Strata Plan VIS2030, Owners v. Ocean Park Towers Ltd.,

• Jurisdiction: British Columbia
• Judge: Bauman, C.J.B.C., Lowry and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Citation: 2016 BCCA 222,(2016), 387 B.C.A.C. 159 (CA)
• Date: 13 April 2016

Strata Plan VIS2030 v. Ocean Park Towers (2016), 387 B.C.A.C. 159 (CA);

    668 W.A.C. 159

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MY.033

The Owners, Strata Plan VIS2030 (respondent/petitioner) v. Ocean Park Towers Ltd. (appellant/respondent)

(CA42604; 2016 BCCA 222)

Indexed As: Strata Plan VIS2030, Owners v. Ocean Park Towers Ltd.

British Columbia Court of Appeal

Bauman, C.J.B.C., Lowry and D. Smith, JJ.A.

May 24, 2016.

Summary:

Ocean Park Towers Ltd. leased parking stalls in the condominium complex that it had developed. Clause 4.01(a) of the lease provided that the parking stalls were not to be used for any purpose "other than for the parking of motor vehicles or electric carts or vehicles." The Strata, as landlord, alleged that Ocean Park stored unlicensed, inoperable and derelict vehicles, as well as boats and trailers, in the parking stalls. Ocean Park refused to give up possession after receiving notice of the lease's termination. The Strata petitioned under the Commercial Tenancy Act for declarations that the lease was validly terminated and that Ocean Park wrongfully remained in possession of the lease, and for an order for possession requiring Ocean Park to vacate.

The British Columbia Supreme Court, at the first stage of the summary proceeding, determined that the Strata had established a prima facie case that Ocean Park's use of the parking stalls went beyond "parking" and amounted to "storage". McKinnon, J., granted the order that the matter proceed to the second stage (an inquiry into the alleged breach, the termination of the lease, and whether Ocean Park should be ordered to vacate). Dorgan, J., found that Ocean Park had breached the lease (the term "parking" in clause 4.01(a) of the lease did not include storage of vehicles), and that the Strata had validly terminated the lease. However, relief from forfeiture was warranted, subject to conditions. Ocean Park appealed on the grounds that Dorgan, J., erred in fact and law in finding that it had breached the lease and erred in law by providing inadequate reasons for her finding.

The British Columbia Court of Appeal dismissed the appeal on both grounds. "The judge's reasons for finding Ocean Park in breach of the Lease, while admittedly conclusory, were not inscrutable when they are examined in the context of the record as a whole [including the first and second stage of the proceeding] and the evidence adduced." Dorgan, J.'s reasons adequately informed Ocean Park of the basis for her conclusions, and meaningful appellate review on the issues was available on those findings. With respect to the use of the parking stalls, the Court accorded deference to Dorgan, J.'s interpretation of clause 4.01(a), in the absence of a palpable and overriding error, or a conclusion that was clearly wrong or was not reasonably supported by the evidence.

Landlord and Tenant - Topic 9341

Practice - Summary proceedings - General - See paragraphs 14 to 34.

Landlord and Tenant - Topic 9349

Practice - Summary proceedings - Jurisdiction - See paragraphs 16 to 34.

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - See paragraphs 44 to 50.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge (incl. contractual interpretation) - See paragraphs 44 to 50.

Practice - Topic 9428

Appeals - Grounds of appeal - Objection to reasons for decision - See paragraphs 37 to 43.

Real Property - Topic 8925

Condominiums - Declarations - Breach - See paragraphs 1 to 50.

Real Property - Topic 9004

Condominiums - Common property - Parking and storing vehicles - See paragraphs 1 to 50.

Real Property - Topic 9005

Condominiums - Common property - Lease of - See paragraphs 1 to 50.

Counsel:

G.N. Harney and J. Todd, for the appellant;

M.J. Hargreaves, for the respondent.

This appeal was heard at Vancouver, British Columbia, on April 13, 2016, before Bauman, C.J.B.C., Lowry and D. Smith, JJ.A., of the British Columbia Court of Appeal. In reasons written by D. Smith, J.A., the Court of Appeal delivered the following judgment, dated May 24, 2016.