instead, the "supplemental reasons reversed that intent and the result, based on consideration of further evidence": at para. 23. [Emphasis added.] No such thing has taken place here.
[165] In reaching this determination, I have also considered Health Employers Association of British Columbia v. British Columbia Nurses' Union, (1997) 45 B.C.L.R. (3d) 127 (C.A.).
[166] In that case, a commissioner was appointed to conduct inquiries on labour relations matters. He delivered a report with specific recommendations. The recommendations formed the basis for a deemed collective agreement. Impacted parties were statutorily entitled to request "clarification" on the recommendations. A request for clarification was made and the commissioner responded under the then Education and Health Collective Bargaining Assistance Act, S.B.C. 1996, c. 1.
[167] This Act entitled the commissioner to "meet with the parties and provide clarification with respect to the recommendations …". [Emphasis added.] On a subsequent petition for judicial review, the clarification issued by the commissioner in writing was challenged as being outside the commissioner's authority. Among other things, the petitioner argued that the commissioner went beyond "clarifying" one of his recommendations, and, in fact, changed it.
[168] The clarification was set aside by this Court. The chambers judge held that the legislature's use of the word "clarification" in the Act allowed the commissioner to explain his recommendations, but not change them: Health Employers Association, at para. 17. In issuing the clarification, the commissioner had "widened the scope" of a particular recommendation. In effect, he reconsidered his own decision and made an amendment "under the cloak of clarification": at para. 17.
[169] This is essentially the same argument made before me.
[170] On appeal, Esson J.A., writing for the Court, disagreed with the chambers judge's view on the "breadth of the power to provide clarification": Health Employers, at para. 18. He stated at para. 22:
… Section 1(4) confers a power to reconsider to the extent necessary to provide clarification. That may result, as it did here, in the scope of the recommendation being increased from what it appeared to be under the original wording. Provided that the broadening of scope is done for the purpose of making clear what the Commissioner's intention was, he acts within jurisdiction … [Emphasis added.]
[171] I appreciate that Health Employers was decided within a different administrative context, and with reference to the language of a different enabling statute. Differences in context and legislative wording, however subtle, will necessarily inform a determination on the scope of a particular power.
[172] However, I consider the proposition endorsed by Health Employers to be of general application; namely, in the absence of restrictive language to the contrary, the fact that a clarification impacts the scope of an order does not automatically mean that the decision maker has exceeded his or her authority. Instead, the whole of the circumstances should be considered.
[173] The petitioner has not persuaded me that given the nature of the amendment made in this case, the tribunal's decision to issue an Amended Decision and Amended Order under the CRTA was unreasonable.
[174] As such, I would not give effect to this ground of appeal.
[175] As a result of my conclusion on the authority to issue the Amended Decision and Amended Order, it is not necessary for me to address the petitioner's fifth ground of appeal that alleges improper sub-delegation.
[176] I agree with the respondent owners that the Amended Decision and Amended Order rendered moot the sub-delegation error that the petitioner says was committed in the Decision.
[177] The petitioner's argument on sub-delegation was singularly focused on the binding nature of any opinion issued by CHOA: "The CRT tribunal member exceeded her authority and committed an error of law in ordering sub-delegation … in the nomination of the CHOA as a binding arbitrator …". [Emphasis added.]
[178] Under the Amended Order, a strata owner may, at its discretion, refer a dispute to CHOA; any decision rendered, or opinion given by CHOA is non-binding; and, the parties are free to avoid CHOA altogether and put their dispute before a mutually-agreed upon third-party decision maker.
[179] In addition, the liberty to file a dispute with the CRT and/or take court action has been maintained.
[180] For the reasons provided, the appeal is allowed, but only to the extent that it justifies a variation of paras. 14, 15 and 18 of the Amended Order, as set out in para. [140] above.
[181] The remainder of the Amended Order, which flows out of the Amended Decision, is confirmed.
[182] I have exercised my discretion to vary paras. 14, 15 and 18 of the Amended Order, rather than set them aside or remit the case back to the CRT, in light of: (i) the specificity of the issue for which I found intervention is justified; (ii) the fact that I am satisfied a variation will effectively remedy the error; (iii) the need for finality given the longstanding disputes between these parties and the expense likely already incurred in seeking resolution; and (iv) it is my view that exercising the discretion to vary under s. 56.5(6)(a), rather than remit the matter for another hearing, is consistent with the spirit and intent of the CRTA.
[183] The parties asked that submissions on costs be addressed later, once they have had time to review the Reasons for Judgment. I grant that request.
[184] The parties are at liberty to file written submissions on costs by no later than 30 days from release of these Reasons. The written submissions are limited to five pages.
"DeWitt-Van Oosten J."