Denied again – BC Court of Appeal dismisses second appeal from CRT decision

Administrative law – Decisions reviewed – Civil Resolution Tribunal – Condominiums – Strata corporations – Judicial review – Procedural requirements and fairness – Standard of review – Patent unreasonableness – Appeals

Downing v. Strata Plan VR2356, [2023] B.C.J. No. 357, 2023 BCCA 100, British Columbia Court of Appeal, March 1, 2023, P.M. Willcock, J. DeWitt-Van Oosten and P.G. Voith JJ.A.

The background to this decision is summarized in HARA/2022-014.

The appellant was an owner of a unit in Strata Plan VR356. In Spring 2018, the appellant suffered a stroke and moved into an assisted living facility. She sought the assistance of a realtor to sell her unit in the Strata. The realtor discovered water damage in the unit, and with his client’s permission allowed the Vice President of the Strata to enter the unit to investigate the water ingress issue. The Vice President of the Strata hired a contractor to investigate the damage which required substantial dismantling of the unit. The suite was taken off the market for two years while the repairs were completed by the contractor and eventually sold for almost $200,000 less than the initially listed market value.

The appellant commenced a claim in the Civil Resolution Tribunal (“CRT”) alleging trespass, nuisance, negligence and unfair treatment by the Strata for failing to obtain her permission to conduct the repairs, inter alia. The CRT dismissed all of the appellant’s claims (the “Decision”).

The appellant sought judicial review of the Decision. The parties agreed that the standard of review was patent unreasonableness and questions of procedural fairness were to be determined based on whether the CRT acted fairly. The Court determined that the standard of patent unreasonableness had remained stable and had not been affected by recent developments in the law.

The Court dismissed the petition, finding the CRT’s decision reasonable. The Court determined that the CRT had reasonably found that the Strata was authorized to investigate and that the investigation did not exceed what was reasonable in the circumstances. The Court also found that the CRT correctly identified the elements of negligence and was reasonable in determining that the Strata reasonably relied upon the advice of the contractor and the investigation did not exceed what was required to determine the extent of water ingress. The Court was not persuaded that the CRT’s process was procedurally unfair.

The appellant pursued an appeal of the Court decision.

The BC Court of Appeal had to consider whether the reviewing judge described the correct standards of review, and whether she applied those standards correctly.

The appellant argued four grounds of appeal.

First, the appellant argued the CRT breached the requirements of procedural fairness by refusing to provide for an oral hearing and to allow cross-examination on the central issue of consent.

The Court of Appeal held that the required procedural protections were closer to the trial model. In spite of this, the Court of Appeal dismissed this ground of appeal. The conflicts in the evidence in this case were limited and were addressed in a reasoned manner by the CRT.

Second, the appellant argued the CRT misconstrued the law of consent by ignoring that consent must be informed in order to be a valid defence to trespass.

The Court of Appeal held that the CRT was asking a factual question that lies within the exclusive jurisdiction of the CRT; what permission did the strata unit owner give to the strata to enter her property and do work in the unit. The CRT’s finding was open to it, based on the evidence and statutory scheme.

Third, the appellant argued the CRT erred by admitting expert evidence in disregard of the CRT’s own rules about the admission of expert evidence.

The Court of Appeal held that, even if the CRT did not adequately consider the admissibility of expert evidence, the expert evidence was not critical to the CRT’s finding.

Fourth, the appellant argued the CRT erred by misapplying the law applicable to the negligence claim and dismissing that claim based on a finding not supported by the evidence.

The Court of Appeal held that there was evidence to support the CRT’s decision that the strata acted reasonably upon professional advice.

The Court of Appeal dismissed the appeal.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at [email protected].

To stay current with the new case law and emerging legal issues in this area, subscribe here.