In the classic board game of Monopoly
TM there are the official rules, and there are the
"house rules". House rules are for people who cannot
follow the official game rules, or who believe the rules do not
apply to them. The most widely known house rule is the one where
all the fines amassed during the game are paid into a pot in the
middle of the game board. Whoever lands on the "
Free Parking" square during the game wins the pot. Not
many people know that the Free Parking Rule is a "house
rule" and not part of the official game rules.
The LMS 2138 case shows the risks of playing by your own rules
when you live in a strata development. It all started in 2006, when
the strata council at a strata complex in Port Coquitlam amended
their bylaws to assign parking spaces to each strata lot rather
than continue with unrestricted parking. Unhappy with the new
assignment, the Bea's went to court.
The first of many, many trips to the courts was in 2008 when
they asked the court to determine if the council had the right to
make the amendment. The court found that the council did have the
right and that it had, in fact, conducted itself in a manner
designed to achieve the greatest good in the best interests of all
While most people would have accepted the court's judgment
and their new parking assignment, the Bea's would not. What
followed was a barrage of legal proceedings that included five
petitions, several interlocutory motions, reviews and the
inevitable subsequent appeals, all of which were unsuccessful and
resulted in costs against the Bea's – several attempts
were even deemed vexatious by the courts.
Again, one might think that with such a strong sentiment by the
courts and the associated cost could keep the Bea's at bay, but
alas, several other proceedings were filed which finally lead to
the council making an application seeking an order of contempt on
the Bea's for their conduct in the courts. Ultimately, both Mr.
and Mrs. Bea were found to be in contempt of court.
At this point the Bea's had amassed an excess of $53,000 of
costs and the strata council had spent upwards of $173,000 in legal
fees, disbursements and taxes, so the court had the difficult task
of figuring out how to resolve this legal calamity fairly, once and
for all. Counsel for the council suggested that Mrs. Bea be forced
to sell her unit, giving the council conduct of the sale and
requiring the Bea's to give up vacant possession.
While in normal circumstances that would have been an absurd
suggestion, it is important to reiterate that this is not a normal
case, and in very rare circumstances, where traditional punishments
against those found in contempt of court such as fines and
imprisonment offer no reasonable chance to end the abuse of the
court's process, other penalties may be considered.
The Owners Strata Plan LMS 2768 v Jordison,
2013 BCCA the fact that the Bea's had "intentionally,
wilfully and in a blameworthy fashion disobeyed the order of [the]
court", and the fact that the condo unit was what was fueling
the Bea's contemptuous acts that give rise to the injustice
that results, concluded that the forced sale of the unit was such
an "other penalty" and in fact, the only appropriate and
meaningful sanction for the Bea's contempt of court.
So in the end, after appearing before 28 different judges, in an
endless onslaught of legal proceedings intended to refute the
council's decision to reallocate parking spaces, the Bea find
themselves being forced to sell their unit and to ask themselves,
when to accept the realities of living in a strata complex and park
their legal issues at the curb (or in the spot assigned to
WHAT WE DO: Lesperance Mendes assists stratas and owners in
bylaw enforcement cases and the collection of unpaid strata fees,
special levies and fines.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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