Executive Summary: Key Legal and Evidentiary Issues

• Cao Tran sought judicial review of a Civil Resolution Tribunal decision that dismissed her claims against her strata corporation and ordered her to pay the Strata's legal costs.
   
• Procedural fairness was at issue because the Tribunal allowed the Strata to raise defences not identified in its original Response and relied on an undisclosed objection notice to reject portions of Ms. Tran's reply.
   
• Substantively, Ms. Tran challenged the Tribunal's findings on the reliability of a drainage contractor's evidence, the effectiveness of cove piping at other units, and the existence of additional flooding incidents.
   
• Her claim for loss of use damages turned on whether she had proven her basement was uninhabitable and on her delay in restoring it.
   
• Redactions Ms. Tran made to an insurance cost estimate became central to whether she had breached a document production order and, in turn, to the costs award against her.
   
• Ultimately, the court found most of the Tribunal's conclusions reasonable but identified a patently unreasonable error underlying the costs order, which was remitted for reconsideration.
   

Facts of the case

Cao Tran is the co-owner of strata lot 9 in a 40-unit strata townhouse complex in Burnaby operated by The Owners, Strata Plan NW468 (the "Strata"). In December 2022 and January 2023, her basement flooded due to water backing up from the Strata's perimeter storm drainage system. The Strata's drainage contractor, Top Gun Drainage Experts, had previously installed cove piping outside two neighbouring units (SL7 and SL8) in 2021–2022 at a cost of $21,000, and in February 2023 quoted $25,200 [elsewhere in the decision this figure is referenced as $25,100] to install similar piping outside Ms. Tran's unit. The Strata declined to proceed, initially attributing the flooding to Ms. Tran's unauthorized removal of a sump pump, then later citing doubts about the piping's effectiveness and its cost. Ms. Tran brought a claim before the Civil Resolution Tribunal ("Tribunal") under the Strata Property Act, S.B.C. 1998, c. 43 ("SPA"), seeking an order that the Strata install the cove piping, damages for loss of use of her unit, and production of documents relating to the Strata's drainage maintenance. The Tribunal Member dismissed all three claims and ordered Ms. Tran to pay the Strata's legal costs of $6,982.08, finding extraordinary circumstances justifying the order. Ms. Tran applied for judicial review of that decision before the Supreme Court of British Columbia.

Policy and legislative provisions at issue

The case centred on the Strata's obligations under section 72 of the SPA to repair and maintain common property, including the perimeter drains, alongside section 11.1 of the Strata's bylaws, which imposes a similar maintenance duty. The court referred to Dolnik v. The Owners, Strata Plan LMS 1350, 2023 BCSC 113, where Justice Brongers held that strata councils are entitled to deference in fulfilling their section 72 duties and may reasonably choose a "good" solution over the best available one, particularly where cost is a factor. Ms. Tran's document request invoked section 36(1)(a) of the SPA, which requires a strata corporation to make specified documents available to owners, as distinct from a procedural disclosure order under Rule 8.1 of the Civil Resolution Tribunal's Standard Rules. The standard of review was governed by section 56.7(2) of the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25, under which factual findings and discretionary decisions are reviewed for patent unreasonableness, procedural fairness is assessed on whether the Tribunal acted fairly, and other matters are reviewed for correctness.

Reasoning and analysis

Justice Kirchner addressed both procedural and substantive grounds of review. On procedural fairness, the court found that although the Strata's shift to new defensive arguments beyond its original Response was procedurally irregular, any resulting prejudice was cured by the extensive reply Ms. Tran was permitted to file. Similarly, while the Tribunal breached procedural fairness by relying on an objection notice not disclosed to Ms. Tran to exclude parts of her reply, the court found this breach did not affect the outcome, since the excluded portions concerned issues that were either improper reply or immaterial to the result. The court also rejected Ms. Tran's argument that the Strata's non-conforming submission format rendered the process unfair, noting she was able to comprehend and substantively respond to it.

On the substantive issues, the court held it was open to the Tribunal Member to find the evidence of Top Gun partner Welduluel Berhe unreliable, given communications from Ms. Tran that the Tribunal interpreted as pressuring him to provide favourable evidence. The court further held the Tribunal reasonably preferred the evidence of the Strata's handyperson and council president over Top Gun's recommendation, and that evidence of continued water issues at SL8 after cove piping installation supported the Tribunal's finding that the piping was not fully effective. The court also upheld the Tribunal's rejection of Ms. Tran's claims of additional flooding incidents for lack of supporting evidence, and its dismissal of her document production claim, since she had not shown the Strata's disclosure was incomplete.

Regarding the loss of use claim, the court agreed the Tribunal Member made some factual errors — including mischaracterizing whether a mould inspector attended in person and whether mould could be "easily cleaned" — but found these errors did not undermine the ultimate conclusion that Ms. Tran had not established her basement was uninhabitable, particularly given her own delay in restoring it. However, the court identified a significant error concerning Ms. Tran's redaction of cost figures from an insurance estimate: the Tribunal Member had found this redaction breached a Vice Chair's document production order, but the court concluded the redacted information did not fall within the scope of that order and that this finding was patently unreasonable.

Ruling and overall outcome

The court dismissed Ms. Tran's application for judicial review on all grounds except the costs order. Because the Tribunal Member's finding that Ms. Tran's redactions breached the Vice Chair's production order was patently unreasonable, and that finding had contributed to the "extraordinary circumstances" costs award against her, the court remitted the costs issue back to the Tribunal for reconsideration in light of its reasons. The Strata was found to be the substantially successful party on the judicial review overall, and the court ordered that it recover its costs of the judicial review from Ms. Tran at Scale B. No costs were ordered for or against the Tribunal itself. No monetary damages award in Ms. Tran's favour was granted or restored by this decision; the only monetary figure at issue — the $6,982.08 in legal fees the Tribunal had ordered Ms. Tran to pay the Strata — was sent back to the Tribunal for redetermination rather than fixed by this judgment.