IN THE SUPREME COURT OF BRITISH COLUMBIA
The Owners, Strata Corporation KAS1490 v. 453842 B.C. Ltd.,
2008 BCSC 534
Docket: S077454 and S081185
The Owners, Strata Corporation KAS1490
B.C. Ltd. doing business as Deri Holdings
and the said 453842 B.C. Ltd.,
Jack Dacyk and Darone M. Davis
- and -
Holdings Ltd.; Charles Keith Waters;
William Phillip Campbell and Maureen Ellen Campbell;
James Gordon Haigh; Sydney Zbigniew Pawlowski and
Katarzyna Maria Pawlowski; Henryk Lech Ludowicz and
Danuta Bronisiawa Ludowicz; Edwin Albert Skaley;
David Wilson and Elizabeth Janina Wilson;
Antonietta Matilda Mucci-Oliverio and Francesco Oliverio;
Kenneth Randall Gula; Tara Michelle Patterson; Lisa Nguyen;
Victoria Emilia Pawlowski; Lois Eleanor Duke and Ronald James Duke;
Marian Boguslaw Strutynski and Barbara Janina Strutynski;
California Marine Enterprises Ltd.; Rufus Resource Consulting Inc.;
514932 B.C. Ltd.; Dan Roger Larry Walker and Vicki Marlene Walker;
and Rodney Karl Sveinson and Elizabeth Ann Sveinson
M. Davis, 453842 B.C. Ltd. doing business as Deri Holdings,
and the said 453842 B.C. Ltd., and Derek Uhlemann
Before: The Honourable Mr. Justice Burnyeat
Counsel for Plaintiffs in both actions
for all Defendants in both actions except the Defendant Jack Dacyk in
Action No. S077454
Date and Place of Hearing:
March 6 and 7, 2008
 Pursuant to Rules 45 and 57 of the Rules of Court, s. 39 of the Law and Equity Act, R.S.B.C. 1996, c. 253, and the inherent jurisdiction of the Court, the Plaintiffs in Action S081185 (Vancouver Registry) apply for interim orders enjoining the Defendants from exercising the voting rights of 453842 B.C. Ltd. (“453”), disqualifying the Defendants or any of them from acting further as the manager of the 41 strata lots comprised in Strata Plan KAS1490 also known as the Tiki Shores Condominium Beach Resort located at 914 West Lakeshore Drive, Penticton (“Tiki Shores”), disqualifying the personal Defendants or any of them from being nominated or being elected as members of the Strata Council of Strata Plan KAS1490 (“Strata Council”), appointing a replacement manager to manage and administer the Rental Pool Agreement (“Agreement”) on behalf of all owners including the Defendants, and an interlocutory injunction restraining the Defendants and each of them from dealing with or depositing of any further income monies from Tiki Shores except into the trust account of the replacement Trustee, entering into the Office of the Trustee or the Office of the Rental Management Company at Tiki Shores, removing or destroying any documentation or computer hardware or software from the Office at Tiki Shores, and interfering with the Strata Corporation or the new manager at Tiki Shores in any manner.
 Pursuant to Rules 18A, 44, 45, 46 and 57 of the Rules of Court, ss. 39 and 57 of the Law and Equity Act, and ss. 164, 171, 173 and 173.1 of the Strata Property Act, R.S.B.C. 1996, c. 43, the Plaintiff in Action S077454 (Vancouver Registry) applies for judgment against the Defendants and for an order that the Counterclaim of the Defendants, 453 and Darone M. Davis (“Mr. Davis”) be dismissed, and an interim order that 453 and/or its agent(s) be restrained and prohibited from exercising its voting rights at any Annual or Special General Meeting with respect to (a) the appointment or election of Strata Council members; (b) the distribution of Strata Corporation monies; and (c) the ratification of the commencement of this Action; and (d) regulate the conduct of the Strata Corporation’s future affairs to the extent deemed necessary by the Strata Council. In the alternative, the Plaintiff seeks the following interim orders:
(a) Court appointment of an interim replacement Trustee and Manager, nominated by the Plaintiff, to manage and administer the Agreement on behalf of all Owners, including the Defendants until trial;
(b) an interlocutory prohibitory injunction restraining the Defendants from:
(i) dealing with or depositing any further Rental Pool Income monies except into the trust account of the replacement Manager;
(ii) acting as the Manager;
(iii) removing or destroying any documentation or computer hardware or software from the Office at Tiki Shores;
(iv) interfering with the Strata Corporation or the Manager/Trustee in any manner;
(c) an interlocutory mandatory injunction that:
(i) the Defendants refrain from calling any Special General Meetings without Court approval;
(ii) the Defendants be restrained from voting at any AGM or SGM which calls for ratification of this lawsuit;
(iii) within forty-eight (48) hours of a court order the Defendants, their accountants and banks/financial institutions deliver their files and computer data to the replacement Trustee and Manager;
(iv) the Defendants within twenty one (21) days of a court order provide and deliver to the interim replacement Trustee and Manager a full accounting for the years 2004, 2005, 2006 and 2007 for the following:
(A) statement of all revenues, income, or funds received by the Defendants in the operation of Tiki Shores;
(B) statement of all expenditures incurred and paid from monies received as revenue or income in the operation of Tiki Shores;
(C) detailed summary of those payments to Owners which remain outstanding under the Agreement;
(D) the standing of each of the Owners as regards payment of strata fees and any levies;
(E) all financial information including draft or final financial statements;
(F) General ledger;
(d) the Defendant Jack Dacyk deliver and provide full authorization for access to his bank accounts and investment activities for the last five years;
 In Action S077454, the Defendants apply for orders that the claim of the Plaintiffs be struck out and/or the action be dismissed, the Defendants be granted judgment on their Amended Counterclaim, and such “further and other relief as to this court seems just and meet”.
 The Plaintiffs in Action S081185 are the registered owners of 20 of the Strata Lots comprised in Strata Plan KAS1490. 453 is the registered owner of 21 of the 41 Strata Lots. As the registered owner of 21 Strata Lots, 453 carries an aggregate unit entitlement of 1003/1918 and aggregate voting entitlement of 43.61/83.39 or 52.3% of the total unit entitlement or the voting entitlement. In addition to owning 21 Strata Lots and possessing 52.3% of the voting entitlement, 453 carrying on business as Deri Holdings acts as the Manager for the Owners of the Strata Corporation.
 The Defendant, Derek Uhlemann is an officer of 453 and the caretaker/manager at Tiki Shores. Mr. Davis is the principal shareholder, President and a Director of 453.
 Tiki Shores was formerly a motel which was transformed into a Strata Corporation by Albion Resources Limited (“Albion”). By a June 29, 1994 agreement filed in the Kamloops Land Title Office on August 24, 1994 under Number KH084174 with the strata plan, the City of Penticton was granted a restrictive covenant by Albion (“Restrictive Covenant”) over all of the strata property (“Property”).
RESTRICTIVE COVENANT AND THE RENTAL POOL AGREEMENT
 While two of the Strata Lots were exempted, the remaining Strata Lots were bound by the Restrictive Covenant which required the Property to be used to provide motel accommodation in a rental pool arrangement in accordance with the City of Penticton Tourist Commercial zone. Every purchaser of a Strata Lot was required to enter into the Agreement in a form as prescribed in the Disclosure Statement.
 The Agreement included the following terms:
(i) a grant of power of attorney from each Owner to a rental management company (“Manager”);
(ii) the definitions clause under paragraph 1 defined certain terms in the Rental Pool Agreement including:
1.7 “Pooled Income” means all rent and other monies received from time to time by the Manager to the credit of the Owners of the Units of the project from time to time constituting the Rental Pool from tenants of the Rental Pool and interest earned on such monies while invested by the Management in accordance with the provisions of this Agreement.
 Under the Agreement, the Owners agree to place their units in the Rental Pool and retain the Manager to manage their units in accordance with the provisions of the Agreement. 453 is bound by the Agreement and covenanted to observe and be bound by a number of terms and conditions. Paragraph 6 of the Agreement provides:
6. During the term of this Agreement the Manager shall on behalf of and at the cost of the Owner:
6.1 use its best efforts to obtain rentals for the Unit(s) as well as other units of the Project from time to time as vacancies occur and negotiate all the terms and conditions of any rental of the Unit(s) including the rental and length of accommodation thereof and use its best efforts to distribute guests as to equalize wear and tear on all units of the same type
6.2 cause all rents and other monies payable by the renters of the Unit(s) to be collected and deposited into Pooled Income;
6.3 clean, maintain or repair the Unit(s) as required
6.4 employ, supervise and discharge janitors, tradesmen, workmen or other employees or contractors required from time to time for the performance of its duties pursuant to this Agreement;
6.5 Incur and pay all costs and expenses incidental to the management of the Unit(s) in accordance of the provisions of this Agreement including the Management Fee and advertising;
6.6 Allocate Pooled Income and Pooled Expenses relating to the Rental Pool amount of the Owner and the owners of the other units in the Rental Pool in the manner hereinafter provided;
6.7 Provide to the Owner within fifteen (15) days quarterly financial statements which shall accurately reflect on an accrual basis the financial operations of the Rental Pool based on the percentage calculation of the Notional Rent or any subsequent amendments thereto;
6.8 Insofar as the Owners’ Proportionate Share of Pooled Cash Flow Surplus shall permit:
6.8.1 Pay all Strata Fees payable to the Strata Corporation in respect of the Unit(s);
6.9 Pay to the Owner the Owners’ Proportionate Share of Pooled Cash Flow Surplus (if any) less monies paid on his behalf pursuant to subparagraph 6.8 of this Agreement monthly at the times when the financial statements are delivered to the Owners aforesaid and all funds will be deposited directly into the Owners’ bank account if the owner so directs or by providing a voided cheque copy of the owners’ bank account;
6.10 Invest in an interest bearing account or certificate any Pooled Cash Flow Surplus pending distribution pursuant to paragraph 6.9 of this Agreement;
6.11 Establish an Inventory, Replacement and Maintenance Fund (IRM) of 5% of the gross revenues and to ensure the units are kept in a state of good repair using monies from this fund. A separate accounting of these funds shall be maintained.
6.12 Establish a Marketing Fund of 2% of the gross revenues to ensure adequate funds available to properly market the motel property. A separate accounting of these funds shall be maintained.
 Pursuant to paragraph 9 of the Agreement, the Manager shall: “… maintain a separate bank account for the Rental Pool and ensure that all of the Pooled Income shall be deposited to this bank account and that all of the Pooled Expenses shall be paid by the cheque drawn upon this bank account”.
 Pursuant to paragraph 4 of the Agreement, in consideration of the management services to be rendered by the Manager to the Owner and to “… cover the cost of rental pool expenses, the Owner shall pay the Manager by way of deduction thirty-five (35%) percent of all booking fees.”
 The Agreement defines the “Manager” to be 453 and the “Rental Pool” as including: “… all Units of the Project, which from time to time are being managed by the Manager in accordance with the procedures outlined in this Agreement.”
 Under the Agreement, the “Owners’ Proportionate Share” means the percentage figures as outlined in “Schedule A” to the Agreement. Schedule A provides as follows:
The Rental Pool consists of 41 rental units. These units are divided into eight unit types as follows:
1BRO Standard 1 bedroom units
1BRC Deluxe 1 bedroom units
2BRA Standard 2 bedroom units
2BRB Deluxe 2 bedroom units
3BRC Standard 3 bedroom unit
STUD Standard studio units
STUE Deluxe studio units
ROM Roman theme unit
In a rental pool operation the revenue due to the owners is divided evenly by those Owners of the same rental pool type. The amount due to the Owners is calculated as follows:
Total Pooled Income (total room revenue) — in dollars
Less 35% Management Fee — covers front desk and housekeeping costs
Balance is Due to Owners
From this balance the following funds are withheld
25% of gross revenue Strata fees
of gross revenue Inventory, Replacement and
2% of gross revenue Marketing fees
33% of gross revenue Revenue in dollars paid to the Owners
All revenue is accounted for on a daily basis by these unit types. If an owner were in rental pool full time he would share in all the revenue. If an owner were to use his unit for 2 days one month, during that month the 2 days of his Owner Use he would not share any revenue and the revenue for those days would be divided amongst the other owners; ie. If there are 17 units in the rental pool and one owner uses his unit for 2 days during that 2 days the revenue would be divided by 16 units — the rest of the days of the month it would divide by 17 units.
It is the responsibility of the Owners to cover the cost of the deductions for Strata fees, etc. during the time of their owner use. The formula used to calculate this is simple, 20% Strata fees, 5% IRM, and 2% Marketing fees is based on the daily room rate, in dollars, earned by that unit type for the days the unit is not in the Rental Pool. There is also an “Owner Use” charge levied on a daily basis during the length of the owner use. This is 35% of the daily room rate normally charged for that unit. At the discretion of the Management some or all of the above charges may be waived if the owner use is during low season periods.
 The Agreement may be terminated by an Owner as follows:
10.1 if the Manager shall become insolvent, be adjudged bankrupt or go into receivership; or
10.2 if the Manager shall be guilty of any fraud or dishonest or serious misconduct; or
10.3 if the Manager shall commit any serious breach of non-observance of the provisions of this Agreement and such breach or non-observance shall continue for at least fifteen (15) days following receipt of a notice in writing from the Owner to cure same.
 The Agreement may be terminated by the Manager upon the happening of any of the following events:
11.1 if the Owner shall become insolvent, or adjudged bankrupt or go into receivership; or
11.2 if the Owner shall commit any serious breach or non-observance of the provisions of this Agreement and such breach or non-observance shall continue for at least fifteen (15) days following the receipt of a notice in writing from the Manager to cure same.
 Pursuant to paragraph 13 of the Agreement, upon the termination of the Agreement by either party: “… there shall be an accounting had between the parties and each shall within sixty (60) days of such termination pay to the other monies payable pursuant to this Agreement down to the date of such termination.”
 Under paragraph 14 of the Agreement, if the Agreement is terminated by the Owner other than pursuant to paragraphs 11 or 13 of the Agreement, the Owner shall pay to the Manager: “… the sum of three (3) months management fee upon termination to compensate it for additional administration costs involved without prejudice to the right of the Manager to claim for further damages arising out of such wrongful termination.”
APPLICABLE STATUTORY PROVISIONS
 Applicable provisions of the Strata Property Act, R.S.B.C., 1998, c. 43, are:
164 (1) On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair
(a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or
(b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.
(2) For the purposes of subsection (1), the court may
(a) direct or prohibit an act of the strata corporation, the council, or the person who holds 50% or more of the votes,
(b) vary a transaction or resolution, and
(c) regulate the conduct of the strata corporation's future affairs.
173 On application by the strata corporation, the Supreme Court may do one or more of the following:
(a) order an owner, tenant or other person to perform a duty he or she is required to perform under this Act, the bylaws or the rules;
(b) order an owner, tenant or other person to stop contravening this Act, the regulations, the bylaws or the rules;
(c) make any other orders it considers necessary to give effect to an order under paragraph (a) or (b).
174 (1) The strata corporation, or an owner, tenant, mortgagee or other person having an interest in a strata lot, may apply to the Supreme Court for the appointment of an administrator to exercise the powers and perform the duties of the strata corporation.
(2) The court may appoint an administrator if, in the court's opinion, the appointment of an administrator is in the best interests of the strata corporation.
(3) The court may
(a) appoint the administrator for an indefinite or set period,
(b) set the administrator's remuneration,
(c) order that the administrator exercise or perform some or all of the powers and duties of the strata corporation, and
(d) relieve the strata corporation of some or all of its powers and duties.
(4) The remuneration and expenses of the administrator must be paid by the strata corporation.
(5) The administrator may delegate a power.
(6) On application of the administrator or a person referred to in subsection (1), the court may remove or replace the administrator or vary an order under this section.
 Section 17.11 of the Strata Property Act Regulations states:
17.11 (1) Except as provided in section 17.9 of this regulation, the Standard Bylaws do not apply to a strata corporation created under the Condominium Act until January 1, 2002, and on that date apply only to the extent set out in this section.
(2) Subject to subsections (3) to (5), a strata corporation bylaw existing under the Condominium Act immediately before the coming into force of this section, including a bylaw under Part 5 of the Condominium Act or under a former Act which was deemed, by section 26 (2) of the Condominium Act or a similar section of a former Act, to be a bylaw of the strata corporation, continues to have effect despite any provision of the Act or this regulation.
(3) On January 1, 2002,
(a) the Standard Bylaws are deemed to be the bylaws for all strata corporations created under the Condominium Act, except to the extent that conflicting bylaws are filed in the land title office, and
(b) any bylaws under Part 5 of the Condominium Act or under a former Act which were deemed, by section 26 (2) of the Condominium Act or a similar section of a former Act, to be bylaws of the strata corporation cease to have effect.
(4) Subject to subsection (5), if a strata corporation bylaw filed in the land title office conflicts with a Standard Bylaw, the filed bylaw prevails.
(5) On January 1, 2002, a strata corporation bylaw filed in the land title office ceases to have effect to the extent that it conflicts with a provision in Parts 1 to 17 of the Act or this regulation.
(6) Subsection (5) does not apply to a bylaw that was filed in the land title office before July 1, 2000 to the extent that the bylaw provides for the apportionment of contributions to a contingency reserve fund as a common expense according to type of strata lot, if that type of strata lot is a type identified in the bylaws of the corporation or a section.
 The Condominium Act, R.S.B.C. 1996, c. 64 was repealed as at January 1, 2002. The prior applicable provisions are:
26 (1) A strata corporation must have bylaws providing for the control, management, administration, use and enjoyment of the strata lots and common property, common facilities and other assets of the strata corporation.
(2) The bylaws of a strata corporation are the bylaws set out in Part 5 until they have been altered or repealed under this Act at the time of alteration or repeal.
124 (1) All business is deemed to be special that is transacted
(a) at an annual general meeting, with the exception of the consideration of accounts and election of members to the strata council, or
(b) at an extraordinary generally meeting.
(2) Except as otherwise provided in these bylaws, business must not be transacted at a general meeting unless a quorum of persons entitled to vote is present at the time when the meeting proceeds to business.
(3) One third of the persons entitled to vote present in person or by proxy constitutes a quorum.
(4) If within ½ hour from the time appointed for a general meeting a quorum is not present, the meeting stands adjourned to the same day in the next week at the same place and time.
(5) If at the adjourned meeting a quorum is not present within ½ hour from the time appointed for the meeting, the persons entitled to vote present constitute a quorum.
125 (1) At a general meeting a resolution by the vote of the meeting must be decided on a show of hands, unless a poll is requested by an owner present in person or by proxy. ….
IS THERE AN INTERNAL REMEDY WHICH MUST BE EXHAUSTED?
 Paragraph 22 of the Agreement states:
In the event of a dispute arising between the Owner and the Manager in respect of the amount of, the entitlement to or the time of payment of any indebtedness to either party arising out of the provision of this Agreement, such dispute shall be referred to the firm of Chartered Accountants from time to time retained by the Manager as its accounting advisors for determination, and the decision of such Chartered Accountants shall be final and binding on both the Owner and the Manager.
 It is submitted on behalf of the Defendants that paragraph 22 of the Agreement deals with all questions relating to “entitlement to monies (“indebtedness”), payment of monies, [and] timing of such payments…” so that the claims of the Plaintiffs in both actions should be dismissed because the procedure set out in paragraph 22 has not been followed. The Defendants rely on the decisions in Harelkin v. University of Regina,  2 S.C.R. 561 (S.C.C.) and Shuswap Lake Utilities Ltd. v. Mattison, 2006 BCSC 1546 in this regard.
 In Mattison, supra, the issue was whether the plaintiffs were entitled to seek declaratory relief to directly review an arbitrator’s award or whether the plaintiffs were required to follow the appeal procedures established under the Utilities Commission Act, R.S.B.C. 1996, c. 473. On the question of whether the plaintiffs were required to exhaust their administrative appeals, Cole J. stated:
It is an “abuse of process” to pursue a civil remedy without exhausting an appeal process which is an adequate alternative remedy. Drossos J. in Berscheid v. Ensign,  B.C.J. No. 1172 (S.C.) (QL) held that seeking a civil remedy when the appeal process was not exhausted was an abuse of process. Drossos J. states at para. 54 that:
…a plaintiff who commences a subsequent action against the same parties seeking relief which has already been sought, or could have already been sought, in an extant proceeding, will have the latter of the two actions struck out.
The decision in Berscheid v. Ensign was explained in Gemex Developments Corp. v. Coquitlam (City), 2002 BCSC 412 at para. 21 as meaning:
…it is an abuse of process for a party to challenge the decision of an administrative body in a civil proceeding where a statutory right of appeal or an application for judicial review is available.
There does not appear to be any issue that this is a discretionary matter. As stated at p. 157 in Sebastian v. Government of Saskatchewan et al. (1978), 93 D.L.R. (3d) 154 (Sask. C.A.):
Where there is an alternative statutory remedy to attain the same purpose, it is an improper exercise of discretion to grant a declaratory judgment: see Ottawa Y.M.C.A. v. City of Ottawa (1913), 15 D.L.R. 718, 29 O.L.R. 574.
The next issue then is whether or not the statutory appeal provisions constitute an adequate alternative remedy to judicial review or application for an order for declaratory judgment. The latter is not dealt with but the former is in numerous cases including in Canadian Pacific Ltd. v. Matsqui Indian Band,  1 S.C.R. 3, Lamer C.J. stated at para. 33:
The adequate alternative remedy principle was fully discussed in Harelkin v. University of Regina,  2 S.C.R. 561, at p. 586, where Beetz J., for the majority, held at p. 576 that "even in cases involving lack of jurisdiction", the prerogative writs maintain their discretionary nature. Dickson J. (as he then was, dissenting), took a narrower view of discretion in the case of jurisdictional error (pp. 608-9). He nevertheless concluded, at p. 610, that where a jurisdictional error "derives from a misinterpretation of a statute, a statutory right of appeal may well be adequate".
In analyzing the question of adequate alternative remedy, Beetz J. in Harelkin v. University of Regina,  2 S.C.R. 561 suggested several criteria which should be considered (at p. 564):
In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors included the burden of a previous finding, expeditiousness and costs.
(at paras. 31-5)
 I cannot be satisfied that paragraph 22 of the Agreement governs the matters raised in these two Actions. First, this “dispute” involves the question of whether the Manager has or has not been performing as required and whether funds have improperly been removed from the monies that would ordinarily be available to pay strata fees or to provide the Owners with a return on their investment. Second, the dispute involves the question of whether 453 has acted in an oppressive manner. Third, this is not a dispute in respect of the “amount of” or the “entitlement to” or the “time of payment”. Rather, the dispute relates to what should occur if no payments are being made at any time. I am satisfied that paragraph 22 of the Agreement is limited to situations where there is an accounting issue which can be referred to the firm of chartered accountants retained by 453.
 It is not an abuse of the process of the Court for these proceedings to have been commenced. In any event, I am of the opinion that the provisions of paragraph 22 do not present an adequate alternative remedy. Only a resolution of the matters raised in these Actions will allow the parties to seek a resolution of all of the issues which have been raised.
COMPLAINTS OF THE PLAINTIFFS
(A) LACK OF ACCOUNTING TO THE OWNERS
 The year end for both the Strata Corporation and 453 is November 30. Under the bylaws, the AGM must be held by January 31 in the following year. In his February 27, 2008 Affidavit, James Duke states that the “… accounting had never been a problem prior to 2006.” when Albion sold its shares in 453. The financial statements for the AGM held on December 2, 2006 were not available. Accounting information was not available at the 2007 meeting of the Strata Council so that the Strata Council was forced to repeat the previous year’s budget because a new budget was not available.
 In his February 26, 2008 Affidavit, Sydney Pawlowski states that he and his family members:
… did not receive any financial information after December 2006. We require this financial information on a timely basis in order to file our required American and Canadian tax return. We the US owners still do not know if NR6 or NR7 have been sent to revenue Canada for 2007 taxes nor do we know what to do with our GST report for 2007. At this point it appears we will have serious problems with Canadian government agencies which is extremely troubling as we are all subject to penalty and other jeopardy.
 In her February 26, 2008 Affidavit, Lois Duke states that, once 453 was purchased and then operated by Dede Dacyk and Jack Dacyk, there were considerable problems:
Monthly revenue cheques and statements were not delivered to the owners of the strata units in compliance with the bylaws. After numerous complaints by the various minority owners of the strata units, including … [Mr. Duke and Ms. Duke, Mr. Davis] continued to provide late monthly revenue cheques and statements. The June 2006 rental revenue cheques were never delivered to several owners of strata units, …. After the June 2006 monthly revenue cheques and statements were not delivered to many of the owners of the strata units … [we] contacted the bookkeeper of Deri Holdings, Deborah Webb. At that time, she advised us that she had delivered all cheques and disbursements for the signature of … [Mr. Davis to Mr. Davis] on the 15th of every month.
 Deborah Webb was the bookkeeper for the Strata Corporation and for 453 for the period November 24, 2005 through April 10, 2007. Ms. Webb describes her difficulties with completing the bookkeeping accurately as a result of the following factors:
(i) in part because I did not receive paper backup from Messrs. Davis and Uhlemann in a timely manner (bank reconciliations were behind as bank statements and cancelled cheques were delayed in coming to me for June, July and August 2006, for example);
(ii) in part because of incomplete training from the former bookkeeper. I had made some mistakes in the allocation of the rental revenues to owners during low season months, as I did not realize at first that there were different rules for owner’s usage during low season (something not covered in the 6 hours of training I received from Cathy Lamb in December 2005 at her home in Calgary); and
(iii) in part because I caught the fact that Mr. Davis was trying to rent his rooms to staff from ProDigital by claiming owner’s usage, which would have reduced the net revenue to share with other owners in the same rental pools with him;
 Regarding the possibility of separate accounting and separation of funds by separate bank accounts for 453, Ms. Webb states: “However, the separation could not take effect until the Strata Bylaws were changed, as this was how the bylaws set it all up originally. I also suggested that, with the much greater deterioration of some owner’s unit than of others, that it might be prudent to put everyone into one single rental pool, to share revenues and to share the loss of revenues until those units in poor condition were repaired and refurbished ….”
 In his January 31, 2008 Affidavit, Mr. Davis describes the difficulty with the accounting as follows:
For several years, while the Rental Pool Agreement [“RPA”] called for several accounts (the Inventory, Replacement and Maintenance [“IRM”] account, the owners/revenue account, the Strata Fees account, a Management account, the contingency fund and the Marketing Fund account) there were only two bank accounts. One was a strata account and the other a pooled account in the name of Deri Holdings. This pooled account received all the income and paid all the expenses of the resort. It appeared that the bookkeeper allocated the funds in the pooled account at the end of each year to the various account categories.
However, there was no control or records of the contingency fund account. I later learned that Colin Laver, who had been the principal of Deri Holdings prior to it being bought in 2004 by Mr. Dacyk, was still the only signatory on that account, even though he had no involvement with the resort after selling to Mr. Dacyk. Despite this being raised at general meetings, the strata council did not take control of the contingency fund until early 2007. This is reflected in the minutes of the general meeting of April 28, 2007 …
The different accounts of the RPA, including the Strata Fees account, were collected and calculated as percentages from the monthly revenue. Due to the seasonal usage of the Resort, the fall, winter and spring months do not provide enough revenue for the expenses allocated to these different accounts, especially with the Strata Fees. In the winter months, the monthly utility bill for the resort, which is supposed to be paid from the Strata Fees, was greater than the Strata Fees collected in RPA.
Thus, as monies were collected in this pooled account, and with expenses of each RPA account being greater than the collection of the revenue for that account, the over-spend in the different accounts had to come from one of the other accounts. The result was that, when the Owners were paid their revenue cheques and the utilities were paid, if there were any substantial maintenance expenses, there was only the Management Fee account and Deri Holdings’ share of the owner’s cheques to cover the shortfall. Developing a proper budget (which had never been done) and collecting strata fees to fund it, was urgent.
The strata corporation was not in compliance with Division 2 of the Strata Property Act in its calculation or collection of strata fees and had not been since the new Act became law in 2000.
There was little money in the bank accounts. According to the minutes of the 2006 AGM … there was only some $26,000 in the strata account, $113 in the Deri Holdings’ account and the IRM account was overspent by over $18,750. These figures are based on information we received at that time from Ms. Webb.
 Mr. Davis also states in his January 31, 2008 Affidavit that he initially retained Deborah Webb to take over the bookkeeping but that, as a result of problems she was having with the bookkeeping system, he retained Murray Swales to “take over completion of the book-keeping”. Mr. Davis further states:
In preparation for delivering the book-keeping records to him, Ms. Webb discovered many posting errors such as posting wages that should have been posted in the IRM account in the management account and no separation between IRM materials used or Strata maintenance materials used. This significantly decreased the amount due to the Strata by Deri Holdings and increased the amount of money owed from the Owners to Deri Holdings from the number5s noted by Mr. Lamb. These corrections continued well into March 2007, and delayed the delivery of the bookkeeping records to the accountant.
As noted in the 2006 AGM minutes, around early 2006, Mr. Dacyk had withdrawn funds from the Deri Holdings account and the strata account. At the request of the strata council, a financial review was made by Robert Lam (a retired accountant married to Catherine Lamb). It was based on information he received from Deborah Webb, who was still having difficulties with completing the bookkeeping accurately. It indicated that there were three debts outstanding. One was from Deri Holdings to the Strata for some $104,000, a second was from Deri Holdings to the owners and the third was to the IRM account that was overspent by some $8,000. I felt the alleged debt from Deri Holdings to the Strata not accurate and engaged my own accounting.
Due to the problems the book-keeper was encountering and the fact that the owners owed back money to Deri Holdings for the IRM over-spend that I felt Deri Holdings had covered, owners had not been paid from summer or fall of 2006. Ms. Webb had determined the amounts due to the owners and I was comfortable she had them reasonably correct, so I agreed at the 2006 AGM to see that the owners were paid up to date and did so after the meeting. Only Deri Holdings was not paid either for its 21 unit share or for the amount of the IRM over-spend.
My desire was to work with the Strata to make the business and all our investment in Tike Shores successful. As the majority owner, it was only in my interest to see this happen.
In order to maintain a working relationship with the other strata owners, I agreed to pay half of the money identified by Mr. Lamb to the Strata and the balance into a lawyer’s trust account while we waited for the accounting to determine who owed what to whom. I had arranged financing to do so and worked toward completing those arrangements in 2007.
I felt that once the bookkeeping was completed and reviewed by accountant for accuracy we could then sort out any differences in what was owed as between Deri Holdings and the Strata. I hope that with this sign of good faith the strata council in turn would work with us on addressing the financing of repairs, maintenance and upgrading, as I to my knowledge there was money in the contingency fund for at least part of this work.
This did not happen. It is my belief that the current strata council has not tried to understand any of the accounting complexities and problems. They have chosen to ignore all the maintenance issues and will not work with the management company. As examples, we have only been able to replace 3 or 4 hot water tanks, doing so when they failed or started leaking. Nothing has been done to the roof. The details of the difficulties in getting any direction is set out in the affidavit of Derek Uhlemann.
 Murray Swales is a Chartered Accountant. Mr. Swales states that, in February 2007, Mr. Davis asked him to take over the accounting and get the accounting records in an accurate and up-to-date condition. He further states:
After commencement of a book-keeping engagement I encountered many difficulties relating to misallocation of expenses on accounts and confusing, book-keeping procedures. The set up with one pooled account also made it difficult to separate the various accounts that were to be maintained.
 Mr. Swales also met with Derek Uhlemann and Ms. Webb. Mr. Swales describes the bookkeeping difficulties being due to: (a) Ms. Webb, Mr. Davis and Mr. Uhlemann having some communication difficulties; (b) the set-up of the books by the prior accountant; and (c) Ms. Webb not being able to get adequate assistance from the prior bookkeeper and/or accountant. Mr. Swales states that he has now completed the accounting to November, 2007 and he believes that the accounting summaries are true and correct. In his opinion, that Strata Corporation owes $34,114.26 to 453 after taking into account the $60,000.00 paid by 453 to the Strata Corporation and the sum of $52,000.00 held in trust. Of the funds held in trust, Mr. Swales is of the belief that the sum of $34,114.26 should be paid to 453 and the balance to the Strata Corporation.
 As to the various accounts of the Strata Corporation, Mr. Swales states:
Also, as shown on the IRM accounts, the Marketing accounts and the Owners’ accounts, as at October 31, 2007, Deri Holdings is shown as owing the owners the sum of $84,187.60, which in conjunction with an under-expenditure of $25,802.45 in the Marketing account (funded by the owners) totals the sum of $109,990.05 as owed to the owners. However, this is offset by an over-expenditure in the IRM account, (which is also the owners’ responsibility to pay, but which was paid by Deri Holdings), of $86,814.96, leaving a balance owing to the owners of $23,175.09, which if deducted and paid from the $34,114.26 leaves the sum of $10,939.17 payable to Deri Holdings.
 While the accounting difficulties experienced by Ms. Webb may justify the delay and failure to forward financial statements, it is clear that 453 is in violation of the Agreement. First, paragraph 6.7 requires 453 to provide quarterly financial statements which accurately reflect on an accrual basis the financial operations of the Rental Pool within 15 days. Second, paragraph 6.6 requires an allocation of income and expenses to each of the owners. That has not been done. Third, arising out of the general obligations of 453, 453 would be obligated to prepare a budget for approval at the AGM and at meetings of the Strata Council and to provide the necessary statements for tax purposes in order that Owners would be in a position to report to Canadian or U.S. authorities. None of those things have been done in accordance with the Agreement.
(B) FUNDS IMPROPERLY WITHDRAWN
 In his February 27, 2008 Affidavit, James Duke states that he has been the President of the Strata Council since 1998 and that Mr. Dacyk “… arranged the removal of approximately $40,000.00 from the Strata account on a bank draft through Mr. Davis.” Recorded in the Minutes of the Strata Council under “New Business” is what Mr. Duke describes as a description that “accurately reflects this withdrawal”:
In 2006, the pool was opened and heated for the May long weekend for the first time ever. Jack meanwhile withdrew money from both the Deri and Strata bank accounts, saying he would repay.
 Some banking records of the Strata Corporation were in evidence indicating a number of cheques payable to 453, including the following: (a) May 25, 2005 - $10,280.52; (b) January 10, 2006 - $5,000.00; (c) January 19, 2006 - $10,000.00; (d) June 6, 2006 - $10,000.00; (e) June 7, 2006 - $12,170.00; and (f) June 23, 2006 - $1,000.00. At the same time, there are a number of deposits reflecting “Transfer from Deri ” including the following: (a) February 8, 2005 - $17,164.97; (b) October 29, 2003 - $61,053.63; (c) August 16, 2005 - $11,902.46; and (d) September 28, 2005 - $41,755.32.
 In his February 27, 2008 Affidavit, James Duke states that, prior to the arrival of Messrs. Dacyk and Davis, the Strata Corporation and 453 were able: “… to pay for the utilities and other common expenses during the winter season and “shoulder” season months from the funds that had accumulated during the higher revenue summer months.” “The current revenues are estimated to be the same or greater than before, although without proper accounting it is impossible to tell.” In this regard, there is some indication that hotel taxes were not paid so that a lien was filed against Tiki Shores and that utility amounts owing to the City of Penticton were not paid.
 In his February 27, 2008 Affidavit, Robert Lamb states that he was an accountant for the Plaintiff from 1998 through 2005 and that his wife was the bookkeeper for 453 and Strata Corporation since its inception until the end of 2005. The Plaintiffs commissioned a “revenue and expense review report” from Robert Lamb who conducted a financial review of the books and records of Strata Corporation which revealed that 453 owed the Strata Corporation a sum of $104,239.00. In his October 29, 2006 report, Mr. Lamb found the records to be accurate and “in order”. Under the category “Due to Deri Holdings” Mr. Lamb states:
A detailed analysis was performed on the entries made into the Strata bank account. The monthly transfers were not being made from Deri. This was due to the fact that Deri was very short of funds. Most of these entries were offset to the Due to Deri Holdings account. In fact during the period between Dec 1/05 and June 30/06 Jack Dacyk virtually stripped all the cash from the Strata bank account. At a couple of points he had to transfer funds back to the Strata to cover the overdraft in the account. All bank service charges were charged to Deri due to this irregularity. It has also been brought to our attention that in the transfer between Jack Dacyk and Darone Davis, Jim Duke’s name was dropped as a signing authority which means the only person able to access the account is Darone Davis. The amount Due from Deri to the Strata at Oct 28/06 is $112,129.88. We have included a Summary Schedule (Schedule 8) of the net amount due from Deri in the amount of $104,239. This is the offsetting of the Strata account and the I/R/M account.
 Deborah Webb was of the view that the sum of $10,874.69 was owing by the Owners to 453 “prior to the November 2005 year end adjusting entries” and that, after the year end adjusting entries, as at December 31, 2005, 453 owed $18,005.91 to the Strata Corporation while the I/R/M fund was overspent by the revised amount of $12,889.35.
 In his March 4, 2008 Affidavit, Murray Swales states that he has completed the 2007 year end statements for the Strata Corporation including the Owners’ Accounts Summary, the Tiki Shores Revenue and Expenditures Account; the Marketing Account; the IRM; and the Owners’ Accounts. He states that the following accounting summaries are to the best of his knowledge, information and belief true and accurate:
(a) Income was made up from the monies put in by 453 ($118,454.50), the strata fees ($171,931.62) and some smaller amounts from laundry and other income.
(b) The funds paid out by 453 on behalf of the Strata Corporation including accounts payable from the prior year and the opening balance for the year of $100,709.89 and that 453 is owed $33,403.90.
(c) The IRM account was overspent by $86,646.99, with this money owing to 453 that paid expenses due to insufficient IRM funds (as the amount collected was $34,386.99 while total expenditures were $121,033.98).
(d) Marketing fees were $26,515.66 more than expenditures with this money owing back to the strata account.
(e) The monies due to owners totals $91,023.24.
(f) 453 was owed $2,511.99 as at the 2007 year-end.
 There are a number of problems of how 453 was operating as Manager. 453 should not have been paying the expenses of the Strata Corporation directly and then seeking reimbursement from the Strata Corporation by transferring funds directly from the Strata Corporation bank account to itself. Paragraph 9 of the Agreement requires the maintenance of a separate bank account for the “Rental Pool” in order to assure that all “Pooled Income” is deposited into that account and that all “Pooled Expenses” are drawn on that account. Pursuant to paragraphs 6.2 and 6.5 of the Agreement, all costs and expenses are to be paid out of the account maintained for the deposit of all “rents and other monies payable by the renters” of various units in the Strata Corporation. Pursuant to paragraph 6.10 of the Agreement, any available funds should have been invested in an interest-bearing trust account.
 While it may have been expedient for 453 to pay the expenses directly and then seek reimbursement from funds of the Strata Corporation once available, doing so was in violation of the Agreement. It is also the case that the removal of funds to repay 453, the suggestion that monies withdrawn by Mr. Dacyk on the basis that “he would repay” the funds, the considerable accounting costs which has been incurred in order to ascertain what is presently owing by either the Strata Corporation to 453 or by 453 to the Strata Corporation and what is owing for strata fees, what is owing to the Owners, the placing of funds in trust by 453 to replace the funds that it had removed, and the payment of $60,000.00 by 453 to the Strata Corporation have resulted in a complete lack of confidence in the 20 Owners about the ability of 453 to act as Manager under the Agreement.
(C) LACK OF PAYMENTS MADE TO THE OWNERS AND/OR
THE STRATA CORPORATION FOR STRATA FEES
 Pursuant to paragraph 6.8 and paragraph 6.9 of the Agreement, the “Pooled Cash Flow Surplus” is to be used to pay all Strata Fees in respect of the Units of Owners and to pay to the Owners any monies not required out of the “Pooled Cash Flow Surplus” to pay the Strata Fees. It is clear that this has not been done. It is also clear that some Owners rely on these funds for income and that significant hardship has resulted as a result of the lack of payments being forwarded.
 In his Affidavit, Donald Gordon states that his monthly rental income cheque for July, 2006 was received on August 29, 2006, his November 2006 cheque was received on February 5, 2007, his December 2006 and January 2007 cheques were received on March 9, 2007, his February 2007 cheque was received on April 16, 2007, his March 2007 cheque was received on May 1, 2007, his April 2007 cheque was received on August 15, 2007, his May 2007 cheque was received on August 28, 2007, and his December 2007 cheque was received late in January 2008.
 Lois Duke in her February 26, 2008 affidavit states that monthly revenue cheques or statements for June through November, 2006 were not received but, “As a result of the outrage of the minority owners of the strata units ….”, Mr. Davis attended to the payment of all of the monthly revenue cheques to December 2, 2006. Ms. Duke indicates that April revenue cheques and statements were received in late July, 2007 and May revenue cheques and statements were received in late August, 2007. She states that the December, 2007 cheque and statement was delivered in February, 2008 following the January 26, 2008 AGM. As at the December 2, 2006 AGM, monthly revenue cheques or statements for June through November, 2006 were received. April and May, 2007 revenue cheques and statements were received in late July and August, 2007. The Plaintiffs have not received any monthly rental income cheques for the months of June through November, 2007, or from January 2008 to the present.
 The lack of funds available to pay the Strata Fees owed by Owners and the lack of funds available to make payments to the Owners is stated by 453 to be as a result of lack of profitability and the need to undertake repair and maintenance issues. In his February 27, 2008 Affidavit, James Duke states that the question of repair and maintenance issues became a “huge challenge” which: “… emerged very quickly as monies due to the Strata Corporation and the Owners suddenly and for the very first time stopped flowing.” “Mr. Davis at no time asked the Strata Council or any of the Owners, certainly not my wife or me, if it was okay to withhold our money, or what hardship that might cause – he just kept the money.”
 Murray Swales in his March 4, 2008 Affidavit notes that the funds presently owed to Owners totals $91,023.24. Whether or not that amount is correct, it is clear that very few payments have been received by Owners after November, 2006. On the basis of the accounting provided by Mr. Swales, it is clear that some balances are owing to the Owners. The failure to make those payments was other than in accordance with the obligations of 453 as the Manager.
 Whether or not the Strata Fees of the Owners have been paid or not also creates considerable problems. First, it is not clear which Owners are current in paying their Strata Fees so that is impossible to ascertain who is eligible to vote at an AGM. Second, it is not clear that all monies relating to the rental of Units have been collected and remitted to the Strata Corporation by 453.
(D) LACK OF REPAIRS AND MAINTENANCE
 In his February 27, 2008 Affidavit, James Duke states that:
… the matter of repairs and maintenance were an ongoing issue which we addressed on a regular timely basis. I am bound to say, unfortunately, that repair and maintenance issues quickly became frustrated by the financial mess and loss of trust created by the Defendants …. This issue has elapsed all of the other important issues facing the Strata Corporation as indeed no other issues can be addressed.
 In his January 31, 2008 Affidavit, Mr. Davis states: “For several years, the Strata and prior Managers had not kept up necessary repairs and maintenance and, as a consequence the resort was in a bad state of repair and there were insufficient funds set aside for repairs and maintenance ….” He also states that he wrote “a detailed letter to all the other owners” pointing out that the repair and maintenance account was maintained at only 5% of revenue so that the repairs and maintenance that were required would exceed the funds available. His October 13, 2006 letter to Owners states in part:
Allow me to be perfectly blunt. I am not going to sugar coat this. The condition of most of the units is terrible and a couple of the units are un-rentable. We lost revenue this year because of it. When I took over management in mid February, we had to hire a crew of people to try and get caught up with some of the work that was needed with the money that was available. I read through the minutes of the previous years’ AGM and read the same complaints year after year, and have heard them repeated from the owners that I met over the summer. This is a serious concern. It will cost us all a lot of money if we have to start living down a bad reputation caused by sub-standard rooms. Our maintenance crew believes that there has been no major maintenance for the three years previous other than just cosmetic repairs (band aids). For example, most of the beds in the units look like bowls and need to be replaced, most of the carpets need replacing due to stains, burn marks from cigarettes or dropped hot irons, most of the rooms need the walls patched and a complete repainting, the floor tile in the rooms needs replacing, the tile surrounding the showers and tubs needs major attention as most of the grout is either missing or black with mildew or mold. Another serious problem started when the tile was installed in the bathrooms—the toilet’s were removed, the thicker tile installed and the toilet replaced without placing an additional or appropriate seal. This caused leaking toilets and over time this has cause extensive floor damage to some units. In one room, when a tile was stepped on, water would squirt out from between the tiles where the grout should have been. Our dilemma is that the IRM is 5% of the total revenue. If we have revenue of $600K for the year, this gives us only $30K to do maintenance and repair of 40 units. At the start of this season we needed to order new linen for all of the units including blankets. We had to order more towels because there were not enough towels to put a set in every unit. Derek is preparing a comprehensive list of required work to give us a complete picture of the job ahead of us.
The outside of the motel is a little better of a story. Although a paint job was suggested at the last AGM, a review of account balances and new repair budgets, and a review of painting quotes, it was suggested by the painters that a professional power wash of the entire exterior could yield something close to the same results. When it was finished, the result was a huge improvement.
There is unfortunately a large bill heading our way that has gone undetected or ignore. The Tiki Shores has 22 hot water tanks servicing the rooms. All but one of those tanks was manufactured in 1987. The life expectancy of a hot water tank in residential use is approx 10-12 years and less in a commercial use. This means that all of our tanks are a good 5 years past replacement age. We discovered this in February when one of the tanks started leaking—and it was the newest one. Since then, five more tanks failed this summer, and rooms had no hot water. This cost us revenue as concessions to our guests had to be made. The cost to replace all of these tanks is approximately $23,000.
During the Spring, we found damage due to freezing and non-proper winterizing of the pool and hot tub. One of the large filters, and pipes were cracked and needed to be replaced. Although, it started with a set back, the pool was cleaned, painted, filled and usable by the May long weekend-the soonest that the pool has ever been available to the May long weekend guests. During the summer, our pool was the only pool not to be shut down on the entire Sunset Strip by Interior Health. Interior Health did however order us to comply (in August) with some new and expensive alterations, including the installation of an automatic chlorination device, additional railings and ladders and re-tiling of the perimeter of pool. All of these changes are mandatory and are to be done before Interior Health will “pass” us next season.
The fundamental problem is that the amount allocated to IRM costs is completely inadequate. For years the owners have been drawing out monies while the physical plant of the Tiki Shores complex has deteriorated. In addition, there is no budget for upgrading and renovation, and a review of the minutes shows that there has never been a plan for renovations as is standard for this type of industry every 6-7 years. This resort is over 14 years old now. The building complex is in a disastrous condition, as noted in the affidavit of Derek Uhlemann.
 In his March 4, 2008 Affidavit, Mr. Davis states that, after he purchased 453:
… I learned after that purchase that all owners are now in a crisis situation, as for years those in control of the strata council and the management company simply “milked” money out of the revenues of the strata corporation without regard for the need to properly budget for and undertake necessary repairs, maintenance and upgrades to the Tiki Shores complex.
… They have either deliberately and with wilful blindness done this since 2000 in contravention of the requirements of the Strata Property Act. As a result, and as I believe has been shown in the material filed in that action [SO77454], it is clear that the strata councils up to now have created the problem that these owners, in fact all owners now face of having to invest significant funds into the Tiki Shores if that complex is to remain a viable business and we will all have to anticipate limited if any returns on our investments for some time while that occurs.
 There is a clear obligation under paragraph 6.3 of the Agreement for 453 to “clean, maintain or repair the Unit(s) as required” and under paragraph 6.11 to establish the “Inventory, Replacement and Maintenance Fund (IRM)” using 5% of the gross revenues in order to ensure that the Units are kept: “… in a state of good repair”. It may well be that 5% of gross revenues does not produce sufficient funds to keep all Units in a state of good repair. However, no attempt has been made by 453 to seek an amendment to the Agreement to increase the percentage allocated to the “IRM” fund. If the Agreement was not to be amended, a special levy should have been sought to allow sufficient funds to be received to bring the Units into a state of good repair.
 While it is the responsibility of the Owners to provide sufficient funds so that necessary repairs and maintenance can be undertaken and while the expenditures undertaken by 453 may well have been justified in relation to what was required to maintain the Units as rentable, there was no authorization for 453 to undertake the expenditures which resulted in 453 being owed almost $87,000.00.
 Another issue which has created confusion amongst all of the Owners is the question of whether 5% of all gross revenues is available so that all Units can be kept in a state of good repair or whether it is only 5% of the gross revenues of units within one of the eight “unit types” that can be used to keep the particular Units within one of those eight unit types in good repair. That issue has not been resolved as between the Owners and no initiative has been taken to amend the Agreement if an amendment is required. 453 submits that its Units are in a separate Rental Pool. This submission came as a considerable surprise to counsel for the Plaintiffs. As is outlined in the context of the allowance of complementary rentals, I am satisfied that there is a requirement for an amendment of the Agreement in order to clarify this issue.
(E) THE ALLOWANCE OF COMPLIMENTARY RENTALS
 In her Affidavit, Ms. Webb states that her examination of the Balance Sheet as of February, 2007 showed that 453 had many outstanding receivables due or current assets that were actually receivables which “severely impacted Deri Holdings’ bank account”. She described those receivables as follows:
(i) due from Pro Digital $34,139.49, another company owned by Mr. Davis which was renting rooms but carrying them on account rather than paying the billings;
(ii) due from 586519 B.C. Ltd (Surfside) $6,323.89, a company owned by Jack Dacyk;
(iii) due from Jack Dacyk $233,024.45;
(iv) due from Orchard Breezes Property Development $52,578.58, another company owned by Mr. Davis, to which he was advancing funds;
(v) due from Reinhold Consulting $13,078.17, (Derek Uhlemann’s company for Piggy’s BBQ restaurant) which did not include all utilities charges to have been rebilled to this company;
(vi) due to Mr. Davis ($74,892.89), that is, Deri Holdings owed to Mr. Davis for cash deposits to the Deri Holdings bank account by Mr. Davis;
(vii) due from Rock Heights Care Home, $3,000.00, another company owned by Mr. Davis which was renting rooms but not paying for them, just carrying them on account.
 In her Affidavit, Deborah Webb also states that one of the difficulties she had regarding the bookkeeping for 453 and the Strata Corporation was the following:
in part because Jack Dacyk was “comping” rooms to friends (ie. the practice of providing rooms as complementary, without charge) and not even notifying of owners usage, basically keeping even owners usage fees for I/R/M, Strata Fees etc. off the books. I had to go back and correct these differences, but I did catch them and correct them or, in the case of the low season corrections, had already identified them and was about to make the corrections when I was asked to give the books to Robert Lamb for a review in September 2006. He and his wife Cathy made those final corrections for me, as well as some minor posting errors regarding 1/RIM and Strata expenses made by me that they stated would be preventable in the future through additional training from them. I had been asking Cathy for this training as we did not have time in December 2005 to do so and then as my email indicated, I gave up in July 2006 since Cathy had no time to do so with me.
 In his March 4, 2008 Affidavit, Mr. Davis deals with the issue of “comping” as follows:
Any person given a room on a corporate account of Pro-Digital or Rock Height Care Home was given one that was in a separate rental pool of Deri Holdings. Further, if a guest was disgruntled due to a problem with a room or a booking then we would offer that guest free drinks or a meal at Piggy’s BBQ and Pro-Digital or Deri was billed for it. This was regardless of whether the problem was with a room of another owner.
 It is the position taken on behalf of 453 that the Units owned by 453 are in a separate rental pool. Parts of the Agreement support this submission and parts do not. The definition of “Pooled Income” in paragraph 1 of the Agreement states that pooled income means “all rent and other monies received from time to time by the Manager to the credit of the Owners of the Units of the project from time to time constituting the Rental Pool from tenants of the Rental Pool ….” There is nothing in evidence which allows me to conclude that the accounting provided to the AGM’s and to the Strata Council showed income being deposited into eight separate Rental Pools, that expenses were taken out of those eight separate Rental Pools, or that a quarterly or year-end accounting was undertaken to separate income and expenses into eight separate Rental Pools. It may well be that this division was what was understood by all Owners and was reflected in the accounting that was provided from time to time, but that is not clear from either the Agreement or what is in evidence. Schedule “A” to the Agreement provides as follows: “The Rental Pool consists of 41 rental units … divided into eight unit types ….” This could be interpreted to mean the Rental Pool consists of all Units. However, in contrast to that, Units are then divided into “eight unit types” and revenue due to Owners is “… divided evenly by those Owners of the same rental pool type”. Part of the Agreement does support the proposition that there are eight separate Rental Pools as paragraph 6.1 states that the Manager will use the best efforts “… to distribute guests so as to equalize wear and tear on all units of the same type.”
 Even assuming that the revenue and the expenses “stay within” a particular Unit type, unless it can be shown that 453 only owns Units of a particular type and no other Owners own Units of that type, 453 would share revenue within the particular rental type that comprises their Units. It would not be the case that 453 would not share revenues within the same rental pool type.
 Additionally, the ability of an Owner to provide free use of a Unit to third parties does not mean that the appropriate contributions need not be made as are required under the Agreement. It is necessary for the Owner to remit the appropriate contributions whether or not that Owner receives the funds from the third parties.
 Even assuming that not all rental income was being collected on Units owned by 453 because its Units were in separate rental pools, it is clear that the revenue would not be available to allow 453 to pay what needed to be paid pursuant to the Agreement, including 25% of the gross revenue for Strata Fees, 5% of the gross revenue for the IRM fund, 2% of gross revenue for Marketing Fees, and 33% of gross revenue payable either to the Owners as a whole or to the Owners of the particular unit type constituted by the Units owned by 453. Any failure to pay the amounts established under the Agreement would be other than in accordance with the obligations of 453 as an owner of Units.
 Presently, it is impossible to ascertain what sums have been lost to the various funds as a result of 453 allowing the receivables to amount to what is set out in the Affidavit of Ms. Webb. There is nothing in evidence to allow me to conclude that 453 has paid the contributions set out above despite the fact that income was not received from the Units which were used by third parties without those third parties paying rent for those Units or without 453 collecting the rentals owing. As well, it is not clear whether the amounts that are owing are receivables of 453 or whether they are receivables of the Strata Corporation.
 It should also be noted that the $34,139.49 owed by Pro Digital, the $6,323.89 owed by 586519 B.C. Ltd., the $233,024.45 owed by Mr. Dacyk personally, the $52,578.58 owed by Orchard Breezes Property Development, the $13,078.17 owed by Reinhold Consulting, and the $3,000.00 owed by Rock Heights Care Home continue to be shown on the accounts of 453 as receivables reflecting rentals that should have been available to 453. It may or may not be correct to show these amounts owing from companies or individuals associated with 453 as receivables of 453 as opposed to receivables of the Strata Corporation. In any event, there is nothing in evidence which would allow me to conclude that appropriate collection proceedings have been commenced by 453 in order that room rentals would be available for the Rental Pool if all rentals should be deposited into the Rental Pool or in order that 453 would be in a position to make the necessary contributions from the revenue available to it as is set out in the Agreement if the amounts are owing to 453.
(F) CONDUCT OF THE JANUARY 26, 2008 ANNUAL GENERAL
AND THE FEBRUARY 2, 2008 ANNUAL GENERAL MEETING
 The Minutes of the January 26, 2008 AGM contain the following statement:
The Strata Council did not recognize a quorum. Jim Duke explained that this was due to interpretation of the 2002 Strata Property Act by Strata’s legal counsel that since there are no financial statements to use to determine if strata fees are paid for any unit, then it is not possible to determine voting eligibility. Shareholders eligible to vote: NONE.
Therefore, an actual Annual General Meeting cannot be held at this time.
In the spirit of the Strata Property Act, this meeting is being held to meet the Annual General Meeting requirement, and then an informal meeting would be held for information exchanges and discussion.
 In his February 27, 2008 Affidavit, James Duke states that the Owners met for the AGM on January 26, 2008 but the:
… Strata Council would not, under its Bylaws, recognize any eligible voters nor recognize a quorum and thus no voting took place. Because there could not ever be a quorum of eligible voters until the Court had the opportunity to intervene … the AGM was in the view of all in attendance excepting Messrs. Davis and Uhlemann was adjourned generally pending a Court Order which indeed was already the subject of the application; …. On February 2, 2008, Messrs. Davis and Uhlemann purported to carry out an AGM and elected themselves onto council and naturally removed all of the current Strata Council except Bill Campbell who quickly resigned within days …. All of this purported to be done notwithstanding the obvious conflict of interest, the fact that there are no eligible voters recognized by Strata Council, there could be no quorum established, and notwithstanding that all other Owners expressed agreement that no AGM could proceed without the said Court orders.
 In his February 26, 2008 Affidavit, Sydney Pawlowski stated that, because the financial statements were not available, the “… Strata Council could not know what if any dues had been paid, we could not know who was in good standing to vote – the very point made at the AGM in December 2006 the situation created by the Defendant D. Davis and the numbered company  ….”
 In his March 4, 2008 Affidavit, Mr. Davis states:
… at the AGM of January 26, 2008, I advised all present that section 48 of the Strata Property Act specifies that if there is no quorum present (the position taken by Mr. Duke as chair) then it is adjourned to the same time and date a week later. A copy of minutes taken by Deborah Webb (which have yet to be approved and do contain some inaccuracies and miss some matters) … show the general outline of that meeting.
I attended at the same time and place one week later and also present were Derek Uhlemann and Deborah Webb. We proceeded with the continuation of the Annual General Meeting. The minutes of that Annual General Meeting (yet to be approved) are …. accurate as to what occurred.
Three council members were chosen. They were Derek Uhlemann, William (Bill) Campbell and me. All of us had agreed to stand for election, although Mr. Campbell could not be there. Following the meeting I attempted to set up a first strata council meeting with them.
 The question of who is eligible to vote at an AGM is complicated by the change in legislation and the transition provisions dealing with the standard bylaws of this and other strata corporations.
(A) PROVISIONS UNDER THE REPEALED CONDOMINIUM ACT
 Under s. 26(2) of the Condominium Act, the bylaws of a strata corporation were the bylaws set out in Part 5 of the Act “… until they have been altered or repealed ….” In an August 31, 1994 filing in the Land Title Office as a “Notification of Change of Bylaws”, the Strata Corporation stated that the bylaws of the Strata Corporation “shall be the following: “Part 5 of the Condominium Act subject to the following amendments, deletions or additions: ….” Amendments were then set out to ss. 115(e), 115(h), 117 to add a sub-section (1), 131(1) to add a sub-section (d), and to 131(1) to add a sub-section (e). None of those amendments dealt with an amendment to the provisions dealing with who was eligible to vote at an annual general meeting.
 Pursuant to s. 124(3) of the Condominium Act, a quorum was one-third of the persons entitled to vote and present in person or by proxy. Pursuant to s. 125 of the Condominium Act, unless a motion required an unanimous resolution, an owner was not entitled to vote at a general meeting unless all contributions payable for his or her strata lot had been paid. Pursuant to s. 124(4) of the Condominium Act, if a quorum was not present then the meeting stood adjourned to the same day in the next week at the same place and time when persons who are present at that meeting and eligible to vote then constituted a quorum. The provisions set out under s. 124 of the Condominium Act were repeated in s. 30 of the Standard Bylaws. However, the provisions of the Condominium Act were repealed by R.S.B.C. 1998-43-294 effective July 1, 2000 (B.C.R. Reg. 43/00).
(B) PROVISIONS UNDER THE STRATA PROPERTY ACT
 Under bylaw 17.11(2) of the Strata Property Act Regulations, a strata corporation bylaw existing under the Condominium Act including a bylaw under Part 5 of the Condominium Act: “… continues to have effect despite any provision of the Act or this regulation”. However, Regulation 17.11(2) is subject to what is set out in Regulation 17.11(3) through (5). Regulation 17.11(3) provides that, as at January 1, 2002, the “Standard Bylaws” created under the Strata Property Act are deemed to be the bylaws for all strata corporations “except to the extent that conflicting bylaws are filed in the Land Title Office.” Under Regulation 17.11(3)(b), any bylaws under Part 5 of the Condominium Act which were deemed to be bylaws of a strata corporation, ceased to have effect. Pursuant to Regulations 17.11(4) and 17.11(5), if a bylaw filed in the Land Title Office conflicts with a Standard Bylaw as established under the Strata Property Act, the filed bylaw prevails except to the extent that it conflicts with the provision in Parts 1 through 17 of the Strata Property Act or the Regulations.
 Therefore, I summarize these provisions as follows:
(a) under the Condominium Act, the bylaws set out under Part 5 of that Act prevailed unless they had been altered or repealed;
(b) the “Standard Bylaws” created under the Strata Property Act are deemed to be the bylaws of all strata corporations except to the extent that conflicting bylaws were filed in the Land Title Office;
(c) any bylaws under Part 5 of the Condominium Act which were deemed to be bylaws of a strata corporation cease to have effect as at January 1, 2002 and are replaced by the “Standard Bylaws” created under the Strata Property Act subject to one exception;
(d) if a bylaw previously filed in the Land Title Office conflicts with a Standard Bylaw established under the Strata Property Act, the filed bylaw prevails unless it conflicts with the provisions set out in Parts 1 through 17 of the Strata Property Act or the Regulations.
 I am satisfied that the provisions which are in place for this Strata Corporation regarding the quorum at an AGM or special general meeting are set out under s. 48(3) of the Strata Property Act. First, there was no filing in the Land Title Office of bylaws which altered the standard bylaws as set out under Part 5 of the Condominium Act. Second, the provisions relating to a quorum are exactly the same under both the Condominium Act and the Strata Property Act.
 Even if I could conclude that there had been a filing in the Land Title Office of both Part 5 of the Condominium Act as well as the amendments noted above, I would conclude that the Part 5 of the Condominium Act amendments are no longer in effect as they have been replaced by the “Standard Bylaws” created under the Strata Property Act. I find that the bylaw dealing with a quorum does not conflict with the Standard Bylaws established under the Strata Property Act so that it cannot be said that the “filed bylaw prevails”. In dealing with what occurred at the January 28, 2008 AGM and the February 2, 2008 AGM, s. 48(3) of the Strata Property Act applies.
 Pursuant to s. 48(3) of the Strata Property Act, if a quorum is not present within one-half hour from the time appointed for an AGM or special general meeting, the meeting “… stands adjourned to the same day in the next week at the same place and time, but if on the day to which the meeting is adjourned a quorum described in s-s. (2) is not present within 1/2 hour from the time appointed for the meeting, the eligible voters present in person or by proxy constitute a quorum.”
 Messrs. Davis and Uhlemann were correct in their interpretation that the meeting was adjourned to the same day in the next week at the same place and time. Those who were of the view that the AGM could be adjourned generally were not correct. The provisions in the bylaws of the Strata Corporation are clear, they require that the meeting should stand adjourned not generally but to the same day in the next week at the same place and time. However, I cannot agree with the interpretation given by Messrs. Davis and Uhlemann regarding whether the adjourned meeting should proceed.
 As to who is eligible to vote, s. 53(2) of the Strata Property Act provides that a strata corporation may, by bylaw, provide that: “… the vote for a strata lot may not be exercised, except on matters requiring unanimous vote, if the strata corporation is entitled to register a lien against that strata lot under s. 116(1).” At the same time, s. 53(3) of the Strata Property Act provides that, if such a bylaw has been passed under s. 53(2) of the Act so that a vote for a strata lot may not be exercised, the vote must not be considered “… for the purposes of determining a quorum in accordance with s. 48 or for the purposes of ss. 43(1), 46(2) and 51(3).” Pursuant to s. 48(2)(a) of the Strata Property Act, but subject to the bylaws of the strata corporation, a quorum for an annual or special general meeting is “eligible voters holding 1/3 of the strata corporation’s votes present in person or by proxy ….” (emphasis added). Pursuant to s. 48(3) of the Strata Property Act, if an annual or special general meeting is adjourned because a quorum is not present, it is adjourned but on the basis that a quorum is constituted by: “... the eligible voters present in person or by proxy ....” (Emphasis added).
 The meeting on February 2, 2008 could proceed with those present constituting a quorum. However, only “eligible voters” constituted the quorum and it was only “eligible voters” who could vote at the meeting. I find that there were no eligible voters present in person or by proxy to constitute a quorum on February 2, 2008. First, because the necessary financial statements were not before the meeting on February 2, 2008, it was impossible to ascertain whether there were any eligible voters as it was impossible to ascertain which Owners had failed to pay strata fees thus enabling the Strata Corporation to register a lien under s. 116(1) of the Strata Property Act. In this regard, the Strata Corporation placed a $6,000.00 lien on each of the Units of 453 based on the findings of Robert Lamb and because the mortgage against the Units of 453 was subject to foreclosure proceedings. It is not clear whether the funds which were subsequently paid to the solicitor for the Strata Corporation and subsequently released to the Strata Corporation brought current the Strata Fees owed by 453. As well, what is in evidence does not allow me to conclude that all of the Strata Fees for 2007 and 2008 have been paid by any of the Owners. Because that is the case, there is nothing in evidence which would allow me to conclude that anyone was eligible to vote on February 2, 2008. Second, because the bylaws of the Strata Corporation provide that the vote of a strata lot may not be exercised if the Strata Corporation is entitled to register a lien under s. 116(1), the vote of any such strata lot could not be considered for the purposes of determining a quorum (s. 53(3) of the Strata Property Act).
 Accordingly, the meeting should not have proceeded on February 2, 2008 in the absence of the financial statements being available which would show that at least some of those who were present on that date were eligible to vote. As that was not the case, I conclude that the business transacted on February 2, 2008 was null and of no effect. The election of Messrs. Uhlemann, Campbell, and Davis to the strata council was null and of no effect so that the previous members of the strata council were not replaced. The members of the previous strata council were improperly removed. The Strata Council proceeded with a number of agenda items which are critical to the future success of Tiki Shores. First, steps were taken to prepare a budget. Second, an agreement was reached to retain a properly licensed strata manager to replace the one that had resigned. Regrettably, I find that these steps were also null and void by virtue of the improper replacement of the previous Strata Council.
SHOULD AN ADMINISTRATOR BE APPOINTED?
 Under paragraph 10 of the Agreement each of the Owners can terminate their particular Agreement if the “Manager shall be guilty of any fraud or dishonest or serious misconduct” or if the “Manager shall commit any serious breach or non-observance of the provisions of this Agreement and such breach or non-observance shall continue for at least fifteen (15) days following receipt of a notice in writing from the Owner to cure same”. While that option would be available to each of the 20 Plaintiffs, it is probably unlikely that 453 would terminate the Agreement that it has with itself. It would be economically and logistically unrealistic to have two Managers for Tiki Shores. As well, a termination of the Agreement under paragraph 10 might well require an Owner to pay three months of management fees to compensate 453 for “additional administration costs involved” with any such compensation and termination being “… without prejudice to the right of the Manager to claim for further damages arising out of such a wrongful termination.” In view of the perception by the 20 Plaintiffs that 453 has not properly managed, I would anticipate that the possibility of having to make such a payment would be repugnant to the 20 Plaintiffs. As well, the last thing that all of these Owners require is further litigation regarding the management of the Tiki Shores.
 I cannot be satisfied that termination pursuant to paragraph 10 of the Agreement would be in the interest of any Owner who elected to terminate the Agreement or of any of the Owners. Accordingly, the issue which arises is whether an Order should be made appointing an Administrator to exercise the powers and perform the duties of the Strata Corporation and whether the other relief sought by the Plaintiffs should be granted. This involves a consideration of whether the Plaintiffs should be granted orders pursuant to ss. 164 and 174 of the Strata Property Act.
SECTION 174 OF THE STRATA PROPERTY ACT
 The factors to be considered about whether there should be an appointment of an administrator under s. 174 of the Strata Property Act were summarized in Lum v. Strata Plan VR519,  B.C.J. (QL) No. 641 (B.C.S.C.):
… [the] factors to be considered in exercising the Court's discretion whether the appointment of an administrator is in the best interests of the strata corporation include:
(a) whether there has been established a demonstrated inability to manage the strata corporation,
(b) whether there has been demonstrated substantial misconduct or mismanagement or both in relation to affairs of the strata corporation,
(c) whether the appointment of an administrator is necessary to bring order to the affairs of the strata corporation,
(d) where there is a struggle within the strata corporation among competing groups such as to impede or prevent proper governance of the strata corporation,
(e) where only the appointment of an administrator has any reasonable prospect of bringing to order the affairs of the strata corporation.
In addition, there is always to be considered the problem presented by the costs of involvement of an administrator.
I also take into consideration the comments of Huddart, J. in Cook, … [Cook v. Strata Plan N-50  B.C.J. (QL) No. 2882 (B.C.S.C.)], that the democratic government of the strata community should not be overridden by the Court except where absolutely necessary. (paras. 11-2)
 In Aviawest Resort Club et al v. Chevalier Tower Property Inc. et al (2005), 254 D.L.R. (4th) 67 (B.C.C.A.), Smith, J.A. on behalf of the Court gave this interpretation of s. 174 of the Strata Property Act:
Section 174 of the Act authorizes the court to appoint an administrator to exercise the powers and perform the duties of the strata corporation. He can do no more than the strata corporation could do. In particular, if the strata corporation could not act without the authority of a resolution, the administrator is equally restrained. The owners are members of the strata corporation. It is the members who vote on and pass resolutions at meetings of the strata corporation. Allowing the administrator to act without resort to the owners at all, as the impugned orders do, abrogates the rights of the owners to vote on actions requiring their authorization by resolution. The Act does not authorize such a result. (at pp. 77-8)
 There is overwhelming evidence to allow me to conclude that 453 has been unable and will continue to be unable to manage the Strata Corporation in accordance with the provisions of the Agreement and with the support of the Plaintiffs. While I am not prepared to conclude that the acts of 453 in withdrawing funds from the bank account of the Strata Corporation amount to fraud as is urged upon me by the Plaintiffs, I can conclude that there has been massive mismanagement in relation to the affairs of the Strata Corporation. The affairs of the Strata Corporation are presently in chaos. The competition between the two groups has effectively prevented proper governance of the Strata Corporation: the proper governance of the Strata Corporation is impossible given the current struggle between the 20 Owners who are the Plaintiffs and 453 as the Owner of 21 Units. I am satisfied that it is necessary to appoint an Administrator under s. 174 of the Strata Property Act in order to bring some semblance of order to the affairs of the Strata Corporation. I am satisfied that this is one of those occasions where the governance created by the bylaws of this Strata Corporation should be overridden by the Court. Accordingly, it is appropriate to make an Order that an Administrator under s. 174 of the Strata Property Act be appointed. The Plaintiffs will be at liberty to provide the name of the Administrator and submit an Order incorporating the name, occupation or business, and the address of the Administrator they choose.
 In order that the Administrator will be in a position to take control of the affairs of the Strata Corporation, I make the following Order restraining the Plaintiffs and the Defendants from:
(a) dealing with or depositing any further Rental Pool Income monies except into the account of the Administrator;
(b) removing or destroying any documentation or computer hardware or software from the Office at Tiki Shores;
(c) interfering in any manner with the exercise of the powers and the performance of the duties of the Strata Corporation by the Administrator.
 I also make the following Orders:
(a) within 48 hours, the Defendants, their officers, employees and Directors shall deliver any property of the Strata Corporation to the Administrator;
(b) within 21 days, 453 shall provide and deliver to the Administrator a full accounting for the years 2004, 2005, 2006 and 2007 to include the following: a statement of all revenues, income or funds received by the Defendants in the operation of Tiki Shores; a statement of all expenditures incurred and paid from the monies received as revenue or income in the operation of Tiki Shores; a detailed summary of those payments to Owners which remain outstanding under the Agreement; the standing of each of the Owners regarding payment of Strata Fees and any outstanding levies; all financial information including draft or final financial statements; and the General Ledger of the Strata Corporation;
(c) the Administrator will be at liberty to change the signing authorities for any bank accounts maintained on behalf of the Strata Corporation and will be at liberty to have access to any and all banking records relating to the Strata Corporation since January 1, 2004;
(d) pursuant to s. 174 of the Strata Property Act, the Administrator will exercise or perform all of the powers and duties of the Strata Corporation until further Court Order. Those powers and duties of the Strata Corporation shall include the ability to perform those functions under the Agreement previously performed by 453 as the Manager of Tiki Shores.
 The Administrator will make recommendations to the Strata Corporation regarding whether the accounting of the Strata Corporation shall reflect one Rental Pool or eight Rental Pools reflecting the eight Units set out in the Agreement. The Administrator will also make recommendations to the Strata Corporation whether a new Agreement regarding the management of Tiki Shores should be prepared for the signature of all Owners to include any necessary amendments to reflect the current needs of Tiki Shores and its Owners. The Administrator will prepare a budget for the necessary repairs and maintenance required for all Units at Tiki Shores and will arrange for a Special General Meeting to seek approval from all Owners regarding the budget and for a Special Levy to fund that portion of the budget which will not be available from funds available in the Inventory, Replacement and Maintenance fund. At the same meeting, the Administrator will present a budget of anticipated revenues and expenditures for the Strata Corporation to be presented for those Owners present or by proxy who are eligible to vote. The Administrator will be entitled to reasonable remuneration and reimbursement for any of his or her expenses. Those amounts to be paid by the Strata Corporation.
 In order to give effect to the powers and duties available to the Administrator, the Administrator will be at liberty to apply for further Directions. I will be seized of any applications in this regard. The question which then arises is whether the other orders sought by the Plaintiffs should be granted pursuant to s. 164 of the Strata Property Act.
SECTION 164 OF THE STRATA PROPERTY ACT
 Orders sought pursuant to s. 164 can only be granted if I am able to conclude that the actions to date are “significantly unfair”. A number of decisions have considered the effect of s. 164 of the Strata Property Act. In Vold v. Strata Corp. 202,  B.C.J. (Q.L.) 344 (B.C.S.C.), the Court dealt with a company that owned a majority of the units, a proposal that the company would commence work, and a vote in favour of the work being conducted. The Court held that the conduct of the strata council demonstrated bad faith and oppressive conduct:
Oppression has been the subject of a number of judicial comments, mainly in the context of litigation between shareholders in a corporation. In my view, the analogy between the strata corporation owner and shareholders of a corporation is appropriate (see s. 224 of the Company Act).
In Elder v. Elder & Watson, Limited,  S.C. 49 at p. 60, Lord Keith stated:
Oppression involves, I think, at least an element of lack of probity or fair dealing to a member in the matter of his proprietary rights as a shareholder.
C.J.S.C. (as he then was) stated:
… as pointed out by Lord Keith in Scottish Co-op. “oppression … may take various forms”, implying that the concept is fairly open-ended. At a minimum, however, it seems there must be an element of lack of probity (adherence to the highest principles and ideals) or fair dealing to a shareholder in the matter of his proprietary rights as a shareholder: per Lord Keith in Scottish Co-op. [ 3 All E.R. 66 (H.L.)
“Good faith” according to Black’s Law Dictionary, 5th ed. (1979), has no technical meaning but is a term used “to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation”, or “An honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render a transaction unconscientious”. This definition leaves little room for a lack of probity or fair dealing and it therefore appears that there may be no “oppression” remedy open to the injured minority shareholder when the directors have acted in good faith.
 In Reid v. Strata Plan LMS 2503 (2003), 12 B.C.L.R. (4th) 67 (B.C.C.A.), Ryan J.A. made the following statement regarding the phrase “significantly unfair” used in s. 164 of the Strata Property Act:
As was noted by the Chambers judge, the meaning of the term "significantly unfair" in s. 164 of the Strata Property Act had not been judicially considered at the time the matter was heard. As a result, Sinclair Prowse J. looked to s. 42 of the former Condominium Act to find a definition for the term. Under s. 42 of the Condominium Act, an owner could apply to the court to remedy behaviour of the strata corporation that was "oppressive" or acts or resolutions that were "unfairly prejudicial" to the owner. A review of how these terms had been defined by the courts can be found in the case of Blue-Red Holdings Ltd. v. Strata Plan VR 857 (1994), 42 R.P.R. (2d) 49 (B.C.S.C.). In that case, the court found that oppressive conduct had been defined as conduct that is burdensome, harsh, wrongful, lacking in probity or fail dealing, or has been done in bad faith and that unfairly prejudicial conduct had been defined as conduct that is unjust or inequitable. In the case at bar counsel for both parties submitted that the meaning of "significantly unfair" would encompass, at the very least, oppressive and unfairly prejudicial conduct and the judge agreed with them. Counsel continue to take that position on this appeal.
A number of subsequent decisions from the B.C. Supreme Court have cited Sinclair Prowse J.'s definition of "significantly unfair" with approval. Most recently, Masuhara J. in Gentis v. The Owners, Strata Plan VR 368, 2003 BCSC 120, referred to Sinclair Prowse J's decision as authority for the definition of significantly unfair. The judge, however, added the following comment:
 I would add to this definition only by noting that I understand the use of the word 'significantly' to modify unfair in the following manner. Strata Corporations must often utilize discretion in making decisions which affect various owners or tenants. At times, the Corporation's duty to act in the best interests of all owners is in conflict with the interests of a particular owner, or group of owners. Consequently, the modifying term indicates that court should only interfere with the use of this discretion if it is exercised oppressively, as defined above, or in a fashion that transcends beyond mere prejudice or trifling unfairness.
 I am supported in this interpretation by the common usage of the word significant, which is defined as "of great importance or consequence": The Canadian Oxford Dictionary (Toronto: Oxford University Press, 1998) at 1349.
I agree with Masuhara J. that the common usage of the word "significant" indicates that a court should not interfere with the actions of a strata council unless the actions result in something more than mere prejudice or trifling unfairness. This analysis accords with one of the goals of the Legislature in rewriting the Condominium Act, which was to put the legislation in "plain language" and make it easier to use (British Columbia, Official Report of Debates of the Legislative Assembly, Vol. 12 (1998) at 10379). I also note that the term "unfair" is defined in the Canadian Oxford Dictionary as "not just, reasonable or objective." It may be that this definition of "unfair" connotes conduct that is not as severe as the conduct envisaged by the definitions of oppressive or unfairly prejudicial. However, counsel argued this appeal on the basis that "significantly unfair" has essentially the same meaning as "oppressive and unfairly prejudicial". For the purposes of this appeal the distinction between the definitions makes no difference. On either definition, the resolution passed by the strata council cannot be said to be significantly unfair to Mr. Reid. (at pp. 74-5)
 In the case at bar, the difficulty with the submissions made on behalf of the Plaintiffs is that, with one exception, 453 as one of the members of the Strata Corporation has not taken actions which can be described as oppressive nor has the Strata Corporation taken actions which can be described as oppressive. Rather, all but one of the inappropriate actions of 453 have been in the context of 453 acting as Manager of Tiki Shores.
 The one exception is the vote by 453 at the February 2, 2008 AGM which allowed the election of Messrs. Davis, Campbell, and Uhlemann to the Strata Council when it could not be said that 453 was an eligible voter. The lack of accounting which has been provided to Owners, the funds improperly withdrawn from the bank account of the Strata Corporation, the failure to pay the strata fees of Owners, the failure to pay Owners, and the failure to maintain an appropriate repair and maintenance program are all actions by 453 in its capacity as Manager. While I have concluded that the actions of 453 were wrongful and other than in accordance with the Agreement, those actions or that inaction were by 453 in its capacity as Manager. The provision of complimentary rentals by 453 was either in its capacity as Manager or in its capacity as one of the Owners of Units.
 If I cannot conclude that there has been significantly unfair oppressive behaviour by the Strata Corporation or by 453 exercising its aggregate voting entitlement of 52.3% of the voting entitlement of all Owners, then the 20 Owners who are the Plaintiffs cannot succeed in their motion that there be an order of the Court to remedy behaviour which is unfairly prejudicial to them. While many of the acts of 453 as Manager lack probity or fair dealing, those acts are as Manager. However, I make the following Order to remedy what I do find to be oppressive and unfairly prejudicial activities of 453 with votes in excess of 50% of the votes which potentially could be cast at an annual or special general meeting:
453 will be prohibited from voting at any AGM or Special General Meeting convened to consider the question of those who will be elected to serve on the Strata Council; to consider the question of whether the Strata Corporation is in a position to terminate the Agreement on behalf of all Owners; to consider a ratification of the commencement of Action S077454 (Vancouver Registry); and to consider the question of whether the Strata Corporation will pursue 453 for monies said to be owing by 453 to the Strata Corporation, including whether the Strata Corporation is prepared to pursue 453 for costs including legal and accounting fees incurred as a result of the failure of 453 to perform the functions required of it under the Agreement.
 All other requests by the Plaintiffs for further relief are adjourned generally. I will be seized of any further applications in both of these Actions including any directions which may be sought by the Strata Corporation, the Plaintiffs, the Defendants and/or the Administrator.
“The Honourable Mr. Justice Burnyeat”