This commentary will evaluate the strength of the plaintiff’s arguments before the British Columbia Supreme Court, and the adequacy of the reasons for judgment provided the court.
At the SGM, the Kunzlers’ counsel presented their proposed plan but the owners voted to amend the bylaws to restrict, among other things, the commercial production of cannabis.
did not state that the reasonable expectations test from Dollan was the incorrect test for significant unfairness under section 164, but nor did he try to reconcile the approach with the Reid test.
In Kunzler, the plaintiffs asserted that the bylaws targeted their business, so under the King Day framework, reasonable expectations arguably have a role to play in deciding their claim under section 164.
Under the King Day framework, the court ought to analyze both the decision-making process and the outcome, This approach is appropriate, as it affirms the relevance of reasonable expectations while ensuring that the nature of the specific conduct, such as the passage of bylaws, will be considered.
However, the court did not find that the cannabis production business would pose risks to safety or enjoyment of the property, particularly risks that could not be remedied under existing bylaws.
However, this would be in line with recognizing the broad powers conferred on strata corporations to make bylaws that regulate the nature and use of property according to the will of the majority.
164, the behaviour of the strata corporation does not appear to rise to the level of significant unfairness.
However, the higher court could perhaps engage in a more thorough analysis of the common law doctrine when it is engaged in the strata property context.