Abdoh v. Strata Plan KAS2003, Owners et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Saunders, Chiasson and Willcock, JJ.A.
• Citation: 2014 BCCA 270,(2014), 359 B.C.A.C. 29 (CA)
• Date: 25 June 2014
• Subject Matter: PRACTICE,REAL PROPERTY

Abdoh v. Strata Plan KAS2003 (2014), 359 B.C.A.C. 29 (CA);

    615 W.A.C. 29

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. AU.005

Sylviane Abdoh and Hamid Abdoh (appellants/plaintiffs) v. The Owners, Strata Plan KAS2003 and 567506 B.C. Ltd. (respondents/defendants) and The Owners Strata Plan KAS2003 (respondent/third party) and Intrawest ULC formerly known as Intrawest Corporation (respondent/fourth party)

(CA040922; 2014 BCCA 270)

Indexed As: Abdoh v. Strata Plan KAS2003, Owners et al.

British Columbia Court of Appeal

Saunders, Chiasson and Willcock, JJ.A.

June 25, 2014.

Summary:

The plaintiffs were the owners of a residential strata lot in a building known as Fireside Lodge. Fireside Lodge also contained commercial lots, one of which was leased by the defendant restaurant operator. A 1998 strata plan designated most of the underground floor as "Limited Common Property" (LCP) for the exclusive benefit of the residential lots. However, the restaurant placed its cooling equipment in a small area of the LCP parking area. The plaintiffs brought an action against the strata corporation, seeking a declaration stating that the commercial strata lot owners were not allowed to make use of the parking area designated as LCP, and an order that the strata corporation and its council stop permitting and take reasonable steps to prevent owners of commercial units from possessing, occupying or using the parking area designated as LCP for the residential strata units.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 817, dismissed the claim. The plaintiffs appealed.

The British Columbia Court of Appeal dismissed the appeal. The trial judge properly concluded that the contravention of the Strata Property Act or bylaws, if there was one, was of a trifling nature. The strata corporation therefore had no duty to demand removal of the cooling equipment or to take action to have it removed.

Practice - Topic 5367

Dismissal of action - Grounds, general and want of prosecution - De minimis or trifling matters - See paragraphs 1 to 31.

Real Property - Topic 8867

Condominiums - Corporation - General - Liability to unit holders - See paragraphs 1 to 31.

Real Property - Topic 9010

Condominiums - Common property - Actions respecting - See paragraphs 1 to 31.

Cases Noticed:

Reward, The (1818), 2 Dods. 265; 165 E.R. 1482, refd to. [para. 24].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 24].

British Columbia Lottery Corp. v. Vancouver (City), [1997] B.C.T.C. Uned. 123; 46 B.C.L.R.(3d) 24 (S.C.), affd. (1999), 118 B.C.A.C. 129; 192 W.A.C. 129; 61 B.C.L.R.(3d) 202 (C.A.), refd to. [para. 24].

Would v. Herrington, [1932] 4 D.L.R. 308; 2 W.W.R. 385 (Man. C.A.), refd to. [para. 24].

Pro Swing Inc. v. Elta Golf Inc. (2006), 354 N.R. 201; 218 O.A.C. 339; 2006 SCC 52, refd to. [para. 24].

H.M.T.Q. for B.C., as represented by the Minister of Forests et al. v. Tnasem Logging Ltd. - see British Columbia (Minister of Forests) v. Abitibi-Consolidated Co. of Canada et al.

British Columbia (Minister of Forests) v. Abitibi-Consolidated Co. of Canada et al. (2006), 233 B.C.A.C. 198; 386 W.A.C. 198; 2006 BCCA 546, refd to. [para. 24].

Grohmann v. Grohmann (1991), 5 B.C.A.C. 277; 11 W.A.C. 277; 62 B.C.L.R.(2d) 264 (C.A.), refd to. [para. 24].

Counsel:

J.G. Frame, for the appellants;

S.M. Armstrong, for the respondent, The Owners, Strata Plan KAS2003;

D.K. Hori, for the respondent, 567506 B.C. Ltd.;

A. Cocks, for the respondent/fourth party, Intrawest ULC (via teleconference).

This appeal was heard at Kamloops, B.C., on June 25, 2014, before Saunders, Chiasson and Willcock, JJ.A., of the British Columbia Court of Appeal. Willcock, J.A., delivered the following oral reasons for judgment for the court on the same date.