Parking Manager IMPARK had a bad day at B.C. Supreme Court. Did it get towed away ?

A 68 unit Burnaby B.C. office strata corporation - the plaintiff here - had started asking questions about what it had been paying for years towards The Crystal complex's gigantic 994 space/4 storey shared parking facility.

Typically those contributions were 30 % of the strata plaintiff's budget . . . .

In the subsequent dispute manager IMPARK would ultimately in 2012 lock the plaintiff strata corporation’s members out of their 76 Usage Passes for First Come/First Served parking !

By January 2017 IMPARK is claiming $ 600 K was owed by the plaintiff strata corporation.

But now B.C.'s Supreme Court has struck down those charges under the P.C.R. Positive Covenant Rule.

The judgment even rules that the plaintiff strata corp had an ‘easement’ right to use 76 spaces gratuitously despite the extra-legal lockout ! It rules that the plaintiff corporation had been snookered/self-snookered for many years.

1- A bigger question now looms :

Did incompetent professionalism also fail to encumber the other user groups ? What will this do to overall financing of the giant parking facility's operations & periodic refurbishments ?

Should IMPARK have played its cards differently ? Whose vehicle just got towed away ?

2 - An important final biggy :

B.C. Supreme Court confirms & valuably discusses the P.C.R. Positive Covenant Rule. Applies it here to declare invalid a pre-Declaration PARKING FACILITY PAYMENT Covenant that went no further than the Burnaby strata’s original developer, sorta like Brennan v Dole 2005/6. ( The plaintiff strata's Declarant had failed to register any sort of “Assumption Agreement” immediately after the strata ‘s Declaration was registered & before any unit sales finalized / root deeds issued ).

To be appealed or not, the B.C. application of the Positive Covenant Rule may even be a challenge to the judicial activism shown somewhat notoriously half a continent away in a 2016 Toronto Divisional Court Owners Association/Trust dispute.

Obiter comments in this B.C. judgment may target that Toronto approach by stating that neither ‘benefit-burden’ nor ‘conditional grant’ have been accepted in Canada in these Covenant disputes.

Further it interprets as a strong confirmation of the P.C.R., Canada‘s Supreme Court highly laudable decision Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19 (CanLII) http://canlii.ca/t/gr6cd

More about why the P.C.R. Positive Covenant rule is an important protection that - RESPECTFULLY - SHOULD NOT BE WEAKENED IN ANY WAY : please see CAFCOR item "Sewage war . . " http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18660&catid=2

3 - The Crystal Shared Parking war Burnaby B.C. :

The Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2017 BCSC 71 issued Jan 17/17 http://canlii.ca/t/gwz9d

2017 is giant year for confirming PCR Positive Covenant Rule / Heritage v Equitable too SCC 2016 ( (Alberta’s ) Heritage Capital Corp. v. Equitable Trust Co., [2016] 1 SCR 306, 2016 SCC 19 issued May 6 2016 http://canlii.ca/t/gr6cd

The Crystal Shared Parking war Burnaby B.C. : The Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2017 BCSC 71 issued Jan 17/17 http://canlii.ca/t/gwz9d

Wychwood Park Trust (Toronto) loses bizarre decade of litigation trying to keep shaking down 2 offsite owners : Black v. Owen, 2017 ONCA 397 issued May 18/17 http://canlii.ca/t/h3tkz ( Google search parameters appear to have been manipulated so as to suppress searchers noticing a CAFCOR item about this important property & civil rights victory. SEE http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18737&catid=2#18737 )


Surrey B.C Shared Strata Facility dissolves; judge cites Ontario’s recent Black v Owen : The Owners, Strata Plan NWS 3457 v The Owners, Strata Plan LMS 1425, 2017 BCSC 1346 issued Aug 2/17 http://canlii.ca/t/h56bc

This again ain't legal advice.

( Cross reference July 27/19 : " “PRE-INCORPORATION but DISCLOSURED Delta Rise rooftop LEASE BEATS FIDUCIARY DUTY and P.C.R - B.C.” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=11&id=18985#18985 )

Shocker : BCCA May 7 / 19 overturns Crystal decision in applying what appears a (B.C. only) override of Kelner v Baxter 1866 which otherwise would preclude a pre-incorporation contract being binding later on an eventual corporation not yet in existence.

AND SO Crystal’s compulsory parking contribution now becomes binding retroactively apparently by actions held consistent with formal ratification : here as in 2 other B.C. shared facility decisions – no formal ratification agreement had even been submitted post registration.

Presumably due to complaints about unbalanced sweetheart deals inherited from developers, BC strata law had also changed to now require 100 % strata owner ratification before being bound later by possibly badly unbalanced deals set up by developers .

For years the Crystal office strata disputants had contributed & used the shared facility but began pressing for details. They fully accepted paying but not what they arguably came to believe was gouging.

Bottom line for the Crystal dispute, BC Ct of Appeal treats this as some sort of B.C. "pure contract exception" to both the Positive Covenant Rule and to Kelner v Baxter 1866.

The B.C. Ct of Appeals thus re-states the Crystal scenario to be a PURE CONTRACT SCENARIO rather than consumer-protection situation nor centrally about whether a covenant "runs with title". Pointedly also FAILS to address the requirement for formal ratification.

The alleged PRE-INCORPORATION strata corp obligation, is arguably NOT AN ANALOGY to the precedent-stated defaulting B.C. buyers of Heinhuis' vessel, who merrily stiff him after later gaining the shield of incorporation. This of course is not a legal opinion.

One respectfully can speculate there will be a challenge to this . . .

The Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2019 BCCA 145 issued May 7/19 http://canlii.ca/t/j04w9

BCCA’s prequel ( Crystal appeal ) :

quote : "Summary

At trial, the respondent claimed it was not bound by the provisions of an agreement entered into between the developer and the respondent’s predecessor in title and registered at the Land Title Office before the respondent was incorporated. The appellant counter-claimed that the respondent owed the appellant money on the agreement. The trial judge declared that the respondent was not bound by the provisions and dismissed the appellant’s counterclaim. Held: Appeal allowed. The trial judge erred in finding that the respondent was not bound by the obligations in the agreement. While she was correct to find that positive obligations do not run with the land and are not binding to the successors in title in that way, she erred in determining that the respondent did not become bound by the pre-incorporation contract after it was incorporated. A contract established before a party is incorporated can be the basis for a new, and identical, contract that binds that party once it is incorporated if the incorporated party shows an intention to be so bound. In finding that the pre-incorporation contract was not binding on the respondent, the trial judge erred by: considering the irrelevant fact that the respondent had not been privy to the pre-incorporation contract, placing undue weight on the fact that the respondent had not formally adopted the agreement, and looking to the subjective, rather than objective, indicators of the respondent’s intention to be bound."- unquote

BUT in a same day, separate Jameson House outcome the identical Appeal panel declines to literally reverse the victory of a different strata’s disputants ( Jameson ) ;


The panel purports to qualify upholding Jameson by stating that the only disputed issue had the Positive Covenant Rule Covenant Rule; apparently defines the Jameson scenario as parties allegedly not arguing a pure contract dispute !

The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2019 BCCA 144 issued May 7/19 http://canlii.ca/t/j04w8

( BCCA prequel to Jameson appeal ) "Summary:

"The appellant and the respondent’s predecessor in title entered into an easement agreement. The respondent obtained a declaration at trial that it was not bound by any of the positive obligations under that easement agreement. At trial and on appeal from this declaration, the appellant asserted that the courts should recognize an exception to the rule that positive obligations do not run with the land to bind successors in title. Held: Appeal dismissed. The rule that free-standing positive obligations do not run with the land to bind successors in title is long-standing. Although some exceptions to the rule have been recognized in England, these exceptions have not yet been adopted in Canada. While there are compelling reasons to allow exceptions, the legislature is in a better position to make such modifications to the rule as may be considered desirable. The rule, however, does not preclude truly conditional easements. The pleadings in this case do not squarely raise the issue whether continued exercise of the easement by the dominant tenant is conditional on the fulfilment of corresponding burdens."- unquote ( Jameson)

Supreme Court of Canada docket # 38741 https://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=38741

Dec 5 2019 S.C.C. opens the VERY narrow gateway to accept appeal against arguably disturbing override by BCCA B.C.'s Court of Appeal http://canlii.ca/t/j3sbn

At B.C.'s Appeal Court a consumer-friendly lower court judgment somehow managed to instead get reconstructed as a deal-breaking breach of contract ! NOT as strata buyers / consumer-rights under attack.

Tortured enough to be seen instead as a "HEINHUIS" fraud by a vessel's buyers INSTEAD of as valuable protection for property & buyers' rights !

Instead of developer entanglements attempted & lurking out of the past . . .

Canada's Supreme Court will resume Hearings next week after covid-19 disruptions. For the first time they'll reportedly occur by Zoom type internet technology. Hopefully no pornographic hacking will disrupt them.

AND FIRST ATTEMPTED WILL BE B.C.'s Crystal Square ( strata ) parking war.

That's 1 : 30 pm next TUESDAY JUNE 9th 2020.

It's unclear whether any BROADCASTING WILL OCCUR albeit even taped & replayed on CPAC weekends starting at 1 am ! The quality of translation was sometimes as pleasant as a nail on a blackboard, fit for torturing medieval heretics . . .

( Addendum June 9/20 : SCC has a webcast menu with deadlines for ( limited number of ) public to merely observe. Deadline for applying for webcast access to ( Zoomed Hearing of ) 38741 ( Crystal Square ) is indicated to have been last Friday. Archived past webcasts reportedly will become accessible, according to the site

1 :30 pm Tues June 9/20 : "Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation (B.C.) (Civil) (By Leave) (38741) (Later start time: 1:30 p.m.)

https://www.scc-csc.ca/case-dossier/remote-virtuel/hearings-audiences-eng.aspx )

June 4/20 Nat Post “Canada's top court to hold hearings on Zoom to keep justice flowing during COVID-19 restrictions” by Adrian Humphreys https://nationalpost.com/news/canadas-top-court-to-hold-hearings-on-zoom-to-keep-justice-flowing- during-covid-19-restrictions?video_autoplay=true

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addendum June 11/20 SCC's first webcast reportedly had some glitches. S.C.C. site promises eventual retroactive search

Possible future retrospective access to re-broadcast of # 38741 Hearing ?

https://www.scc-csc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=38741

or SCC webcast general archives https://www.scc-csc.ca/case-dossier/info/webcasts-webdiffusions-eng.aspx?ya=2020&mo=6&submit=Search

June 10/20 N Post “Top Court’s first virtual hearing hits glitch” https://nationalpost.com/news/supreme-courts-first-hearing-by-zoom-video-hits-early-glitch-after- deeply-human-opening-address-by-chief-justice?video_autoplay=true

FINALLY available online is the first WEBCAST of a live Hearing at Canada's Supreme Court.

Fittingly the Crystal Square appeal raises important questions of buyer protections with technical glitches.

AND whether alleged pre-incorporation developer self-setups should trump the venerable Positive Covenant Rule.

Should the dubious precedent of shenanigans in the sale of a B.C. vessel, now dare be allowed to invade & override what are critical property & civil rights since 1884-5 ?

https://www.scc-csc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=38741&id=2020/2020-06-09--38741&date=2020-06-09

Again NOT legal advice.

October 23 2020 : Canada's SUPREME COURT has just upheld the British Columbia Court of Appeal's decision against commercial strata owners after their long struggle against the burdens of a title-registered pre-Declaration concession.

There appears - at both appeal levels - to have been little overt engagement with consumer-protection aspects.

Canada's Supreme Court has confirmed however that the long-established P.C.R. Positive Covenant Rule continues to prevail. And that the notorious Benefit-Burden line of exceptions - from several English & Wales decisions - has NOT been validated. Ontario's Black v Owen is cited as good law.

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29 issued Oct 23 /20 http://canlii.ca/t/jb62z

Oct 23/20 S.C.C. majority of 8 :1 rejects appeal by commercial strata corporation & its strata owners against its loss in BC Court of Appeal. Rather than focussing on Henhuis - type shenanigans in B.C. ( where fraudsters had tried to hide behind Kelner v Baxter 1866 in order to post-incorporation repudiate personal promises made before incorporation ), the SCC majority here finds post-Declaration conduct that is held to have created a contract . That appears to be a conclusion decades later after the strata was created, that the years of post-Declaration confusion & owners’ long struggles to understand the developer’s assigned sweetheart deal & get disclosures, nevertheless was clear enough to adequately evidence contracting by POST-DECLARATION CONDUCT.

Sole dissenter Justice Malcolm Rowe disagrees with the majority 8’s finding that the record is adequate to factually reach such conclusion. He would remit to trial level to establish enough factuals & certainty as to support such judicial finding of POST-DECLARATION contracting ( or at least enough ratification & reliance etc ).

There appears to be zero engagement with what some would consider consumer protection issues. NOR with any obvious engagement with the issues of Directoral incompetence nor stone-walling by the Declarant's assignees to protect the cashflow of what some might see as the Declarant’s sweetheart parking cashcow later sold off.

Discussion of P.C.R. is consistent with its remaining intact, interestingly cites Ontario’s Black v Owen specifically as good law, & includes majority dictum that the English ‘benefit – burden’ has NOT - thank the Gods - become Canadian law.