Executive Summary: Key Legal and Evidentiary Issues

• The chambers judge erred by not considering the legal effect of partial payments when determining whether the pre-February 2021 claim was statute-barred under the Limitation Act.

• Fresh evidence application was dismissed because the relevant AGM minutes and budgets were available at trial, and the appellant failed to exercise due diligence.

• A palpable and overriding error occurred when the judge misunderstood the claim period, believing it ended in 2023 rather than continuing to the hearing date.

• Part payment of a liquidated sum constitutes acknowledgment of liability under s. 24(7) of the Limitation Act, potentially extending the limitation period.

• Insufficient documentation was provided to establish strata fees owing for 2021 and 2022, though evidence existed for 2023 and 2024.

• The entire matter was remitted to the Supreme Court for redetermination, with parties permitted to tender additional evidence.

Background and factual context

This case arose from a long-standing internal dispute within Strata Plan KAS 1886, where two factions claimed legitimacy as the duly elected strata council. The conflict began in 2013 and involved the Gauthier council and the Zavier council, led by René Gauthier and Odin Zavier respectively. Gordon Lemon aligned with the Zavier faction. The dispute was resolved in January 2021 when Justice Branch declared that the Gauthier council was the lawful strata council, with members being René Gauthier, William Gauthier, and Sacha Elez.

The petition proceedings

In February 2023, Mr. Gauthier caused the Strata to commence petition proceedings against Mr. Zavier and Mr. Lemon to enforce their obligation to pay strata fees. The chambers judge dismissed both petitions on two grounds: first, that the claim for fees prior to February 2021 was statute-barred pursuant to the Limitation Act; and second, that the claim for fees since February 2021 was unproven due to insufficient evidence.

The limitation period dispute

The Strata argued on appeal that the two-year limitation period did not begin to run because the Gauthier council lacked the practical ability to commence a claim before Justice Branch's January 2021 ruling confirmed its status. Additionally, the Strata contended that the limitation period was extended by payments made by Mr. Zavier and Mr. Lemon until February 2021. The respondents acknowledged making strata fee payments to the Zavier council, with Mr. Zavier's last payment occurring on February 1, 2021.

Under s. 24(7) of the Limitation Act, part payment of a liquidated sum constitutes an acknowledgment of liability, which extends the limitation period. The Court of Appeal found the chambers judge erred by not considering this legal effect of the acknowledged partial payments when analyzing the limitation defence.

Evidentiary issues and the fresh evidence application

The chambers judge found insufficient evidence to establish the actual amounts owing because no AGM minutes showing the breakdown of strata fees payable by each unit were provided. The Strata sought to adduce fresh evidence on appeal, namely the missing AGM minutes and budgets. The Court applied the Palmer criteria for admitting fresh evidence and dismissed the application because the evidence could have been obtained with due diligence for the original hearing. Mr. Gauthier, though not a lawyer, had been at the centre of litigation for 12 years and was considered a most experienced litigant who must have understood the obligation to prove the Strata's case.

The judge's misapprehension of the claim period

The Court of Appeal identified a palpable and overriding error in the chambers judge's understanding of the claim period. The judge understood the claim to end in 2023 when the petition was filed, but the petitions actually sought declarations of the amount owing as of the date of the court's determination, not the filing date. The amount accruing between February 2023 and the 2025 hearing was therefore in issue. The AGM minutes attached to Mr. Gauthier's November 2024 affidavit showed actual strata fees for 2023 and budgeted fees for 2024, which the judge failed to consider.

Ruling and outcome

The Court of Appeal allowed the appeals brought by the Strata and dismissed the cross appeals brought by Mr. Zavier and Mr. Lemon, who had sought costs if the appeals were dismissed. The fresh evidence application was also dismissed. The petitions were remitted to the Supreme Court of British Columbia for redetermination, where the parties are at liberty to tender further evidence as they deem fit. No specific monetary amount was determined, as the matter requires a fresh hearing to establish the precise amounts owing for all relevant periods. The Court determined that it was in the interests of justice that the entire claim be addressed together rather than piecemeal, to achieve a consistent and coherent determination of the Strata's rights and the respondents' obligations. No specific monetary amount was determined or awarded.