2005 BCSC 146 The Owners, Strata Plan No. 1086 v. Coulter et al

Before: The Honourable Mr. Justice R. D. Wilson

Ruling

Counsel for the Petitioners:	C. D. Wilson
Counsel for the Respondents:	J. J. Smith
Date and Place of Trial/Hearing:	January 12, 2005
	Victoria, B.C.

[1] On 12 January 2005, I made a ruling, with reasons to follow, that R. 31 of the Rules of Court is not applicable to proceedings under R. 10 of the Rules of Court. These are those reasons.

II.

[2] This is a proceeding about a condominium structure which has succumbed to "premature building envelope failure". That is to say, the building suffers from "leaky condo syndrome".

[3] The building is one of several, in a strata plan complex which includes buildings used for commercial purposes, and buildings used for residential purposes.

[4] The proceeding was precipitated by differing views on the appropriate source of funding to rectify the failure/syndrome. Three options were canvassed at the hearing:

(a) the owners of the affected building should pay;

(b) all of the owners of lots used for residential purposes should pay; or

[5] At the time the ruling was made, the petitioner took the position that the owners of lots used for residential purposes should bear the cost of rectification. This position is based on the premise that a separate "Residential Section" was created in 1990, under s. 51 of the Condominium Act. The respondents took the position that all of the owners in the strata plan should bear the cost of the rectification. This position is based on the premise that no separate section has ever been created.

[6] The history of the proceeding, to the date of the ruling, is as follows.

[7] On 17 December 2003, the petitioner filed its petition pursuant to the authority conferred by s. 174 of the Strata Property Act.[1]

[8] The petition was filed as an originating application pursuant to R. 10(1) of the Rules of Court.[2]

[9] Following service of the petition, appearances were entered by the persons whose interests may be affected by any order made on the petition. As well, the respondents delivered responses to the petitioner in accord with subrule (5) of Rule 10.[3]

[10] The respondents' response is dated 23 July 2004. The material paragraphs of that response recite as follows:

The respondents do not oppose the granting of relief set out in the following paragraphs of the Petition: Nil.

The respondents oppose the granting of the relief set out in the following paragraphs of the Petition: All (Paragraphs 1-8).

The respondents consent to the granting of the relief set out in the following paragraphs of the petition on the following terms: Nil.

The respondents will rely on the following affidavits and other documents: The petitioner's admissions, or deemed admissions, in response to a Notice to Admit given July 23, 2003.

[11] As well, on 23 July 2004, the respondents prepared a "Notice to Admit" in Form 23 to the Rules of Court. That notice to admit appears to have been delivered to the petitioner on or about 23 July 2004. It is said to be delivered pursuant to R. 31 of the Rules of Court.[4] Among other "facts", the respondents requested the petitioner to admit that "There exist no separate sections as between commercial and residential units ...".

[12] Counsel for the petitioner responded with an email transmission on 26 July 2004. The email recites as follows:

I acknowledge with thanks receipt of your Notice to Admit. Please be advised that Rule 31 does not apply to the Petition proceedings in this matter. Accordingly, I will not agree to admit to the facts requested. ...

[13] The petitioner did not admit or deny the facts set out in the notice to admit, in the format prescribed in R. 31(2), within 14 days of delivery of the notice. In preparation for the hearing of the petition, the respondents relied upon the deemed admission of no separate sections.

[14] By a motion dated 24 December 2004, the petitioner moved, among others, for an order that "Rule 31 of the Rules of Court does not apply to the within Petition proceedings; ...".

III.

[15] The respondents' invocation of R. 31 in originating application proceedings is novel. It is based upon the following propositions.

[16] A "response" is equivalent to a statement of defence or answer.

[17] The delivery of a "response" signifies the "close of pleadings and joinder of issue".

[18] A notice to admit thereafter serves the object expressed in R. 1(5),[5] in that, it is a process which further defines and narrows the issues to be decided.

[19] Notices to admit are of particular significance in this regard because discovery procedures, including interrogatories, are not available, because the originating proceeding is not an "action", which is a precondition to the application of Rules 26, 27 and 29.

[20] Therefore, R. 31 is, or ought to be, applicable to originating proceedings.

[21] The respondents' argument is not sound. A "response" is not equivalent to, nor the same as, a statement of defence, or an answer, or a counter petition.

[22] At the time R. 31 was adopted, on 1 July 1994, R. 60B, the Divorce Rules, governed divorce proceedings. R. 60B prescribed that divorce proceedings were commenced by petition, and defended by answer or answer and counter petition. R. 60B was the only rule which had a process known as an "answer" or "answer and counter petition".

[23] Each of those processes was a pleading. Their purpose was to set out, in a summary form, allegations of the material facts on which the party relies, but not the evidence by which the alleged facts are to be proved. But for the words used to describe the pleading, a divorce proceeding was an "action".

[24] A "response" in Form 124, pursuant to R. 10(5), contains no allegation of material fact. It does not signify the close of pleadings, because there are no pleadings. Issue is joined simply by the statement of the position to be taken in the response.

[25] R. 1(5) is of no assistance, because R. 10 addresses the object, by permitting summary proceedings for the resolution of certain disputes.

[26] An originating application presupposes that there will be no dispute about the material facts; although the inferences to be drawn from those material facts may very well be in dispute. Unlike a pleading, the facts are not alleged, they are testified to on affidavit by oath or affirmation.

[27] Form 124 anticipates that disputed questions of fact will be defined by affidavit, not a notice to admit. The prescribed form recites:

The respondent will rely on the following affidavits and other documents: [set out affidavits delivered with this response and any other affidavits or other documents already in the court file on which the respondent will rely] [my underlining]

[28] There is no requirement in R. 31 for a notice to admit to be filed. It need merely be delivered.

[29] Evidence on an application under R. 10 must be given by affidavit.[6] If a party would assert a fact, then it must be deposed to in an affidavit. If the material facts are in serious controversy, as between the opposing affidavits, then the matter may not be suitable for a summary disposition.

[30] If R. 31 is invoked, and facts are not admitted, then no useful purpose is served. There is no way to prove those facts except by affidavit.

[31] With the abolition of the petition, answer and counter petition processes in divorce proceedings in 1998, it is my opinion that R. 31 must be interpreted to apply only to actions.

“R.D. Wilson, J.”
The Honourable Mr. Justice R.D. Wilson

[1] 1998 S.B.C., c. 43, s. 174(1): "The strata corporation, or an owner, tenant, mortgagee or other person having an interest in a strata lot, may apply to the Supreme Court for the appointment of an administrator to exercise the powers and perform the duties of the strata corporation."

[2] R. 10(1): "An application, other than an interlocutory application or an application in the nature of an appeal, may be made by originating application where (a) an application is authorized to be made to the court, ...".

[3] R. 10(5): "A respondent who wishes to receive notice of the time and date of the hearing of the petition or to respond to it must, ... deliver to the petitioner 2 copies, and to every other party of record one copy, of (a) a response in Form 124, and (b) each affidavit on which the respondent intends to rely."

[4] The material provisions of R. 31, for the purposes of this ruling, are: "(1) In a proceeding in which a statement of defence, answer or answer and counter petition has been filed, a party may, by delivery of a notice to admit in Form 23, request any party of record to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document specified in the notice. (2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that (a) specifically denies the truth of that fact or the authenticity of that document, (b) sets forth in detail the reasons why the party cannot make the admission, or (c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal."

[5] R. 1(5): " The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits."

Citation:	*The Owners, Strata Plan No. 1086 v. Coulter et al,*
	2005 BCSC 146