The Lawyers Weekly - April 23, 2010

DIONYSIOS
ROSSI
&MICHELLE
MANIAGO

The Supreme Court of Canada recently narrowed the discretion of federal authorities carrying out environmental assessments to determine the level of scrutiny to be applied to projects under the Canadian Environmental Assessment Act (CEAA).

In MiningWatch Canada v.
Canada (Fisheries and Oceans),
[2010] S.C.J. No. 2, the court
unanimously held that where a
proposed project meets the
requirements for a “comprehen-
sive study” to be carried out
under s. 21 of the CEAA, federal
authorities have no jurisdiction
to “re-scope” the project so as to
eliminate the comprehensive
study requirement in favour of a
less onerous method of assess-
ment, such as a “screening.” Min-
ingWatch overturned several
Federal Court of Appeal deci-
sions, which had conferred a
broad discretion on federal
authorities to “re-scope” a pro-
ject under the CEAA.

“The provincial
government...
announced that B.C.
would ‘work with
other provinces and
the federal
government to
establish one process
for one project.’
ment of the CEAA, and stated
that B.C. would “redouble [its]
efforts to conclude equivalency
agreements with Ottawa to
ensure environmental reviews
are cost effective, timely and
thorough.” To date, there has
been no word on the timeline for
concluding such equivalency
agreements.

Benefit to strata property owners depends on disclosure statements

Strata
Continued From Page 9

There are certainly benefits to the new rules for subsequent owners. “It removes a very artificial restriction that was hard to justify,” said Nikelski.

It may also reduce legal
wrangling. In the past, Wig-
more said, “this provision gave
rise to a variety of interpretive
disputes, some of which are
addressed by the new legisla-
tion.”
The rental disclosure state-
ment provisions are a boon or a
bane, depending on where one
sits on the strata property spec-
trum. “The advantages are that
investors are protected and
more rental accommodation
will be available,” said Wil-
liams. “The owners see it as a
disadvantage as they will not be
able to ensure owner-occupied
buildings. Typically they allege
that owners take more pride in a
complex than tenants.”
That’s not necessarily the
case, he noted. “My experience
is that with the appropriate ten-
ant review before renting, ten-
ants will take just as much pride
in their home as an owner
would. Furthermore, owners
are just as likely as tenants to be
involved in conduct that might
affect the marketability of a
complex.”
Buyers also need to beware,
said Wigmore, a member of
McCarthy Tétrault’s Real Prop-
erty and Municipal Groups.
“These changes could benefit
purchasers who wish to acquire
units in new strata develop-
ments for investment purposes.

However, the benefit, if any, to such purchasers will depend on whether a rental disclosure statement was filed, when such disclosure statement was filed, and how long the stated rental period is.

“Accordingly,” she noted,
“purchasers who are acquiring
units for investment purposes
should carefully review the
rental disclosure statement and
the strata corporation bylaws to
ensure that their rental rights
are adequately protected.”
Numerous other changes
have also been made as a result
of the new legislation—or will
be. Several provisions have yet
to come into force. One that is
already in force is the require-
ment for a strata corporation to
deal expeditiously with applica-
tions for exemptions as the
result of hardship. Indeed, the
corporation must hold a hear-
ing within two weeks of the
application and render a deci-
sion within one week after the
hearing.

“There are some deeming provisions if [applications] are not dealt with within the timeframe,” said Nikelski.

The new legislation also introduced changes to conflict of interests rules. Previously, strata council members were considered to be in conflict only if they had an interest in a contract or transaction with the strata corporation, said Wigmore. “However, the legislation now provides that a conflict will include any matter to be considered by the council that could create a duty or interest that materially conflicts with the

JOHNNY CHIH-CHUNG CHANG / DREAMSTIME.COM
Apartments in British Columbia are subject to the new Strata Property Amendment Act.

owner’s duty or interest as a strata council member.

“These new conflict provisions help protect existing owners and purchasers by ensuring that strata council members act in the best interests of the strata corporation,” she noted.