Dhanji v. The Owners, Strata Plan LMS 2472

2021 BCSC 284 Dhanji v. The Owners, Strata Plan LMS 2472

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dhanji v. The Owners, Strata Plan LMS 2472, 2021 BCSC 284 Date: 20210223 Docket: S221493 Registry: New Westminster Between: Salima Dhanji, Robson Liu, Sadaf Mardani, Stephanie Cheatley, Aman Dhanji, Francisco Tan, Susan Tan, Jing Jung Bai, Lochovsky Fred, Aliya Lalani, Pang Yuen Tse, Prashant Pandit, Michael Herbert, Sanjay Mehta, Glenda Lowe, Yao Hong Ren, Chih-Wei Huang, Qiong Chen Jiang, Nancy Noble, Sandie Fu, Randy Lam, Jeannie Law, Eshan Fani, Ehasanallah Emidi, John Marusenko Petitioners And: The Owners, Strata Plan LMS 2472 Civil Resolution Tribunal Respondents Before: The Honourable Mr. Justice A. Saunders On judicial review from: An order of the Civil Resolution Tribunal, dated 17 October 2019 (Dhanji et al v. The Owners, Strata Plan LMS 2472, 2019 BCCRT 1194) Reasons for Judgment Counsel for the Petitioners: G. S. Hamilton Counsel for the Respondent The Owners, Strata Plan LMS 2472: G. Trotter Counsel for the Respondent Civil Resolution Tribunal Z. N. Rahman Place and Date of Hearing: New Westminster, B.C. August 18, 2020 Place and Date of Judgment: New Westminster, B.C. February 23 , 2021 Introduction [1] The petitioners are owners of residential strata units in the respondent strata corporation (the "Strata"). The building, known as "The Palisades" (the "Building"), is located in the City of Vancouver. The

petitioners filed a dispute notice (the "Dispute Notice") with the Civil Resolution Tribunal ("CRT"), seeking various remedies aimed at restraining their strata council from attempting to regulate the petitioners' use of their strata units for short term accommodations ("STAs", also referred to by the parties in their CRT filings as short term rentals or "STRs"). The Strata filed a response (the "Response"), and a dispute notice of its own seeking various remedies against the petitioners (the "Counterclaim"). [2] In a final decision dated October 17, 2019, indexed at 2019 BCCRT 1194 (the "Decision"), a CRT Member (the "Member") refused to resolve the applicants' (the present petitioners) claims with respect to alleged breaches of their privacy rights, and dismissed the rest of the claims in the Dispute Notice and the Counterclaim . The Member held that STAs are prohibited under the Strata's bylaws (the "Strata Bylaws") - specifically, that they are prohibited by Bylaws 4.5 and 4.6 and are not saved by Bylaw 43 - and his dismissal of the petitioners' various claims and of the Counterclaim was in reference to this finding. Bylaw 4.5 states that residents shall not use or allow their units to be used for commercial or professional purposes other than the rental of their suite; Bylaw 4.6 states that a resident must not use, or permit to be used, the strata lot except as a private

dwelling home, and restricts occupancy generally to 2 persons per bedroom in each strata lot; and Bylaw 43 addresses residential rentals of strata lots. [3] The petitioners seek judicial review of the Decision on the grounds of unfairness, it being submitted that the issue of the legality of STAs under the Strata Bylaws was not before the Member. The Strata Bylaws [4] The Strata is governed by the Strata Bylaws, formulated in accordance with the Strata Property Act, S.B.C. 1998, c. 43 [SPA]. The Strata Bylaws that directly relate to this dispute are as follows: 4. Use of property 4.1 A resident or visitor must not use a strata lot, the common property or common assets in a way that (d) is illegal 4.5 A resident shall not use or allow their strata lot to be used for commercial or professional purposes other than the rental of their suite. 4.6 A resident must not use, or permit to be used, the strata lot except as a private dwelling home and, unless granted prior written approval by the council, a resident must not allow more than four persons to occupy a strata lot originally designated by the owner developer as a two bedroom unit and not allow more than six persons to occupy a strata lot originally designated by the owner developer as a three bedroom unit, and not allow more than eight persons to occupy a strata lot originally designated by the owner developer as a four bedroom unit. For the purposes of this bylaw 4.6, a "person" is defined to include children, but exclude visitors staying for less than 30 days with an owner, occupant or tenant of a strata lot.

43. Residential Rentals 43.1 The number of strata lots that may be leased (whether by short or long term leases) within the strata plan by the owners shall be all the strata lots, that is, the number of strata lots that may be leased shall not be limited in any way whatsoever. 43.3 Within two weeks of renting a strata lot, the landlord must give the strata corporation a copy of the Form K - Notice of Tenant's Responsibilities signed by the tenant, in accordance with section 146 of the Act [the SPA]. 43.5 For the purpose of these Bylaws, "lease" or "leased" shall include any agreement whatsoever, whether written or oral, express or implied, predetermined expiry date or not, between an owner and another person, firm or corporation respecting possession and/or occupancy of a strata lot, including a month-to-month tenancy. Background [5] To give context to the dispute, I will briefly describe the background. In 2014 and 2015, some of the petitioners and other strata unit owners began offering their units as STAs. At the time, such use was contrary to bylaws of the City of Vancouver. A majority of unit owners within the Strata had been opposed to STA activity being conducted in the Building, but those owners lacked the super majority needed to explicitly ban STAs through amendment of the Strata Bylaws, or to explicitly empower the strata council to regulate STA conduct through the

implementation of rules. [6] The strata council undertook other steps to monitor the use of strata units and to determine whether STA activity was ongoing. For a time, the strata council pro-actively reviewed records of security fob usage and video surveillance data, and collected license plate numbers of vehicles being used by suspected STA licensees; these practices were discontinued, apparently due to privacy concerns. The strata council continued to use more passive means of attempting to monitor STA use, including requiring short-term guests to identify themselves to the concierge. Through 2017, and into 2018, the strata council continued to be of the view that all STAs were unlawful. The strata council sent warning/infraction letters to unit owners, levied fines, and reported suspected City of Vancouver bylaw infractions to the City. [7] In April 2018 the City of Vancouver passed a bylaw permitting the operation of STAs. [8] It appears from the evidence that the strata council then formed the view that STAs could operate within the Building, so long as the City of Vancouver bylaw was complied with. The strata council's president John Owen described the strata council's position in a witness statement filed with the CRT on June 12, 2019 (the "Witness Statement"). He said: 8. the majority of owners have consistently elected a council which seeks to ensure that any STA

activity at the Palisades is restricted to legal STA's (i.e. STA's which are compliant with City of Vancouver bylaws, as required by Strata Bylaw 4.1(d)). [9] In early February 2019, the Strata sent letters to a number of unit owners, including five of the present petitioners, granting them permission to operate STAs in their units, subject to a number of conditions, including providing copies of the unit owners' City of Vancouver STA business licenses, and providing information concerning prospective tenants or licensees, to the Strata's concierge staff (the "Letter of Permission"). The Dispute Notice and Counterclaim [10] On February 11, 2019 the applicants (the present petitioners) submitted an application for dispute resolution to the CRT. By way of a Dispute Notice issued February 27, 2019, the applicants claimed that the Strata had attempted to prevent owners from engaging in STAs, through violating their privacy and engaging in illegal conduct. [11] The Strata's Response, filed on April 17, 2019, disagreed with the applicants' claim description, and set out the Strata's own version of events, relying on Strata Bylaw 4.1(d), which sets out a prohibition on the use of strata lots in an illegal manner. The Response stated: Due to the long term rental housing crisis contributed to by STA's, the City of Vancouver in 2018 re-affirmed its general prohibition on STA's except by

owners or long term tenants within their "principal residence unit," directly to STA licensees. The City bylaws expressly prohibit any "corporation or society" from "carry[ing] on the business of a [STA] Operator"; and prohibits individuals conducting STA's other than in their own "principal residence unit," which is defined as "the dwelling where an individual lives, makes their home and conducts their daily affairs " Only owners who meet these requirements are permitted to perform STA's pursuant to Strata Bylaws 4.5, 43.1, and 43.5. All other STA activity is illegal and therefore a breach of Strata Corporation Bylaw 4.1(d). [12] At the same time, the Strata filed its own dispute notice setting out the Counterclaim, seeking orders that the applicants be required to, a) Provide a copy of their City of Vancouver STA license to the Strata prior to engaging in any STA activities in any given year; and b) Provide a signed Form K Notice of Tenant Responsibilities for each tenant, licensee, or occupant, in accordance with Strata Bylaw 43.3. [13] The following day, April 18, 2019, the Strata sent out a revised form of its Letter of Permission, reducing the amount of information that unit owners were required to provide. Permission to operate STAs was still conditional on that information being provided, including copies of the owners' STA business licenses and Form Ks for each STA

licensee. Mr. Owen, in his Witness Statement, explained the rationale for the Counterclaim: 9. Following the filing of this CRT proceeding on February 11, 2019, the Strata reduced the amount of information sought from these owners, to that set out in the letter of April 18, 2019. None of those owners have provided all of the information sought in the Strata's April 18, 2019 letter (a combination of their 2019 City of Vancouver STA business license and Form K's for each STA licensee).

10. This leaves the Strata in the impossible situation of being unable to determine which of these owners is conducting STA's in breach of the new City bylaw (and thus in breach of Strata bylaw 4.1(d)) by conducting STA's without a City license. The City may well have revoked - or refused to renew - the STA business licenses of some of these owners at the Palisades but if the owner is not required to provide a copy of the STA license then the Strata is unable to know whether the owner is breaching bylaw 4.1(d). That is why the Strata has brought its Counterclaim seeking an order clarifying that owners must provide the Strata corporation with their City of Vancouver STA licenses and Form K's for all licensees under Strata bylaw 43.3. The Arguments Before the CRT [14] Following the filing of the dispute notices and replies, the parties completed an online "CRT Tribunal Decision Plan" (the "Decision Plan") respecting both the Dispute Notice and the Counterclaim. The Decision Plan set out the particulars of the disputes; a list of the documentary evidence including witness statements (totalling 202 separate documents); and the parties' arguments, responses, and replies in respect of each claim. [15] In brief, the applicants - the present petitioners - argued that STAs are permitted under Strata Bylaw 43, and that the strata council had exceeded its authority under the Strata Bylaws

and had violated the Personal Information Protection Act, S.B.C. 2003 c. 63 in attempting to regulate legal STA activity. [16] In respect of the Counterclaim, the Strata submitted that Strata Bylaw 4.1(d) prohibits the "illegal" use of strata lots, that the applicants had failed to provide valid City of Vancouver STA business licenses to the Strata, that such licenses are a condition precedent for the legal operation of STAs, making any operation thereof without such a license "illegal" and contrary to Strata Bylaw 4.1(d), and that the Strata thus had the authority, by necessary implication of Strata Bylaw 4.1(d), to require the production of valid STA licenses. The Strata also made detailed and focused submissions on the interpretation and application of Strata Bylaws 43.1, 43.3, and 43.5. The Strata acknowledged that at common law, STAs would be regarded as licenses, not leases or rental agreements, as made clear in HighStreet Accommodations Ltd. v The Owners, Strata Plan BCS2478, 2017 BCSC 1039 [HighStreet]; however, the Strata argued that the definition of "lease" and "leased" in Strata Bylaw 43.5 was broad enough to include STAs, and that therefore, the Strata Bylaws' requirements governing tenancies - including a unit owner's obligation to provide a Form K for its tenants - applied to STAs. The Strata wrote: 13. While STA's are outside the usual legal meaning of the terms

"rental" "renting" "tenancy" "tenant" "lease" or "leased" because STA's constitute mere licenses at law LMS 2472 does not go by the usual legal meaning of those terms. Rather, LMS 2472 bylaw 43.5 gives a customized, extended definition of "lease" and "leased" for the purpose of the entirety of the Strata's Bylaws which definition "include[s] any agreement whatsoever between an owner and another person, firm or corporation respecting possession and/or occupancy of a strata lot." That is, every person who contracts with a strata lot owner or tenant for "occupancy" of the strata lot - including for an STA - is deemed by bylaw 43.5 to be a renter for the purpose of the LMS 2472 bylaws, including the obligation to provide a Form K. Indeed, the applicants specifically rely on bylaw 43.5 as making bylaw 43.1 applicable to STA's; by the same logic, 43.5 must also make bylaw 43.3 applicable to STA's. The applicants must take both the benefit and the burden of their position. [Emphasis in original] [17] In its Response to the Dispute Notice, the Strata, inter alia, took issue with the applicants' submissions as to the evidence of privacy breaches and as to the strata council's conduct, providing detailed rebuttal on each point. The Strata adopted the submissions made in support of the Counterclaim (which had been previously filed), affirming the distinction it drew between legal and

illegal STAs. The Strata offered to consent to a declaration as to the permissibility of STAs: 3. Regarding STA's: For the reasons set out in the Strata Corporation's submissions in relation to its Counterclaim, and without admitting any liability or breach of statute or duty for its past practices or actions, the Strata Corporation will consent to a declaration that on the basis of the current Strata Corporation and municipal bylaws (and subject to any future amendment of either) STA's are permitted at the Palisades provided owners/long term tenants doing STA's: a. comply with the applicable municipal bylaws, since STA's conducted in breach of applicable municipal bylaws are also contrary to Strata Corporation bylaw 4.1(d) which prohibits "illegal" uses of a strata lot; and b. comply with other applicable Strata bylaws, including bylaw 43.3 The Decision [18] The Decision begins with an introduction, followed by a brief description of the CRT's jurisdiction and procedure. The Member then, at para. 13 of the Decision, listed nine issues, the first of which was: "a. Do the strata's bylaws prohibit STAs?" [19] The Member summarized the evidence, and then explained why he was embarking on exploring an issue that neither the applicants nor the Strata had advanced: 24. Although the owners' claims are framed in the strata's conduct relating to STAs, I find that underlying the claims,

and the strata's counterclaims, is a fundamental issue of whether or not the bylaws prohibit STAs. In their submissions, the owners argue that the bylaws explicitly allow STAs. The strata says the bylaws impose strict requirements on STAs that most strata lots in the building do not meet. As a result, I find it is necessary to determine whether the strata's bylaws prohibit STA use. [20] The Member reviewed the terms of Strata Bylaws 4.1, 4.5, 4.6, and 43. He referred to the decision of this Court in HighStreet, which distinguished rentals from licenses, and, referring to a different case, implicitly rejected the Strata's reasoning as to how the wording of Bylaw 43.5 necessitated a particular, non-standard interpretation of "tenancy", "rental", and "lease": 37. In Semmler v. The Owners, Strata Plan NES3039, 2018 BCSC 2064 [Semmler], the court found that the words 'rent' and 'rental' in Part 8 are used in the context of tenancies and do not apply to licenses. Because terms used in bylaws must carry the same meaning as the terms in the SPA, the court held that the rental bylaws in that case did not apply to short-term licence arrangements.

38. Applying the court's reasoning, which is binding on me, I find that bylaw 43, as a bylaw created pursuant to Part 8 of the SPA, governs tenancies but does not apply to licencing arrangements. [21] The Member found Bylaw 43.5 to be ambiguous, but that, read together with Bylaws 4.5 and 4.6, it prohibited the use of a strata lot for commercial purposes or as anything other than a private dwelling house. The Member found this interpretation to be aligned with a number of decisions of the CRT, the Ontario Court of Justice, this Court, and the British Columbia Court of Appeal - cases that were not cited by the parties in their arguments. He found that STAs are commercial licensing arrangements (to which Bylaw 43 is thus inapplicable), and are not permitted by the Strata Bylaws. He then dismissed the majority of the petitioners' claims in the Dispute Notice (the rest he refused to resolve on the basis of a lack of jurisdiction) and the Counterclaim in reference to this finding. The Parties' Positions [22] The petitioners say that the Decision is reviewable on a reasonableness standard, citing the Supreme Court of Canada's recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]. [23] As to the merits, the petitioners say that by deciding the dispute on the basis of an issue that was not raised by the parties, the Member deprived them

of the opportunity to make submissions or to present evidence regarding the interplay between the Strata Bylaws, the STAs, and the Strata's prior agreement or acquiescence in the operation of STAs. They submit this was procedurally unfair and contrary to the principles of natural justice. [24] I granted standing to the CRT on this petition to make submissions as to the applicable standard of review, which I address below, and its application to the facts of this case. The CRT's limited standing was not opposed by the petitioners or the Strata. The CRT submits that the applicable standard of review is fairness, relying on s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA]. [25] The Strata adopts the CRT's position in respect of the standard of review. [26] In respect of the merits, the Strata says that the Member decided the case on the basis of an issue or ground - whether the Strata Bylaws permitted the petitioners to conduct STAs - that was repeatedly pleaded and argued by the parties before the CRT. Therefore, there was no breach of the natural justice principle of audi alteram partem - "hear the other side". The petitioners' Dispute Notice presumed the legality of STAs under the Strata Bylaws, and the petitioners had the burden of proving that presumption. If the petitioners were surprised by the outcome, the Strata submits, they have only themselves to

blame, as they made the strategic choice of focusing their submissions to the CRT on Strata Bylaw 43. [27] The Strata further denies it ever made any concession as to the permissibility of STAs under the Bylaws. The Strata offered to consent to a declaration to that effect, but only if the declarations sought in its Counterclaim were granted as well. As the petitioners never consented to those declarations sought by the Strata, the Strata says the petitioners ought to have known that their position as to the permissibility of STAs remained contested. Discussion The Standard of Review [28] I agree with the CRT and the Strata that the standard by which I am required to review the Decision is fairness. The Supreme Court of Canada confirmed in Vavilov, at para. 35, that "where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law". Such legislated standards are found in the ATA; in particular, s. 58(2)(b) mandates a fairness standard be applied in judicial review concerning questions of the common law rules of natural justice and procedural fairness, in respect of tribunal decisions to which s. 58 applies: 58(1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal

in relation to all matters over which it has exclusive jurisdiction. (2) In a judicial review proceeding relating to expert tribunals under subsection (1) (b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly... [29] Section 56.7(1) of the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25 [CRTA] provides: 56.7(1) The tribunal must be considered to be an expert tribunal, and section 58 (2) and (3) [standard of review with privative clause] of the Administrative Tribunals Act applies, in relation to an application for judicial review of a decision of the tribunal in (a) a claim within the exclusive jurisdiction of the tribunal, or (b) a claim in respect of which the tribunal is to be considered to have specialized expertise. [30] The petitioners' claims against the Strata raised issues in respect of which the CRT, through the combined effect of subsection 1(4) and Division 4 of Part 10 of the CRTA, is considered to have specialized expertise: the interpretation or application of bylaws or rules made under the SPA (CRTA s. 121(1)(a)); the use or enjoyment of strata lots (s. 121(1)(c)); and action or threatened action by a strata corporation against owners (s. 121(1)(e)). Given the engagement of that specialized expertise, the Decision may,

pursuant to ss. 56.7(1) and 116(2) of the CRTA, be judicially reviewed under ss. 58(2) and (3) of the ATA. The petitioners claim relief on the basis of violation of rules of natural justice and procedural fairness; hence, the fairness standard under s. 58(2)(b) applies. Was the Decision Fair in All the Circumstances? [31] The rights of a party to know the basis on which the case will be decided, and to be heard as to their position, are fundamental aspects of the duty of fairness that apply to any adversarial system in which rights are adjudicated. Sara Blake describes these rights in her text, Administrative Law in Canada, 6th Ed. (Toronto: LexisNexis Canada Inc., 2017), at paras. 2.20-2.22 [footnotes omitted]: ¶2.20 In the absence of prescribed procedural rules, the courts require that a statutory decision that affects the rights of an individual person be made following fair procedures. This requirement is called the "doctrine of fairness" or the "duty to act fairly". ¶2.21 At a minimum, the duty to act fairly requires that, before a decision adverse to a person's interests is made, the person should be told the case to be met and be given an opportunity to respond. The purpose is twofold. First, it gives the person to be affected an opportunity to influence the decision. Second, the information received from that person may assist the decision maker to make a rational and

informed decision. A person is more willing to accept an adverse decision if the process has been fair. ¶2.22 The right to be heard is not a right to the most advantageous procedure, nor a right to have one's views accepted nor a right to be granted the remedy sought. It is only a right to have one's views heard and considered by the decision maker. [32] In the present case, the Member violated both these core aspects of the duty of fairness. He decided the case on the basis of an issue that the parties had not raised - and was, in fact, contrary to the presumptions made by the parties - without giving them the opportunity to state their positions. [33] The Strata is correct in submitting that the petitioners' Dispute Notice, and arguments submitted to the CRT, did presume that STAs could be conducted legitimately. But the Strata's filings and submissions to the CRT were based on the same premise. There had been no joinder of issue on whether STAs were prohibited under the Strata Bylaws, as a form of commercial activity. None of the Strata's materials contested the permissibility of STAs. In its argument filed in support of the Counterclaim, the Strata explicitly admitted that owners are permitted to conduct STAs, provided they comply with municipal bylaws and with the Strata Bylaws. The Strata had sent letters to owners, giving them permission to conduct STAs on those terms.

The Strata's argument explained why STAs fell within the Strata Bylaws' definition of a "rental". The Strata's submission on this petition that it only ever conceded the permissibility of STAs as a contingent position, dependent on the petitioners consenting to the relief sought in the Counterclaim, is disingenuous. There was no issue between the parties; they were on common ground. There was no onus on the petitioners to prove a point that was not in contention. [34] The Member said in the Decision that as a result of the way the parties had framed their argument, it was "necessary" for him to determine the underlying, fundamental issue of whether the Strata Bylaws prohibited STAs. The Strata, on this petition, supports that reasoning; it argues that the interpretation of the submissions of the parties, and the pleadings, was a matter for the Member's discretion, and that the question of the fundamental legality of STAs under the Strata Bylaws was properly found by the Member to have been implicitly raised. I note, however, that the Member did not articulate how it was that the parties' competing interpretations of the Strata Bylaws made the determination of this issue, that he alone had identified, "necessary". The issue cannot have been implicit in the parties' positions, because both parties agreed that STAs could be legally operated in the Building. It was not an

underlying "issue"; it was a common presumption. The Member's conclusion that determining the issue was "necessary" was incorrect, as a matter of logic; nothing constrained him from deciding the case on the basis of the competing interpretations of the Strata Bylaws the parties put forward. Having developed an interpretation of the Strata Bylaws that was contrary to the parties' common presumption, the Member had an obligation to advise the parties of his concern and to solicit their responses. [35] The Semmler decision, on which the Member's interpretation of Strata Bylaw 43 turned, had not been argued by the parties. In that case, Madam Justice W. A. Baker did find, at para. 51, that the terms used in the strata bylaws under consideration "must carry the same meaning those words have in the Strata Property Act." The question of whether that was intended as a binding statement of law, which is how the Member interpreted it, or whether a more broadly worded strata bylaw could properly be found to carry a different meaning than the SPA, was not a matter the parties were invited to comment on. [36] This is not a case of the Member simply having taken a different path of reasoning than the parties, or making a finding of fact or drawing an inference different than what the parties had argued in favour of. In Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597,

Madam Justice Gomery explained why adjudicators are not free to decide a case solely on the basis of a legal issue that was not identified by the parties and not argued: [34] Judges and arbitrators sometimes cite cases and authority that the parties did not refer to in argument. They may realize, during deliberations, that the parties have not addressed a particular point. This is not a problem if the point is uncontroversial or minor, and it can be resolved on the evidence as presented. It is however problematic if it is the lynchpin for the disposition of a party's argument or gives rise to a defence that was never pleaded or argued. [37] The introduction of a novel theory of liability via reasons for judgment is "fundamentally unfair" to the parties; Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (ONCA), at para. 61; Moore v. Sweet, 2017 ONCA 182, 134 O.R. (3d) 721, at para.

29. But, as Doherty J.A. observed at paras. 62-63 of Rodaro, fairness is not the only reason why a judge must decide lawsuits within the boundaries of the pleadings. A decision based on a theory not advanced by the parties is also inherently unreliable: We rely on the adversarial process to get at the truth. That process assumes that the truth best emerges after a full and vigorous competition amongst the various opposing parties. A theory of liability that emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process. [37] In creating an issue where none had existed, the Member arrogated to himself the framing of the dispute. That was a matter for the parties, not the Member. His reasoning, and the basis on which he ultimately made his order, were fundamentally different than the issues he was responsible for adjudicating. To have decided the parties' dispute on a matter of interpretation on which the parties had not joined issue, and to have given a ruling on the interpretation of the Strata Bylaws that neither party sought, without having forewarned the parties of the Member's views and giving them the opportunity to make submissions, was a breach of the principles of natural justice, and manifestly unfair. [38] I order that the Decision be set aside, and that the Dispute Notice and Counterclaim be remitted to the CRT. Given that the Member made up his mind as to an issue without having sought the parties' views, having the matter reconsidered by the Member would risk bias, and I therefore order that there be a re-hearing before a different adjudicator. "A. Saunders, J." The Honourable Mr. Justice A. Saunders