Executive Summary: Key Legal and Evidentiary Issues

• Petitioners sought to amend a Phased Strata Plan Declaration and extend the time to elect whether to proceed with Phase 5 of Strata Plan KAP67720 pursuant to s. 232 of the Strata Property Act.
• Central to the dispute was whether s. 232 of the SPA permits an extension of time to elect after an election to proceed has already been made or conclusively deemed to have been made.
• The Strata argued that the word "conclusively" in s. 231 renders a deemed election irrebuttable and final, distinguishing it from earlier case law decided under the Condominium Act.
• Prior decisions in Lakewood, Whiskey Landing, and Ruth supported the petitioners' position that a court may order an extension of time to elect even after a deemed election has occurred.
• Separately, petitioners applied for a utilities easement over existing utilities to allow Big White Utilities to complete the hook-up upon construction; that application was adjourned due to an insufficient evidentiary record.
• Key evidence tendered in support of the easement application was found to be inadmissible hearsay, including double hearsay in the email correspondence relied upon.

Facts of the case

The petitioners — TWS Holdings Ltd., Dale Keith Lamb, and Rene Gary Wayne Bourque — acquired title to an undeveloped parcel known as the Remainder Lot through foreclosure proceedings, pursuant to an Order Approving the Sale dated May 3, 2021, with title transferring to them in November 2021. The Remainder Lot constitutes Phase 5 of a phased strata development called Perfection Ridge, associated with the Big White Ski Resort, which was originally planned as a five-phase development under Strata Plan KAP67720. The original developer filed the Phased Strata Plan Declaration on April 29, 2003, under Instrument No. KV045630, contemplating two phases at the outset. Phase 5 first appeared in the Second Amended Declaration filed on June 6, 2005, under Instrument No. KX071632, which noted that construction was to commence May 15, 2006 and be completed by December 14, 2006. The Third Amended Declaration, filed on February 6, 2007, described Phase 5 as consisting of three 4-bedroom plus den townhouse-style strata lots, with an estimated completion date of November 30, 2008. Phases 1 through 4 were completed between 2003 and 2007. Although construction commenced on Phase 5 and a partial foundation was built, the phase was never completed. On August 20, 2021, the petitioners gave notice to the Strata of their intention to apply to amend the time for making an election to proceed, pursuant to s. 234(1) of the SPA, as they wished to develop the Remainder Lot separately from the existing strata. The respondent, the Owners, Strata Plan KAS 2521 (the "Strata"), opposed the orders sought.

Statutory provisions and clauses at issue

The primary statutory provision at issue was s. 232 of the Strata Property Act, S.B.C. 1998, c. 43, which governs amendments to a Phased Strata Plan Declaration to extend the time for making an election to proceed with the next phase. Section 232(3) specifically grants the Supreme Court authority, on application by an owner developer, to order an approving officer to grant the requested time extension. Closely related was s. 231, which provides that on the date stated in the declaration for an election to proceed, the owner developer is "conclusively deemed" to have elected to proceed unless an amendment has been approved or an election not to proceed has been filed under s. 235. The Strata contended that the word "conclusively" — a departure from the word "deemed" used in the predecessor Condominium Act — reflected deliberate legislative intent to make any such election final and irrebuttable. Also relevant was s. 236, which permits a strata corporation to apply to court for an order compelling a developer to complete a delayed phase, with the consequence of non-compliance being that the developer is deemed to have elected not to proceed. The Phased Strata Plan Declarations themselves recorded, in respect of Phase 5, that the "election has been made to proceed with this phase," though no date for making that election was stated.

Reasoning and analysis

Justice Laurie first considered whether the record supported a finding that an express election to proceed had been made, separate from the deemed election under s. 231. The parties agreed that no election was made before the September 30, 2003 deadline, triggering a conclusively deemed election to proceed. The Court found the declarations ambiguous — the notation that "election has been made to proceed with this phase" likely reflected acknowledgment of the deemed election already in effect, rather than a distinct express election. In any event, the Court held that it made no difference, as both an express election and a conclusively deemed election are equally subject to amendment under s. 232.

On the central question of whether s. 232 permits an extension after a deemed election, the Court followed and agreed with the reasoning in Lakewood Development Ltd. v. Surrey (City), 1999 CanLII 6182 (BCSC), Whiskey Landing Developments Ltd. v. The Owners, Strata Plan VIS 6411, 2022 BCSC 445, and Ruth v. Maple Sunshine Holdings Group Inc., 2020 BCSC 44. In Lakewood, Master Nitikman granted an extension after a deemed election, observing that s. 78(1) of the Condominium Act imposed no time restriction on such an application. In Whiskey Landing, Justice Edelmann accepted — albeit without full contest — that it was open to the Court to order an extension even after the election date had passed. In Ruth, Justice Dley allowed an extension where the original development plan was no longer feasible.

The Court rejected the Strata's argument that the change in legislative language from "deemed" to "conclusively deemed" warranted departure from this line of authority under the Hansard Spruce Mills principles, as affirmed by the Supreme Court of Canada in R. v. Sullivan, 2022 SCC 19. Justice Laurie found that none of the three narrow grounds for departing from decisions of coordinate jurisdiction were satisfied. Reading s. 231 in context with the scheme of the SPA as a whole — including s. 236, which contemplates that even a developer who has elected or been deemed to elect to proceed can subsequently be deemed to have elected not to proceed — the Court concluded that "conclusively deemed" means only that an election to proceed has been made, not that it is immune from amendment. The Court also noted that s. 232 contains no explicit restriction requiring an application to be made before the election deadline, and that the legislature had not introduced such a restriction in the more than 25 years since Lakewood was decided.

On the question of whether to grant the extension, the Court accepted that the absence of common facilities is a significant factor under Part 13 of the SPA, and here no common facilities were in dispute. The petitioners' concerns regarding the cost of joining the Strata — including high strata fees, an operating deficiency, a reserve fund deficiency, and a 2023 special levy of $320,000 for repairs — were accepted as legitimate. The Court rejected the Strata's requirement that petitioners demonstrate impossibility or dramatic infeasibility of completing Phase 5, finding no authority for that standard. The Strata's various practical concerns — regarding snow removal, ski access, setbacks, retaining walls, and parking bylaws — were found insufficient to deny the amendment, as the SPA provides mechanisms, including ss. 235 and 237, to address those concerns when and if an election not to proceed is made.

On the utilities easement application, the Court found that the evidentiary record was insufficient. The petitioners relied primarily on the affidavit of Rene Gary Wayne Bourque, which included email correspondence between Todd Simpson (director of TWS Holdings Ltd.) and a representative of Big White Water Utility Ltd., as well as a Utilities Report from Precision Radar Scanning. The Court held the email correspondence to be double hearsay, as Mr. Bourque was not a party to the exchange. The Utilities Report was found to contain inadmissible hearsay from its author and was further undermined by vague language such as "assumed sanitation service line" and "suspected electrical and communication services," and by Mr. Bourque's interpretation of the report without establishing his qualifications to do so. The Court declined to assess the easement application on its merits.

Ruling and overall outcome

The petition was substantially resolved in favour of the petitioners. The Court granted the amendment and extension of time under s. 232(3) of the SPA, directing the approving officer to extend the time for electing whether to proceed with Phase 5 to May 22, 2027. The petitioners were permitted to file a new Form P accordingly and directed to make the appropriate applications regarding commencement and completion dates pursuant to s. 233. The utilities easement application was adjourned generally, giving the petitioners an opportunity to assemble a proper evidentiary record. No exact monetary award or damages were ordered; costs of the petition were awarded to the petitioners on Scale B.