COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Al-Islam v. Valley Street Property Ltd.,

2019 BCCA 48

Date: 20190201

Dockets: CA44574;
CA44602

Between:

Azra Al-Islam

Respondent

(Petitioner)

And

Valley Street
Property Ltd. and AWM Alliance Real Estate Group Ltd.

Appellants

(Respondents)

And

Director,
Residential Tenancy Branch

Respondent

Before:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

On appeal from: Orders
of the Supreme Court of British Columbia, dated
June 28, 2017 (
Al-Islam v. Kaila
, Vancouver Docket No. S172322 and
Al-Islam
v. Plenert
, Vancouver Docket No. S172323).

Oral Reasons for Judgment

Counsel for the Appellants:

D.K. Georgetti

Representative of the Respondent:

E.A.-I. Rafique

Counsel for Director, Residential Tenancy Branch:

F. Zaltz

Place and Date of Hearing:

Vancouver, British
  Columbia

February 1, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

February 1, 2019

Summary:

Residential Tenancy arbitrators
made orders giving the landlord possession of premises for non-payment of rent
and a monetary award in respect of the tenants overholding. The tenant filed
petitions for judicial review of both orders. The landlord applied to strike
the petitions under Rule 9-5, or for summary judgment under Rule 9-6. The judge
hearing the landlords applications purported to grant the judicial review
petitions. The landlord appeals. Held: appeals allowed, respondent ordered to
amend the petitions. The judge misapprehended the nature of the applications
before him. He could not grant the petitions, as he was not hearing them. With
respect to the Rule 9-5 application, the petitions were defective in several
respects. They need not be struck, however, and the petitioner should have the
opportunity to amend them to comply with the Judicial Review Procedure Act and
the Supreme Court Rules. The summary judgment applications were ill-conceived,
as Rule 9-6 has no application to judicial review proceedings.

[1]

GROBERMAN J.A.
: The appellants appeal from an order of the
Supreme Court that set aside orders of two arbitrators acting as delegates of
the Director under the
Residential Tenancies Act
, S.B.C. 2002, c. 78.
While the background of the case is convoluted, the essential basis for the
appeal is that the judge misapprehended the nature of the proceedings in front
of him. He believed that he was hearing the respondents judicial review
applications when, in fact, he was hearing the appellants application to
strike the petition. On such an application, he was not entitled to grant the
relief that he did.

[2]

To remedy the error, the appellants seek to have their applications
returned to the Supreme Court for a new hearing. In my view, there is no need
to do that. The applications are straightforward and this Court is fully able
to dispose of them. As I will explain, the petitions, as they now stand, are
defective. There is, however, no need to strike them. The petitioner will be
given an opportunity to amend the petitions. Once amended  assuming the
parties do not reach an accommodation on the merits  the petitions can be
heard by the Supreme Court.

Background

[3]

While the factual background of this matter is not particularly germane
to the disposition of this appeal, I will set it out, in order to make it clear
what is at stake in the underlying proceeding, and to give context to the
issues on appeal.

[4]

For a number of years, Ms. Al-Islam resided in a two-bedroom unit
in an apartment building in Vancouver. The building owner was and is Valley
Street Property Ltd., and she paid her rent to that company. Ms. Al-Islams
adult son, Mr. Rafique also resides in the unit, and, indeed, is the only
resident for much of the year, when Ms. Al-Islam is travelling. It is Mr. Rafique
who has been primarily involved in the events leading up to this litigation,
and he has, throughout, appeared on behalf of his mother in proceedings.

[5]

In November, 2015, Ms. Al-Islam and her family moved into a
one-bedroom unit, under a new tenancy agreement, which shows the landlord to be
Valley Street Property. She continued to pay her rent to Valley Street
Property Ltd., leaving the cheques with the building manager.

[6]

Sometime around March 2016, the ownership of the company changed, and it
engaged a management company, AWM Alliance Real Estate Group Ltd., to manage
the building. In March, Tyler Johnson, a representative of the management
company, met individually with tenants, to advise them of the changes and to
introduce himself and the new management company. Among the people Mr. Johnson
talked to was Mr. Rafique.

[7]

In April a package of written materials from the new management company
was delivered to the apartment unit and received by Mr. Rafique on behalf
of his mother. Among other things, the material advised tenants to make future
rent cheques payable to the management company.

[8]

Ms. Al-Islam did not comply with that instruction, continuing to
make cheques payable to Valley Street Properties Ltd. Initially, no
difficulties resulted from that conduct, but in November, 2016, the management
company returned the cheque, and asked for a replacement cheque made out to
AWM Alliance in Trust. Mr. Rafique responded by writing to AWM, stating
that he had determined that title to the property remained with Valley Street
Property, and that he would only make rent payments to that company unless he
received formal authorization from a BC land authority indicating that the
right to rental dues has been transferred to a new owner.

[9]

On December 5, 2016, Mr. Johnson wrote to Ms. Al-Islam,
explaining that while title to the land was still held by Valley Street
Properties Ltd., the ownership of that company had changed, and the new owners
had contracted with AWM to provide management. He indicated that rent cheques
would be accepted if they were payable either to Valley Street Properties or
AWM Alliance in Trust, and asked that the rent cheques be provided to him.
Thereafter, Mr. Rafique took the position that he would pay no further
rent until he received written confirmation from Valley Street Properties Ltd.
that AWM could collect rent on its behalf.

[10]

On January 6, 2017, with the rent for November and December 2016 and
January 2017 remaining unpaid, AWM prepared and delivered a 10 Day Notice to
End Tenancy for Unpaid Rent in the name of Valley Street Property. Mr. Rafique
received the notice. He attended at the office of the Residential Tenancy
Branch to dispute the notice.

[11]

The dispute was heard by teleconference by arbitrator L. Plenert on
February 3, 2017. At the hearing, Mr. Rafique, who appeared on behalf of
his mother, outlined his view that he did not have to pay rent until he had
written confirmation, in a form that he accepted, from the property owner that
he should provide his rent to the management company. He further argued that
the Notice to End Tenancy was invalid because it referred to Valley Street
Properties rather than Valley Street Properties Ltd.. The arbitrator did not
agree, saying:

I find that the 10 day Notice in question satisfies the
provision of section 52 of the Act and is in the proper form. The errors noted
by the tenants son are inconsequential and do not prejudice the tenant in any
way. This is not a case where the tenant was unaware of the landlords address
or to whom the rent was to be paid. The tenant was given very clear direction
by the landlord to the tenant in the letter of December 6 as to the payment of
rent, and that letter clearly bore the address. I find that the tenant knew or
should have known that the rent arrears had to be paid when the notice was
given if the tenant wanted the tenancy to continue, yet the tenant and her son
failed to pay it.

The notice is therefore found
effective to end this tenancy and the landlord has established a right to
possession.

[12]

Thereafter, the landlord brought an application for a monetary award to
cover outstanding rent in the amount of $4,600, and the $100 filing fee for the
application. A second arbitrator, S. Kaila, heard the dispute by teleconference
and granted the application. He made a monetary award of $4,700, and, after setting
off from that sum the amount of $575, being the damage deposit held by the
landlord, ordered Ms. Al-Islam to pay the landlord the amount of $4,125.

[13]

Mr. Rafique, by authority of a power of attorney granted to him by
his mother, commenced judicial review petitions in her name to quash the
decisions rendered by the residential tenancy arbitrators.

[14]

In the meantime, the back rent was paid; Indeed, we have heard today
that rent cheques may even have been tendered before the hearings before the
arbitrators. Further, at least for a time, Ms. Al-Islam paid the rent
coming due each month. The management company accepted the rent as an
occupancy fee, as it did not wish to be seen as acquiescing in the tenants
overholding.

The Petitions

[15]

The petitions were filed on March 10, 2017. Each of the petitions sought
to set aside the order of one of the arbitrators. I would comment that, given
the close connection between the two orders, and the fact that both were made
by delegates of the Director under the
Residential Tenancies Act
, it
would have been preferable for the matter to be brought as a single proceeding.
That said, it was open to Ms. Al‑Islam to seek the relief in two separate
petitions.

[16]

The petitions that were filed, however, were woefully defective and inadequate.
Section 2 of
Judicial Review Procedure Act
, R.S.B.C. 1996, c. 241
requires judicial review applications to be by petition. Under the
Supreme
Court Civil Rules
, a petition must be in Form 66. Section 14 of the
Judicial
Review Procedure Act
supplements the rules by including a requirement that
a judicial review application set out the ground for review.

[17]

Form 66 specifies that the first part of a petition must set out the
orders that are being sought. In Ms. Al-Islams petitions, she seeks to
have the arbitrators orders set aside. She also, however, seeks an injunction
against the landlord, requiring it to provide her with a ratification of the
asserted authority of AWM, and with insurance documents. Such injunctive relief
is not available under the
Judicial Review Procedure Act
, and should not
have been included in the petition.

[18]

The second part of a petition is required to set out the factual basis
for the application. In the petitions originally filed on behalf of Ms. Al-Islam,
she simply said Please see petition record. It will be served prior to the
hearing. This kind of
pro forma
statement does not conform to the
rules, and is improper.

[19]

The third part of a petition must set out the legal basis for the application.
It is in this part, as well, that a party normally sets out the grounds for
judicial review, as required by the
Judicial Review Procedure Act
. Again,
the filed petitions simply said Please see petition record. It will be served
prior to the hearing. Again, this is a serious deficiency in the petition.

[20]

The fourth part of a petition must advise of the materials to be relied
on at the hearing of the petition. Again, the petitioner simply said Please
see petition record. It will be served prior to the hearing. That, too was not
compliant with the rules and was unsatisfactory.

The Proceedings Before the
Chambers Judge

[21]

On June 14, the respondents filed notices of application, seeking to
have the petitions struck under Rule 9-5. As the petitions failed to set out
basic grounds for judicial review and included neither the facts nor legal
bases for the relief sought, this was an entirely reasonable action to take.

[22]

Unfortunately, the respondents also sought alternative relief, under
Rule 9-6, seeking summary judgment on the petitions. Rule 9-6 is a rule that
applies only to an action, which is defined in Rule 1-1(1) as a proceeding
started by a notice of civil claim. It is not applicable to a proceeding
commenced by petition. This restriction is sensible. The petition procedure is
itself a summary one, and it would be inefficient to allow an additional summary
procedure to be engrafted onto the process.

[23]

The application to strike the petitions came on for hearing in chambers
on June 28, 2017. The judge had, before him, the petitions, the responses, the
applications to strike, and a number of affidavits, some of which simply
attached exhibits that were before the arbitrator. The documentation was
difficult to follow.

[24]

It is evident that the judge had the opportunity to read some, but not
all of the materials. It is equally clear that he misapprehended the nature of
the application in front of him. He thought he was hearing the judicial review
petitions. Accordingly, he asked Mr. Rafique to go first, and to summarize
the case.

[25]

Mr. Rafique intended to ask for an adjournment, as he wished to
file an amended petition in at least one of the proceedings. He had tried to do
so that day, but the registry rejected the document because its formatting did
not meet the requirements of the rules. Mr. Rafique also wished more time
to respond to the application. He did not articulate his intentions clearly,
however. Instead of dealing with his request for an adjournment, the judge
pressed him for details about the case. Eventually, the judge called on the
respondents.

[26]

Unfortunately, counsel for the respondent at the hearing (who is not
counsel before us) did not, initially, correct the judges misimpression as to
the nature of the proceedings. Instead, he commenced his argument by discussing
the evidence on the judicial review application, and advising the judge that Mr. Rafique
had gotten certain facts wrong. Eventually, however, he mentioned that the
application was to dismiss the petitions under Rule 9-5 or 9-6.

[27]

The judge intervened, cutting the argument short, and proceeded to give
his decision, which was brief:

Youre both being very silly. Im
going to grant the judicial review, set aside the order, and Im going to
require you, sir, to make your cheques for your moms rent payable [to the
management company]. And assuming that you pay your rent you will not be
evicted  your mother will not be evicted until such time as they choose to
evict you for a valid reason

[28]

After the hearing, Mr. Rafique filed an amended petition in the
proceeding seeking to strike the order of Arbitrator Plenart. He did not amend
the petition in the other proceeding. The amended petition is over thirty pages
long. It is a rambling document. A careful and patient reading of the amended document
discloses that it contains sufficient detail to meet the requirements of the
Judicial
Review Procedure Act
and of Form 66. It also, however, contains a very
large amount of material that is entirely irrelevant. It includes arguments and
opinions and violates the principles of judicial review by including a wealth
of material that was neither before the tribunal nor casts light on how the
tribunal dealt with the matters before it. To be an adequate petition, it
requires severe and diligent editing.

The Appeal

[29]

On the appeal, the appellants ask that the judges order be set aside,
and that their applications be remitted to the Supreme Court; to his credit, at
this hearing, Mr. Georgetti, who I understand was not counsel who drafted
the notice of appeal or factum, has been more flexible in terms of the relief
he is seeking.

[30]

It is clear that the judges order cannot stand. The judge
misapprehended the nature of the application in front of him. He was not hearing
the petitions, and so could not grant the petitioner the relief sought in the
petitions. He also failed to hear full argument from the parties.

[31]

I am unable, however, to agree that the applications to strike the
petition should be remitted to the Supreme Court. Such a course of action would
be a waste of time and resources. The issues on the motion to strike are
straightforward and ought to be finally dealt with expeditiously. This Court
can do so.

[32]

The petitions are, as I have indicated, woefully inadequate. The amended
petition that the respondent filed, however, while needing drastic editing, is
a document that is capable of being amended to serve as a proper petition. In
the circumstances, I would not strike the proceedings, but rather give the petitioner
an opportunity to amend the petitions to comply with the rules.

[33]

I would strike out the paragraph in Part 1 of each petition that seeks
injunctive relief against the companies, as that relief is unavailable in a
judicial review proceeding, and cannot be sought by petition.

[34]

Part 2 of the petitions must include the material facts on which the
petition is based. These should stick carefully to the matters that were heard
before the arbitrators and to any procedural defects alleged in respect of the
arbitration hearings. They must not contain extraneous and irrelevant material.
Part 2 should not recite all of the evidence  rather, it should set out those
basic facts that are material to the issues on judicial review. I would think
that the factual basis for the petition in respect of the first arbitration
could be set out in less than a dozen paragraphs, as the facts are not overly complex.
The facts in respect of the second arbitration are even more concise, and it is
likely that not more than two or three paragraphs would be necessary.

[35]

Part 3 of the petitions should set out the basic grounds for judicial review,
and the legal bases for them. What it must do is outline of the legal basis for
the argument and describe the grounds. It should not, itself, be a lengthy
legal memo. It appears to me that the legal arguments, as I understand them,
could be set out in four or five paragraphs in the petition dealing with the
first arbitration. Again, the petition dealing with the second arbitration
award will be even more concise.

[36]

Part 4 of the petitions should set out the affidavits to be relied upon,
which must be served with the amended petitions, unless they have been already
been served. Part 4 should only list affidavits that contain admissible
evidence.

[37]

This matter should not be allowed to linger unnecessarily. The
petitioner must file amended petitions complying with the rules in the Supreme
Court by February 20, 2019, failing which the respondents may renew their
application to strike the petitions under Rule 9-5 in Supreme Court chambers.
The respondents, of course, including the Director, will have the opportunity
to file amended responses to the amended petitions.

[38]

Once the appropriate petitions and responses have been filed, the
parties may set the petitions down for hearing in the Supreme Court.

[39]

I would add that, while this appeal must be allowed, I would not
distance myself from the judges view that a basic problem in this matter is
that there is an unnecessary and unfortunate failure on the part of the respondent
to accept that the management company is entitled to collect rent on behalf of
the landlord. Mr. Rafique must abandon his stubborn refusal to recognize
AWM as the lawful representative of the landlord. His arguments to the effect
that he needs further evidence of AWMs authority border on obtuse. Assuming
that Mr. Rafique agrees to pay his rent and does so on time, it may well
be that the resolution proposed by the chambers judge would be a reasonable one
to reach voluntarily, whether or not it is one that might ultimately be ordered
by a court.

Disposition

[40]

The formal orders of the chambers judge as settled by the Registrar and
confirmed by Watchuk J. on appeal from the Registrar are as follows:

1.         The Respondents' application to strike the whole of
the Petitioners claim and pronouncing judgment dismissing the Petitioners
claim is dismissed.

2.         The Respondents' application for the granting of
an Order, in the alternative, pronouncing summary judgment dismissing the
Petitioners claim is dismissed.

3.         The Respondents' application for special costs or,
in the alternative, ordinary costs is dismissed.

4.         A Judicial Review is granted and concluded within
this proceeding.

5.         The Order of Mr. Plenert, the arbitrator is
set aside.

6.         The Petitioner's mother's cheques are to be
payable to whoever is directed to be payable to by AWM Alliance Real Estate
Group Ltd.

7.         The Respondents'
counsel is to draft the Order.

[41]

I would surmise that the reference to Mr. Plenert should have
been a reference to Mr. Kaila in the second proceeding. This slip,
however, is entirely inconsequential given the disposition this court is
making. I note that paragraph 7 of the orders could probably have been omitted,
since the orders were, in fact, settled by the Registrar.

[42]

I would strike out paragraphs 4, 5 and 7 of the orders. In each order, paragraph
6 will be renumbered as paragraph 4, and the wording will be corrected. I would
also add orders, so that the paragraphs following paragraph 3 of each order
will be as follows:

4.         The Petitioners rent cheques are to be made
payable as directed by AWM Alliance Real Estate Group Ltd.

5.         Paragraph 1.2 of the petition is struck.

6.         The petitioner is granted leave to amend Parts 2,
3 and 4 of the Petition to comply with the requirements of Form 66 and the
Judicial
Review Procedure Act
. The petitioner must file the amended petition on or
before February 20, 2019.

7.         The respondents may file amended responses to the
amended petition filed under paragraph 6 of this order.

8.         If the petitioner does
not file an amended petition substantially complying with Form 66 and the
Judicial
Review Procedure Act
in accordance with paragraph 6 of this order, the
respondents may renew their application to strike the petition under Rule 9-5
of the
Supreme Court Civil Rules
.

[43]

I would not award either side their costs on this appeal, as neither has
been substantially successful.

[44]

I would dispense with approval as to form of the order of this Court on
behalf of Ms. Al-Islam. Mr. Rafique has not acted responsibly in the
past in this regard, and I have no confidence that he will do so in respect of
this appeal.

[45]

FITCH J.A.
: I agree.

[46]

HUNTER J.A.
: I agree.

[47]

GROBERMAN J.A
.: The appeal is allowed and the order of the
chambers judge is modified as stated in these reasons.

The
Honourable Mr. Justice Groberman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Wang v. Shao,

2019 BCCA 52

Date: 20190204

Docket: CA45217

Between:

Mei Zhen Wang

Appellant

(Plaintiff)

And

Feng Yun Shao also
known Shao Feng Yun

also known as Amy
Barsha Washington

Respondent

(Defendant)

Before:

The Honourable Mr. Justice Hunter

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 9, 2018 (
Wang v. Shao
, 2018 BCSC 377, Vancouver Docket S101156).

Oral Reasons for Judgment

Counsel for the Appellant:

R.V. Wickett, Q.C.

E. Dvorak, Articled
  Student

Counsel for the Respondent:

M. Azevedo

Place and Date of Hearing:

Vancouver, British
  Columbia

February 4, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

February 4, 2019

Summary:

The respondent applies for
security for costs of the trial and the appeal. The notice of appeal was filed
on April 6, 2018. Appeal books and factums have been filed. The appeal is set
for hearing March 7, 2019. Held: Application dismissed. In light of the delay
in bringing this application and the proximity of the scheduled date for
hearing the appeal, the interests of justice do not support an order for
security for costs.

[1]

HUNTER J.A.
: The respondent applies for security for costs of the
appeal and the trial.

[2]

The nature of the underlying litigation was described by the trial judge
in the opening paragraph of his judgment (indexed at 2018 BCSC 377):

[1]        This case concerns the
collapsed sale of a Shaughnessy luxury home. The question at the core of this
dispute is whether the failure of the vendor to disclose the unsolved murder of
an occupant of the property, which occurred almost 2 years before the sale,
entitled the buyer to refuse to complete the purchase, and to recover her
deposit.

[3]

The trial judge concluded that it did. He held that the respondent had
been induced to enter into the contract for the purchase of the property by a
fraudulent misrepresentation by the appellant, and was entitled to rescind the
contract and recover her deposit.

[4]

The trial judgment was pronounced on March 9, 2018. The appellant filed
a notice of appeal on April 6, 2018. The transcript and appeal record were
filed on June 29, 2018. The appellant filed her appeal book and factum on
August 13, 2018, and the respondent filed her factum on September 26, 2018. A
certificate of readiness was filed on November 28, 2018 and the appeal is now
scheduled to be heard on March 7, 2019, 31 days from today.

[5]

The basis for the application is that the appellant resides in China and
does not appear to have any assets in British Columbia that would be exigible
to pay costs if the appeal is unsuccessful.

[6]

The practice of this Court when security for costs is ordered is well
settled. The appellant will be given some time to post the costs, normally 30
days. The appeal is stayed until costs are posted. If costs are not posted by
the specified date, a justice may dismiss the appeal as abandoned, pursuant to
s. 24(2) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77.

[7]

The considerations that are relevant to the decision to order security
for costs to be posted are also well settled. This Court summarized them in
Ellis
v. Denman Island Local Trust Committee
, 2016 BCCA 135, in these terms:

[7]        In
Creative Salmon Company Ltd. v. Staniford
,
2007 BCCA 285 (in Chambers), Lowry J.A. provided a concise statement of the
relevant criteria on an application for security for costs of the appeal:

[9]        The jurisdiction to
order security for costs of an appeal is found in s. 24 of the
Court of
Appeal Act
, R.S.B.C. 1996, c. 77. The appellant against which such an
order is sought bears the onus of showing why security should not be required:
Kedia v. Shandro Dixon Edgson
, 2007 BCCA 57 at para. 4 (C.A.
Chambers), Smith J.A. Generally, the considerations are the appellant's ability
to post security and the likelihood of costs awarded being recovered from it,
as well as the merits and the timeliness of the application
:  Southeast
Toyota Distributors, Inc. v. Branch
(1997), 45 B.C.L.R. (3d) 163 (C.A.);
Milina
v. Bartsch
(1985), 5 C.P.C. (2d) 124 at 125 (B.C.C.A. Chambers), Seaton
J.A.; and
M.(M.) v. F.(R.)
(1997), 43 B.C.L.R. (3d) 98 at 101 (C.A.
Chambers), Esson J.A.

[8]        In
Lu v. Mao
, 2006 BCCA 560 (in Chambers),
Ryan J.A. explained:

[6]        In determining whether
security for costs should be ordered, the ultimate question to be answered is
whether the order would be in the interests of justice. In this regard, Madam
Justice Rowles in
Ferguson v. Ferstay
(2000), 81 B.C.L.R. (3d) 90 at para. 7;
2000 BCCA 592, (in Chambers) identified the following as relevant
considerations:

(1)  appellants financial means;

(2)  the merits of the appeal;

(3)  the timeliness of the
application; and

(4)  whether the costs will be readily
recoverable.

[8]

In opposing the order for security for costs, the appellant focuses on
the timeliness consideration. The notice of motion seeking this relief was
filed and served on January 16, 2019, well after the appeal documents and a
certificate of readiness were filed. The appeal is set to proceed on March 7,
2019, 31 days from today. The evidence is that the appellant is aged 84, does
not speak English and resides in China. The process of communicating with the
appellant requires translations by the appellants daughter or granddaughter.
The trial costs have not been assessed, and I am told that no demand for
payment of trial costs was made before service of this application on January
16.

[9]

I have no evidence as to the ability of the appellant to pay security
for costs, but the parties agree that it is likely that she has sufficient
resources. The issue is whether she can be compelled to do so if she is
unsuccessful in this appeal.

[10]

In some cases, the fact that nearly all the costs required to prepare
the case for appeal, including costs of preparing the appeal books, transcripts
and factum, have been expended before the security for costs application is
brought, is of itself sufficient reason to dismiss the application: see e.g.,
Grewal
v. Khakh
, 2018 BCCA 3 (Chambers) at para. 13;
Hayes v. Schimpf
,
2005 BCCA 413 (Chambers) at para. 11. In other cases, security may be
ordered on a late application when no unfairness would result to the appellant
as a result of the lack of timeliness: e.g.,
Ducharme v. Rempel
, 2015
BCCA 437 (Chambers). But bringing the application so close to the scheduled
appeal date creates specific timeliness problems that mitigate against granting
an order that might otherwise have been given.

[11]

Justice Esson addressed this problem in
M.(M.) v. F.(R.)
, [1998]
9 W.W.R. 309 (B.C.C.A.) (in Chambers). In addressing the significance of the
upcoming appeal date, Esson J.A. (as then was) made these comments:

[6]        As I see it, the overriding difficulty with
respect to making any order is that the application comes so late. Had an
application for security been made at an earlier stage of the appeal
proceedings before the heavy costs of transcripts, appeal books and factum
preparation were incurred, it might well have been right to make an order for
security of costs, at least in respect of the costs in this Court and perhaps
also in the court below.

[7]        An order for security for costs is ordinarily made
effective by providing that the appeal be stayed until security is posted. When
such an order is made in the earliest stages of the appeal, that can generally
be done without injustice to the appellant. But that is not possible on the eve
of the hearing, and so that ordinary form of sanction is out of the question.

[8]        I conclude that at
this late stage of the proceeding, there is no feasible method to give Mrs. F.
the protection she seeks without injustice to the appellant. The application is
dismissed.

[12]

The application described by Esson J.A. as being heard on the eve of
the hearing was heard six weeks before the scheduled appeal date. In our case,
the application has been brought a month before the appeal date. If the order
was made, the appeal stayed, and the usual 30 days were given to the appellant
to arrange for the posting of security, it might not be until the day before
the hearing that the parties and the Court knew whether the appeal was going
ahead. This is not a tenable proposition, particularly when no satisfactory
reason has been given for the delay by the respondent in bringing this
application. The respondent has suggested that I might reduce the time
available to post security, but it does not appear to me appropriate to
truncate the usual time period when the problem arises from an untimely
application.

[13]

In these particular circumstances, I am not prepared to make an order
for security for costs. Had the application been brought earlier, the result
might well have been different, at least as relates to the appeal costs, but at
this stage of the proceedings I am not satisfied that an order can be made
without injustice to the appellant.

[14]

Accordingly, the application for security for costs of the appeal and
the trial is dismissed.

The
Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Allard v. The Owners, Strata Plan VIS 962,

2019 BCCA 45

Date: 20190205

Docket: CA45323

Between:

James Allard

Respondent

(Petitioner)

And

The Owners, Strata
Plan VIS 962

Appellant

(Respondent)

And

Civil Resolution
Tribunal

Respondent

(Respondent)

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

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

Counsel for the Appellant:

C.D. Wilson

Counsel for the Respondent, James Allard:

C.L. Vickers

Counsel for the Respondent,
Civil Resolution Tribunal:

T. Mason

Place and Date of Hearing:

Vancouver, British
  Columbia

December 14, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

February 5, 2019

Written Reasons by:

The Honourable Madam Justice Kirkpatrick

Concurred in by:

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

Summary:

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

Reasons for Judgment of the Honourable
Madam Justice Kirkpatrick:

[1]

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

[2]

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

[3]

For the reasons that follow, I conclude that:

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

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

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

[4]

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

Background

[5]

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

[6]

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

A. The Tribunal Decision

[7]

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

Orders
available in strata property claims

48.1

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

[8]

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

[9]

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

[10]

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

1.

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

2.

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

[11]

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

[12]

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

B. The Order and Reasons of the Chambers Judge

[13]

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

Appeal to
Supreme Court

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

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

(a)  all parties consent, or

(b)  the court grants leave to appeal.

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

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

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

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

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

(d)  the principle
of proportionality.

[14]

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

[15]

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

i)

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

a)

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

b)

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

c)

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

ii)

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

[16]

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

[66]

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

[17]

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

[67]

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

On Appeal

[18]

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

(1)

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

(2)

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

[19]

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

A. Questions of Law

[20]

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

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

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

[21]

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

[22]

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

[23]

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

B. The Interests of Justice and Fairness

[24]

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

[25]

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

1. Precedential Value

[26]

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

2. Importance to the Parties

[27]

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

[28]

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

[29]

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

3. Proportionality

[30]

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

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

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

[Emphasis
added.]

[31]

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

Civil Resolution Tribunal mandate and role

2

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

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

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

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

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

[32]

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

a)

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

b)

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

c)

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

d)

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

e)

encourages
early and collaborative dispute resolution,

f)

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

g)

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

h)

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

[33]

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

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

[34]

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

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

[35]

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

Conclusion

[36]

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

[37]

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

The Honourable Madam
Justice Kirkpatrick

I AGREE:

The Honourable Mr. Justice Fitch

I AGREE:

The Honourable Mr. Justice Hunter