What Makes a Strata's Conduct Significantly Unfair?

Trevor Morley
Jun 12
7 min read

Updated: Jul 27

WHAT MAKES A STRATA'S CONDUCT SIGNIFICANTLY UNFAIR?

A Strata's conduct is significantly unfair when it is oppressive, meaning burdensome, harsh, wrongful, lacking in probity or fair dealing, or done in bad faith, or when it is unfairly prejudicial, meaning unjust or inequitable (Reid v. Strata Plan LMS 2503 (Owners), 2001 BCSC 1578, paras 9-14). An Owner or tenant who believes a Strata's action, threatened action, or decision meets that standard can ask the Supreme Court, or the Civil Resolution Tribunal, to intervene (Strata Property Act, s.164(1); Civil Resolution Tribunal Act, s.123(2)).

That standard sits well above ordinary disagreement. The Court of Appeal has confirmed that significantly unfair conduct requires "something more than mere prejudice or trifling unfairness" (Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, paras 26-27, 49-51). The law is about line drawing, and this line sits deliberately high. An Owner who dislikes a decision, or would have preferred a different outcome, has not crossed it on that basis alone.

We have written another article with a more detailed history of the development of the legal test to determine if an action is significantly unfair.

WHAT TEST DECIDES WHETHER CONDUCT IS SIGNIFICANTLY UNFAIR?

Courts and the Civil Resolution Tribunal decide whether conduct crosses that line using the Reid formulation above, informed by whether the Owner held a reasonable expectation that the Strata's conduct violated. Reasonable expectations were treated inconsistently for some time. One Court of Appeal justice proposed a formal two-part test built around them, and another applied a different "disproportionate burden" gloss instead. The Court of Appeal has since settled the question: *Reid*'s own oppressive/unfairly-prejudicial formulation remains the test, and reasonable expectations are one relevant factor to weigh within it, not a separate, mandatory hurdle (King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851), 2020 BCCA 342, paras 88-89).

However, "one relevant factor" does not mean an optional one. Treating an Owner's reasonable expectations as legally irrelevant is itself a reviewable error, because it fails to account for section 164's remedial purpose (Kunzler v. The Owners, Strata Plan EPS 1433), 2021 BCCA 173, paras 92-93, 95). What founds a reasonable expectation matters too: it needs an actual, affirmative representation from the Strata, a developer, or the governing bylaws. General marketing or zoning language is not enough (Kunzler, paras 131-134).

HOW CONSISTENTLY DOES THE CIVIL RESOLUTION TRIBUNAL APPLY THIS TEST?

The Civil Resolution Tribunal applies the same test the courts do, because the two are not separate standards. The tribunal's own parallel power under CRTA section 123(2) mirrors section 164, and the Dollan/Reid principles that govern the court's own analysis apply equally to a tribunal claim (Dolnik v. The Owners, Strata Plan LMS 1350), 2023 BCSC 113, paras 82-85). The tribunal must apply that test independently, too. It cannot dismiss a significant-unfairness claim merely by cross-referencing a related finding, such as a rejected repair-negligence claim on the same facts, without asking the significant-unfairness question in its own right (*Dolnik*, paras 86-90).

A single Civil Resolution Tribunal decision is a data point, not a binding decision, but a collection of them can show a direction for how the law is developing; we have written about that distinction, and why it matters, in another article. It is important to recognize that our own review of the tribunal's published decisions is exactly that kind of collection, not a rule any single dispute is bound by. Read together, though, the tribunal finds significant unfairness in roughly three cases out of every ten it decides on the merits. That pattern is worth knowing before treating a complaint, or a Strata's own conduct, as an obvious outcome either way.

WHAT PUSHES A STRATA'S CONDUCT TOWARD BEING SIGNIFICANTLY UNFAIR?

The reported judgments show a consistent shape to the conduct that crosses the line. A repair delay of over seven years, maintained despite two legal opinions confirming the repair was the Strata's own duty, was significantly unfair, and the latitude ordinarily given to lay-volunteer Councils did not save it (Hill v. The Owners, Strata Plan KAS 510), 2016 BCSC 1753, paras 66-67, 75-88). An undisclosed, case-by-case exemption from a bylaw's fines for some Owners, while others were fined for the identical conduct, was significantly unfair even without any bad faith on Council's part (Sze Hang Holding Inc.), 2016 BCSC 32, paras 236-239, 248-258). And a decade-long, mutually-relied-upon cost-allocation practice, reversed unilaterally once a new majority took control of Council, was "oppressive, unduly burdensome, unjust, and inequitable" (King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851), 2018 BCSC 1772, paras 59-64, 84-92).

The Civil Resolution Tribunal has followed the same reasoning repeatedly in its own decisions. Months of documented noise complaints and acoustic evidence, met with no enforcement action at all, were significantly unfair (Chan v. The Owners, Strata Plan BCS2583), 2021 BCCRT 456). A new Council's reversal of a prior Council's approval of an Owner's own alterations was significantly unfair on the same reliance-based reasoning as King Day Holdings (McFadyen v. The Owners, Strata Plan NW 2154, 2022 BCCRT 1191). A multi-year failure to repair a roof, despite a documented mould health hazard, was significantly unfair (Smyth v. The Owners, Strata Plan LMS522, 2024 BCCRT 1169). Charging geothermal operating expenses to twenty-five units that received no benefit from the system was significantly unfair (Suter v. The Owners, Strata Plan EPS1699, 2024 BCCRT 1086). And a parking fine imposed on one Owner, while other Owners and tradespeople were permitted to exceed the same time limit, was significantly unfair as discriminatory enforcement (Schultz v. The Owners, Strata Plan NW 2822, 2026 BCCRT 351).

WHAT PUSHES A STRATA'S CONDUCT AWAY FROM BEING SIGNIFICANTLY UNFAIR?

The same body of case law shows the factors pointing the other way just as clearly. When a Strata council could not act because the Owners themselves had repeatedly failed to reach the ¾ majority a special levy required, that impasse was not council unfairness at all; the evidence showed the council lacked authority to act, not that it acted unfairly (Browne et al. v. The Owners, Strata Plan 582, 2007 BCSC 206, para 32). A cost-allocation practice in place since 2003, repeatedly re-presented to and re-approved by the Owners without objection, was not significantly unfair to continue, even though it departed from the Act's own unit-entitlement default (Christensen v. The Owners, Strata Plan KAS468), 2013 BCSC 1714, paras 29-35). And a large number of individually trivial grievances does not add up to significant unfairness by being combined; each complaint still has to clear the oppressive or unfairly-prejudicial standard on its own (Tafti v. Davis, 2024 BCSC 176, para 366).

The Civil Resolution Tribunal has applied the same reasoning in its own decisions. A bylaw enacted by a ¾ vote of the Owners was not significantly unfair, because a democratic vote and a Strata's compliance with its own bylaw authority were respected (Ehteshami v. The Owners, Strata Plan EPS3752, 2020 BCCRT 1163). An Owner who performed unauthorized common-property work, and only later sought retroactive approval, had no reasonable expectation of getting it (The Owners, Strata Plan VR 211 v. Knight), 2020 BCCRT 193). A $10 charge on a $23.50 invoice was too trivial to be significantly unfair, whatever the Owner's own view of it (Raitt v. The Owners, Strata Plan LMS 1087, 2022 BCCRT 279). Nineteen months of complaints, investigated and communicated to the respondent Owner even though the Strata reached its own conclusion without imposing a fine, was within the Strata's own reasonable discretion (Brookes v. The Owners, Strata Plan NW 1890, 2021 BCCRT 1181). And a Strata that switched its fee calculation to the unit-entitlement basis the Act itself required could not be faulted for complying with its own statutory obligation (Commercial Section, Strata Plan LMS 1991 v. The Owners, Strata Plan LMS 1991, 2018 BCCRT 333).

WHAT SHOULD COUNCIL DO WITH THIS PATTERN?

It is important for Council to treat these two lists as a self-check to run before acting, not as a defence assembled after a dispute begins. A decision that reverses an Owner's own documented reliance, singles out one Owner for treatment others avoid, or leaves a known repair or complaint unaddressed for years, sits squarely in the pattern that has repeatedly been found significantly unfair. A decision that follows a properly authorized vote, applies consistently to every Owner, and responds to a complaint even if imperfectly, sits in the pattern that has not.

Our recommendation is that Council document the reasons for a decision at the time it is made, particularly when the decision departs from, or reverses, an established practice Owners have relied on. A Strata that can point to its own contemporaneous, rational basis for treating one Owner differently from another is in a stronger position than one that can only reconstruct that basis after the fact.

SIGNIFICANT UNFAIRNESS REQUIRES REAL OPPRESSION, NOT MERE DISAGREEMENT

Significantly unfair conduct is not a label for a decision an Owner dislikes. It requires conduct that is oppressive or unfairly prejudicial, weighed against whether the Owner's own reasonable expectations were violated, and the reported pattern, in both the courts and the Civil Resolution Tribunal, applies that standard with real teeth in both directions.

There is a presumption in law that if people understand the law, they will act consistent with what it requires, and a Council that has not been shown where this line actually sits cannot be expected to stay on the right side of it. A robust and resilient Strata Community treats a departure from an established practice, or a complaint left unaddressed, as a genuine risk worth assessing carefully, rather than as a bet that no one will ever ask the Civil Resolution Tribunal to look at it.