Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether installing a new window on a strata unit's exterior wall constituted a "significant change" to common property under s. 71 of the Strata Property Act and Bylaw 14(9).

• The strata council's settlement with the Unit 30 Owners bypassed a prior three-quarters vote that had already defeated the window proposal at the May 25, 2022 AGM.

• Adjacent Unit 31 Owners raised concerns about loss of privacy, increased light and noise transmission, and reduced property value from the proposed window.

• Application of the Foley factors — including visibility, adverse impact on neighbouring units, and equivocal past governance history — supported a finding that the alteration was significant.

• Council consulted the Unit 31 Owners only on the privacy glass option but finalised the settlement on the basis of clear glass, contrary to the requirements of Bylaw 14(9).

• Significant unfairness under s. 164 of the SPA was established against the Unit 31 Owners, while no such unfairness was found in favour of the Unit 30 Owners.

The neighbouring townhouses and the window proposal

This case arose from a dispute between two sets of neighbours who own adjacent townhouses — units 30 and 31 — within a 71-unit residential strata complex known as "Ashbrook Place," located at 9000 Ash Grove Crescent in Burnaby, British Columbia. The owners of unit 30, Carrie Ann Keen and Mladen Miholjcic (the "Unit 30 Owners"), wished to install a new window on their south-facing exterior wall in order to bring natural light into their interior stairwell. The owners of unit 31, Michael Proniuk and Lisa Daum (the "Unit 31 Owners"), opposed the installation because their master bedroom window, which faces west and is often left open, is located just a few feet from the proposed window location at roughly the same level.

The application process and Bylaw 14(9)

The strata corporation, The Owners, Strata Plan NW 2408, had enacted Bylaw 14, which governed the process for owners seeking permission to alter common property. Of particular importance was Bylaw 14(9), which provided that if a proposed alteration is considered "significant" — meaning any change representing a change in the appearance of common property from what is typical or one that negatively impacts adjoining strata lots — it must be referred to the strata corporation for approval by a three-quarters majority vote. Crucially, the bylaw specified that whether or not the change negatively impacts an adjacent strata lot would be determined by Council, in mandatory consultation with the adjacent strata lots.

Initial approval and subsequent reversal

The Unit 30 Owners initially submitted their window proposal to the Change to Common Property Committee ("CCPC"), and at a Council meeting on January 19, 2022, the Council voted to permit the Unit 30 Owners to proceed with the installation. However, before providing its official approval in writing, the Council received a letter dated January 28, 2022 from the Unit 31 Owners. In that letter, the Unit 31 Owners complained that they had not been formally notified that the Council was considering the matter, that the Council had failed to comply with the process stipulated in Bylaw 14(9) which expressly made consultation with them mandatory, and that the proposed window installation amounted to a significant change as it negatively impacted their privacy and view. A meeting with the Council took place on February 17, 2022, after which the Council investigated further. Following a subsequent Council meeting on March 7, 2022 — which the Unit 30 Owners joined late due to a miscommunication regarding notice — the Council concluded that the proposed window would amount to a significant change or alteration requiring a three-quarters vote of the owners. The matter was placed on the agenda at the annual general meeting held on May 25, 2022, where the motion was defeated by a vote of 19 in favour, 22 opposed, and 3 abstentions.

The settlement and its consequences

On August 19, 2024, the Unit 30 Owners and the Corporation reached a tentative settlement. The settlement offered two options: if the window was installed with its bottom edge no less than seven feet above the landing, it could be all clear glass; alternatively, if placed lower than seven feet, it would be a privacy window made completely of one continuous sheet of architectural privacy glass providing privacy from both sides. Although the Unit 30 Owners initially opted for the privacy glass option, they were unable to reach agreement with the Council on the specifications of the privacy glass to be used. The settlement was therefore finalised on April 28, 2025, based on the clear glass option with the window installed at least seven feet above the landing. The Unit 31 Owners were not consulted when the settlement was finalised on the basis that the window would be clear glass after all.

The Unit 31 Petition

The Council's consultation with the Unit 31 Owners regarding the proposal endorsed in the settlement began with a letter from the Corporation's property manager dated September 25, 2024, which described the proposal as involving architectural privacy glass to address their privacy concerns. The Unit 31 Owners responded by letter dated October 2, 2024, complaining about the process and reiterating their earlier objections. Two days after the settlement was finalised, on April 30, 2025, the Unit 31 Owners filed an application to be added as respondents in the Unit 30 Petition proceeding, which was granted on June 19, 2025. They filed the Unit 31 Petition on May 12, 2025.

Whether the alteration was a "significant change"

Justice Milman applied the Foley factors — the leading test from Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333 — to determine whether the proposed window installation constituted a significant change. It was not disputed that the exterior façade of the wall was common property and that installing a window there would amount to a change or alteration; what was disputed was whether that change would be "significant." The court found that the proposed window would be highly visible to the Unit 31 Owners and that, given its proximity, the window would occupy a significant part of the right-hand field of view from Unit 31's bedroom window. Unless at least one of those windows was covered by a curtain or blinds, the Unit 31 Owners would be able to look directly into unit 30, and artificial light from the stairwell in unit 30 would shine into unit 31's bedroom. The court was satisfied that the installation would adversely impact the Unit 31 Owners in at least some of the ways they alleged. The court also disagreed with the Corporation's submission that the terms of the April 28, 2025 settlement adequately addressed the privacy concerns, noting that the photographs relied upon were taken from unit 51, which belonged to a different phase of the development with a significantly higher roofline, and that the window installed in unit 51 did not share the same dimensions as the one proposed for unit 30. Although the Unit 30 Owners and the Corporation argued that past governance history weighed heavily against a finding of significance, the court found the evidence of past governance to be equivocal at best, observing that there was no previous history of approving the installation of a new window in the face of reasonable opposition from a neighbour, and none involving units configured like units 30 and 31. The court concluded that the Foley factors weighed in favour of a finding that the proposed alteration was indeed significant.

The question of significant unfairness

Both sets of owners sought relief under sections 164 and 165 of the Strata Property Act. Applying the test from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, the court assessed whether the reasonable expectations of each petitioner had been violated by significantly unfair conduct. The court found that the Council's process in settling with the Unit 30 Owners did not conform to the requirements of Bylaw 14(9), contrary to the reasonable expectations of the Unit 31 Owners. The resulting unfairness was compounded when, in finalising the settlement, the Council consulted the Unit 31 Owners only on the privacy glass option, which was not the one it ultimately endorsed. The court concluded that this led to a result that was significantly unfair to the Unit 31 Owners. Regarding the Unit 30 Petition, the court rejected the Unit 30 Owners' argument that the Council was bound by its initial January 19, 2022 decision, finding that determination was reached before mandatory consultation with the Unit 31 Owners as required by Bylaw 14(9). The court also distinguished the Dollan precedent, noting that in Dollan, the developer had promised the petitioners a clear glass window before they purchased their units, whereas here, both sets of owners purchased their respective units knowing there was no window in the south wall of unit 30, and their reasonable expectations were consistent with the status quo. The court concluded that the decision of the owners at the May 25, 2022 AGM to refuse the Unit 30 Owners' application was not, in its substance, significantly unfair to them.

The ruling and outcome

The court allowed the Unit 31 Petition and dismissed the Unit 30 Petition. Justice Milman declared that the proposed installation of a window in unit 30, on the terms agreed upon between the Unit 30 Owners and the Corporation on April 28, 2025, would amount to a significant change in the use and appearance of common property within the meaning of s. 71 of the SPA and Bylaw 14(9), necessitating a three-quarters vote of the owners, and that the proposal had already been defeated by the vote of the owners at the May 25, 2022 AGM. The court ordered that the settlement of April 28, 2025 and the Council's resulting determination that the proposed installation would not be a significant change be set aside. Michael Proniuk and Lisa Daum, the Unit 31 Owners, were the successful party and were entitled to their costs in both proceedings. No specific monetary amount was awarded, as the relief granted was declaratory in nature and consisted of orders setting aside the settlement and the Council's determination.