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Posted Aug 7, 2025, 1:49 AM
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Registered User
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Join Date: Jul 2001
Location: Vancouver
Posts: 41,031
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Ongoing office complex parking dispute at Crystal Square:
https://www.bccourts.ca/jdb-txt/sc/2...25BCSC1017.htm
Quote:
Background
[13] In a joint venture, Tyba Crystal Investments Corp. and Dong Ah Canada Development Corp. (collectively, the “Developer”) developed a multi-use complex called the “Crystal”, while the original lands owned by the joint venture were held in trust by CSPC. In March 1999, the Developer and the City of Burnaby drafted and entered into an air space parcel agreement containing various easements for support, service connections, vehicular access, and other uses (the “ASP Agreement”) with respect to the following seven entities:
a) ASP 1: a two-storey retail complex comprised of approximately 279 strata lots within Strata Plan LMS 3863 (the “Retail Complex”);
b) ASP 2: a four-storey office tower with 68 strata lots within Strata Plan LMS 3905 (the “Office Tower”);
c) ASP 3: a 25-storey residential tower with approximately seven strata lots per floor; and a three-storey low-rise residential building with approximately 16 strata lots per floor all within Strata Plan LMS 3990 (the “Residential Tower”);
d) ASP 4: a 283 strata lot hotel including convention space (the “Hotel”);
e) ASP 5: a four-storey parking facility comprised of four parking levels (the “Parking Facility”);
f) ASP 6: an amenity space owned by the City of Burnaby, which at the time of trial was used as a community police office; and
g) ASP 7: a cultural centre owned by Chinese Christian Mission.
(collectively, the “ASP Participants”)
[14] The plaintiff in this action, the Strata, is a strata corporation for the owners of Strata Plan LMS 3905 established pursuant to the Strata Property Act, S.B.C. 1998, c. 43 ("SPA"). The Strata members own office units in the Office Tower in ASP 2 of the Crystal. CSCP is the owner ASP 5, the Parking Facility.
[15] The background of this matter is helpfully summarized in Crystal Square SCC (the plaintiff Strata is referred to as Strata Co. in those reasons):
[3] The dispute between Strata Co. and CSPC is centred on whether the former is bound by payment obligations in relation to parking rights provided for in an air space parcel agreement that is registered on title ("ASP Agreement"). The primary difficulty arises from the fact that the ASP Agreement was entered into and registered on title by the Developer before Strata Co. was incorporated. Strata Co. cannot therefore be bound by it as a matter of contract, because the agreement predates Strata Co.'s existence. However, CSPC takes the position that Strata Co.’s post-incorporation conduct manifested its assent to a new agreement on the same terms as those of the ASP Agreement and that the result was a contract that was binding on Strata Co. CSPC also argues that the payment obligations should be held to be binding on subsequent owners on the basis of the narrow English law principle of benefit and burden, such that Strata Co., having accepted the benefits arising under the ASP Agreement, is bound by the burden of that agreement. Strata Co. denies liability under either of these approaches.
…
[6] In March 1999, the Developer and the City of Burnaby entered into the ASP Agreement, which provided for mutual easements for support, service connections, vehicular access and other uses to and on the Crystal's various air space parcels. The ASP Agreement was registered as an easement in a land title office on March 17, 1999.
[7] Section 7.5 of the ASP Agreement obliged the owner of the parking facility to provide the owners of the other air space parcels with parking and vehicular access rights in exchange for an annual fee, payable monthly. In particular, it allocated 76 parking spaces to the owners of the second air space parcel, where the office tower was located. It also provided that, upon the subdivision of any of the air space parcels by a strata plan, the strata corporation so created would be entitled to give all permissions and consents permitted to be given by the owner(s) of the subdivided parcel, and that the strata corporation would be responsible for payment of the fee as well as for administering the parking rights of the strata lot owners. Section 7.5(g) provided that, once the owner of the parking facility had recouped the capital costs, that is, the costs of construction of that facility, the annual fee would be significantly reduced, as 90 percent of the revenues from charging the public for parking would be applied to cover operating costs and taxes so as to reduce the amount of the fee charged to the other air space parcel owners. In addition, s. 16.3 provided that, upon subdivision of a parcel by a strata plan, the strata corporation was to enter into an assumption agreement with the owners of the other air space parcels so as to assume obligations under the ASP Agreement.
[8] On May 26, 1999, Strata Plan LMS 3905 was deposited in a land title office, thereby establishing Strata Co. This plan comprises 68 strata lots in the office tower on the Crystal's second air space parcel. Strata Co. never entered into the assumption agreement with the other air space parcel owners that was provided for in the ASP Agreement.
[9] On June 28, 2002, the Developer sold CSPC the fifth air space parcel, upon which the parking facility is situated. As part of the transaction, the Developer assigned the ASP Agreement to CSPC together with "all other existing agreements [...] relating to the [air space parcel] approved by [CSPC]": A.R., vol. II, at p. 106. The record contains no indication of what "existing agreements", if any, were approved by CSPC.
[10] Until 2012, Strata Co.'s members parked in the parking facility and paid the fees at the rate contemplated in the ASP Agreement.
[11] In that year, a dispute arose between the parties. Strata Co. ceased paying the parking fees and CSPC responded by revoking the parking privileges of Strata Co.'s members. Litigation ensued. Strata Co. sought a declaration that s. 7.5 of the ASP agreement was null and void or an order that it was unenforceable, or, in the alternative, an order that s. 7.5 be rectified to state that the capital costs had been fully recovered, and also sought damages or disgorgement for breach of contract. CSPC filed a counterclaim, seeking judgment in the amount of unpaid fees it alleged were owed to it by Strata Co. pursuant to the ASP Agreement.
[16] As noted above, the plaintiff Strata corporation was established on May 26, 1999, two months after the ASP Agreement was deposited in the Land Title Office. Justice Young found in Crystal Square BCSC 2017 that the owners of the Strata did not, at that time or any later date, sign an assumption agreement adopting the terms of the ASP Agreement. She found on a balance of probabilities at paras. 87 and 91 that the plaintiff did not adopt the bylaws of the ASP Agreement related to parking at that time or a later date.
[17] CSPC purchased the Parking Facility on June 28, 2002, and became what is called the ASP 5 Owner in the ASP Agreement, adopting all “existing agreements” under the agreement. That term was undefined. CSPC hired management company Impark to manage the Parking Facility.
[18] It was at some point after that when the ASP Agreement was adopted by conduct by CSPC and the Strata. The Court of Appeal, affirmed in the SCC Decision, held:
59 It was an error, in my view, to look to post-2007 conduct to determine whether the Strata entered into an agreement with CSPC in the terms of the ASP Agreement when the Strata came into existence in May 1999 and the dispute with respect to the terms of the agreement arose in 2007.
60 Further, in my opinion, the Strata's post-2007 conduct does not suggest the Strata had disavowed the ASP Agreement. As CSPC points out, the Strata conducted itself as if it were bound by the ASP Agreement, even after a dispute arose. It also exercised its right under the ASP Agreement to demand documents and information from CSPC, insisted on compliance with the ASP Agreement, and initially sought relief from the courts on the ASP Agreement as a contract it was entitled to enforce and to receive damages for any breaches from.
[19] It is clear to me that the post-incorporation contract between CPSC and the Strata was adopted by conduct well before 2007 and well before 2006 when Mr. Roopra joined the Strata council.
...
Conclusion
[44] The Strata’s claim is dismissed.
[45] CSPC’s counterclaim is granted.
[46] CSPC is entitled to $2,831,223.67 in damages less the following amounts:
a) $202.63 which is the Strata’s share of the two erroneous Impark invoices, together with any accrued interest, to be determined by the Registrar if the parties cannot otherwise agree to the calculation of this amount;
b) The total of unsupported invoiced items from the monthly packages for items other than where such an undocumented line item is for insurance (including premium finance fees), hydro, property taxes, postage, and “audit”; and
i. If the parties cannot agree on the deductions to made attributable to undocumented items in the evidence, they are referred to the Registrar to determine that amount.
[47] CSPC is entitled to post-judgment interest pursuant to s. 7.5(f) of the ASP Agreement at the Prime Rate (as defined in Section 1.1 of the ASP Agreement) plus 5% per annum and shall be calculated on a daily basis and compounded monthly.
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https://www.bccourts.ca/jdb-txt/sc/2...25BCSC1017.htm
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