Legal

May 16, 2019 Published by British Columbia Chapter - By Jamie Bleay

The Owners, Strata Plan VR812 v. Yu, 2019 BCSC 693

From CCI Vancouver Condo News, Spring Issue 2019

This case is the most recent of a litany of legal proceedings involving Ms. Yu and her strata corporation. Initially a dispute alleging that she was, among other things, in breach of the strata corporation’s short term rental bylaws went before the Civil Resolution Tribunal (the "CRT"). On September 21, 2017 the CRT determined that she had breached the bylaws of the strata corporation by renting her strata unit for short-term leases in a business endeavor. While Ms. Yu appealed the decision she continued to rent her strata lot claiming that she was grandfathered from the bylaws and that she was entitled to rent out rooms in her unit to pay for her mortgage and other costs.

In May of 2018, her appeal of the CRT ruling was dismissed by the Supreme Court and the order made by the CRT became an order of the Supreme Court allowing the strata corporation to enforce the order in the Supreme Court. Ms. Yu continued to rent her strata lot even in the face of the dismissal of her appeal of the CRT decision, which resulted in the strata corporation bringing contempt of court proceedings in the Supreme Court.

On October 24, 2018 at the contempt of court application Mr. Justice Davies found that the strata corporation had proven that Ms. Yu was in contempt of not only the CRT order but also of the order of the Supreme Court. He then adjourned that part of the proceedings to determine the punishment for the contempt of court for a period of four months. The effective purpose of the adjournment was to allow Ms. Yu an opportunity to stop defying the CRT order and the Supreme Court order.

Apparently that cooling off period did little to curb Ms. Yu’s actions and in December 2018 the strata corporation made another application alleging further contempt of court actions by Ms. Yu who continued to rent her unit and advertise her unit for short term rentals. While Mr. Justice Davies was not able to find, on the evidence beyond a reasonable doubt, that Ms. Yu was in further contempt of court, the parties did agree to the terms of a consent order which stated that Ms. Yu would take all possible steps to prevent further advertising of her unit for rent. In that December application, the strata corporation also sought an order for the conduct of the sale of Ms. Yu’s unit because of the alleged continuing contempt and the failure to pay outstanding fines. That application was adjourned as Ms. Yu had advised Mr. Justice Davies that she had taken steps to list her unit for sale.

The sentencing proceedings were heard on April 1, 2019. At that time Ms. Yu advised the court that she did not want to sell her unit claiming some type of emotional attachment to it and to the neighbourhood. In addition she made claims of poverty and her difficulty in being able to find alternate accommodation for her two dogs.

The Judge was tasked with deciding what the appropriate sanctions should be for her contempt of court, including whether or not to grant the strata corporation an order for conduct of sale of her unit. After considering the legal principles and the court’s’ jurisdiction to exercise the power of contempt to enforce its court orders, Mr. Justice Davies went on to consider any aggravating and mitigating circumstances in connection with the form of contempt of court order that he might make. He also considered the principles of deterrence and rehabilitation as they applied to the circumstances of Ms. Yu’s contempt of the court’s order. After considering all of the circumstances, including her ongoing position that the bylaw in question did not apply to her, the fines that had been imposed against her that had been paid up as of the date of the sentencing hearing, the costs to the strata corporation and Ms. Yu’s recent compliance with the last two orders of the court, Mr. Justice Davies determined that a fine of $5,000.00 was sufficient to compel compliance with the court’s order and as punishment for the contempt of court. The court did not order incarceration due to Ms. Yu’s payment of the fines that had been imposed and her compliance with the last two orders of the court.

The court concluded that it was not appropriate to grant the strata corporation conduct of sale of Ms. Yu’s unit as further punishment for her contempt of court. That part of the strata corporation’s application was adjourned for 60 days during which the strata corporation was to proceed with taking steps to deal with cost issues, including recovery of reasonable costs of the sentencing application and cost orders made in the earlier court applications.

Author’s note: An order that an owner’s home be sold for steadfastly ignoring court orders and based on a finding of contempt of court has been made in an earlier proceeding involving a strata corporation and the owner and her husband. Time will tell if the court entertains the strata corporation’s conduct of sale application which will be dependent on the willingness of Ms. Yu to pay the strata corporation’s costs.

Jamie Bleay has practiced extensively in the area of condominium/strata law for most of the past 27 years, working with/acting for several hundred strata corporations in that time including dealing with major construction projects, contract review and interpretation and contract disputes.

He is the former president and one of the founding directors of CCI Vancouver.

Access Law Group
Jamie Bleay
Tel: 604-689-8000
www.accesslaw.ca
jbleay@accesslaw.ca