British Columbia’s highest court has weighed in on a dispute over an inflatable hot tub a couple set up on their condo’s patio – potentially bringing a close to the years-long conflict.
The B.C. Court of Appeal decision was handed down last week. The three-judge panel reconsidered the question answered by the Civil Resolution Tribunal and the lower court.
Specifically, whether the hot tub was “patio furniture” and therefore allowed under the condo building’s bylaws.
In B.C. the common assets of a condo building are owned by a strata corporation and managed by a strata council.
John Emmerton and Van Ortega, the couple who owned the unit on the 26th floor of a downtown Vancouver highrise, set up the hot tub in 2021 and came into conflict with their strata council soon after.
In the first decision on the case, the Civil Resolution Tribunal found the inflatable spa was patio furniture because it was easily movable and could be drained and deflated.
The strata challenged that ruling, seeking a judicial review in B.C. Supreme Court. The judge upheld the tribunal’s decision, finding the strata had no authority to order the couple to remove the hot tub or to fine them for breaching bylaws.
But the appeal court came to a different conclusion.
The judges found the ones rendered previously were “patently unreasonable,” mainly because they interpreted the bylaw allowing patio furniture in a manner that was “far away from (its) plain and ordinary meaning.”
The court considered the issue of “moveability” and found that when filled with water the hot tub – which has a capacity of 900 litres – would weigh nearly a ton.
“When filled the hot tub is not moveable. Its moveability, as found by the tribunal, depended on reducing the tub to a folded item. The tribunal found that the hot tub could be inflated and deflated in five minutes, and found, without evidence of the drainage time, that it could be drained relatively quickly,” the decision said.
The actual process by which the hot tub could be drained was something the appeal court found was not given proper consideration in the previous decisions, along with the issue of the impact of a “catastrophic failure” on the patio and other common property managed by the strata.
Rather than ordering the case to be sent back to the tribunal for reconsideration, the appeal court dismissed the claim entirely.
Emmerton and Ortega did not participate in the latest proceedings, with the court noting they no longer own the condo.
