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Strata Property Act

[SBC 1998] CHAPTER 43

Part 10 — Legal Proceedings and Arbitration

Division 1 — Suits Against the Strata Corporation

Strata corporation may be sued

163  (1) The strata corporation may be sued as representative of the owners with respect to any matter relating to the common property, common assets, bylaws or rules, or involving an act or omission of the strata corporation.

(2) An owner may sue the strata corporation.

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).

Owner's liability for judgment against strata corporation

166  (1) A judgment against the strata corporation is a judgment against all the owners.

(2) A strata lot's share of a judgment against the strata corporation is calculated in accordance with section 99 (2) or 100 (1) as if the amount of the judgment were a contribution to the operating fund and contingency reserve fund, and an owner's liability is limited to that proportionate share of the judgment.

(3) Other than as set out in this section, an owner has no personal liability, in his or her capacity as an owner, for loss or damage arising from any of the following:

(a) the management and maintenance of the common property and common assets by the strata corporation;

(b) the actions or omissions of the council or strata corporation;

(c) any contracts made or debts or liabilities incurred by or on behalf of the strata corporation.

Defending suits

167  (1) The strata corporation must inform owners as soon as feasible if it is sued.

(2) The expense of defending a suit brought against the strata corporation is shared by the owners in the same manner as a judgment is shared under section 166, except that an owner who is suing the strata corporation is not required to contribute.

Strata corporation may join owner

168  In suits against the strata corporation, the strata corporation may join as a party the owner whose act or omission gave rise to the claim against the strata corporation.

Limit on owner's responsibility for costs

169  (1) If the strata corporation joins or sues an owner in the owner's capacity as owner or as owner developer, or if an owner sues the strata corporation, that owner

(a) is not liable to contribute to legal costs that a court or arbitrator requires the strata corporation to pay,

(b) does not, despite being an owner, have a right to information or documents relating to the suit, including legal opinions kept under section 35 (2) (h), and

(c) does not, despite being an owner, have a right to attend those portions of any annual or special general meeting or council meeting at which the suit is dealt with or discussed.

(2) If the strata corporation pays an amount to an owner in full or partial satisfaction of the owner's claim against the strata corporation, whether or not under a judgment, the owner is not liable to share in the cost of the payment with other owners.

Division 2 — Suits by the Strata Corporation

Suits against owners

170  The strata corporation may sue an owner.

Strata corporation may sue as representative of all owners

171  (1) The strata corporation may sue as representative of all owners, except any who are being sued, about any matter affecting the strata corporation, including any of the following matters:

(a) the interpretation or application of this Act, the regulations, the bylaws or the rules;

(b) the common property or common assets;

(c) the use or enjoyment of a strata lot;

(d) money owing, including money owing as a fine, under this Act, the bylaws or the rules.

(2) Before the strata corporation sues under this section, the suit must be authorized by a resolution passed by a 3/4 vote at an annual or special general meeting.

(3) For the purposes of the 3/4 vote referred to in subsection (2), a person being sued is not an eligible voter.

(4) The authorization referred to in subsection (2) is not required for a proceeding under the Small Claims Act against an owner or other person to collect money owing to the strata corporation, including money owing as a fine, if the strata corporation has passed a bylaw dispensing with the need for authorization, and the terms and conditions of that bylaw are met.

(5) All owners, except any being sued, must contribute to the expense of suing under this section.

(6) A strata lot's share of the total contribution to the expense of suing is calculated in accordance with section 99 (2) or 100 (1) except that

(a) an owner who is being sued is not required to contribute, and

(b) the unit entitlement of a strata lot owned by an owner who is being sued is not used in the calculations.

Strata corporation may sue on behalf of some owners

172  (1) The strata corporation may sue on behalf of one or more owners about matters affecting only their strata lots if, before beginning the suit,

(a) it obtains the written consent of those owners, and

(b) the suit is authorized by a resolution passed by a 3/4 vote at an annual or special general meeting.

(2) Only those owners on whose behalf the suit is brought must contribute to the expense of suing under this section.

(3) A strata lot's share of the total contribution to the expense of suing is calculated in accordance with section 99 (2) or 100 (1) except that

(a) only owners on whose behalf the suit is brought are required to contribute, and

(b) only the unit entitlement of strata lots owned by owners on whose behalf the suit is brought are used in the calculations.

Other court remedies

173  (1) On application by the strata corporation, the Supreme Court may do one or more of the following:

(a) order an owner, tenant or other person to perform a duty he or she is required to perform under this Act, the bylaws or the rules;

(b) order an owner, tenant or other person 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).

(2) If, under section 108 (2) (a),

(a) a resolution is proposed to approve a special levy to raise money for the maintenance or repair of common property or common assets that is necessary to ensure safety or to prevent significant loss or damage, whether physical or otherwise, and

(b) the number of votes cast in favour of the resolution is more than 1/2 of the votes cast on the resolution but less than the 3/4 vote required under section 108 (2) (a),

the strata corporation may apply to the Supreme Court, on such notice as the court may require, for an order under subsection (4) of this section.

(3) An application under subsection (2) must be made within 90 days after the vote referred to in that subsection.

(4) On an application under subsection (2), the court may make an order approving the resolution and, in that event, the strata corporation may proceed as if the resolution had been passed under section 108 (2) (a).

Division 2.1 — Validity of Suits and Arbitrations

Validity of suits and arbitrations undertaken by strata corporation

173.1  (1) The failure of a strata corporation to obtain an authorization required under section 171 (2) or 172 (1) (b) or the written consent of an owner under section 172 (1) (a) in relation to a suit or an arbitration

(a) does not affect the strata corporation's capacity to commence a suit or arbitration that is otherwise undertaken in accordance with this Act,

(b) does not invalidate a suit or arbitration that is otherwise undertaken in accordance with this Act, and

(c) does not, in respect of a suit or arbitration commenced or continued by the strata corporation that is otherwise undertaken in accordance with this Act, constitute

(i)   a defence to that suit or arbitration, or

(ii)   an objection to the capacity of the strata corporation to commence or continue that suit or arbitration.

(2) Despite any decision of a court to the contrary made before or after the coming into force of this section, subsection (1) applies to a suit and an arbitration commenced or continued before or after the coming into force of this section.

(3) This section is retroactive to the extent necessary to give full force and effect to its provisions and must not be construed as lacking retroactive effect in relation to any matter merely because it makes no specific reference to that matter.

Division 3 — Administrator of Strata Corporation

Appointment of administrator

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) The court may appoint an administrator if, in the court's opinion, the appointment of an administrator is in the best interests of the strata corporation.

(3) The court may

(a) appoint the administrator for an indefinite or set period,

(b) set the administrator's remuneration,

(c) order that the administrator exercise or perform some or all of the powers and duties of the strata corporation, and

(d) relieve the strata corporation of some or all of its powers and duties.

(4) The remuneration and expenses of the administrator must be paid by the strata corporation.

(5) The administrator may delegate a power.

(6) On application of the administrator or a person referred to in subsection (1), the court may remove or replace the administrator or vary an order under this section.

(7) Unless the court otherwise orders, if, under this Act, a strata corporation must, before exercising a power or performing a duty, obtain approval by a resolution passed by a majority vote, a 3/4 vote or a unanimous vote, an administrator appointed under this section must not exercise that power or perform that duty unless that approval has been obtained.

Division 4 — Arbitration

Application of this Division

175  (1) This Division applies to a dispute referred to in section 177 if any of the parties to the dispute is an owner or tenant at the time the dispute arises.

(2) Despite subsection (1), this Division does not apply if

(a) Part 5 of the Residential Tenancy Act applies to the dispute, or

(b) Part 5 of the Residential Tenancy Act does not apply to the dispute and all parties have agreed that the Arbitration Act will apply.

Suit requirements and procedures apply

176  The requirements and procedures regarding authorization for suits and liability for expenses and judgments in suits by and against the strata corporation, as set out in sections 166, 167, 169, 171 and 172, apply with appropriate changes to an arbitration in which the strata corporation is a party.

Disputes that can be arbitrated

177  (1) Subject to section 178 (1), the strata corporation may refer to arbitration a dispute with an owner or tenant if the dispute concerns a matter set out in subsection (3) of this section.

(2) Subject to section 178 (1), an owner or tenant may refer to arbitration a dispute with the strata corporation or with another owner or tenant if the dispute concerns a matter set out in subsection (3) of this section.

(3) A dispute may be referred to arbitration under subsection (1) or (2) if it concerns any of the following:

(a) the interpretation or application of this Act, the regulations, the bylaws or the rules;

(b) the common property or common assets;

(c) the use or enjoyment of a strata lot;

(d) money owing, including money owing as a fine, under this Act, the bylaws or the rules;

(e) an action or threatened action by, or decision of, the strata corporation, including the council, in relation to an owner or tenant;

(f) the exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.

Effect of court proceedings on arbitration

178  (1) A dispute must not be referred to arbitration under section 177 (1) or (2) once a court proceeding has been commenced in relation to the same dispute.

(2) A court having jurisdiction may hear a dispute that has been referred to arbitration, but a party to the arbitration may apply to the court for an order to stay the court's proceedings.

(3) On an application for a stay under subsection (2), the court must stay its proceedings unless the court is satisfied there is good reason to continue its proceedings.

(4) In determining whether to stay its proceedings, the court may consider all of the following:

(a) the legal and factual complexity of the dispute;

(b) the suitability of the intended arbitrator;

(c) the comparative expense and delay of the court proceedings and the arbitration;

(d) the interests of any other parties;

(e) the likelihood that all the parties to the arbitration will cooperate to do all things necessary for the proper conduct of the arbitration;

(f) any other matter the court thinks proper.

Beginning arbitration

179  (1) A party may begin arbitration by giving the other party a Notice Beginning Arbitration in the prescribed form that describes the dispute and proposes either an arbitrator, a choice of arbitrators or a method for appointing an arbitrator.

(2) Within 2 weeks after receiving the Notice Beginning Arbitration, the party receiving the notice must give the party who began the arbitration a Notice of Reply in the prescribed form.

(3) The Notice of Reply must

(a) indicate agreement to one of the proposed arbitrators or the proposed method of appointing an arbitrator, or

(b) propose another arbitrator, choice of arbitrators or method of appointing an arbitrator.

(4) Within one week after receiving a Notice of Reply that proposes another arbitrator, choice of arbitrators or method of appointing an arbitrator, the party who began the arbitration must give the other party a Notice Responding to Reply in the prescribed form.

(5) The Notice Responding to Reply must

(a) indicate agreement to one of the proposed arbitrators or the proposed method of appointing an arbitrator, or

(b) reject the proposed arbitrator, choice of arbitrators or method of appointing an arbitrator.

(6) If an arbitrator, choice of arbitrators or method of appointing an arbitrator is rejected in the Notice Responding to Reply, each party has one week after that notice is given to appoint his or her own arbitrator, and the 2 arbitrators must either

(a) name a third person as the sole arbitrator, or

(b) name a third arbitrator to act with them and to chair the panel.

(7) On application of a party, the Supreme Court may appoint an arbitrator if for any reason a single arbitrator or a panel of arbitrators is not appointed within 6 weeks after the Notice Beginning Arbitration is given.

(8) A person who is an owner, tenant or occupant in the strata corporation, or the strata manager or other employee of the strata corporation, may not be an arbitrator unless all the parties consent.

(9) Subject to subsection (8), any person 19 years old or older may be an arbitrator.

Consolidation of disputes

180  Similar disputes that arise between different parties may be heard in one arbitration if all parties agree on

(a) the appointment of the arbitrator, and

(b) the steps to be taken to consolidate the disputes into one arbitration.

Mediation

181  Before holding a hearing, the arbitrator must advise the parties of the possibility of a mediated settlement.

Notice of arbitration

182  (1) Before holding a hearing, the arbitrator may provide notice to a person who is not a party to the arbitration but who in the arbitrator's opinion may be directly affected by the issues under consideration at the arbitration.

(2) A person who receives notice under this section may make a statement in writing to the arbitrator.

(3) A person who makes a statement under subsection (2) may be joined as a party in the arbitration if

(a) the person consents to being joined as a party,

(b) the arbitrator requests that the person be joined as a party, and

(c) the other parties consent.

Arbitration procedures

183  (1) Subject to this Division and the regulations, the arbitrator may conduct the hearing in the manner the arbitrator considers appropriate.

(2) Before the hearing the parties to the arbitration must submit to the arbitrator a written statement describing the nature of the dispute and the evidence they intend to call.

(3) The arbitrator must hold a hearing as soon as possible at a location in or near the strata corporation's premises.

(4) The arbitration hearing is open to all owners or tenants, unless all the parties to the arbitration agree that the hearing should be held in private.

(5) A party may be represented at any stage of the arbitration by another person, including a lawyer.

(6) If all parties agree, the arbitration hearing may consist of an exchange of written statements or any other procedure.

Examination and evidence

184  (1) The parties to an arbitration must, when ordered by the arbitrator, submit to being examined by the arbitrator and must produce all relevant records that the arbitrator may require.

(2) The arbitrator must allow each party adequate opportunity to present and rebut evidence.

(3) A person who is not a party to a dispute may give evidence only if

(a) the person consents to give evidence, and

(b) the person is requested to give evidence by a party to the dispute.

(4) The arbitrator may admit evidence that he or she considers relevant to the issues in dispute, whether or not that evidence would be admissible in a court.

(5) The arbitrator may require that a party or a witness give evidence on oath or affirmation, and may administer the oath or affirmation.

Arbitrator's decision

185  (1) The arbitrator may make whatever decision he or she considers just having regard to this Act, the regulations, the bylaws and the rules, and may do one or more of the following:

(a) order a party to do something;

(b) order a party to refrain from doing something;

(c) order a party to pay money as damages.

(2) The arbitrator's decision must include reasons, be in writing and be signed by the arbitrator.

(3) Within 4 weeks of the date of the decision, the arbitrator may vary a decision to correct a clerical or typographical error or omission, or a similar type of error or omission.

Costs

186  (1) The arbitrator may make an order for costs, specifying the persons entitled to costs, the persons who must pay the costs, the amount of the costs and the manner of payment.

(2) If the arbitrator does not make an order respecting costs, a party may, within 30 days of being notified of the decision, apply to the arbitrator for an order respecting costs.

(3) If no application is made under subsection (2), or if following an application the arbitrator does not make an order respecting costs, subject to any agreement to the contrary, the parties must bear their own costs and must pay equal shares of the fees of the arbitrator.

Decision final

187  The decision of the arbitrator is final and binding on the parties except that

(a) the decision may be reviewed as provided under the Judicial Review Procedure Act, and

(b) the decision may be appealed under section 188.

Appeal to court

188  (1) A party to an arbitration may, within 30 days after receiving the decision, appeal to the Supreme Court on any question of law arising out of the decision if

(a) all of the parties to the arbitration consent, or

(b) the court grants leave to appeal.

(2) In an application under subsection (1), the court may grant leave, but only if it determines that

(a) the importance of the decision justifies the intervention of the court and that the determination of the question of law may prevent a miscarriage of justice, or

(b) the question of law is of importance to some class or body of persons of which the applicant is a member, or that the question of law is of general or public importance.

Enforcement of decision

189  (1) An arbitrator's decision and order for costs may be filed in the Supreme Court and on being filed have the same effect, and all proceedings may be taken on them, as if they were orders of the Supreme Court.

(2) An arbitrator's decision and order for costs may be filed in the Provincial Court if

(a) the amount claimed or the value of the personal property or services is within the monetary jurisdiction of the court, and

(b) the decision is in respect of

(i)   debt or damages,

(ii)   recovery of personal property,

(iii)   specific performance of an agreement relating to personal property or services, or

(iv)   relief from opposing claims to personal property.

(3) On being filed under subsection (2), the decision and order for costs have the same effect, and all proceedings may be taken on them, as if they were orders of the Provincial Court.

(4) Despite subsections (1) to (3), a decision or order for costs may not be filed until

(a) the time limit for an appeal has expired and no appeal has been taken, or

(b) the appeal is completed or abandoned.

Contents  |  Part 1  |  Part 2  |  Part 3  |  Part 4  |  Part 5  |  Part 6  |  Part 7  |  Part 8  |  Part 9  |  Part 10  |  Part 11  |  Part 12  |  Part 13  |  Part 14  |  Part 15  |  Part 16  |  Part 17  |  Schedule of Standard Bylaws