Executive Summary: Key Legal and Evidentiary Issues

• The parties are neighbouring strata corporations in Burnaby that historically shared certain recreational amenities and the costs of maintaining them under a covenant and a later post-incorporation contract.

• The central issue on this appeal was whether an entered order from the Supreme Court of British Columbia could be amended to add a term granting liberty to apply for further remedial orders in the same proceeding.

• The appellant argued that the original petition’s monetary relief had effectively been dismissed and that the court was functus officio, preventing any further application in the existing proceeding.

• The appeal required the court to determine whether the amending judge properly interpreted and implemented the manifest intention expressed in the original reasons for judgment.

• The court distinguished Brockman v. Valmont Industries Holland B.V., holding that allowing further applications to quantify consequential remedial relief differs from permitting a party to re-litigate or bolster an already-decided liability issue.

• The court held that it is open to a Supreme Court judge to grant liberty to apply for further remedial orders consequential to a determination of liability, and it dismissed the appeal, leaving the amended order in place.

Facts and background
The case involves two strata corporations located side by side on Carrigan Court in Burnaby: The Owners, Strata Plan NW 2301 and The Owners, Strata Plan NW 2364. Originally, the land was owned and developed as one property. As a condition of subdivision, and before two separate strata plans were registered, the developer and the District of Burnaby entered into a covenant under s. 215 of the Land Title Act (now s. 219 of the Land Title Act). Two terms of that covenant are relevant: certain amenities were to be made available for use by owners in both strata corporations, and the costs of maintaining those amenities were to be shared. The amenities consist of a racquetball court, squash court, lounge, exercise room, swimming pool and change rooms located on the land of Strata Plan NW 2301, and a tennis court and some ancillary facilities located on the land of Strata Plan NW 2364. The two stratas complied with this arrangement without issue for over 25 years. In March 2019, faced with a significant assessment for repairs to the amenities on Strata Plan NW 2301’s property, Strata Plan NW 2364 gave notice that it was terminating the arrangement. Strata Plan NW 2301 then filed a petition seeking, among other things, a declaration that the covenant was a current, subsisting and binding agreement on all parties and successors in title, including Strata Plan NW 2364, and orders requiring Strata Plan NW 2364 to pay all necessary costs, expenses, capital and repair costs to keep the recreational and parking facilities in good condition and available for all entitled owners, as well as an order that Strata Plan NW 2364 undertake repair or structural work to have the tennis courts operative within twelve months.

Procedural history
The petition was heard in the Supreme Court of British Columbia on February 24, 2022. The court held that the strata corporations could not enforce the covenant itself because they were not parties to it. Instead, the court found that the parties had entered into a post-incorporation contract on the same terms as the covenant, which could not be unilaterally terminated. As to the monetary relief requested in paragraphs 2 and 3 of the petition, the court stated that the parties continued to be obligated to one another in accordance with their contract, but it was not prepared to make monetary orders based on the evidence before it because there was no information about anticipated costs and no evidence of what costs or expenses might be considered “necessary” in all the circumstances. The court added that, if more precise orders were required arising out of items 2 and 3 from the petition, a further application might be required. The formal order prepared by counsel and entered did not include any term granting liberty to apply for further orders. Strata Plan NW 2364 appealed, arguing that the court erred in finding a binding contract between the two stratas. The Court of Appeal dismissed that appeal on January 30, 2023, and in August 2023 the Supreme Court of Canada declined to hear a further appeal. After the appeal process concluded, Strata Plan NW 2301 demanded that Strata Plan NW 2364 pay its share of expenses related to the amenities. Strata Plan NW 2364 did not comply. In February 2024, Strata Plan NW 2301 sent an email enclosing a draft notice of application in which it sought orders compelling Strata Plan NW 2364 to pay $388,024 for past expenses relating to the amenities and $228,759 as a reasonable estimate of expected and necessary 2024 costs to maintain the recreational facilities in good condition. Strata Plan NW 2364 took the position that the application could not proceed because the original petition was spent and the court was functus officio. Strata Plan NW 2301 then applied in the Supreme Court to amend the original order to include a term recognizing the right to apply for “more precise orders” as referred to in paragraph 93 of the original reasons. Strata Plan NW 2364 cross applied to add a term to the original order dismissing paragraphs 2 and 3 of the petition.

Issues on appeal
On the resulting appeal to the Court of Appeal, the appellant challenged the decision of a chambers judge who had heard the amendment and cross-amendment applications. The chambers judge had set out the applicable principles for amending an entered order, noting an inherent jurisdiction to amend an entered order to reflect the manifest intention of the court, the discretionary nature of such applications, and the need to determine whether it was in the interests of justice to correct the order. The judge also emphasized that the task was not to rehear the matter on the merits but to decide whether the order conformed with the original reasons, effectively requiring the judge to step into the shoes of the original decision-maker. The appellant argued on appeal that the chambers judge erred in principle by exercising discretion to amend the order in a manner inconsistent with the original reasons and by failing to follow the Court of Appeal’s direction in Brockman, where it was held that applicants should not be allowed a second opportunity to bolster their case. The appellant’s position was that the monetary relief in paragraphs 2 and 3 of the petition had effectively been dismissed and that any further attempt to obtain that relief within the same proceeding was impermissible. The respondent maintained that paragraph 93 of the original reasons clearly indicated that the monetary aspects of the petition were not dismissed and that the original court contemplated a further application within the existing petition if more precise orders were needed.

Court’s analysis
The Court of Appeal treated the decision to vary an entered order as an exercise of judicial discretion, reviewable only for an error in principle, a failure to consider or misapplication of relevant factors, or a result so clearly wrong as to amount to an injustice. The court agreed with the chambers judge that the original court’s manifest intention was to preserve liberty to apply for further consequential remedial orders, effectively pushing the determination of the amounts owed to a subsequent application within the existing proceeding. The court rejected the appellant’s submission that the original reasons dismissed the respondent’s application for monetary relief, pointing to the language in paragraph 93 that referred to ongoing contractual obligations and the possibility of a further application for “more precise orders” arising out of items 2 and 3 of the petition. The court concluded that this wording was inconsistent with any intention to dismiss the monetary relief. Turning to Brockman, the court explained that the error in that case was allowing petitioners a second chance to prove a basis for liability that had already been argued and found wanting on the record. The court accepted the respondent’s position that Brockman does not stand for a general proposition that a court lacks jurisdiction to grant liberty to apply for consequential remedial orders flowing from a liability determination or declaratory relief. The court noted that in Brockman itself, the chambers judge had granted liberty to apply for a final assessment to determine the price to be paid under an oppression remedy, and that part of the order was not disturbed on appeal. The Court of Appeal stated that it is open to a judge of the Supreme Court to grant liberty to apply for further remedial orders that are consequential to the court’s determination of liability. In this case, the principal issue before the original court was whether Strata Plan NW 2364 was obligated to pay all necessary costs, expenses, capital and repair costs required to keep the recreational and parking facilities in good condition and available for use by all owners entitled to use the facilities, and quantification of those amounts was consequential to that determination.

Ruling and outcome
The Court of Appeal held that the appellant had not shown any error in the chambers judge’s exercise of discretion in amending the original order to reflect the manifest intention of the court by adding a term granting the petitioner liberty to apply for further orders in the existing proceeding. The court dismissed the appeal and left in place the amended order stating that the petitioner has liberty to apply in the proceeding for further orders arising out of paragraphs 2 and 3 of the petition. The decision confirms that the respondent, The Owners, Strata Plan NW 2301, as the successful party on appeal, may seek further orders in the same proceeding to address the monetary relief referenced in the original petition. This appellate judgment itself does not fix or award any specific sum as damages or costs, and no exact monetary amount ordered or granted in favour of any party can be determined from this decision alone.