Purple elephants are not red & blue – interpreting s. 118 of the Strata Property Act

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May 13th, 2021
In the recent decision of 625536 B.C. Ltd. v. Owners of Strata Plan LMS 4385, the Court of Appeal for British Columbia was asked to decide whether s. 118 of the Strata Property Act permits a strata corporation in the absence of the registration of a Certificate of Lien, to recover the legal costs it incurs in notifying owners of overdue strata fees or other monies owed, pursuant to s. 112(2) of the Act. The Chamber decision under appeal had answered the question in the negative. The appellant argued that the chambers judge erred in concluding that the ability of a strata corporation to recover both its “reasonable legal costs” and “other reasonable disbursements” under s. 118 of the Act was contingent on the prior registration of a Certificate of Lien.

As background, the appellant had given notice of its intention to file a lien for strata fees and other amounts owing pursuant to section 116 of the Strata Property Act. The respondents, through their solicitor, issued a cheque to pay the amount set out in the notice excluding legal fees. The appellant returned the cheque and demanded a payment that included its legal fees – pesky lawyers. 
Interpreting Section 118
 
The basic framework for statuary interpretation requires that the words of a statute “are to be interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute itself and the intention of the legislature” (Rizzo & Rizzo Shoes Ltd.(Re) 1998 CanLII 837 (SCC)). Further, Section 8 of the interpretation Act provides: Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

Now occasionally, we see interpretations become tied up in this framework, unable to see the forest for the trees, and failing to base the interpretation on the words of the statute. As explicitly stated by Justice LeBel: “Although statutes may be interpreted purposively, the interpretation must nevertheless be consistent with the words chosen by Parliament” (Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 at para. 33).

For example, let’s take the statement, “the elephant was purple”. We can see that the purpose of this statement is to communicate two things: 1) there is an elephant; and, 2) the colour of the elephant. Now knowing that the colour purple is created by combining red and blue, one might argue that, in fact, the elephant is composed of both these colours. Thus, we can describe the colour of the elephant as the basic combination of red and blue. Perhaps, we could also better serve the purpose of the sentence by describing the colour of the elephant as its basic combination. Therefore, to serve the purpose of the sentence better, we could also say that “the elephant is a combination of red and blue”. But wait, now we’ve changed the meaning of the sentence completely, have we not? This is a bit of a silly example but it demonstrates at an elementary level how simply trying to forward the purpose of a sentence or legislation can change its meaning completely. Interpretation needs to be based on the reasonable meaning of words and then, if the meaning of the words can reasonably bear our desired interpretation, should move on to support that meaning through our interpretive framework.

Turning back to the Court of Appeal’s decision, section 118 of the Strata Property Actsets out:

Costs added to amount owing

118   The following costs of registering a lien against an owner’s strata lot under section 116 or enforcing a lien under section 117 may be added to the amount owing to the strata corporation under a Certificate of Lien:

(a)   reasonable legal costs;
(b)   land title and court registry fees;
(c)   other reasonable disbursements.

Importantly, the legislature used ‘registering’ when drafting s. 118. They did not use ‘preparing to register’. Therefore, this section only becoming applicable once a lien is registered. Along with voicing other concerns regarding the appellants interpretations, Justice Voith agreed holding: “To be clear, I am of the view that s. 118 does not provide the basis for a strata corporation to recover the legal costs it incurs in complying with s. 112(2) of the Act unless and until it registers a lien and adds the amounts it claims to a Certificate of Lien.”

A full copy of the court’s reasons can be found here: https://www.canlii.org/en/bc/bcca/doc/2021/2021bcca158/2021bcca158.html?searchUrlHash=AAAAAQAFUml6em8AAAAAAQ&resultIndex=3