Another Blow to Access to Justice

No owner of a single detached home has to struggle for years and do battle with a gang of lawyers just to repair a patio.

Legal representation favours the one with it against the one without it and tips the scales of justice, which are already skewed against strata owners by the combined power of many against one.

This post is a critical commentary on the Court of Appeal decision in The Owners, Strata Plan NW 2575 v. Booth, 2020 BCCA 153

****************

Ian Mulgrew wrote an article about this decision in the Vancouver Sun on June 2, 2020.

I read it, and the way I see it, the only thing unusual about the Booth case is that the strata has injected years of delay as the scale of compensation could put meaningful teeth into the SPA and an otherwise toothless CRT process.

Torts, and all of the elements of torts, are common in strata disputes, and the CRT routinely leaves the issues outside its jurisdiction to higher courts. If there is anything complex in this case, it is generated by the strata corporation acting deliberately in ways that inject it, and rely on it, to gain advantage from it, to the detriment of law abiding owners.

Case in point, this appeal was basically undefended because the Booths could not afford the cost. The strata knew it, and the Court of Appeal knew it, and there is no justice or fairness in that.

The seriousness of the Court of Appeal's misapprehension of the fundamental nature of access to justice and the devastating effect of its decision on equal protection under the law for self represented litigants and others for whom legal representation is beyond reach makes its decision inappropriate and unjust.

The court's failure to consider these features demonstrates flawed reasoning and renders the Court of Appeal's decision, and the insulting tone of it, worse than unreasonable in my opinion.

The CRT not granting legal representation to the strata is not a perfect means to level the playing field, but at least it restricts, or stops, the strata from using litigation defence insurance against the owner who paid for it with their strata fees.. If strata insurance is high this year, just watch what will happen next!

If you current access to justice is "a wink and a nod" to corrupt discrimination, the Court of Appeal has now set a new precedent that doesn't even wink.

****************

I feel sorry for Verna and George Booth, who have had relief from oppression continually denied and delayed by their strata's multiple appeals of decisions not to grant the strata official legal representation - when the strata already enjoys the advantage of two lawyers while the owners don't even have one.

In granting the strata corporation's appeal without deliberating over the undisputed facts that: 1) the owner cannot afford a lawyer, 2) the strata will use litigation insurance against the owner whose strata fees were used to pay for the premiums, and 3) the tribunal took due care to cite sections of governing legislation that expose some of the unjust realities of wealth, the Court of Appeal says that:

[24]  It seems to me to be irregular for the Tribunal to put its imprimatur on a “way around” its own decision, setting up the unhappy appearance of "a wink and a nod”.                           2020 BCCA 153 (CanLII)

Emphasis on the word unhappy is added by the author of this blog in view of the way that the Court of Appeal "put its imprimatur on a way around” the law by making contrived accusations against the CRT that ignore constating legislation and distract from the fundamental injustice of the Court of Appeal's decision and perversely manufactured delays.

The Court of Appeal's irrelevant perception that s.20 of the CRT Act "disrespects" the legal industry by "prohibiting recognition" for lawyers and the fiction the court created to pretend that it's not usually the one with funding for lawyers that "wins the day" illustrates how adjudicators FROM THE TOP down give "a wink and a nod" to any "way around" governing legislation that gets in their way.

Adjudicators favour strata councils so often that violating the SPA is becoming normalized as an industry standard. The poison from this flows systemically from the highest courts to the lowest, continuously. It's no wonder that bringing strata matters before the CRT is turning into such a fiasco.

Justice delayed is justice denied. The Booth case was brought before the CRT in 2017, and the uninvited complexity of constitutional matters was injected into this appeal in 2020, not by the parties, but by the Court of Appeal itself. Foisting such complexity onto the unprepared and less powerful in this already long delayed case  seems inappropriate, and the insulting tone used seems disrespectful to the CRT and dangerous to strata owners in general. Turning time into a weapon of war is very unfair to the Booths who have already had their case before the CRT for nearly 3 years due to the strata's prolonged and repeated actions against them..

Unfortunately, in my experience it is NOT irregular for officers of the court to put a seal of approval on conduct that grants unfair advantage in violation of the constitutional right of BC residents to equal protection under the law. In this case for example the Court of Appeal seems to be very deliberately setting up the UNHAPPY appearance of "a wink and a nod" to whatever best allows the court to enjoy the luxury of legal representatives over self represented litigants. Decisions arising out of this  inherent conflict of interest put strata owners at a disadvantage contrary to Canada's Charter of Rights and Freedoms.

The long history of how legal representatives pervert the Limitation Act, Strata Property Act, Criminal Code, and Civil Resolution Act in deference to those in power perpetuates unlawful conduct, and the way too many adjudicators expertly craft deceptive legal fiction that misrepresents fact and law to benefit from unbalanced power and convenience at the expense of law-abiding strata property owners is truly impressive.

I see adjudicators churn up a state of instability, complexity, and strife for the ongoing profit of members of the Law Society and deference to strata councils that are irresponsible, or worse. This practice is damaging families and contributing to dysfunction in society, not just in the strata complex, and the damage is staggering.  In my experience a $25,000 compensation award trivializes the true cost of ongoing SPA violations.

Skyrocketing insurance premiums and deductibles for strata properties also arise in large part out of irresponsible adjudicators allowing strata councils enjoying the advantages of legal representatives to distort the mandatory use and repair provisions of sections 71 and 72 of the SPA into discretionary ones, allowing councils to manufacture all kinds of unreasonable "professional advice" and years of chronic delay to thwart statutory and common law responsibilities.

Figures don't lie, but liars sure figure. The Court of Appeal knows or ought to know that the CRT resolves motor vehicle injury disputes up to $50,000, small claims disputes up to $5,000, and strata property disputes of any amount, and it also knows that nothing about the $25,000 is a small claim for debt. To say it is "to this scale which is in excess of the Tribunal’s small claims limit" seems to me like nothing short of a fraudulent intent to deceive with the predictable effect of confusing average readers, as a distraction from the fundamental injustice of the court's conduct.

The Court of Appeal is not stupid. The ladies writing the decision in this case know, or ought to know, that a strata corporation is an artificial person impossible to jail so the SPA specifically excludes Offence Act penalties, but places no restriction of the monetary amount to remedy unfair statutory breaches or nuisance or enjoyment violations of standard strata bylaws. 

Such breaches are at the heart of the majority of strata cases brought before the CRT, and any fool with the least bit of common sense can see that and further confirm it in the case law. 

If adjudicators enforced the SPA using their teeth instead of systemically deferring to strata corporations acting unlawfully, life in stratas would be so much better, and so many people would not have reason to hate lawyers as they do.