47 Failure To Give Proper Notice Of Meeting

CASE LAW

Successful Challenge to Bare Land Strata Corporation Bylaw

In Hall v. Strata Plan EPS 2116, 2022 BCSC 2167, the petitioners applied to have set aside certain bylaws of the bare land strata corporation in Chilliwack in which they had purchased a strata lot.

The petitioners agreed to purchase the strata lot in the five-lot residential strata development in April 2017. During a June 30 meeting, the strata council discussed bylaws for future construction and drafted new construction bylaws, which were on the agenda for the August 26 annual general meeting.

In response to a request for an updated Form B—Information Certificate, the strata corporation sent an email to the petitioners’ solicitor advising of the AGM and inquiring whether the solicitor wanted a copy of the meeting notice. The email was not forwarded to the petitioners and did not include the topics to be addressed or an agenda.

The petitioners became registered owners on August 15. During the August 26 AGM, the new bylaws pertaining to any construction on the strata lots were passed 3-1, which met the necessary three-quarter vote threshold. Without notice of the AGM, the petitioners did not vote on the motion, which would not have passed if they had voted against it. The new bylaws provided that all construction or demolition required prior written approval from the strata corporation; that the strata corporation could take into account any matters that it considered relevant pertaining to any construction, including aesthetics; and that any owner approved for construction would be required to enter into an assumption of liability agreement, the terms of which were to be decided by the strata corporation and drafted by its lawyer, the cost of which was to be borne by the owner.

By November, the petitioners had provided the strata corporation with details of proposed construction, including provision of reports and certifications required pursuant to the new bylaws. On November 4, the strata corporation refused to provide its approval or any meaningful dialogue as to how matters might proceed. Three days later, the strata corporation advised in writing that it would, as the bylaw allowed, seek, at a cost to the petitioners, “professional advice, guidance and council regarding these complex matters that are far beyond the scope of an ordinary council”.

The lawyer engaged by the strata council sent correspondence to the petitioners on December 5 stating that the strata council would have to retain an engineer, a surveyor, and legal counsel to perform various services necessary for council “to consider [the petitioners’] application for approval to build a house on strata lot 5 and also make significant changes to the common property”.

Held, bylaw amendment declared invalid and of no effect. Section 45(1) requires at least two weeks’ notice of an AGM or a special meeting. Accordingly, notice must have been given to all owners by August 12. The strata corporation argued that since the petitioners were not owners until August 15, they were not entitled to notice, but by the time the meeting was held the petitioners were owners and were so entitled. The email to the petitioners’ solicitor did not contain the essential elements of the agenda, particularly those with respect to the proposed building bylaw amendments. Given that s. 45(3) of the Act requires that notice include a “description of the matters that will be voted on”, the petitioners were not given reasonable notice. The strata corporation intended to change the bylaws considering the pending sale to the petitioners, and it was disingenuous to suggest this was a coincidence. The curative provisions under s. 47 of the Act applied, and the votes taken at the August 26 AGM were invalid.

The bylaws were significantly unfair, pursuant to s. 164 of the Act, as they were unwieldy, unworkable, and targeted the petitioners. As a result, the conduct of the strata corporation was oppressive and unfairly prejudicial. Punitive damages were denied.