Delay in Enforcing Bylaws Can Be Significantly Unfair

Trevor Morley
Jun 26
4 min read

Updated: Jul 27

CAN A STRATA'S FAILURE TO ENFORCE ITS BYLAWS BE SIGNIFICANTLY UNFAIR?

A Strata's failure to enforce its own bylaws can be significantly unfair to the Owner affected by the violation, even though bylaw enforcement is ordinarily left to Council's discretion. The test applied under s.164 of the Strata Property Act asks whether the conduct is oppressive, unfairly prejudicial to, or unfairly disregards the interests of the Owner or tenant who brought the claim, a standard the Court of Appeal has confirmed as the settled test (King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851), 2020 BCCA 342). Whether the Owner held a reasonable expectation about how the Strata would act is one relevant factor within that standard, not a separate test the Owner must also satisfy.

Owners rely on the Strata to respond when they report a problem, and a Strata that simply lets a complaint sit unanswered is not protected by the fact that it never made a decision at all.

DOES A STRATA HAVE TO ENFORCE EVERY BYLAW COMPLAINT?

A Strata must investigate every bylaw complaint it receives subject to a genuine, though limited, discretion not to enforce a trivial infraction. This discretion is a qualified discretion rather than an absolute discretion because s.26 of the Strata Property Act is itself made subject to the rest of the Act (The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc.), 2016 BCSC 32). However, that discretion is bounded: Owners have a reasonable expectation that bylaws will be enforced consistently, including an expectation that enforcement will not be applied in a discriminatory or unfairly prejudicial way (Sze Hang Holding, 2016 BCSC 32).

For example, imagine a Strata that receives a noise complaint, sends one warning letter, and then does nothing further for a year despite the Owner continuing to report the same problem. The single warning letter may have been a reasonable first step, but the year of silence afterward is what tends to move a case from "Council exercised its discretion" toward "the Strata's inaction disregarded the Owner's interests."

WHAT SHOULD BE CONSIDERED WHEN DECIDING IF THE DELAY HAS GONE ON TOO LONG?

Not every gap in enforcement crosses the line into significant unfairness. Isolated instances of easily rectifiable procedural irregularity are not significantly unfair (Azura Management (Kelowna) Corp. v. Owners of the Strata Plan KAS2428, 2009 BCSC 506, paras 14-17). A collection of individually trivial complaints does not become significantly unfair simply by being added together, either; each complaint still has to meet the oppressive or unfairly prejudicial standard on its own (Tafti v. Davis, 2024 BCSC 176).

It is important to recognize that Council is made up of lay volunteers, and the Court held in Mitchell that lay volunteer councils are owed some administrative latitude within reason when their conduct is scrutinized (Mitchell v. The Owners, Strata Plan KAS 1202, 2015 BCSC 2153). That latitude, however, operates within the statutory scheme the Act sets out, not as a substitute for it. A single missed deadline or an imperfect first response is the kind of thing this latitude is meant to cover; a complaint that goes unanswered for years is not.

DOES FOLLOWING A FAIR PROCESS PROTECT A STRATA THAT WAITED TOO LONG TO ACT?

Following a fair process does not protect a Strata that waited too long to act. Section 164 is remedial, and a fair, democratic process does not immunize a significantly unfair outcome from review (Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44). This is because the harm to the Owner comes from the delay itself, not from any defect in how Council reached its decision. A Strata that holds every meeting properly, keeps minutes, and sends polite letters can still have acted significantly unfairly if none of that activity actually resolved the Owner's complaint.

WHAT SHOULD A STRATA DO WHEN THERE ARE CONTINUED COMPLAINTS?

Our recommendation is that a Strata treat a repeated complaint as a problem that needs a decision, not a file that can stay open indefinitely. Investigate promptly, document what was found, and if the complaint is substantiated, move to the next enforcement step within a reasonable time rather than repeating the same warning letter for months or years. We have written about the limitations to the power of bylaws and that complaints of possible bylaw contraventions require particulars in other articles; those tools exist so that a substantiated complaint has somewhere to go. An uncounted number of the enforcement disputes we see start the same way: a real complaint, a first response that looked reasonable, and then silence.

STRATAS SHOULD ESCALATE, NOT IGNORE, REPEATED BYLAW COMPLAINTS

A Strata is entitled to use its judgment about whether and how to enforce a bylaw, and it is not expected to be perfect. However, that judgment must keep moving toward a decision; it cannot be exercised once and then abandoned while the same complaint continues to come in. When a Strata's silence continues for months, the Owner who has been left without an answer has a real basis to say the Strata's conduct has become significantly unfair. A robust and resilient Strata Community responds to its Owners, even when the answer is difficult or the complaint is unwelcome.