A B.C. Supreme Court judge has upheld a B.C. Civil Resolution Tribunal decision finding that a strata hot tub is patio furniture that can be allowed on balconies.
“The tribunal member’s conclusion certainly does not border on the absurd,” Justice Michael Tammen ruled.
It’s a case that dates back two years to a tribunal decision where a Vancouver strata spent $22,000 fighting to have a patio hot tub removed.
John Emmerton and Van Ortega put an inflatable hot tub on a limited common property rooftop patio outside their Hamilton Street unit.
The strata told tribunal member Kristin Gardner at the time that strata bylaws did not permit hot tubs on patios and the two were in contravention of bylaws.
Emmerton and Ortega disagreed. They argued the strata unfairly targeted them for bylaw enforcement and sought an order for the strata to stop infringing their rights to choose the patio furniture they want.
In her August 2022 decision, Gardner agreed.
The strata, however, sought a judicial review of that decision.
In an Aug. 17 decision released Sept. 6, Tammen agreed with Gardner.
Tammen noted the strata advanced three arguments for overturning Gardner’s decision:
- the finding that the hot tub constituted patio furniture was patently unreasonable;
- the finding that the hot tub was readily movable and can be drained relatively quickly was based on no evidence; and,
- Gardner’s reasons for her decision were inadequate.
Tammen said the standard of review being requested by the strata was on the grounds of reasonableness.
He found Gardner’s decision was not patently unreasonable.
And, he disagreed with the strata’s submission that Gardner should have assessed the portability of the hot tub when it was inflated and filled with water in determining if it was patio furniture.
“Doing so would, in fact, have bordered on the absurd,” Tammen said.
“If the hot tub was permitted, it could only be as ‘patio furniture,’” he said.
He dismissed the strata petition and awarded costs to Emmerton and Ortega.
