omnicare pharmacy ltd. v. the owners, strata plan lms2854

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Omnicare Pharmacy Ltd. v. The Owners, Strata Plan LMS 2854,

2017 BCSC 256 Date: 20170220

Docket: S164895 Registry: Vancouver

Between:

Omnicare Pharmacy Ltd. Petitioner

And:

The Owners, Strata Plan LMS 2854 Respondent

Before: The Honourable Madam Justice Adair

Reasons for Judgment

Counsel for the Petitioner: V.H. Stewart

Counsel for the Respondent: A.C. Breen

Place and Date of Hearing: Vancouver, B.C. November 18 and 23, 2016

Place and Date of Judgment: Vancouver, B.C. February 20, 2017

Omnicare Pharmacy Ltd. v. The Owners, Strata Plan LMS 2854 Page 2

1. Introduction ......................................................................................................... 2

2. Background ......................................................................................................... 5

(a) Carrall Station .............................................................................................. 5

(b) The formation of the Strata Corporation in July 1997 .................................. 5

(c) The Bylaws .................................................................................................. 6

(d) Omnicare’s business and customers ......................................................... 11

(e) The Strata Corporation asserts Omnicare is in breach of various bylaws, and levies fines ..................................................................................................... 18

(i) Breach of bylaw 5.7 ................................................................................ 19

(ii) Breach of bylaw 5.1 ................................................................................ 19

(iii) Breach of bylaws 45.1, 46.3, 5.1 and 5.7 ............................................... 20

(iv) Breach of bylaws 5.1 and 5.7 ................................................................. 20

(v) Breach of bylaws 5.1, 45.1, 51.1 and 51.6 ............................................. 21

(vi) The Strata Council levies five fines, totalling $1,000 .............................. 22

(f) Request to add a security gate for Unit 130 .................................................. 22

(g) Events after the Petition was filed .............................................................. 24

3. Discussion and analysis.................................................................................... 25

(a) Are the Current Bylaws valid? ................................................................... 26

(b) The Nuisance Bylaw .................................................................................. 32

(c) Has the Strata Corporation treated Omnicare in a manner that is significantly unfair? ............................................................................................... 34

4. Summary and disposition.................................................................................. 41

1. Introduction

[1] The petitioner, Omnicare Pharmacy Ltd., is the owner of three ground-level,

nonresidential strata lots in an 8-storey building located at 1 East Cordova Street in

Vancouver, at the corner of East Cordova and Carrall Streets. The building is known

as “Carrall Station,” and is in the area known as the Downtown Eastside. The vast

majority of strata lots in Carrall Station are residential.

[2] Since 2000, Omnicare has operated a pharmacy (the “Pharmacy”) from one

of its strata lots, Unit 130. The Pharmacy is open 7 days a week, 365 days a year.

Among other things, the Pharmacy dispenses maintenance methadone by


prescription. Mr. Harvey Chan, a licensed pharmacist and Omnicare’s president,

estimates that Omnicare serves, on average, about 200 customers a day, many or

most of whom live in the neighbourhood.

[3] For many years, the operation of the Pharmacy has created considerable

friction between Omnicare and Carrall Station’s strata council. In 2009, Omnicare

commenced legal proceedings against the Strata Corporation, asserting (among

other things) that the Strata Corporation was treating Omnicare in a manner that was

significantly unfair. Those proceedings ultimately were settled by a consent order in

2011.

[4] However, beginning in December 2015, the Strata Corporation (through its

property manager) sent a series of letters to Omnicare asserting that Omnicare was

in breach of various bylaws. Many of the alleged breaches related to what was

asserted to be the conduct of individuals who were said to be customers of the

Pharmacy. Ultimately, the Strata Corporation levied a total of $1,000 in fines against

Omnicare.

[5] Omnicare now applies for the following relief:

(a) a declaration that the Strata Corporation’s bylaws are invalid, and that

the standard bylaws under the Strata Property Act, S.B.C. 1998, c 43,

are the only bylaws that apply;

(b) alternatively, an declaration that Omnicare has not breached the

bylaws under which the Strata Corporation has levied fines against

Omnicare;

(c) a declaration that the Strata Corporation has treated Omnicare in a

manner that is significantly unfair, contrary to s. 164 of the Strata

Property Act, by knowingly relying on invalid bylaws to make

complaints and assess fines against Omnicare and by refusing

unreasonably to permit Omnicare to install a security gate outside its

exterior business door;


(d) an order cancelling all fines assessed against Omnicare’s strata lot;

(e) an injunction restraining the Strata Corporation, its agents and

representatives, from further conduct that constitutes harassment of,

and interference with, Omnicare’s business, its employees and

representatives and customers; and

(f) an order permitting Omnicare to install a security gate on the exterior

of the door of Unit 130.

[6] The Strata Corporation says that the petition should be dismissed.

[7] The Strata Corporation acknowledges that its bylaws were not passed in

compliance with the requirements of the legislation. However, the Strata

Corporation says that the failure to comply is merely technical, not substantive, and

the court should therefore exercise its discretion to uphold the validity of the bylaws.

In addition, the Strata Corporation says that Omnicare has allowed too much time to

go by without challenging the validity of the bylaws, and a declaration of invalidity

after so many years would be prejudicial to the Strata Corporation. The Strata

Corporation says that the fines issued against Omnicare were justified in the

circumstances and made with the best interests of the other owners in mind.

[8] The Strata Corporation denies that it has treated Omnicare in a manner that

is significantly unfair. Rather, it says that it has acted reasonably, and in accordance

with its statutory obligations, by taking action against Omnicare for its failure to

address issues relating to its business that have affected other strata owners. The

Strata Corporation says that the decision not to permit Omnicare to install a security

gate is justified, and, further, that Omnicare has failed to make out any basis for the

injunction requested.


2. Background

(a) Carrall Station

[9] The Strata Corporation consists of eight nonresidential strata lots and 74

residential strata lots, together with common and limited common property.

[10] All of Carrall Station’s nonresidential units are at ground level.

[11] In addition to Omnicare’s three strata lots, only one other nonresidential strata

lot is used as commercial space (a restaurant). The other four nonresidential strata

lots are used as residential units. This includes the unit occupied by Mr. Victor

Paquette. Mr. Paquette sits on the Strata Council as the single designated

representative (under the challenged bylaws) of the nonresidential owners.

(b) The formation of the Strata Corporation in July 1997

[12] The Strata Corporation came into existence in July 1997, by deposit and

registration of strata plan LMS 2854 in the Land Title Office.

[13] Concurrently with registration of the strata plan, an easement agreement

between the City of Vancouver and Carrall Station’s developer was also registered.

By the easement agreement, Carrall Station was permitted to partially encroach on

City property, including approximately one foot from the exterior walls of the building

onto the sidewalk along the length of the building on East Cordova and Carrall

Streets. Under the easement agreement, the Strata Corporation is responsible for

ensuring that the area covered by the easement is maintained in a safe condition

and in good repair, and kept in a reasonably neat and clean condition at all times.

The easement agreement also requires the Strata Corporation to maintain

insurance, so that if any of the encroachments cause damage or injury to others, the

Strata Corporation, and not the City, will be responsible for it.

[14] No survey is in evidence, and the opinions expressed by the Strata

Corporation’s witnesses about the meaning and effect of the easement agreement

are inadmissible.


[15] I find that the easement agreement does not give the Strata Corporation any

ownership interest in the areas subject to the agreement, and does not convert any

of those areas into common property.

(c) The Bylaws

[16] Also in July 1997, the Strata Corporation filed notification of its adoption of the

bylaws set out in the Condominium Act, R.S.B.C. 1996, c. 64, as amended by

Schedule “A” attached to the filing. I will refer to these bylaws as amended by

Schedule “A” as the “Original Bylaws.”

[17] Among other things, the Original Bylaws provided as follows:

(a) with respect to the Strata Council: the Strata Council was to consist of

not less than 3 and not more than 7 persons; not less than one quarter

of the council members would be owners, or representatives of

owners, of nonresidential strata lots; only the owners of the

nonresidential strata lots could elect their appointees to council (and

vice versa) and neither group would have a say in the appointment of

council members by the other (bylaw 118(4)); and

(b) no bylaw could be amended, replaced or repealed without the approval

of the nonresidential owners holding at least 50% of all votes allocated

to nonresidential strata lots present and entitled to vote (bylaw 135).

[18] The Condominium Act was repealed as of July 1, 2000 and replaced by the

Strata Property Act, which included a “Schedule of Standard Bylaws” (the

“Standard Bylaws”). Section 17.11 of the Strata Property Act Regulation, B.C.

Reg. 43/2000 (the “Regulation”), provided in relevant part that:

(1) Except as provided in section 17.9 of this regulation, the Standard Bylaws do not apply to a strata corporation created under the Condominium Act until January 1, 2002, and on that date apply only to the extent set out in this section.

(2) Subject to subsections (3) to (5), a strata corporation bylaw existing under the Condominium Act immediately before the coming into force of this


section, including a bylaw under Part 5 of the Condominium Act or under a former Act which was deemed, by section 26 (2) of the Condominium Act or a similar section of a former Act, to be a bylaw of the strata corporation, continues to have effect despite any provision of the Act or this regulation.

(3) On January 1, 2002,

(a) the Standard Bylaws are deemed to be the bylaws for all strata corporations created under the Condominium Act, except to the extent that conflicting bylaws are filed in the land title office, and

(b) any bylaws under Part 5 of the Condominium Act or under a former Act which were deemed, by section 26 (2) of the Condominium Act or a similar section of a former Act, to be bylaws of the strata corporation cease to have effect.

(4) Subject to subsection (5), if a strata corporation bylaw filed in the land title office conflicts with a Standard Bylaw, the filed bylaw prevails.

(5) On January 1, 2002, a strata corporation bylaw filed in the land title office ceases to have effect to the extent that it conflicts with a provision in Parts 1 to 17 of the Act or this regulation.

[19] According to the minutes of the Strata Corporation’s annual general meeting

on May 29, 2001, a single resolution was passed at that meeting by three-quarters

of the owners voting whereby the Original Bylaws were repealed and replaced by

new bylaws. I will refer to these bylaws, as amended from time to time, as the

“Current Bylaws.” There was no record made of the number of owners of residential

and nonresidential strata lots, respectively, that were in attendance at the meeting,

and no record made of the number of votes cast on the resolution by each group,

separately.

[20] The Current Bylaws came into effect on June 7, 2001.

[21] The Current Bylaws include bylaw 5.1, which reads as follows:

5.1 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,

(d) is illegal, or


(e) is contrary to a purpose for which the strata lot or common property is intended as shown expressly or by necessary implication on or by the strata plan.

[22] Bylaw 5.1 is the same as s. 3(1) of the Standard Bylaws, and it is one of the

bylaws that Omnicare is said to have breached. There have been no amendments

to Bylaw 5.1 since June 2001.

[23] Some of the other bylaws that are in issue in this proceeding, and that

Omnicare is alleged to have breached, came into effect on June 7, 2001, as part of

the Current Bylaws.

[24] Bylaw 45.1 provides as follows:

45.1 Owners, occupants and tenants are responsible for the conduct of visitors including ensuring that noise is kept at a level, in the sole determination of a majority of the council, that will not disturb the rights of quiet enjoyment of others.

[25] Bylaw 46.3 provides as follows:

46.3 An owner, occupant, tenant or visitor must not hinder or restrict sidewalks, entrances, exits, halls, passageways, stairways and other parts of the common property. Hindrance and restriction includes the keeping of personal items and garbage.

[26] There is no counterpart to either bylaw 45.1 or bylaw 46.3 in the Standard

Bylaws. Neither bylaw 45.1 nor bylaw 46.3 has been amended since June 2001.

Omnicare is alleged to have breached both of them. Omnicare says that these

bylaws are invalid.

[27] The minutes of the annual general meeting held on July 16, 2002 record an

amendment to the Current Bylaws being approved by a single resolution. The

amendment (bylaw 14.2) provided that a maximum of one member of the strata

council had to be an owner of a nonresidential strata lot. This amendment changed

the requirement under s. 118(4) of the Original Bylaws whereby not less than one-

quarter of the members of the Strata Council be owners or representatives of


owners of nonresidential strata lots. Omnicare challenges the validity of the

amendment.

[28] The minutes of the annual general meeting on April 27, 2004 record the

approval by single resolution of bylaws 49.1 and 49.2. Bylaw 49.1 restricted units

from conducting business between 11:00 p.m. and 8:00 a.m. on any day. Bylaw

49.2 prohibited the use of a nonresidential strata lot for purposes of a pharmacy.

According to Mr. Chan, he was told that, when bylaw 49.2 was approved, Omnicare

would be “grandfathered.”

[29] The minutes of the annual general meeting held on June 26, 2006 record

certain amendments to the Current Bylaws being approved, and bylaws 5.7, 51.1

and 51.6 being added, as a result of single resolutions. As with the previous annual

general meetings, there was no record made of the number of owners of residential

and nonresidential strata lots, respectively, that were in attendance at the meeting,

and no record was made of the number of votes cast on each resolution by each

group, separately.

[30] Omnicare is alleged to have breached each of these bylaws. Omnicare says

the bylaws are invalid.

[31] Bylaw 5.7 provides:

An Owner, tenant or occupant must not:

(a) use the strata lot for any purpose which involves undue traffic or noise in or about the strata lot or common property between the hours of 10:00 p.m. and 8:00 a.m. or that encourages loitering by persons in or about the strata lot or common property.

(b) make, cause or produce undue noise, smell, vibration in or about any strata lot or common property or do anything which will interfere unreasonably with any other Owner, tenant or occupant;

(c) use any musical instrument, amplifier, sound reproduction equipment or other device within or about any strata lot, the common property or any limited common property, such that it causes a disturbance or interferes with the comfort of any other Owner, tenant or occupant;

(d) throw any refuse out of the windows or doors or from the balcony of a strata lot;


(e) do anything that will increase the risk of fire or the rate of insurance on the building or any part thereof;

(f) permit a condition to exist within a strata lot which will result in the waste or excessive consumption of the building's domestic water supply or heated water;

(g) feed wild birds, squirrels, rodents or other animals from a strata lot or anywhere on or in close proximity to the common property or any limited common property;

(h) erect on or fasten to the strata lot, the common property or any limited common property any television on radio antenna, satellite dish or similar structure or appurtenance thereto except as approved in writing by the Council.

[32] Bylaws 51.1 and 51.6 provide:

51.1 Only registered owners, occupants or tenants are permitted to hold keys, keycards or remote control transmitters for the exterior doors and gates, as well as any other common property across access points; excepting those persons or companies who have been granted the prior approval of the Strata Council. All such keys and devices providing access to the common property remain the property of the Strata and must be registered with the Strata be the owner, occupant or tenant holding them.

51.6 No Owner, tenant or guest shall let another person, including tradespeople or delivery persons, into the building when entering or leaving, unless that person is known to them.

[33] There have been no amendments to any of bylaws 5.7, 51.1 or 51.6 since

they came into effect.

[34] On June 27, 2016, about a month after Omnicare’s petition was filed, the

annual general meeting of the Strata Corporation was held. In advance of the

meeting, the Strata Corporation gave notice that: the owners would be asked to

vote on a resolution repealing the Current Bylaws and replacing them with new

bylaws; there would be separate votes taken of the residential owners and the

nonresidential owners; and that a three-quarter majority in favour of the resolution

would be required by each group in order for the resolution to pass. In the result, the

resolution was passed by a three-quarters majority of the residential owners, but it

was not approved by the nonresidential owners. The resolution did not, therefore,

receive the approval necessary to amend and replace the Current Bylaws.


[35] According to the minutes for the June 27, 2016 annual general meeting,

elections to the Strata Council were also held. It was noted that the owners had to

elect a maximum of six residential members and one nonresidential member. This

reflected the amendment to the Current Bylaws approved at the July 16, 2002

annual general meeting. However, it was inconsistent with s. 118(4) of the Original

Bylaws. Moreover, based on the minutes, in electing members to the Strata Council,

residential and nonresidential owners did not vote separately.

[36] Omnicare challenges the validity of these elections.

(d) Omnicare’s business and customers

[37] Not surprisingly, each side has a vastly different perspective on Omnicare’s

business and its customers.

[38] As I noted above, in 2009, the tensions between Omnicare and other

residents in Carrall Station resulted in the Strata Corporation levying fines against

Omnicare. Many of the complaints against Omnicare in 2009 were similar to the

current complaints.

[39] In response, in November 2009, Omnicare commenced legal proceedings

against the Strata Corporation. Among other things, Omnicare sought a declaration

that it had not breached bylaws 46.3 and 49.1 of the Current Bylaws, an order

cancelling all fines assessed against its strata lot, and an order permitting Omnicare

to operate the Pharmacy between the hours of 7:00 a.m. and 5:00 p.m. At that time,

Omnicare did not challenge the validity of the Current Bylaws.

[40] The 2009 proceedings resulted in a consent order pronounced May 13, 2011,

which provided in part that:

1. The Respondent [Strata Corporation] will cancel all bylaw fines charged to Strata Lot 4 [one of Omnicare’s strata lots], up to and including April 7, 2011, without prejudice to the Respondent's rights to levy any fines against the Petitioner in respect of any future bylaw infractions;


2. The Petitioner is permitted to operate its pharmacy business only within the hours of 7:00 a.m. and 5:00 p.m., or such earlier or later times as otherwise permitted by the Respondent's bylaws;

3. The Respondent will pay the Petitioner's cost and disbursements in the fixed sum of $6,500.00[.]

Omnicare also withdrew certain items of relief, and others were dismissed.

[41] As result, the Pharmacy’s hours of operation are governed by a court order.

Omnicare does not require the permission or dispensation of the Strata Corporation

either to carry on the business of the Pharmacy or to operate the Pharmacy between

the hours of 7:00 a.m. and 5:00 p.m.

[42] Mr. Chan describes Omnicare’s business as a fully-licensed pharmacy that

dispenses prescription drugs, including medications to treat a very wide variety of

medical and health conditions. According to Mr. Chan, it would not be easy or

economically viable for him to relocate the Pharmacy. He explains that he started

the Pharmacy in 2000 in a very difficult neighbourhood, and that he has worked hard

to build trust and goodwill within the medical community, specifically the addictions

care practitioners, in the Downtown Eastside.

[43] Mr. Chan says that (contrary to what is asserted in some of the affidavits filed

on behalf of the Strata Corporation) there are other pharmacies in the area not far

from Omnicare, including London Drugs and the Eastside Pharmacy.

[44] Mr. Chan describes the Pharmacy as one that is restricted to dispensing

prescription drugs and medications, and he says that it does not sell other items that

many people now expect to see when they go to a drugstore to fill their

prescriptions. This would be a reasonable explanation for why the Pharmacy seems

atypical, at least in the opinion of the respondent’s witnesses such as Mr. Stephen

Maddess, Mr. Chris Croner and Ms. Ksena Tatomir. Omnicare’s business is,

primarily, that of a dispensing pharmacy. Mr. Chan says that the retail area in the

Pharmacy “is not large or fancy, but it does not need to be and we keep it clean, tidy

and well-organized so that we can operate efficiently.”


[45] Mr. Chan acknowledges that, generally speaking, his customers are “some of

the most difficult people in society,” suffering mental illness, drug addictions and

many other social problems. However, from Mr. Chan’s perspective they are “still

people and deserving of our understanding, respect and support,” and he has a

professional obligation as a licensed pharmacist to provide services to them. Mr.

Chan says that 95% of Omnicare’s customers live within three or four blocks of the

Pharmacy, many of them in single room occupancy accommodation, and they have

lived in the neighbourhood since long before Carrall Station was built. From Mr.

Chan’s perspective, his customers are residents in the neighbourhood; they are not

people who are attracted to the area because of the Pharmacy.

[46] The Pharmacy is open every day of the year. Mr. Chan explains that many of

Omnicare’s clients require daily witnessed ingestion of their medicine and cannot go

a day without it. During the week, the Pharmacy is open from 7:00 a.m. to 5:00 p.m.

The hours of operation are shorter on weekends and holidays, when the Pharmacy

closes at Noon.

[47] Mr. Chan says that he (and his staff) do their best to make sure that there are

no problems at or near the Pharmacy. He says that, on average, they call the police

to remove someone about every two months, and that, on every occasion “so far”

the person is not known to those working in the Pharmacy but appears to be a

transient either walking in and causing trouble inside the Pharmacy or causing a

disturbance on the sidewalk outside. Mr. Chan says that “Not everyone who walks

in or out of my pharmacy or who stands on the sidewalk in front of the building is a

customer of mine.”

[48] Mr. Chan provides coffee for Omnicare’s customers. He explains that he

does so for a number of reasons, including as a service to customers who often

have to wait for a prescription to be filled, as part of patient care, since customers

often enjoy a coffee while they speak to Mr. Chan or the other pharmacist about

health problems, and as simple kindness for people who have little. Mr. Chan

explains that the coffee is for Omnicare’s customers and not for anyone who might


walk in off the street. He said that he keeps a trash can inside the Pharmacy beside

the outside door, which customers can use if they finish their coffee before they

leave. The coffee cups that Omnicare uses are generic 6 oz. Styrofoam cups,

without any identifying markings.

[49] Mr. Chan says that Omnicare’s staff check and clean up the exterior area

around the Pharmacy regularly, every half hour during the morning and the

afternoon and then one last clean up at closing time. He says that they do not just

clean up coffee cups but any and all garbage and debris that staff find on the

sidewalk. According to Mr. Chan, neither he nor any of his staff allows access to the

rest of Carrall Station to anyone, and have never done so. He says (and this is

uncontested) that the Pharmacy is in a self-contained unit with no inside access to

Carrall Station. The only access to Unit No. 130 (and Unit No. 120 next door) is

through the commercial door on Cordova Street (i.e., the door to the business).

[50] The respondent’s witnesses have a very different point of view about how

Omnicare’s business affects life for residents at Carrall Station.

[51] Mr. Croner is the current president of the Strata Council. He describes his

occupation as a farmer. In his Affidavit No. 1, Mr. Croner deposed that he has

owned the unit in Carrall Station in which he lives since 2011. When the accuracy of

this statement was challenged, Mr. Croner corrected his evidence in his Affidavit No.

2. There, he deposed that: in fact his son is the registered owner of the unit in

which he lives; his son has never lived in the unit; and he considers himself the

“beneficial owner” of the unit.

[52] Mr. Croner says that, in recent years, there has been a growing sense of

frustration and anger regarding Omnicare’s business operations. This frustration

and anger have been communicated to Mr. Croner by numerous owners, and he

shares those feelings.

[53] Mr. Croner says that, most mornings starting around 6 a.m., he observes

numerous individuals “loitering” outside near the front entrance door to the


Pharmacy waiting for the store to open. Mr. Croner describes the “noise and

disturbances” made by “these customers” as “alarming.” He says that it is not

uncommon for him to hear these people yelling at each other, to see them urinating

on or near the exterior of the Carrall Station building, or to otherwise behave in a

way that he describes as “disconcerting.” Mr. Croner says that the problem is not

confined to the same “customers.” He says that he has routinely observed many

different individuals “loitering and causing noise and disturbances” in the area

outside the front entrance of the pharmacy in the early morning hours as “they wait

for the pharmacy to open.” Mr. Croner says that “I am certain that these individuals

are attracted to the pharmacy because I have observed them entering the pharmacy

as soon as it opens.”

[54] According to Mr. Croner, it is also “very common” for customers to remain

inside the Pharmacy “for long periods of time.” Mr. Croner says that “[c]ommonly, I

see individuals inside the pharmacy sitting on the floor, lying on the floor or even

sleeping or ‘passed out’.” According to Mr. Croner the “loitering and disturbances

caused by customers of the pharmacy occur on a daily basis, throughout the day.”

He says that it is “common for owners to see customers loitering outside of the

pharmacy on the sidewalk with coffee cups from the pharmacy, spitting their coffee

onto the sidewalk or onto common property of [Carrall Station], such as the exterior

walls, paths or garden beds.”

[55] According to Mr. Croner the Strata Council also has serious concerns

regarding the safety of residents at Carrall Station “as it relates to the behaviour of

customers of the pharmacy.” Mr. Croner says that he has observed customers

urinate on the exterior walls of Carrall Station (which border the city sidewalk) and

yell obscenities at owners and their guests entering or exiting Carrall Station. Mr.

Croner says that there have been “many occasions where customers from the

pharmacy have tried or been successful in entering the common lobby for Carrall

Station.” He refers in that respect to information provided to him in an e-mail

message from Ms. Tatomir. I refer to her evidence below. He does not identify any

other occasions.


[56] Mr. Maddess has been the respondent’s property manager since 2013, and,

as property manager, he visits Carrall Station once a month. According to Mr.

Maddess, whenever he attends at Carrall Station, he usually observes groups of

people standing or sitting outside of Omnicare’s pharmacy. Mr. Maddess says that it

appears to him that these people “are customers or visitors of the pharmacy, and I

often see them holding coffee cups which they have obtained from inside the

pharmacy.” He does not say on what basis he draws this conclusion. Mr. Maddess

says that he has seen “people in front of the pharmacy yelling at each other,

congregating with shopping carts, taking apart bikes in front of the pharmacy,

urinating on the sidewalk or the Respondent’s building or otherwise acting in an

unacceptable manner.” Mr. Maddess expresses the view, based on his “knowledge

and observations,” that Omnicare “has not adequately addressed the loitering and

disturbances carried out by its customers.”

[57] Both Mr. Croner and Mr. Maddess say that, apart from the Pharmacy, there

are no other units in Carrall Station that attract “loiterers.”

[58] Mr. Paquette is the owner of one of the nonresidential strata lots, which he

uses his residence. He purchased his unit in 2005 (about five years after the

Pharmacy had been operating), and he has lived there ever since. Mr. Paquette is

retired and says that he spends much of his time in his unit. His unit is next to Unit

120, one of Omnicare’s units. The Pharmacy (in Unit 130) is on the other side of

Unit 120.

[59] Mr. Paquette says that the Pharmacy “attracts homeless and drug-addicted

people who loiter in front of my unit on most days. The loitering is usually worse

before the pharmacy opens at 7 a.m. I usually see and hear people loitering starting

around 6 a.m.” According to Mr. Paquette, the people “who loiter are generally

waiting for the pharmacy to open.” Mr. Paquette says that, since moving into his unit

in 2005, he has had to deal with “numerous disturbances on a weekly basis caused

by visitors to the pharmacy. I have dealt with people defecating, vomiting and

urinating outside in front of my unit.”


[60] I note Mr. Paquette’s use of the word “visitors.” “Visitor” is the word used in

some of the bylaws in issue. It could be said that Mr. Paquette’s affidavit has been

tailored to use words (such as “visitor” and “loitering”) that match the words used in

the bylaws.

[61] Mr. Paquette is not alone in this respect. The affidavits of the Strata

Corporation’s other witnesses have been drafted in a similar way, to make points

supporting the Strata Corporation arguments. Based on what Mr. Paquette has said

about the individuals, they are there to transact business with the Pharmacy, and so

the word “customers” would accurately describe them. However, it would not make

the same rhetorical point as the word “visitor.” This style of presentation of the

evidence by the Strata Corporation is one of the factors that has led me to be

cautious about the weight I place on that evidence.

[62] Mr. Paquette says that, most days, “there are people yelling, shouting and

arguing in front of my unit.” According to Mr. Paquette, he routinely deals with

disturbances outside of his unit and finds coffee cups discarded on the sidewalk in

front of his door or in ledges near his windows, and which appear to him to be from

the pharmacy. He says that he is “certain that the people who loiter by my unit are

attracted to the pharmacy. The loitering generally ceases by the time the pharmacy

closes for business at 5 p.m. and does not become an issue until the early morning

hours before the pharmacy opens.”

[63] Ms. Tatomir, a teacher, is the current secretary for the Strata Council, and, as

of July 2016, she had been on the Strata Council for over a year . She has owned

her unit in Carrall Station since December 2014. She has never been inside the

Pharmacy, although she says that she has looked inside “many times.”

[64] Ms. Tatomir says that the Pharmacy “stands out among the other businesses

operating in the area around” Carrall Station. She says that, to her knowledge, “it is

the only business operating as a pharmacy for at least many blocks,” something that

Mr. Chan disputes. Ms. Tatomir says that the Pharmacy “attracts mostly people who

appear to be homeless or drug-addicted, and there are usually customers loitering in


front of the pharmacy as well as other parts” of the exterior of Carrall Station. Ms.

Tatomir says that the behaviour of many of Omnicare’s “customers” is disturbing to

her as well as to many other owners at Carrall Station with whom she has had

conversations. She says that, many times, she has felt concerned about her safety

while walking into or out of the main entrance doors of the Carrall Station building

because of “the behaviour of customers who loiter around this area.”

[65] In her affidavit, Ms. Tatomir relates an incident that she says occurred in late

January 2016. She says that she observed “a pharmacy customer” waiting for the

entrance doors to the Carrall Station building to open. She does not explain how

she identified this individual as a “pharmacy customer.” Such conclusory statements

are also a common feature of the Strata Corporation’s affidavits, and another factor

that has led me to be cautious about the weight I give to them. Virtually anyone in

the area who creates litter, causes trouble or is disturbing to any residential owner is

assumed to be, and described as, a customer of the Pharmacy.

[66] In any event, Ms. Tatomir explains that, when the doors to Carrall Station

opened, the individual “rushed inside the building.” According to Ms. Tatomir, it took

40 minutes to get the man to leave. She described this and other events involving

this individual in an e-mail message she sent to Mr. Maddess. Ms. Tatomir has

lodged a complaint about Omnicare with the College of Pharmacists of B.C. She

explained that she did so “because it was and remains my view that the Petitioner

was accountable for, and doing nothing to address, the unacceptable conduct of its

customers.”

(e) The Strata Corporation asserts Omnicare is in breach of various bylaws, and levies fines

[67] According to Mr. Croner, by December 2015, the problems relating to the

Pharmacy were escalating, and the Strata Council decided it had to take action

against Omnicare on behalf of the owners. Mr. Croner says that, by this time,

Omnicare had been advised of the concerns of the Strata Council and others about


what Mr. Croner described as Omnicare’s “failure to prevent early morning

disturbances from its customers related to the loitering in front of the pharmacy.”

(i) Breach of bylaw 5.7

[68] According to Mr. Croner, the Strata Council determined that Omnicare’s use

of its strata property encouraged loitering by its customers in or about the strata lot

or common property, and amounted to a violation of bylaw 5.7. Accordingly, the

Strata Council instructed Mr. Maddess to send a letter dated December 11, 2015

Omnicare concerning a potential violation of bylaw 5.7. The letter asserted that:

It has been brought to the attention of the Strata Council that Bylaw 5.7 is violated daily by customers congregating at 6 00 a.m. in front of your pharmacy causing a disturbance due to noise and loitering.

(ii) Breach of bylaw 5.1

[69] The Strata Council then instructed Mr. Maddess to send a second letter to

Omnicare, dated December 16, 2015, notifying Omnicare that it was in breach of

bylaw 5.1 (in particular paras. (a), (b) and (c)). According to Mr. Croner, this letter

was based on a complaint from an owner about “numerous other issues relating to

the loitering of visitors in front of the petitioner's pharmacy, including customers of

the pharmacy throwing coffee cups and coffee onto common property and harassing

owners living at the Strata Property.”

[70] The letter sent to Omnicare asserted that:

On December 8, 2015, it was brought to the attention of the Strata Council that Bylaw 5.1 is constantly being violated by customers of your establishment throwing coffee cups and coffee over common property, harassing people, and fixing bikes and loitering in the common area part of the building.

[71] Based on the evidence presented, I conclude that the “common area part of

the building” is the area that is subject to the easement. However, that area is not

part of the common property of Carrall Station.


(iii) Breach of bylaws 45.1, 46.3, 5.1 and 5.7

[72] According to Mr. Croner, on December 21, 2015, members of the Strata

Council (including Mr. Croner) observed “customers of the pharmacy loitering in front

of the pharmacy, including customers sitting in the easement area in front of the

pharmacy.” According to Mr. Croner, the Strata Council was of the view that such

loitering amounted to further violations of the Current Bylaws.

[73] Therefore, the Strata Council instructed Mr. Maddess to send Omnicare a

letter dated December 22, 2015 advising of further violations of the Bylaws, namely

bylaws 45.1, 46.3, 5.1 (in particular paras. (a) and (c)) and 5.7. This letter asserted

that:

Strata Council has noted that there have been patrons loitering on the common area as of December 21, 2015.

[74] In fact, the sidewalk and the area that is subject to the easement are not part

of the “common area” or common property of Carrall Station.

(iv) Breach of bylaws 5.1 and 5.7

[75] By early January 2016, Mr. Croner and the other members of the Strata

Council had concluded that the letters sent to Omnicare in December had not had

the desired effect. Therefore, the Strata Council instructed Mr. Maddess to send

Omnicare a letter dated January 5, 2016 informing Omnicare that it was in violation

of bylaws 5.1 (in particular paras. (a) and (c)) and 5.7. This letter asserted that:

It has been brought to the Strata Council’s attention that people are congregating in front of the pharmacy (photo attached) at 6:00 a.m. for the clinic, and as per the Bylaws, persons are not permitted until 8:00 a.m.

[76] In fact, the pharmacy’s hours of operation were not governed by a bylaw, but

by a court order.


(v) Breach of bylaws 5.1, 45.1, 51.1 and 51.6

[77] In early February, Ms. Tatomir complained to the Strata Council that a

“customer of the pharmacy” had been harassing tenants moving out of Carrall

Station at the end of January. The events are described in Ms. Tatomir’s affidavit,

referred to above. According to Mr. Croner, the Strata Council considered “this

customer’s” conduct amounted to a further violation of the Current Bylaws by

Omnicare.

[78] Therefore, the Strata Council instructed Mr. Maddess to send Omnicare a

letter dated February 5, 2016 advising of violations of bylaws 5.1 (in particular paras.

(a) and (c)), 45.1, 51.1 and 51.6. This letter asserted that:

It has come to the attention of the Strata Council that a patron of Omnicare Pharmacy Ltd. (Unit #120) was harassing Tenants moving out of the building during their move out on Saturday, January 30, 2016.

The behaviour of this patron was unacceptable and resulted in a security risk to both the building, its residents and the tenants who were moving out. It was described that this individual (a man) entered the residential lobby of the building and sat on a bench with a cup of coffee after leaving your Pharmacy, as observed from the city sidewalk. When asked to leave, he refused and was then forced out of the building by residents. When outside of the building, he began to touch the belongings to the tenants who were moving out. After the tenants had loaded their truck and had driven away, they noticed while stopped at an intersection light, that the man who had just earlier entered their building was now hanging onto the back of the truck When the tenant driving stopped the vehicle this man then ran to the passenger side door, which was luckily locked.

This is not the only issue that residents have been having regarding patrons to the Pharmacy. There have also been complaints regarding loitering, individuals leaving trash on the sidewalk, urinating on the building, stripping bicycles and metal on the sidewalk (between the residential entrance and the Pharmacy entrance), sleeping on the sidewalk overnight and throughout the day, and confronting residents and touching their belongings as they enter and exit the building.

Please be advised that these individuals’ behaviour is a security risk and a nuisance to the Strata and its residents.


(vi) The Strata Council levies five fines, totalling $1,000

[79] At the meeting on April 11, 2016, the Strata Council voted to levy a fine

against Omnicare of $200 in respect of each of these complaints, for a total of

$1,000.

(f) Request to add a security gate for Unit 130

[80] On January 28, 2016, Mr. Chan made a formal request to install a security

gate (looking the same as the gate at Unit 120) at the exterior door to Unit 130 (the

door to the Pharmacy) at Omnicare’s expense. The security gate at Unit 120 had

been installed in about 2004, with the Strata Corporation’s approval. According to

Mr. Chan, he followed up his request by providing some additional information about

the company Omnicare intended to use to supply and install the gate. Mr. Chan

says that he followed up again on March 31, 2016.

[81] Bylaw 9.1 of the Current Bylaws requires an owner to obtain written approval

of the Strata Corporation before making or authorizing an alteration to common

property, including limited common property. Bylaws 8.1 and 8.2 of the Current

Bylaws also address alterations to a strata lot, including an alteration that involved

the exterior of a building. Bylaw 8.2 provides that the strata corporation must not

unreasonably withhold its approval of an alteration to a strata lot under bylaw 8.1,

provided that the strata corporation “may require” as a condition of its approval that

the owner agree, in writing, to take responsibility for any expenses relating to the

alteration and to indemnify the strata corporation for any future costs in relation to

the alteration. There are similar provisions in the Standard Bylaws (see sections

5(1) and 5(2)).

[82] According to Mr. Maddess, there were no Strata Council meetings in

February and March 2016. However, Omnicare’s request to install a security gate

was considered at the Strata Council meeting on April 11, 2016 and rejected,

unanimously. Omnicare was informed of the decision by letter dated April 18, 2016.

No reasons were given at the time.


[83] However, in response to Omnicare’s petition, the Strata Corporation has

provided some explanation for the refusal.

[84] For example, Mr. Croner explained that Strata Corporation already had

serious concerns regarding the security of Carrall Station “as a result of the

behaviour of the customers attracted to” the Pharmacy, that there were already

incidents of vandalism involving windows that had security bars, and that the Strata

Council was of the view that if a security gate were installed to the outside door of

the Pharmacy, then “further incidents of vandalism may occur as the presence of

security bars seems to invite vandalism in this neighbourhood.” Mr. Croner said

further that, in the Strata Council’s view, if a security gate was installed as requested

by Omnicare, then its presence would attract “even more loiterers,” and also

diminish the aesthetic qualities of Carrall Station. Similar views are expressed in the

affidavits of Mr. Paquette and Ms. Tatomir. According to Ms. Tatomir, the existing

security gate is a hold-over from when Unit 120 was a grocery store, and although

the Strata Council has permitted that security gate to remain, “the Strata Council is

committed to ensuring that no further security gates are installed for any other units”

in the light of the concerns she and the other Strata Council members expressed.

[85] On behalf of Omnicare, Mr. Chan vigorously disputes the views expressed by

Mr. Croner and Ms. Tatomir about the potential consequences of allowing a security

gate at Unit 130. He offers his own opinion that the Strata Council’s refusal is

directly related to the complaints made against Omnicare and the fines levied

against it. To counter the opinions expressed by Mr. Croner and Ms. Tatomir, Mr.

Chan says that, in all the years he has been in the Downtown Eastside, he has

never noticed that security bars or gates attract street people or are related to the

kind of disturbances, loitering or mess that the Strata Corporation complains about.

He says that there are short metal bars in each street level window of Carrall

Station, and bars inside the windows at Unit 170. This leads Mr. Chan to state the

further opinion that, based on the existing aesthetics of the ground level of Carrall

Station, allowing a security gate at Unit 130 is unlikely to have any adverse effect.


[86] In addition, Mr. Chan says that the existing door at Unit 130 is no longer

secure, and there is a gap between the door and the frame. He says that he could

ask the Strata Corporation to replace the door, since it is common property and it is

in need of replacement. However, as far as Mr. Chan is concerned, that option

would be less secure and also a more expensive option for the Strata Corporation

than to allow Omnicare to install and pay for the security gate on its own.

(g) Events after the Petition was filed

[87] One of the important events, after the petition was filed in May 2016, was the

June annual general meeting, and the attempt (ultimately unsuccessful) to replace

the Current Bylaws with new bylaws, approved by separate votes of the residential

strata lots and the nonresidential strata lots.

[88] At the end of July 2016, Mr. Chan received a letter from Mr. Maddess (on

behalf of the Strata Council “as a friendly reminder to address the following

observation.” The “observation” stated that there were “unapproved flood lights and

signage” outside Unit 130. As the signage and floodlights related to a business (a

grocery store) that was no longer in operation, Omnicare was requested to remove

the old signage and floodlights and then restore the building envelope to its original

condition. No bylaw was referred to in the letter.

[89] However, there were no floodlights and no signage outside Unit 130. Mr.

Chan advised Strata Counsel that the signage and flood lights were associated with

Unit 120 (not Unit 130), that he had purchased all of the items with his purchase of

the unit in 2010 and that, in his view, there was no issue of permission or no

permission.

[90] On October 13, 2016, Mr. Maddess, on behalf of the Strata Council, sent

another letter to Omnicare, this time referencing Unit 120, and now relying on bylaw

115(h). This bylaw, which is one of the Original Bylaws, required written permission

of the strata council before undertaking alterations to the exterior or structure of the

strata lot, permission not to be unreasonably withheld. (Mr. Croner explained in his


Affidavit No. 2. that the reference to bylaw 115(h) was an error, and the letter should

have referred to bylaw 9 of the Current Bylaws.) The letter asserted that Omnicare

was in violation of the bylaw and required that Omnicare remove the signage and

lighting, and restore the building envelope.

[91] About the same time as Omnicare received the October 13, 2016 letter, it

received a letter dated October 12, 2016 from Mr. Maddess, on behalf of the Strata

Council. This letter asserted that it had been brought to the Strata Council’s

attention that Omnicare had “stickers” on its windows, and the Strata Council

required that they be removed immediately, as they were in contravention of bylaw

9.1. In his Affidavit No. 2, Mr. Croner explained that the Strata Council viewed the

placement of the stickers on the windows, which are common property, as a

violation of the bylaw.

[92] The stickers, or decals, had been placed on the windows of Unit 120 by

Omnicare’s alarm company, Arpel.

[93] Mr. Chan requested to be heard by the Strata Council on the matters raised in

both the October 12 and October 13, 2016 letters. Eventually, a hearing was

scheduled for November 6, 2016, shortly before the hearing of the petition.

[94] Mr. Chan asserts that these new complaints by the Strata Council are

designed as part of the Strata Corporation’s “campaign” to force him to move the

Pharmacy out of Carrall Station, and they reinforce his belief that the Strata

Corporation has singled out Omnicare’s business for “special unfair treatment.”

[95] On the other hand, Mr. Croner says that the Strata Corporation has always

endeavoured to treat all owners fairly, and routinely takes enforcement action

against owners whenever the Strata Council determines bylaws have been violated.

3. Discussion and analysis

[96] I will first address whether the Current Bylaws are valid. In my opinion, they

are not, as they were not approved in the manner required by s. 128(1)(c) of the


Strata Property Act. Next, I will consider the allegations that Omnicare breached

bylaw 5.1, the only bylaw in issue that has a counterpart in the Standard Bylaws.

Finally, I will address the question of whether the conduct of Strata Council amounts

to treatment of Omnicare that is significantly unfair.

(a) Are the Current Bylaws valid?

[97] Both sides agree that if the Current Bylaws are invalid, then the Standard

Bylaws apply to the Strata Corporation. Of the bylaws in issue, only bylaw 5.1 of the

Current Bylaws has a counterpart – namely s. 3(1) – in the Standard Bylaws. The

remaining bylaws pursuant to which the Strata Corporation has levied fines against

Omnicare have no counterparts in the Standard Bylaws.

[98] There is also no dispute that, since Carrall Station is comprised of both

residential and nonresidential strata lots, s. 128(1)(c) of the Strata Property Act

applies to bylaw amendments. That section provides:

128 (1) Subject to section 197, amendments to bylaws must be approved at an annual or special general meeting,

. . .

(c) in the case of a strata plan composed of both residential and nonresidential strata lots, by both a resolution passed by a 3/4 vote of the residential strata lots and a resolution passed by a 3/4 vote of the nonresidential strata lots, or as otherwise provided in the bylaws for the nonresidential strata lots.

[99] Section 128(1)(c) superseded bylaw 135 of the Original Bylaws.

[100] When the Current Bylaws were approved, there were no separate resolutions

for residential owners and nonresidential owners. Rather, every approval was based

on a single resolution. These facts are not in dispute.

[101] Therefore, there is no dispute on the facts that the Current Bylaws have not

been approved in the manner required by s. 128(1)(c) of the Strata Property Act.

At the one annual general meeting where there was separate voting – namely, the


meeting in June 2016 – the resolution to approve new bylaws was not passed by the

nonresidential strata lots.

[102] The Strata Corporation acknowledges that there was not what it describes as

“strict compliance” with s. 128(1)(c) of the Strata Property Act. However, the Strata

Corporation argues that the court should exercise its discretion to uphold the validity

of the Current Bylaws. The Strata Corporation notes that the bylaws in issue were

passed between 2001 and 2006 by special resolution at various annual general

meetings, and that, during this period, Omnicare was an owner and raised no

concerns regarding the validity of the Current Bylaws. The Strata Corporation also

points out that in the proceedings filed in 2009, Omnicare did not challenge the

validity of the Current Bylaws.

[103] The Strata Corporation argues that considerable prejudice would result from

having the Current Bylaws declared invalid, given that the Strata Council has for

many years applied those Bylaws in order to govern affairs at Carrall Station and

also issued fines to owners in accordance with the Current Bylaws. The strata

council minutes reflect the approval of fines from time to time for bylaw violations,

and there are also a few examples in exhibits attached to Mr. Croner’s Affidavit No.

2.

[104] However, even taking these instances into account, I am unable to give the

Strata Corporation’s argument concerning prejudice much weight. The details

concerning the extent to which fines were approved, or other action taken, based on

bylaws that have no counterpart in the Standard Bylaws are missing. I do not know

whether, if ever, the Strata Corporation relied, for example, on bylaw 5.7 (which has

no counterpart in the Standard Bylaws) exclusively to levy a fine against an owner.

Whatever conclusions I might draw about any prejudice or potential prejudice to the

Strata Corporation, including any prejudice arising from there being no challenge to

the validity of the bylaws in the earlier litigation, would be based on speculation.


[105] The Strata Corporation argues further that the failure to comply with

s. 128(1)(c) is technical in nature, and does not warrant a declaration that the

Current Bylaws are invalid.

[106] In support of its position, the Strata Corporation cites Strata Plan LMS608 v.

Strata Plan LMS608, [2001] B.C.J. No. 2116 (S.C.). There, a petition sought to

have a bylaw declared invalid. The bylaw had been passed unanimously, and the

court found it had been applied by the strata council in meeting its budgetary

obligations. The petition was dismissed on the basis that the complaints regarding

the bylaw (for example, that a notice period was 13 days, rather than 16 days, and

that documents (an appendix and schedule referred to in the by-law) were not filed)

were technical in nature and there had been a delay of several years in bringing the

petition.

[107] However, the complaints asserted in that case as grounds to invalidate the

bylaw were quite different than those in issue here, which affect an owner’s

democratic right to vote on amendments to bylaws in the manner provided by

s. 128(1)(c) of the Strata Property Act. There was good reason for the court in

LMS608 to conclude that the complaints were technical in nature. The same cannot

be said in this case.

[108] The Strata Corporation also relies on Strata Plan NW 499 v. Kirk, 2015

BCSC 1487, where a failure on the part of the strata corporation to comply with

sections of the Strata Property Act, including provisions concerning notice of

general and special meetings, did not result in bylaws being held to be invalid.

However, I note that an appeal was allowed on that point, and the matter was

remitted back to the trial court for further consideration: see The Owners, Strata

Plan NW 499 v. Louis, 2016 BCCA 494, at para. 67.

[109] On the other hand, Omnicare argues that s. 128(1) of the Strata Property

Act protects the democratic rights of owners whose circumstances are different

(such as the nonresidential unit owners here), who are often in the minority. These

rights are substantive rights. Omnicare submits that it is not within the power of a


strata corporation to pass a bylaw amendment in a strata plan with both residential

and nonresidential strata lots such that, if the requirements under s. 128(1)(c) are

not met, the court would be entitled nevertheless to override those requirements and

declare the amendment to be valid. In Omnicare’s submission, if there is perceived

unfairness to the residential owners in a particular situation (as the Strata

Corporation argues here), that is a matter for the Legislature to address, rather than

the court.

[110] In support of its position that s. 128(1) of the Strata Property Act provides

substantive rights, which the court does not have the discretion to override, and that

a failure to comply with its requirements cannot be treated as merely a technical

breach of the Act, Omnicare relies on Azura Management (Kelowna) Corp. v. The

Owners, Strata Plan KAS 2428, 2010 BCCA 474 and Norenger Development

(Canada) Inc. v. The Owners, Strata Plan NW 3271, 2016 BCCA 118.

[111] In Azura, Hinkson J.A. (as he then was), writing for the court, said with

respect to s. 128 of the Act (at para. 16):

[16] . . . Section 128 recognizes that different uses of lots within a Strata Corporation may invoke different interests, and that those interests must be separately recognized for the purpose of voting on proposed bylaw amendments. In Butterfield v. The Owners Strata Plan LMS 1277, 2000 BCSC 1110, Mr. Justice Preston recognized that one of the purposes of s. 128 was to “protect” residential and nonresidential groups from each other.

[112] In Norenger, the question the court was being called on to decide was

whether s. 174(7) of the Strata Property Act “permits a court to abrogate a right

which lies at the very core of a strata corporation’s constitutional structure: the

owners’ democratic right to vote.” Kirkpatrick J.A. (writing for the court) concluded

that the section could not be interpreted in such a way. Rather, clearer wording

would be needed to override such a fundamental right (at para. 59). Omnicare

argues that the same reasoning should apply with respect to the interpretation of

s. 128(1)(c).


[113] Omnicare also cites East Barriere Resort Limited v. The Owners, Strata

Plan KAS1819, 2016 BCSC 1609 in support of its position concerning the proper

interpretation of s. 128(1)(c).

[114] In East Barriere, Betton J. wrote:

[43] The Court of Appeal’s comments in [Azura], including its reference to Preston J. in Butterfield v. The Owners Strata Plan LMS 1277, 2000 BCSC 1110, are instructive as to the intention of the drafters of the legislation. It was to ensure varied interests have a voice.

. . .

[47] The purpose of s. 128 is to protect the democratic process by allowing owners who have put their lots to different use (or whose lots are otherwise properly classified differently) and thus have different interests to have a voice in bylaw amendments. . . .

[115] I find Omnicare’s arguments persuasive, and they provide another reason

why the Strata Corporation’s argument concerning Omnicare’s delay in challenging

the Current Bylaws should fail.

[116] In my opinion, s. 128(1)(c) of the Strata Property Act cannot be interpreted

in a way that leaves the court with a discretion to override the democratic rights

provided for in that section.

[117] Under s. 128(1)(c) of the Act, a nonresidential owner has the democratic right

to vote separately from the residential owners and to have its voice heard. There

are no other provisions in the Act that would empower either the strata council or the

court to dispense with the statutory requirement for separate residential and

nonresidential voter approval of a bylaw amendment under s. 128, and clearer

wording would be needed to override such a fundamental right. Treating the Current

Bylaws as valid (as the Strata Corporation asks the court to do) deprives

nonresidential owners of their democratic right to vote as a separate group, a right

given to them under s. 128(1)(c) of the Act.

[118] In that light, and contrary to the Strata Corporation’s submissions, the court

cannot exercise a “discretion” in favour of upholding the validity of the Current


Bylaws in the face of non-compliance with s. 128(1)(c). Rather, the consequence of

the failure to comply with s. 128(1)(c) is that the Current Bylaws are invalid, and I so

find.

[119] Accordingly, I conclude that the bylaws that apply to the Strata Corporation

are the Standard Bylaws, together with those parts of the Original Bylaws that were

not replaced by the Strata Property Act.

[120] Section 135 of the Original Bylaws was, in effect, repealed and replaced by

s. 128(1)(c) of the Strata Property Act.

[121] However, s. 118(4) of the Original Bylaws, concerning the make-up of the

strata council was not replaced and continues to apply. It was an addition to the

Standard Bylaws that did not conflict with a provision in the Strata Property Act,

and was a “conflicting” bylaw (as that term is used in the Regulation s. 17.11(3)) in

relation to the Standard Bylaws, in the sense that it specified separate

representation on the strata council for residential and nonresidential strata lots.

The July 16, 2002 amendment to the Current Bylaws providing that a maximum of

one member of the strata council must be an owner of a nonresidential strata lot is

invalid.

[122] As a result, not only was the election of members to the Strata Council at the

annual general meeting in June 2016 not carried out as required (with separate

voting of residential and nonresidential owners), but there was also no recognition

that the nonresidential strata lots were entitled to two representatives on the strata

council, pursuant to s. 118(4) of the Original Bylaws. Indeed, no strata council since

July 2002 has been validly constituted.

[123] It follows that where a fine has been assessed against Omnicare, based on

breach of a bylaw that I have concluded is invalid, the fine cannot stand cannot

stand and must be cancelled. The particular bylaws in issue are 5.7, 45.1, 46.3,

51.1, 51.6. Any fine assessed against Omnicare relying only on a breach of these

bylaws is cancelled.


(b) The Nuisance Bylaw

[124] A fine levied relying on a bylaw or bylaws that I have found to be invalid must

be cancelled. However, four of the five fines rely on bylaw 5.1 (either alone, or in

combination with other, invalid, bylaws).

[125] As I noted above, bylaw 5.1 has a counterpart in the Standard Bylaws,

namely s. 3(1). I repeat the wording of the bylaw here for convenience:

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,

(d) is illegal, or

(e) is contrary to a purpose for which the strata lot or common property is intended as shown expressly or by necessary implication on or by the strata plan.

The Strata Council relies, in particular, on subparas. (a), (b) and (c).

[126] I will refer to this bylaw as the “Nuisance Bylaw.”

[127] Omnicare says that, on the facts, the Strata Corporation is unable to prove

any breach of the Nuisance Bylaw, and therefore the fines levied relying on Current

Bylaw 5.1 (or Standard Bylaw 3(1)) must also be cancelled.

[128] Omnicare says that the individuals about whom the Strata Corporation

complains (to the extent that these individuals have any connection with the

Pharmacy at all) are not Omnicare’s “visitors,” based on any reasonable definition of

that word in the context in which it is used in the Nuisance Bylaw. They are not

Omnicare’s tenants or occupants. Rather, they are Omnicare’s customers.

Moreover, the easement agreement with the City of Vancouver does not transform

areas subject to the easement into common property. The Strata Corporation has


no jurisdiction over a city sidewalk and has no power to enforce its bylaws in respect

of activity there.

[129] Omnicare says further that it is conducting a lawful business in a unit

specifically designated as nonresidential and for commercial use. The common

property over which Omnicare might conceivably have some influence is directly in

front of Unit 130. Omnicare maintains and cleans the perimeter around the business

on a regular basis and does not allow individuals to cause any nuisance or noise

within this area. Omnicare says that it has called and continues to call the police to

attend whenever there is a disturbance of this nature and whoever is causing it does

not move on. Omnicare says that Carrall Station was built in the middle of the

Downtown Eastside, where nuisance, noise, garbage and disturbances are facts of

daily life. Omnicare says that invoking this bylaw to impose a fine against an owner

in circumstances of this nature goes beyond how this bylaw can be reasonably

interpreted.

[130] On the other hand, the Strata Corporation says that it (and the Strata Council)

has acted responsibly, and in accordance with its obligations under the Strata

Property Act, in assessing fines against Omnicare relying on the Nuisance Bylaw,

based what is described in the affidavits of Mr. Croner, Ms. Tatomir, Mr. Paquette

and Mr. Maddess. The Strata Corporation says that the bylaw fines issued against

Omnicare were justified in the circumstances, and with the best interests of the other

owners at Carrall Station in mind.

[131] I do not question that the presence of the Pharmacy (and the customers it

serves) has contributed to considerable discomfort for, and friction with, people

residing at Carrall Station. The frustration and anger are clear from the sentiments

expressed in the affidavits of Mr. Croner and the others, and the situation is difficult

for everyone.

[132] However, I have serious doubts about the reliability of the evidence of Mr.

Croner, Ms. Tatomir and Mr. Paquette. None of them is an impartial observer.

Rather, all of them appear simply to assume or conclude (or both) that everyone in


the vicinity of the Pharmacy, and whose behaviour is unusual or problematic or

troublesome, is, or must be, a customer of the Pharmacy. Every Styrofoam coffee

cup in the immediate area is assumed to come from the Pharmacy.

[133] For example, and as I noted above, in her affidavit, Ms. Tatomir simply states

a conclusion (at para. 20) that the person who “rushed inside” Carrall Station and

whose subsequent behaviour she found so troubling was “a pharmacy customer.”

The same perspective strongly permeates the affidavits of Mr. Croner and Mr.

Paquette. Rather than state facts, the affidavits are replete with conclusions and

opinions about Omnicare, its business, and what is “typical” in relation to the

business, the neighbourhood and the people living in it. In addition, Mr. Croner was

required (in his Affidavit No. 2) to correct a misstatement in his Affidavit No. 1 about

the ownership of his unit in Carrall Station, perhaps indicating that he should

exercise greater care before swearing to the truth of statements in an affidavit.

[134] The simple fact is that Omnicare is not responsible for the behaviour of

everyone on the street in the vicinity of Carrall Station, or who might pass by the

building. Some of them are customers of the Pharmacy, but not all of them are. To

the extent that the people are customers of the Pharmacy, Omnicare has taken

positive steps, to the extent it can, to deal with them.

[135] Having said that, and in view of the conflicts in the evidence, I prefer to deal

with the question of whether the fines for asserted breaches of the Nuisance Bylaw

should be cancelled in the context of whether the Strata Corporation has treated

Omnicare in a manner that is significantly unfair. I turn to that next.

(c) Has the Strata Corporation treated Omnicare in a manner that is significantly unfair?

[136] Omnicare says that the Strata Corporation has treated Omnicare in a manner

that is significantly unfair by claiming that Omnicare is responsible for the behaviour

of virtually anyone in the vicinity of Carrall Station who might possibly be a customer

of Omnicare. Indeed, the Strata Corporation asserts that Omnicare is responsible

(and subject to fines for breaching bylaws) even when Omnicare has no control over


an individual’s behaviour, many individuals are likely not customers of Omnicare and

the behaviour occurs away from Omnicare’s strata lots. In addition, Omnicare says

that the Strata Corporation has treated it in a manner that is significantly unfair by

assessing fines against Omnicare based on claimed breaches of bylaws that are not

valid.

[137] Omnicare argues further that the Strata Corporation has treated it in a

manner that is significantly unfair in the way it has dealt with Omnicare in relation to

Omnicare’s request to install a security gate at Unit 130, the alarm company window

decals, and the old signage and lights at Unit 120.

[138] Omnicare says that the Strata Corporation’s actions are clearly intended to

put unwarranted pressure on Omnicare in order to achieve the Strata Corporation’s

goal of forcing Omnicare to sell its units and move. Omnicare points out that it is

one of only two real business owners in Carrall Station (the other being a

restaurant), and it is also the only owner operating a business that the Strata

Corporation purported to ban by bylaw. Omnicare says that it is the only

nonresidential owner to receive complaints and fines from the Strata Corporation

relating to the presence not only of its customers but also of other individuals who

frequent or live in the Downtown Eastside. Omnicare says further that the facts that

there is only one owner (Mr. Paquette) on the Strata Council purporting to represent

the nonresidential owners, that he admittedly uses his strata lot only for residential

purposes, and that he consistently votes in favour of actions against Omnicare and

its business, raise serious concerns about the validity of the constitution of the Strata

Council and about whether its decisions against Omnicare have been made in bad

faith.

[139] According to Omnicare, it has done everything reasonably possible and within

its control to ensure that both cleanliness and security are maintained in front of the

Pharmacy. Omnicare says that it has taken these steps even when its customers

are more than likely not involved in problematic behaviour. Despite that, the Strata

Corporation lays the entire responsibility on Omnicare for anyone in the vicinity of


Carrall Street and East Cordova, and how those individuals conduct themselves.

Omnicare says such treatment by the Strata Corporation is significantly unfair.

[140] On the other hand, the Strata Corporation denies that it has treated Omnicare

in a manner that is significantly unfair. It says that strata corporations must often

use discretion in making decisions that affect owners or tenants, and that, at times, a

strata corporation’s duty to act in the best interests of all owners is in conflict with the

interests of a particular owner. It says that the term “significantly unfair” indicates

that the court should only interfere with the strata corporation’s discretion if it is

exercised oppressively or in a manner that goes beyond mere prejudice or trifling

unfairness.

[141] With respect to the fines for bylaw infractions, the Strata Corporation says

that it has acted reasonably and in accordance with its statutory obligations by taking

action against Omnicare for what the Strata Corporation says is Omnicare’s failure

to address the issues relating to its business which have negatively affected the

other strata owners. The Strata Corporation points out that it has imposed bylaw

fines on other others, and not singled out Omnicare. However, I note that the

evidence on this particular point is sparse.

[142] The Strata Corporation says further that it has treated Omnicare more than

reasonably and fairly in the circumstances. It says that, although the bylaws (which I

have now declared to be invalid) do not permit a business to operate as a pharmacy

or to open before 8 a.m., it has exempted Omnicare from this bylaw requirement,

which applies to all other owners.

[143] However, I agree with Omnicare that the suggestion from the Strata

Corporation that it has “exempted” Omnicare from such bylaws, and therefore acted

more than fairly, is quite misleading. This is because, as I noted above, Omnicare’s

hours of operation are governed by a court order. To say that the Strata Corporation

has “exempted” Omnicare from a bylaw requirement mischaracterizes the facts.


[144] The Strata Corporation says in addition that it has exercised considerable

restraint in deciding only to issue five bylaw violations against Omnicare, despite the

long-standing problems caused by Omnicare’s operations which (so far as the Strata

Corporation is concerned) have adversely affected other owners.

[145] With respect to installation of the security gate, the Strata Corporation says

that it has provided a number of reasons for its refusal, all of which are in keeping

with the best interests of the strata owners as a whole. It says that its decision is

justified, particularly considering that it is entitled to considerable scope in deciding

how to exercise its discretion to grant or refuse consent to alterations to common

property requested by owners. In support of its position on this point, it relies on:

Maverick Equities Inc. v. Owners: Condominium Plan No. 942 2336, 2008

ABCA 221, at para. 13; Metro Toronto Condominium Corporation No. 985 v.

Vanduzer, 2010 ONSC 900, at para. 26; and AW-NM Ventures v. Owners Strata

Plan LMS 2856 et al., 2004 BCSC 666, at para. 21.

[146] Sections 164 and 165 of the Strata Property Act address preventing or

remedying unfair acts. These sections provide:

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).

[147] The term “significantly unfair” in s. 164 encompasses conduct that is

oppressive or unfairly prejudicial. “Oppressive conduct” has been interpreted to

mean conduct that is burdensome, harsh, wrongful, lacking in probity or fair dealing,

or has been done in bad faith. “Unfairly prejudicial” conduct has been interpreted to

mean conduct that is unjust and inequitable. See Reid v. The Owners, Strata Plan

LMS 2503, 2001 BCSC 1578 (“Reid”), at paras. 11-13; aff’d 2003 BCCA 126 (“Reid

Appeal”).

[148] In Reid Appeal, Ryan J.A. held that the section required, before a court

would interfere, something more than mere prejudice or trifling unfairness. She

wrote, at para. 27:

[27] A number of subsequent decisions from the B.C. Supreme Court have cited Sinclair Prowse J.'s definition of "significantly unfair" with approval. Most recently, Masuhara J. in Gentis v. The Owners, Strata Plan VR 368, 2003 BCSC 120, referred to Sinclair Prowse's decision as authority for the definition of significantly unfair. The judge, however, added the following comment:

[28] I would add to this definition only by noting that I understand the use of the word 'significantly' to modify unfair in the following manner. Strata Corporations must often utilize discretion in making decisions which affect various owners or tenants. At times, the Corporation's duty to act in the best interests of all owners is in conflict with the interests of a particular owner, or group of owners. Consequently, the modifying term indicates that court should only interfere with the use of this discretion if it is exercised oppressively, as defined above, or in a fashion that transcends beyond mere prejudice or trifling unfairness.

[29] I am supported in this interpretation by the common usage of the word significant, which is defined as "of great importance or consequence": The Canadian Oxford Dictionary (Toronto: Oxford University Press, 1998) at 1349.

I agree with Masuhara J. that the common usage of the word "significant" indicates that a court should not interfere with the actions of a strata council


unless the actions result in something more than mere prejudice or trifling unfairness. . . .

[149] As noted in Dollan v. The Owners, Strata Plan BCS 1569, 2012 BCCA 44,

at para. 28, judges have consistently applied the language used by the Supreme

Court in Reid.

[150] More recently, in Radcliffe v. The Owners, Strata Plan KAS1436, 2015

BCCA 448, Savage J.A. (for the court) wrote, at paras. 39-41:

[39] The scope of s. 164 of the Act has been considered by this Court, most recently in Dollan v. The Owners, Strata Plan BCS 1569, 2012 BCCA 44. In Dollan, in considering the meaning of “significantly unfair”, Garson J.A. endorsed the description in Reid v. The Owners, Strata Plan LMS 2503, 2001 BCSC 1578, that something more than “mere prejudice” or “trifling unfairness” was required to invoke the section.

[40] Garson J.A. applied a two-part test borrowed from corporate oppression jurisprudence that considered (1) does the evidence objectively support the reasonable expectations of the strata unit owner seeking redress, and (2) does the evidence establish that the reasonable expectations of the strata unit owner was violated by action that was significantly unfair.

[41] Without endorsing the two-part test, Hall J.A., found that conduct “unduly burdensome” fell within the purview of the statute as “significantly unfair”. Smith J.A., was disinclined to adopt the two-part test, which she noted was developed in a very different factual and legal commercial context. She opined that the plain and ordinary meaning of the term “significantly unfair” might be less complex than the test which appears to have evolved.

[151] I find that the actions of the Strata Council, in purporting to levy fines against

Omnicare based on breaches of bylaws that had not been validly passed, and that

were being levied by a Strata Council that was not validly constituted, were

burdensome, harsh and wrongful, and those actions were therefore oppressive and

significantly unfair.

[152] I turn then to the fines that were levied against Omnicare based on the

Nuisance Bylaw.

[153] In my opinion, these fines were wrongful (and therefore oppressive) and

unjust (and therefore unfairly prejudicial) because they were being levied by a Strata

Council that was not validly constituted. A strata lot owner is entitled reasonably to


expect that it will not be subjected to assertions that its conduct breached a valid

bylaw and assessed a fine, except where the strata council has been duly

constituted in accordance with valid bylaws. That never happened in relation to any

of the four fines levied against Omnicare based on breach of the Nuisance Bylaw.

Therefore, I find that, on the facts here, Omnicare’s reasonable expectations were

violated by actions that were significantly unfair. I conclude in that light that the

appropriate remedy is to cancel all fines levied against Omnicare based on breach of

the Nuisance Bylaw. I so order.

[154] I find further that, in addition to the problems created by the fact that the

Strata Council was not validly constituted, the manner in which the Strata Council

dealt with Omnicare’s request to install a security gate at Unit 130 was burdensome

and lacking in probity and fair dealing, and was also oppressive and significantly

unfair. In my opinion, the reasons for the refusal, only provided after the fact, are a

poor attempt – based on prejudice, speculation and a strong bias against Omnicare

– to try and justify a decision made in circumstances and at a time when the Strata

Council members perceived Omnicare and the Pharmacy as a huge problem.

[155] The Strata Council’s persistence, after the petition was filed and the issue of

its constitution raised, in pursuing Omnicare in relation to window decals, and

signage and lighting that had been present for years, in the circumstances simply

appears vindictive and designed to put more pressure on Omnicare, with the goal of

convincing Omnicare to leave. I agree with Omnicare’s submission that this conduct

can only reasonably be viewed as oppressive, and I find it to be significantly unfair.

[156] What then should be the remedy?

[157] I have ordered that all of the fines assessed, including fines for breach of the

Nuisance Bylaw, be cancelled. That addresses the significant unfairness in the

manner in which the fines were levied.

[158] In addition, Omnicare seeks an injunction and an order permitting it to install a

security gate at Unit 130.


[159] However, I am not persuaded that either remedy is justified.

[160] In my opinion, the actions that are significantly unfair have their source in the

Strata Council acting on the basis of bylaws I have concluded are invalid, and the

Strata Council not being validly constituted. Omnicare has never had its

circumstances (and the question of whether it has breached a valid bylaw), or its

request to install a security door, considered by a validly constituted Strata Council,

applying valid bylaws. Having its circumstances, and its request, so considered

should be sufficient to remedy the existing unfairness. In my view, it should be an

adequate remedy at this time, and unless and until there is evidence of action, or

threatened action, or a decision, of a validly constituted strata council, applying valid

bylaws, that is significantly unfair.

4. Summary and disposition

[161] In summary:

(a) I declare that the Current Bylaws are invalid, and the Standard Bylaws,

together with Original Bylaw s. 118(4), are the only bylaws that apply to

the Strata Corporation;

(b) I declare that the Strata Corporation has treated Omnicare in a manner

that is significantly unfair;

(c) I order that all fines assessed against the petitioner’s strata lots are

cancelled;

(d) I order that the petitioner’s request to install a security gate on the

exterior of the door of Unit 130 be considered afresh by a validly

constituted Strata Council; and

(e) I order the application by the petitioner for an injunction is dismissed.

[162] The petitioner requested special costs, on the basis that the conduct of the

Strata Council and the Strata Corporation before and after the filing of the petition


amounted to bad faith deserving of the court’s rebuke. In its written submissions, it

cited Oldaker v. The Owners, Strata Plan VR 1008, 2010 BCCA 241 (at para. 18,

citing Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242

(C.A.) at para. 17) and Dockside Brewing Co. Ltd. v. The Owners, Strata Plan

LMS 3837 et al, 2005 BCSC 1209 (at paras 77-81) in support of its position.

[163] The Strata Corporation agrees that the test is set out in Oldaker. However, it

submits that special costs are not warranted. The Strata Corporation submits that its

conduct does not qualify as reprehensible, since it had an obligation to enforce its

bylaws for the benefit of all of the owners of Carrall Station, and that the issue of

validity of the Current Bylaws (despite the litigation in 2009) was not raised until this

petition was filed.

[164] I agree with counsel for the Strata Corporation. Although the conduct of the

Strata Council can be criticized, I am not persuaded that it qualifies as

reprehensible. The facts here are quite different from those before the court in

Dockside Brewing. Living and operating a business on the Downtown Eastside

undoubtedly presents challenges, and dealing with them in a suitable way has been

difficult for everyone.

[165] I order that the petitioner have its costs on Scale B.

“The Honourable Madam Justice Adair”

omnicare pharmacy ltd. v. the owners, strata plan lms2854

Law