In a case where strata owners were disputing being allowed to have a patio hot tub, B.C.’s top court has overruled both B.C. Supreme Court and the province’s Civil Resolution Tribunal.
On Aug. 17, 2023, B.C. Supreme Court Justice Michael Tammen upheld a Civil Resolution Tribunal decision finding that a strata hot tub is patio furniture that can be allowed on balconies.
“The tribunal member’s conclusion certainly does not border on the absurd,” Tammen ruled.
However, Court of Appeal for B.C. Justice Mary Saunders, writing for a unanimous three-judge panel in an Oct. 18 decision, disagreed.
She said the tribunal took an overly narrow approach to the question of the Vancouver hot tub as patio furniture by focusing singularly on whether the item was “readily movable.”
That view, Saunders said, led the tribunal from “looking at the plain and ordinary meaning of the bylaw at issue and resulted in a patently unreasonable decision.”
"It is true that dictionary definitions of the word 'furniture' include the description of movable items, chairs, tables, desks, couches and bookshelves being items commonly listed, for the use of home, office or the like," Saunders said. "Significantly, however, these items are not remarkable for their content, and movability is immediate. A tub, in contrast, is commonly defined in dictionaries as a wide, deep, flat‑bottomed container used for holding liquids."
Saunders said chlorinated water is not allowed to be drained through municipal drains.
"Accordingly, the tribunal, in finding that the hot tub is permissible patio furniture, has reached a result that does not cohere with the municipal regulatory scheme," Saunders wrote.
"The decision of the tribunal was patently unreasonable in holding that the hot tub was patio furniture within the meaning of the bylaw," she said.
“The issue of the drainage of the deck in the event of catastrophic failure, alone, persuades me that the strata corporation must succeed on its petition,” Saunders said.
“The order dismissing the petition is set aside and the claim before the tribunal is dismissed, with costs against the respondents in favour of the appellant,” Saunders ruled.
$22,000 fight
It’s a case that dates back two years to a tribunal decision where a Vancouver strata spent $22,000 fighting to have a patio hot tub removed.
John Emmerton and Van Ortega put an inflatable hot tub on a limited common property rooftop patio outside their unit.
The strata told tribunal member Kristin Gardner at the time that strata bylaws did not permit hot tubs on patios and the two were in contravention of bylaws.
Emmerton and Ortega disagreed. They argued the strata unfairly targeted them for bylaw enforcement and sought an order for the strata to stop infringing their rights to choose the patio furniture they wanted.
In her August 2022 decision, Gardner agreed.
The strata, however, sought a judicial review of that decision.
There, however, Tammen agreed with Gardner, saying the tribunal decision was not patently unreasonable.
And, he disagreed with the strata’s submission that Gardner should have assessed the portability of the hot tub when it was inflated and filled with water in determining if it was patio furniture.
“If the hot tub was permitted, it could only be as ‘patio furniture,’” he said.
He dismissed the strata petition and awarded costs to Emmerton and Ortega.
However, the strata appealed to the Court of Appeal of B.C. resulting in the new decision.
