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Tuesday, June 15, 2021 @ 5:52 AM  

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Appeal by a strata lot owner from dismissal of a petition for relief under the Strata Property Act. The Skywater strata development was situated on Salt Spring Island. It was comprised of 27 rural bare land lots of varying sizes zoned for agricultural use and marketed as a dream property opportunity to create unique rural real estate. The appellant bought a 16.4-acre parcel within the development with the plan to develop a licensed medical-use cannabis production on the property in anticipation of the forthcoming legalization of cannabis. Other owners within the development opposed the appellant’s plans. They convened a special general meeting at which they passed bylaws that prohibited various uses, including the commercial production of cannabis plants or products. The appellant brought a petition seeking orders that the new bylaws were unenforceable as significantly unfair, or as an unlawful restraint of trade. The petition was dismissed. The owner appealed.

HELD: Appeal dismissed. The judge incorrectly interpreted the test for what was “significantly unfair” within the meaning of s. 164 of the Strata Property Act. The reasonable expectations of the minority owner were relevant as one of the factors to be considered. While the judge correctly rejected the appellant’s expectations as a determining factor, he erred in treating them as irrelevant, thereby placing undue emphasis on the prospect that the reasonable expectations of one owner could result in impermissible grandfathering under a bylaw. Nonetheless, the error was remedied by an adequate consideration of the appellant’s expectations in the alternative. The conclusion that the appellant’s asserted expectations were not reasonable was appropriate given the context of a cooperative rural community and the appellant’s recognition his proposed business could be contentious. The judge did not employ inapt legal analogies or omit relevant case law. The conclusion that no significant unfairness occurred recognized the democratic enactment of the bylaws with a supermajority and the fact that there was no negative impact on the value of the appellant’s property. The finding that there were legitimate reasons for the restraint of trade and that the restraint was reasonable was entitled to deference.

Kunzler v. Strata Plan EPS 1433, [2021] B.C.J. No. 903, British Columbia Court of Appeal, M.V. Newbury, J.J.L. Hunter and J.C. Grauer JJ.A., April 29, 2021. Digest No. TLD-June142021003