Date Issued: July 21, 2017
File: ST-2016-00030
Type: Strata
Civil Resolution Tribunal
Indexed as: Capek v. The Owners, Strata Plan VR1706, 2017 BCCRT 42
Between:
Tomas Capek
Applicant
And:
The Owners, Strata Plan VR1706
Respondent
| REASONS FOR DECISION |
|
| Tribunal Member: |
Shelley Lopez, Vice Chair |
Introduction
1) The applicant Tomas Capek (the owner) owns strata lot 4 (SL4), also known as unit 203, in a strata corporation known as The Owners, Strata Plan VR1706 (the strata). The owner’s primary dispute is that the strata took 8 months to repair a July 29, 2015 leak affecting SL4’s bedroom and that it failed to address a second March 2016 water issue in the SL4 living room. The owner says the strata was negligent in that it failed to oversee the professionals it retained to investigate and repair the leaks. The owner also claims that the strata set out incorrect information in a special general meeting (SGM) notice for a May 2016 meeting. Finally, he claims that the strata was substantially unfair in its alleged failures to communicate with him.
2) In addition to reimbursement of $225 in tribunal fees, for the 8-month period at issue the owner wants reimbursement of 50% of his strata fees and damages for loss of use of 50% of SL4. The owner also claims punitive damages, calculated as the sum of his other damages claims, with his overall claims totaling just over $14,000.
3) For the reasons that follow, I find that the applicant’s claims must be dismissed.
JURISDICTION AND PROCEDURE
4) These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness. The tribunal also recognizes any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
5) The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate. The burden of proof is on the applicant and the evidence must be established on a balance of probabilities.
6) The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I heard this dispute through written submissions because I find there are no significant credibility issues or other reasons that might require an oral hearing.
7) Under section 48.1 of the Act and in accordance with the tribunal’s rules, in resolving this dispute the tribunal may make one or more of the following orders:
a) order a party to do something;
b) order a party to refrain from doing something;
c) order a party to pay money.
8) Section 48.1(2) of the Act further provides that the tribunal may make an order directed at the strata, the council or a person who holds 50% or more of the votes, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights. This language is substantially similar to that set out in section 164 of the Strata Property Act (SPA).
ISSUES
9) The following are the issues in this dispute:
a) Did the strata unreasonably delay and/or fail to properly oversee or address SL4 water ingress repairs arising from leaks in July 2015 and March 2016, such that the strata was negligent?
b) Was the strata significantly unfair in its response, or alleged lack of response, to the owner’s requests and communications about the SL4 water ingress, including those related to the consultant Morrison Hershfield’s (MH) alleged conflict of interest?
c) If the strata was negligent and/or acted unfairly towards the owner:
i) Should the strata reimburse the owner for loss of use arising from the SL4 water issues, in the amount of $5,740 or otherwise?
ii) Should the strata reimburse the owner any strata fees related to the water issues, in the amount of $1,423.32 or otherwise?
iii) Should the strata pay punitive damages to the owner, in the amount of $7,163.32 or otherwise?
d) Did the strata set out inaccurate information in the notice of the May 18, 2016 SGM? If yes:
i) Should the decisions voted upon at the May 18, 2016 SGM be voided due to the alleged misinformation provided by the strata in the notice of the SGM?
e) Should the strata reimburse the owner the $225 in fees he paid the tribunal?
POSITION OF THE PARTIES
10) The owner says the 8-month period it took the strata to repair the July 29, 2015 bedroom leak, and the strata’s alleged failure to properly address a March 10, 2016 living room leak, amounts to negligence because the strata failed to properly oversee the professionals. The owner says the strata acted significantly unfairly towards him, given the delay and the strata’s alleged failure to respond to his concerns that included an allegation that the professionals hired were in a conflict of interest. Further, the owner claims punitive damages because he says the strata: refused to meet with him, provided the alleged misinformation in the SGM notice that he says could affect the property’s resale value, and refused to release documents as he requested and as required under the SPA.
11) The strata says it is not an insurer. The strata denies it was negligent in any way and in particular says there was no failure in its oversight. The strata says it acted reasonably and proactively at all material times to address repairs for the owner’s complicated water ingress issues, and that it reasonably communicated with the owner about the issues. In particular, the strata says it reasonably relied upon the building envelope engineering firm MH, which the strata hired to complete all investigations and oversee work required to repair the owner’s July 2015 leak. The strata further says the March 2016 water issue was in fact condensation due to the owner’s tenant improperly placing a mattress on the floor and when that was corrected there were no further issues. In any event, the strata says that the remedies requested are inappropriate.
background AND EVIDENCE
12) In 2009, SL4 sustained water ingress into the bedroom and repairs were done by a different contractor than Columbus Construction and Restoration (Columbus) who was involved in 2015 and since. The owner’s SL4 is a ground level unit that sits above the parking garage. Generally speaking, the 2015 leak affected the same area in the bedroom that was repaired in 2009. The owner bought SL4 in 2011.
13) At the time of the July 2015 leak into SL4, the strata’s building had a broader history of water ingress than just what had affected SL4 and was undergoing a $1.1 million building envelope remediation project. It is undisputed that the strata’s ability to complete the overall repairs to the building was largely dictated by the owners’ collective financial capacity, bearing in mind the complex is predominantly owner-occupied with only 9 units.
14) In 2014, the strata retained MH to undertake an assessment of the building’s envelope and to provide recommendations for remedial work. A 3-phase renovation plan was approved by the owners. The strata says the owner’s water leak generally corresponds to the area of the building that would be addressed in the 2nd phase. The strata says that the first remediation phrase was completed in October 2015, with the collection of funds for the 2nd phase to be completed by October 1, 2016 and associated work to commence at the beginning of 2017.
15) As set out in the tribunal decision plan, the parties agree:
a) Water started leaking into SL4 around July 29, 2015, which is the date the owner reported the leak to the strata and noted it was in the same spot as a previous leak from some years prior.
b) The building’s envelope repair was underway around the time of the July 2015 leak.
c) MH determined the water leak into SL4 originated from common property (here, I infer the parties’ agreement refers to the July 2015 leak as the parties’ submissions below differ somewhat with respect to the March 2016 issue).
d) The strata paid for the investigation and repair of the common property repairs, as well as the repairs of the SL4 water damage that originated from the common property building exterior.
e) The owner rented SL4 to tenants from the time the leak began until the leaks were repaired.
f) The owner did not attend the May 18, 2016 SGM.
16) I pause to note that the SL4 repairs were completed at the strata’s expense and there is no claim before me about whether the owner ought to have been financially responsible for consequential damages in SL4 following the water issues. As such, while the parties mentioned the issue in passing in their submissions, I will not discuss it further.
17) At this point, a further chronology is necessary. Because the owner’s allegations are that the strata failed to do things over a period of time and the strata says it did those things reasonably, I have provided more detail below than I otherwise might have done.
18) On August 10, 2015, MH attended SL4 and provided the strata with a “site visit report”. MH noted the July 29, 2015 water ingress was reported to MH on August 6 and the strata requested that MH review it the next day. MH recommended that the strata repair the stucco walls as soon as possible to prevent further water ingress, although MH noted that the strata’s intent was to repair that area of the wall as part of the ongoing envelope improvements. As a temporary solution, MH recommended routing out and sealing the crack and control joints in the stucco and installing an elastomeric coating on the stucco, which would likely alleviate the problem or temporarily prevent/reduce leaks, but was not a medium or long term solution.
19) On August 12, 2015, the owner emailed the strata’s then property manager N and asked for an update of when the repairs would be done, noting that the inspection a few days prior determined the cause was the building’s envelope. The owner’s tenants could not use the bedroom due to the mould in the affected wall’s interior. The leak was in the north facing wall in SL4 and the drywall was wet and the carpet and underlay damaged. That same afternoon, N emailed back to say the owner’s concerns about the scope and timing of the repairs would be brought forth at the next council meeting.
20) On August 17, 2015, the owner emailed the strata to reiterate his concerns and that he wanted the strata to authorize the repairs so that the bedroom could be used. That same day, the strata’s remediation project manager, K, emailed the owner a copy of an email he had received from MH about its investigation into the SL4 water leak. K is also an owner of a strata lot within the strata. K noted that MH was the subject matter expert, not the building manager. Pricing of the solution was pending. In a separate email that same day, K advised the owner that the leak was caused by the failure of a previous repair and the strata was working with MH’s recommendations to resolve the issue in preparation for the pending 2nd phase of the building envelope replacement project. MH’s email, referenced above, detailed its investigation that included openings, water testing, and the temporary seal done to the polysheet and drywall. MH stated it would provide recommendations the following week. MH noted that the area in question had repairs done previously, that no work had been done to the affected area other than scaffolding legs resting on plywood, and that the area was outside the scope of work for the building’s current remediation project.
21) On August 18 and 19, 2015, K and MH exchanged emails about the tenant’s report of carpet mould and the plan for investigation. On August 25, 2015, Columbus sent MH a quote of $5,280.
22) On August 28, 2015, K emailed MH to advise there was still a “bit of a leak” after the wall was covered in elastomeric coating and asked for an inspection.
23) On September 9, 2015, MH emailed K to say they had reviewed the envelope repair work that day and also reviewed the SL4 leak, which was “still leaking”. MH recommended it instruct Columbus to replace the membrane and install drip flashing and provide pricing for two options for the strata’s consideration.
24) On September 16, 2015, the owner followed up with K, asking if K was the right person to correspond with about the SL4 leak, and K said yes. The owner told K that his tenant had advised that the repairs had not moved forward “in quite some time”. K wrote back and stated that the initial repairs to the exterior wall “did not entirely solve the problem” and so the strata had MH “working on a much more extensive replacement option for the membrane below the surface”. K wrote that once that was priced by the contractor, “then we can get that work completed”. K wrote that they did not have any timing at that point and they still needed to know the cost, which was expected to be substantial. K said he would ask for an update and would get back to the owner once he had one. K invited the owner to contact him at any time.
25) On September 28, 2015, K emailed the owner again and said it “looks like a more extensive and expensive repair needs to be done. Getting a price for this.” Also on September 28, 2015, MH emailed K to summarize his observations from attending inside SL4 “Friday afternoon”. Save for a few items related mostly to membrane “tie-in”, MH wrote it found Columbus’ work to be “well done”. MH said water testing done that day showed ongoing water ingress. MH identified a failed membrane as a possible source of water ingress. MH recommended the base of wall membrane, windows, and cladding be replaced at the affected location as “it was evident there are more than one paths of water ingress into the suite”. MH said targeted repairs were obviously an option but there are no guarantees.
26) On October 7, 2015, Columbus sent K a proposal for repairs to the SL4 leak, and on October 15, 2015 emailed K to call to discuss schedule and procedure.
27) On October 22, 2015, MH emailed K, Columbus, and others, to ask for a timeline for the envelope renewal work repair on the northwest elevation, which is the area of the SL4 leak. Around this time, there were also discussions about closing out the phase 1 envelope remediation project. At the same time, MH asked K to confirm that the strata wanted to engage MH on a time and expense basis to review the work being installed by Columbus on the northwest elevation to ensure it was being properly installed. MH proposed to review the work once a week throughout the various stages, based on a 4-week schedule.
28) On October 28, 2015, MH sent the strata a site visit report for that date that provided instructions to Columbus for next steps.
29) On November 3, 2015, the owner emailed K and stated that his tenant had advised that the bedroom leak had actually gotten worse, which the owner said was no surprise given the amount of rain. The owner said he was getting increasingly frustrated with the lack of progress, and questioned why a temporary repair had not been done. The owner asked for a definitive schedule for the leak repairs and for the interior wall repairs. K emailed back later that morning and said the owner’s understanding about lack of progress was incorrect. K stated that all the cladding had been removed from the affected walls and they had been moving forward with a new rainscreen wall. K wrote that they were waiting for windows to arrive and the deck membrane had been extended. K asked the owner to understand that “many tens of thousands of dollars” were being spent trying to fix the problem and that K had been waiting for an update with Columbus and was also very busy in his office. K stated that he would follow up the best that he could. About 20 minutes later, K emailed the owner further to advise that MH had just called to say that the membrane should be completed the next day. The owner responded that given the amount of money and time spent he would have expected the leak to stop. He asked when the interior repairs would be started and whether the membrane installation would stop the leak. The owner concluded by thanking K and noted that K was “at the mercy of the contractor like we all are.”
30) Later that November 3, 2015 morning, K forwarded the owner’s email to Columbus saying “Guys, I need answers ASAP”. Columbus responded that it could only do what had been presented for a scope and that MH and the roofers were meeting on site that day to review.
31) On November 4, 2015, the owner emailed K to say his tenant had advised MH had attended the day before and that the bedroom was being dried out again with fans. The owner wrote that this was a good step forward, and noted they would be ripping out more drywall to ensure they had caught all the points of ingress.
32) On November 10, 2015, MH emailed Columbus and K and said that they would need to water test the membranes, with the unit to be dried out ahead of time.
33) On November 12, 2015, the owner wrote K and stated that from his “latest information”, it was unclear whether the latest repairs had fixed the leak. The owner noted the bedroom was still damp and there was mould/fungus growing on the floor. The owner asked for an idea as to what the contractor was planning and noted that it had been a week since the room was apparently dried out.
34) On November 17, 2015, the owner’s tenant emailed the owner to advise that it looked like the leak was finally repaired. She wrote that the wall had stayed dry since the contractors were there last and that the wall had been checked that morning.
35) On November 18, 2015, MH wrote K and advised flood testing had been done to confirm the installed membrane was performing, with no leakage observed or reported around the drain. Further, MH advised that SL4 remained dry and that all previously wetted and rotted sill plates had been removed. MH wrote that they believed that the leak had been resolved and unless K advised otherwise MH would instruct Columbus to begin “putting the unit back together” after the windows were installed.
36) On November 19, 2015, Columbus emailed K and MH to ask for confirmation about whether the owner’s flooring would remain as carpet, noting there had been some discussion of a different floor covering. That same day, Columbus emailed K to say the window was being installed on December 4, 2015 but otherwise “everything else should be wrapped up come the end of next week as well.”
37) On November 24, 2015, in an email exchange with the owner, K confirmed that the exterior leak had been resolved. At one point, the owner thanked K for his update and that he appreciated K’s efforts to resolve the issues. The next day, K emailed back that the walls would be “paint ready”. The owner responded, “Thanks for letting me know”, and K advised they had upgraded the owner’s original carpets.
38) On November 26, 2015, the owner emailed K to say that his tenant had advised that the leak was back, and that MH and the contractor had been notified. K wrote back later that morning and stated it was news to him and he would follow up.
39) On December 15, 2015, Columbus wrote MH and K to say it had “tried just about everything we can within reason to prevent water from getting in” and they simply could not stop it. Columbus wrote that the problem was a channel between the podium and the up-stand beam, and after digging up some planter soil to stop water migration found a “massive gap” between the SBS membrane on the top of the beam and the planter membrane. MH then emailed K that it was trying to assist Columbus with the water issue and over the next couple of days emails were exchanged to discuss a temporary fix to drain it, namely hammer drilling a hole. Various persons at MH weighed in, including structural engineers.
40) On January 4, 2016, Columbus emailed K that the hammer drill did not work, and that a “scan and core” would cost about $1,000. Columbus sought instructions to proceed or whether the strata wanted to find an alternative means of repair. On January 5, 2016, K emailed council with the update and sought instructions as between two options: 1) core a 2” hole at a cost of $1,000 to $2,000, noting the hole would require a substantial patch in future, or 2) replace the planter along the north wall and extend the waterproofing all the way back, at a cost of $9,000 to $10,000, which was work the strata would eventually have to do anyway. K noted that option 1 was what they had planned to do so as to accrue minimal additional costs, but “it just didn’t work out”. K wrote that council would have to make a decision quickly so that they could “finish this up”.
41) On January 8, 2016, Columbus emailed K and wrote that the leak was “driving us crazy!” and that they just needed to stop the water seepage and it would be a quick fix. Columbus wrote “you have my word it will get sorted”. K wrote back that once the SL4 leak was solved they could move forward with the Phase 2 envelope repairs.
42) On January 11, 2016, the owner emailed K and the strata to discuss the leak and to address how to proceed. The owner expressed concern about his inability to use the bedroom (although it was the owner’s tenant whose use of the bedroom was affected, as the owner did not live there). He also wrote that he was “losing considerable amounts of rental income” due to the leak (although in this dispute the owner expressly does not claim rental income and instead claims loss of use). The owner expressed concern about repair attempts since August 2015 without any conclusive results. The owner expressed concern that the strata had relieved Columbus from responsibility for the leak, when the actual cause of the owner’s leak had not been definitively determined. In a series of email exchanges that same day, K and the strata responded, noting that MH were “on this problem from the outset”. K wrote that the leak was not localized as asserted by the owner but rather came from a number of sources that each needed to be explored and resolved. K stated that the remaining issue could be dealt with once it was dry enough to allow a new membrane to seat properly. K reiterated that MH’s opinion was that Columbus was not at fault. In their email to the owner this day, the strata wrote that council was cognizant of the very great inconvenience caused by the leak and that was why council had tried to address the issue in a timely manner but at the same time implement a cost-effective solution for all owners. In a final January 11, 2016 email, the owner stated that he was not sure how MH “could be ‘independent’”, noting that it did not seem possible to conclude the leak was not the Columbus’ fault given the source of leak had not been found. Based on the evidence before me, this is the first occasion that the owner questioned MH’s independence.
43) On January 13, 2016, Columbus provided K and MH with an update on the leak repair and coring of the concrete to remove the channel that allowed water to migrate. Columbus wrote that the drilled holes eliminated the water ingress problem and that the next step was to get a roofer to attend.
44) In a January 27, 2016 email exchange, the owner’s tenant advised him that the week prior the strata had arranged to put a “new membrane down”, but that the bedroom was “still full of water”. She wrote that the morning of January 27th “they sucked up as much water” as they could and were planning to return the next morning to do more flood testing. On January 29, 2016, the owner’s tenant emailed the owner that someone attended that day to hang a heater to dry the room out.
45) Also on January 27, 2016, K emailed MH and wrote “I really believe you need to see this and get into this more in depth. Something is wrong and I need your expertise (which we rely on) to come up with an answer that will work. … let’s not gloss this over, we have to find the answer.” MH agreed to attend on site for a review and asked for access to be arranged. Later on January 27th, Columbus wrote that after the review with MH, the water appeared to be actually worse than it had been previously, and queried whether the water was being trapped now that there was an improved membrane. Columbus’ planned to dry out the room to confirm there was no residual water and then do flood testing to find the leak’s location.
46) On February 1, 2016, the owner wrote K and the strata noting it had been “more than two weeks” since had he had last made contact and that the leak had still not been fixed. The owner noted Columbus had installed a new membrane, which made no apparent difference to the leak. The owner said he had not received any explanation to his continued concerns about Columbus’ liability for the leak (given the cause of the leak had not been found), rather than the strata paying for the expense. The owner expressed doubt about there being multiple sources for the leak all starting simultaneously, and that if MH had correctly identified the leak it would have already been fixed. The owner ended his email asking if Columbus was going to be allowed to continue working on the problem indefinitely.
47) On February 2, 2016, the strata emailed the owner back and said “we are all disappointed that the leak issue has not yet been resolved”, and reiterated that MH’s informed professional opinion was that Columbus was not at fault. The strata gave the owner MH’s February 1, 2016 explanation of their latest finding and proposed solution, for which council was in the process of obtaining a budget. The strata stated it would advise the owner of new developments as they arise. In its February 1, 2016 explanation, MH noted they found no obvious deficiencies with the work done on the membrane from the “podium side”, but there was a small channel/reveal in the corner of the concrete inside the wall was full of water. MH reviewed the parkade interior and noted a crack appeared to be allowing water to get into the concrete through the existing compromised roofing and then bypassing the newly completed roofing. MH noted drip pans that suggested a previous water leak problem through that crack and into the parkade. MH provided a recommendation for how to complete new waterproofing, which it had recommended in its previous building envelope condition report. MH wrote that until the leak is stopped by waterproofing over the crack, it could not determine if the newly installed membrane had been compromised or whether it could remain.
48) On February 5, 2016, the owner wrote the strata and K and said he appreciated their taking the time to explain the situation. For the first time, the owner directly asserted that MH was in a conflict of interest, on the basis that it was providing engineering services as well as project management services and was thus not independent. The owner also reiterated his concerns about Columbus’ liability.
49) Later on February 5, 2016, Columbus sent K the roofer’s quote of $9,200 for specified work to the building exterior around the affected SL4 leak area.
50) On February 6, 2016, K wrote the strata and the owner to provide a detailed report and a quotation obtained to fix the leak. In summary:
a) Information was discovered “earlier this week” about SL4’s leak also appearing to affect the integrity of the entire structure around the building’s northeast corner.
b) The history was that as the works were being completed for the first phase of the building envelope project to the east and north walls of the building, an old leak issue reappeared back into SL4. That problem was temporarily patched before the recent project and “even before we bought into the building”, as evidenced by the sheet metal pans mounted in the parkade ceiling.
c) When the leak issue reappeared, the strata asked MH to review the situation and determine: the probable cause of the leak, Columbus’ potential liability should they have caused the leak, and the recommended remediation.
d) Initially, MH “clearly determined” that Columbus’ recent activities had no bearing on this leak, which was confirmed later by a second review by MH, and that previous patching works appeared to have failed and needed repair. Steps were taken to make these repairs at minimal cost but to no avail. Council then decided to complete a portion of exterior works that would have normally been completed in the next envelope repair phase, just to fix this leak, but that did not work.
e) Council then asked MH to complete a more in-depth review of the problem to find a more suitable solution. MH then with a colleague determined a much larger problem on February 1, 2016: the concrete structure has a major structural crack running 30 to 40 feet near the north property line, through the structure in the parkade ceiling, and was “why we have metal pans in the ceiling to catch drips”. What was a small crack had become a much larger, longer crack.
f) The crack had been hidden to the strata and to MH “all this time” by the sprayed insulation covering the parkade ceiling.
g) “To be fair to [MH], they were asked to deal with a building envelope problem, not to look for a structural problem” and that when asked to take a deeper look at the problem, they discovered the structural issue. The repair solution was quoted at $9,200 plus tax. The SL4 waterproofing repairs were to be completed as soon as possible to get it “back to a livable condition”. Ultimately, a further $25,000 would be required, but the estimate was given so as to resolve the issue in two parts.
51) On February 8, 2016, the strata council president emailed K and council about the SL4 leak investigation and related costs for repairs to date and for the “final solution”. The council president asked for a review of the financials and a recommendation for how the strata could best finance the SL4 repair costs that would be around $30,000.
52) On February 22, 2016, the owner wrote the strata’s new property manager about a separate matter but also asked for a response to his February 5, 2016 questions about the SL4 bedroom leak, and here I infer the owner did not accept K’s February 6, 2016 email as an adequate response.
53) On March 8, 2016, the owner emailed a strata council member and asked for a meeting or a telephone call, noting that although they had been exchanging emails, the owner felt a conversation would be more productive. Later that day, the council member emailed back to say he was in a foreign country but could speak by Skype. As discussed further below, the owner did not respond to this email until March 30th.
54) On March 10, 2016, the owner emailed the strata and the property manager that his tenant had just discovered a new leak under the bed in the SL4 living room, noting that because of the ongoing bedroom leak his tenants had moved their bed into the living room. The owner said the tenant described moisture and mould on the floor and that the hardwood floor was warped. The owner asked for quick resolution. Later that day, a strata council member responded and advised the owner that the property manager had instructed a restoration company to conduct an assessment the next day, after which the council would meet and decide next steps.
55) On March 11, 2016, the owner emailed the property manager and asked that the restoration company not come to SL4 to do any work, as the owner wanted to “have a look at the damage” first. The owner also asked for a call to “discuss ongoing issues”, to which the property manager responded 20 minutes later “okay”. Separate emails were exchanged this date between the strata and the owner about arranging to get into SL4 to do the inspection.
56) The owner provided an undated audio recording of a call he made to the strata’s property manager, which based on the content occurred around March 11, 2016. It does not appear the property manager was aware of the recording. The owner said the affected area was drying off on its own without blowers and that it was not very wet, and in particular the area that had been below the mattress and was only damp. The property manager noted his past experience with mattresses on the floor of units that caused condensation on the floor, and asked the owner if he thought that was the cause. The owner said “that’s exactly what I thought”, noting his past experience with a dog bed on the floor. However, the owner said that his only concern here was below a baseboard heater, located beside where the mattress was, there seemed to be an area that showed indications of wetness and the mattress could not have been on top of that and moreover there was a heater above it. So, if it was simply condensation, the owner questioned the cause of that water. The owner asked for a moisture test to see if there was water in the walls or floor. The owner asked whether the contractor or MH could do that water test, and the property manager said he would look into it.
57) Later on March 11, 2016, K exchanged emails with the strata council president about the tenants having placed their mattress on the floor and that K suspected it was not a leak, but that it would be tested.
58) On March 12, 2016, the owner emailed council and the property manager that it was clear SL4 was not habitable due to the water ingress in the bedroom and the new water ingress “on the south wall of the living room”. The owner stated these deficiencies needed to be fixed before the apartment could be occupied. The owner noted that the new south wall water ingress revealed standing water above and below the ‘cushion’ and vapour barrier below the hardwood laminate flooring. The owner stated that he assumed this proved the water ingress was from an external source since there was no plumbing nearby. The owner wrote that his tenants had been informed they should abandon the unit. The owner demanded that the strata remediate the long-standing leak on the north and west walls of the bedroom and the newly discovered leak on the south wall of the living room, as soon as possible.
59) On March 14, 2016, the strata’s property manager instructed MH to investigate the SL4 living room water issue as soon as possible. Later that day, MH wrote that it would contact the owner to arrange access, which was done for March 16, 2016.
60) On March 21, 2016, MH emailed the strata to summarize its review of the SL4 living room water issue. MH noted the floor had been cleared before their review to remove mould. MH wrote the flooring was technically dry at 19% moisture content, although these levels were above what dry wood should be if no water ingress occurred. MH wrote that the mattress installed directly above the flooring caused condensation to occur. MH also noted that the exterior of the south elevation indicated water ingress was occurring into the walls and was also likely migrating underneath the flooring. On this issue, MH said it could not say who was at fault.
61) On March 22, 2016, the owner wrote the property manager and the strata to ask about MH’s investigation that was done on March 16, 2016. The owner also asked about the outcome of council’s March 12, 2016 meeting, and that he was waiting for responses to his February 5th and February 22nd emails. The owner said Columbus had done no work in the last few weeks to repair the SL4 bedroom leak and none in the prior 12 days to the living room leak. The owner reiterated that the 2 leaks made SL4 not habitable. The owner also asked for a copy of the strata’s insurance policy.
62) A second undated audio recording was a return call from the property manager to the owner. Again, there is no indication the manager knew it was being recorded but the content indicates the call was not long after the March 2016 living room water issue. The property manager suggested the owner call his insurance company as quickly as he could as it remained undetermined as to who was responsible for the leak. The property manager said he would seek approval for MH to investigate and to look at restoration. The owner said the restoration company would be a waste of money as it was relatively dry, with no visible moisture, and there was no water coming into the building or causing further damage, save for the wood floor that still had some dampness. The owner said MH would have to rip up the floor and that he wanted MH to open up the wall to do a moisture reading. The owner said he suspected a blocked drain and a failed membrane was allowing water to seep in under the wall. The owner asked the property manager that if it turned out to be an envelope issue would the repairs and associated costs be the strata’s responsibility, and the manager said yes.
63) On March 24, 2016, Columbus wrote K and MH to provide an update on the SL4 leak, noting that the membrane had been completed the week prior but that since then the drain became plugged with about 3” of flooding. Columbus found the membrane was “holding up”. Columbus wrote the plan was to test the moisture content twice and if the reading was the same or lower then everything could be closed up. Columbus added that the roofer believed only part of the problem was solved, because the exterior wall of the affected SL4 area had underneath it membrane that was “horribly damaged” and in some instances non-existent. Thus, although the location Columbus had repaired was water-tight, the rest of the building’s perimeter still had issues and the strata may see leaks elsewhere.
64) On March 29, 2016, the property manager provided the owner with the insurance policy documentation that it had in its file.
65) On March 30, 2016, the owner responded to the council member’s March 8, 2016 email and advised that he had been out of town and would really like to have the offered Skype conversation. On April 1, 2016, the council member replied and said he had returned from his trip and could speak by phone and that the owner could call him “anytime”. In this latter email, the council member advised that the strata would need to collect additional funds to effect further repairs, and so it had instructed the property manager to prepare a number of resolutions for consideration at a SGM. Council expected the repair work to commence as soon as the funds had been raised. In a separate April 1, 2016 email, the council member emailed the owner to say he had advised the council as to the owner’s request for a meeting.
66) The owner provided a third undated audio recording of his telephone call to the same council member referenced above, which based on the content, occurred after the March 2016 living room water issue and before the resolutions were sent out for the May 18, 2016 SGM. The council member reiterated that the problem had proved more problematic than they had hoped and that the leaks were related to the upcoming envelope repair in that they did not want to duplicate expenditures and that they needed to raise funds. The owner noted he was not charging his tenants rent and was losing a lot of money. He asserted that the strata had an obligation to fix leaks “immediately”, and the council member indicated the obligation was to repair “as soon as possible” and that it sounded like the owner wanted to set a basis for legal action and thus did not want to discuss it on the phone. The conversation was pleasant in tone, despite the discussion of potential litigation and the owner said he hoped to find a solution short of litigation. The council member stated he expected council’s decisions about leaks would be forwarded to the owner the following week. After being pressed by the owner further, the council member further explained the strata had reasonably relied upon the professionals’ opinions and the owner then complained that nothing happened for 12 days, which the council member disputed was inaccurate. The council member reiterated he felt at this point it was best not to continue discussions on the phone. The owner stated he asked “a bunch of specific questions” and never got answers to them. The council member referenced the email that provided detailed answers. The owner then raised MH’s lack of independence, and the council member reiterated that an explanation had been provided. The owner complained that Columbus was waiting for weeks for a dry spell of weather. The owner also said he knew the strata’s insurance policy had a water ingress exclusion, but that the repairs should take days not months. The council member said it was not that he did not want to discuss things informally, but that it was not productive given the owner’s reiterated complaints and that he was only one council member. The owner said that he gets “basically no response” from the property manager. The owner stated he was going to be seeking recovery of his costs from various parties, including the strata. The council member reiterated again that they do not have any money at that time to go any further. The council member asked the owner if he was requesting a meeting, and the owner said not necessarily but rather he wanted to know whether council wanted to pursue mediation. The council member then asked the owner to be clear if he was asking for a meeting or not, and the owner said “sure, as long as council was willing to do that, I’d be more than happy to have a meeting”. The owner acknowledged that the strata was in fact unhappy about the situation and his only concern was that he was having to pay for the issues, both as a strata lot owner and in his loss of rental income.
67) On April 1, 2016, Columbus wrote MH and K to advise that the membrane had held up to a 24-hour flood test and if no changes were observed with rain over the coming weekend, Columbus would start putting everything back together.
68) On April 7, 2016, the owner wrote the property manager stating that he had received an email from a council member “last week” stating that the owner would be informed of council’s decisions about an (unrelated) bathroom leak and the “south wall” envelope leak (which the owner felt was the cause of his living room water issue), and asked when he could receive that information. This is the most recent email correspondence before me on the leak issues, save for those discussed below re the notice for the May 2016 SGM.
69) I turn then to the relatively discrete issue of the SGM notice. I have before me a typed undated document titled “Building Exterior Renovation Budget and Background Explanation” which states that it is intended to accompany the proposed resolutions. I infer this document was appended to the notice for the May 18, 2016 SGM. In the document, certain passages are highlighted, presumably by the owner, in support of his claim that the strata misled the owners prior to the SGM vote. I have quoted the relevant excerpts below and bolded the passages that were highlighted in the document provided to the tribunal:
Water Ingress Affecting Suite 203
Late in 2015, a water ingress issue arose … on the north east side of the building. The affected section of the building was to have been included in Phase 1b of the renovation. This issue, that affected Unit 203, was finally resolved by March 31, 2016 after a number of attempted solutions. Details related to the leak and the actions taken by Strata Council may be found in Annex 1, below.
Crack in a Concrete Structural Beam
As described in Annex 1, during the investigation of the leak affecting Unit 203, a crack in a concrete structural beam was discovered. … Of greatest concern is that a significant seismic event could result in the partial collapse of a portion of the structure and all units along the north face of the building. For this reason, it is imperative that this issue be addressed in the short-term. …
Annex 1 – Additional Details Related to the Leak Affected [sic] Unit 203 and the Structural Crack in the Concrete Beam
… The leak was patched several years ago by the current owner of Unit 203. When this leak issue reappeared in late 2015 …
Upon review, MH determined that the recent activities of the contractor had no bearing on this leak (which was confirmed later by a second consultant review) and that the previous patching work undertaken by the owner of Unit 203 appeared to have failed and needed repair. …
… The structural crack had been hidden by the sprayed insulation covering the parking ceiling. This crack was likely initially opened with water through the freeze-thaw cycle. As a result, water had been able to travel further down the wall and get around the waterproofing repairs that had already been undertaken.
Left unattended, this issue could lead to the long-term structural failure of this portion of the building. It is absolutely necessary to return the structure of the building back to its full capacity. Of greatest concern is that a significant seismic event could result in the partial collapse of a portion of the structure and all units along the north face of the building.
70) The May 18, 2016 SGM Minutes note that all resolutions but one were carried. The resolution that failed was to ask the owners to raise $560,000 to complete the building remediation. The alternative resolution carried, which was that $325,000 be raised as a one-time special levy to complete the remediation. Two of the resolutions that were carried were to levy $33,420.25 to pay for repairs to the “podium” and to SL4 and related areas and to withdraw $15,000 from the CRF to cover some of the repair expenses related to the crack in the podium or structural beam. As noted above, the owner did not attend the SGM.
71) Finally, the strata’s relevant bylaws were filed December 31, 2001[1] and are summarized as follows:
a. Bylaw 2(1): an owner must repair and maintain the owner’s strata lot, except for those areas that are the strata’s responsibility under the bylaws.
b. Bylaw 8: the strata must repair and maintain common property, including certain parts of a strata lot, including the building structure.
SUBMISSIONS AND Analysis
72) The strata is not an insurer. As noted in my earlier decision in Rawle v. The Owners, Strata Plan NWS 3423, 2017 BCCRT[2] 15, courts have held that a strata is not held to a standard of perfection. Rather, it is required to act reasonably in its maintenance and repair obligations. If the strata’s contractors and consultants fail to carry out work effectively, the strata should not be found negligent if it acted reasonably in the circumstances. In short, the strata is not responsible to reimburse the owner for the claimed damages, unless it is established that the strata acted negligently (see Kayne v. LMS 2374, 2013 BCSC 51, and John Campbell Law Corp v. Strata Plan 1350, 2001 BCSC 1342, and Wright v. Strata Plan No. 205, 1996 CanLII 2460, aff’d 1998 CanLII 5823 (BCCA)).
73) Generally, the owner submits the strata acted negligently and significantly unfairly towards him. In particular, he says the strata failed to repair the common property in a timely fashion, as required under the SPA, and cites Hill v. The Owners, Strata Plan KAS 510, 2016 BCSC 1753 in support of his claim for damages. I pause to note the owner does not explain why he claims damages for the entire 8-month period at issue rather than factoring in some period of time that he considers reasonable for the strata to complete repairs. The owner further submits that the council did not answer his questions as required, was negligent in determining the liability for the leak, and refused to meet with him when he requested it, contrary to the SPA. The owner also makes a passing reference in his submissions to the strata’s failure to produce documents although particulars of that claim were not provided.
74) So, was the strata negligent here? Did it fail to act reasonably in all of the circumstances? Did the strata fail to exercise oversight in letting the repairs take the length of time they did? The answer in all cases is no, and my reasons follow.
75) I will first address the July 2015 bedroom leak in SL4. There is no dispute that investigation and repairs to the SL4 water ingress that arose on around July 29, 2015 was more complicated and in fact it took a few rounds of repair attempts to finally resolve by March 31, 2016. It is also not disputed that the length of time it took was regrettable in that owner’s tenant was negatively affected by losing the use of the bedroom due to the water and mould issues. However, the issue before me is whether the strata failed to exercise appropriate oversight and unreasonably permitted the repairs to take as long as they did.
76) In the Hill decision cited by the owner, the court awarded damages to the applicant owner because the strata corporation had failed to repair structural defects in common property in a timely manner that in turn had negatively affected her unit. In Hill, the applicant notified the strata council in 2007 of significant foundation cracking and sought the strata’s assistance. The court found the strata council investigated but largely ignored the problem due to an erroneous assumption that the defects did not involve common property. In 2010, the applicant made another formal complaint, after which the strata obtained a legal opinion that suggested it was responsible, but the strata still took no steps to repair the applicant’s strata lot. The strata did not begin to seek quotes for repairs until 2015, and overall it took 8 years for the issue to resolve. In Hill, the court concluded that the owner had been treated significantly unfairly by the strata in that case due to the length of the 8-year delay and because for other units the strata performed repairs in a timely way. The court stated (my bold emphasis added):
Strata councils are made up of lay persons performing volunteer roles. Mistakes will be made and, within reason, some latitude is justified when scrutinizing its conduct: Mitchell v. The Owners, Strata Plan KAS 1202, 2015 BCSC 2153 (CanLII). …
This was not a choice between the best solution and a solution that would work. The Strata Corporation wanted to shortcut the repairs by patching up the Structural Defects as cheaply as possible, directly contradicting the recommendations of its own engineers. Its solution was below any acceptable standard. …
I have determined that, for the repairs to have been completed in a ‘timely manner,’ they should have been completed before March 2014.
77) I find the circumstances of Hill to be distinguishable from the facts of the present case. There, the delay was significant at 8 years, not 8 months. There, the strata did basically nothing for years, whereas here the essential allegation is that the strata did not properly oversee the professionals it did retain. In Hill, the strata ignored the professionals’ recommendations, whereas here the complaint is that the strata followed its professionals’ recommendations without adequate oversight. Here, while MH may have at times given alternative recommendations, bearing in mind the ongoing building envelope remediation projects, all of the steps taken by the strata were based on MH’s recommendations. Of note, the court in Hill found that if the repairs had been done within 7 years, or perhaps 3 years if calculated from 2010, that would have been timely. If anything, the above-quoted Hill decision assists the strata.
78) The strata submits that as long as they are reasonable in their approach to repairs and reliance upon experts, they cannot be held negligent with respect to the length of time it takes to repair certain defects. As noted by the strata, the owner has no independent expert evidence to suggest MH’s assessment was incorrect, apart from his own opinion. Nonetheless, even if MH erred in its assessment, that is not the strata’s fault and they were entitled to rely upon MH. I agree with the strata’s submissions, which are consistent with the applicable case law.
79) In particular, the strata says at all material times it took a responsible and proactive approach to overall building maintenance and specifically with respect to SL4’s water issues. In particular, on MH’s recommendations, Columbus was retained around August 25, 2015 to complete the leak repairs. Despite repair attempts, water ingress continued and the strata decided that further repairs should be attempted to solve the problem, which appeared to be fixed in or around November 2015. However, the strata says that it then became apparent that the leak was much more complicated than first recognized by MH. The strata denies the applicant’s allegations that nothing was done and notes the correspondence where K explained the attempts being made to solve the problem, along with the costs involved. As discussed further below, I agree with the strata’s characterization of how the leak investigation and repair evolved.
80) The strata says the source of the bedroom water issue was finally discovered and a new plan for repairs developed, with leak repairs being completed on April 1, 2016, with no further water ingress complaints since. This is not disputed.
81) Comprised of volunteer council members, owners themselves, I find it was reasonable for the strata to rely upon MH and Columbus in their respective assessments, whose qualifications are not in dispute. I acknowledge that in this case the initial investigations and repairs turned out to be ineffective or at least incomplete until finally remedied at the end of March 2016. However, that does not mean the strata was unreasonable or negligent in relying upon the professionals’ advice. In his submissions, the owner made a passing reference that he himself was a mechanical engineer, but that fact alone does not qualify the owner as an expert before me and there is insufficient evidence that the owner himself thoroughly investigated the leak. In any event, the owner was not the professional the strata retained to repair the owner’s SL4 leak at the strata’s expense, which is not surprising given that that would likely be a conflict. Contrary to the owner’s apparent submission, that the leak continued after failed repair attempts does not mean the professionals were necessarily negligent and it further does not mean the strata was negligent in relying upon them. On the facts, I accept the SL4 bedroom leak was complicated. Overall, I find the applicant owner has not established on a balance of probabilities that the strata acted negligently in its reliance upon MH or Columbus. In coming to this conclusion, as further discussed below, I find that the strata did not act unreasonably in managing the timeline of repairs to the SL4 bedroom leak, even though that leak took 8 months to fix. That delay was not inordinate in all of the circumstances, given the difficulty determining the source of that leak.
82) In particular, I have detailed above the many interactions between the owner and the strata and its agents, and between the strata’s agents and MH and Columbus. I cannot agree that there were “multi-week periods” during which there was no action being taken at all. The evidence is to the contrary, and in particular it is clear that MH and Columbus were actively investigating and attempting to repair the bedroom leak, including throughout the November 2015 to February 2016 period, save for perhaps a couple of weeks around the holiday period in late December 2016. Some of the investigations and repair attempts involved other parties, such as a roofer, and in many cases needed time to pass to allow for drying out and water testing. That the owner’s tenant may not have noticed any work outside her window is not determinative. I find it is clear from the email exchanges that the strata, MH, and Columbus were actively pursuing investigations and repairs from the beginning. It is also clear as time passed, the strata (through K) urged MH and Columbus to provide clearer answers. Overall, the periods of any inactivity were not so long that I would conclude the strata was negligent or acting unfairly towards the owner, bearing in mind also the strata was also dealing with an expensive and significant envelope repair.
83) Further, the strata says it acted in good faith and denies it treated the owner significantly unfairly as that term is described in section 164 of the SPA and in the relevant case law, such as Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. As noted above, section 48.1(2) of the Act is substantially similar to section 164 of the SPA.
84) The strata says the Dollan case set out the relevant test: 1) examined objectively, does the evidence support the asserted reasonable expectations of the applicant, and 2) does the evidence establish that the applicant’s reasonable expectations were violated by an action that was significantly unfair. The strata says there was nothing further council could have done to effect the repairs sooner because as volunteers the council relied upon the retained experts. The strata says, and I agree, the applicant has not shown how the strata could have expedited the repairs, given their own experts had difficulty identifying the source of the problem.
85) In reply, the owner says the strata’s failure to demand a schedule from MH and Columbus was negligent and significantly unfair to him. As noted above, the strata and its agents were actively involved with the professionals in terms of what the plan was going forward, as each stage of the investigation and attempted repairs played out. Based on the evidence before me, I find that demanding a hard and fast schedule likely would have not been productive if it were even possible, considering the ongoing investigation. Put another way, the strata was actively involved and was entitled to rely upon the qualified professionals it retained.
86) The owner also says the $12,000 in MH’s invoices lack a detailed breakdown of services that were performed, and that none are for leak repairs, which he says is further evidence of the strata’s lack of oversight. However, MH was not retained to perform leak repairs but rather to investigate and supervise the repairs done by Columbus. In any event, the format of MH’s invoices is not determinative of whether the strata failed to properly oversee MH. The email evidence before me satisfies me that the strata had reasonable oversight. Again, there is no suggestion that MH or Columbus were not properly qualified to do the jobs the strata hired them to do. I simply cannot agree that in all of the circumstances the strata failed to reasonably oversee either MH or Columbus and as such I cannot agree that the strata acted significantly unfairly or was negligent in that the repairs took 8 months to complete.
87) What about MH’s alleged conflict of interest? The strata denies this and says that as the supervising engineering firm MH was in an ideal position to determine if Columbus’ work was problematic. The owner says that “in the early phases of the repairs” he asked for an “independent investigation” to determine whether the substantial envelope repairs being performed adjacent to the SL4 leak had caused or impacted the SL4 leak, due perhaps to the erection of scaffolding or equipment storage. The owner says he pointed out that hiring MH for the SL4 leak was a “blatant conflict of interest” but the strata “consistently ignored this concern, did not respond to it, and took no action in this regard”. I find I cannot accept these arguments.
88) First, based on the evidence before me, the owner did not question MH’s independence until January 11, 2016 and did not assert MH was in a conflict of interest until February 5, 2016, although he did question early on the accuracy of MH’s assessment that Columbus was not responsible for causing the July 2015 leak. Second, by the time the owner levied the conflict allegation MH’s investigation was well underway. Third, while the owner submits that there was no reason for MH and Columbus to be involved in the investigation and repair of the SL4 leak, I find there was no reason why the strata should not have involved MH and Columbus. As noted by the strata, they were in an ideal position. In other words, even if Columbus had potentially caused the SL4 bedroom leak, there was nothing problematic in the strata having MH oversee Columbus’ work or assess their liability.
89) I turn then to the “second leak” found on March 10, 2016 in the owner’s living room. The owner submits it took 5 days for “someone to even come and take a look at the leak” and thereafter no action was taken to assess the cause or repair the leak, and that the leak was never repaired. The owner says the strata council chose to ignore this leak until the next phase of building envelope renovation to be performed in late 2016/early 2017. Again the detailed timeline set out above simply does not support the owner’s allegations here. The day after this living room issue arose, the owner expressly asked the property manager to not attend SL4 as the owner wanted to inspect himself first. The strata actively exchanged emails with the owner about arranging access, which ultimately was done for March 16, 2016.
90) The strata says it investigated the March 2016 SL4 living room water concerns in good faith, which it says turned out to be the applicant’s responsibility to repair. Specifically, the strata says it turned out that condensation resulted from the tenant placing a mattress directly on the floor. Once that mattress was removed, there were no further complaints about a “second leak”.
91) The owner submits that MH’s report indicated there was water ingress occurring and that the strata council failed to read that report thoroughly in concluding the problem resulted only from condensation arising from the mattress being directly on the floor. However, the owner does not dispute the strata’s submission that there were no new complaints about water in the owner’s living room after the mattress was removed from the floor and the area dried out.
92) Based on the evidence before me, the owner agreed that the “leak” in his living room had dried up shortly after the problem arose and after the mattress was removed. I acknowledge that additional water was queried under the baseboard and MH referenced potential leaks in the south wall, and it is unclear whether the strata properly understood that aspect of MH’s report. However, that area was scheduled for upcoming envelope remediation. The material point is that I cannot conclude the strata was negligent in not taking more immediate steps to investigate SL4 further at that point, given the unit was dry and there were no further complaints of water ingress.
93) It is unclear from the evidence exactly what communications were given to the owner and when following the March 16, 2016 investigation of the SL4 living room issue. However, the undated audio recording between the owner and the property manager suggest that the owner expressly did not want any restoration of his unit performed but instead wanted further investigation. The owner then on March 30, 2016 responded to the council member’s March 8, 2016 invitation to have a Skype conversation. It appears that that conversation may be the subject of the third audio recording detailed above, in which the council member clearly explained that further monies needed to be raised to take further steps and that resolutions were being drafted accordingly for an SGM. I find the strata was reasonable in this approach.
94) I turn now to the owner’s broader allegations that the strata treated him unfairly. Based on the evidence before me, I disagree. Generally speaking, the strata and its agents promptly responded to the owner. On February 6, 2016 strata, through K, provided the owner with a detailed assessment of where things stood. The owner later sent follow-up emails which the strata not unreasonably felt raised the same questions it had already answered. Based on the audio recording of the owner’s conversation with the council member, it is also clear that by then the owner had threatened litigation against the strata and the strata was not unreasonably wary of having informal discussions with the owner after that point. A meeting was offered and on that occasion the owner was not emphatic in asking for a meeting and only said “sure” when pressed by the council member to say if he wanted one. There is no other evidence before me after that point to indicate the owner asked for a meeting and was refused. Similarly, I cannot conclude that the strata unreasonably refused to provide the owner with documents, as there is simply insufficient evidence to support such a claim.
95) Next, I will address the May 2016 SGM notice, in which the owner says there were “blatant inaccuracies and exaggerations”, which “could significantly impact resale value of units in the building”. The owner says references to a “catastrophic structural failure” are based on pure speculation by K, someone he says was unqualified to make the statement. First, I find there were clearly some errors in this notice, in that the owner bought SL4 in 2011 and so the prior repairs in 2008 and 2009 were not done by him. It is also true that the SL4 bedroom leak arose on July 29, 2015, rather than “late in 2015”. However, nothing turns on these discrepancies, which I consider to be minor in this context. I have no evidence before me that the errors were intentional and the descriptions were merely part of an overall summary of what occurred that year in the strata. Moreover, the votes at the SGM were to raise monies for the broader envelope repair. Second, there is no evidence to support the claim that resale value was potentially affected. Third, even if it were true that the seismic concerns lacked a properly qualified opinion in support, I cannot conclude on the evidence that such an error amounts to negligence on the strata’s part. That said, even if it did, I do not accept that voiding the SGM votes would be appropriate under the Act and SPA.
96) In particular, I agree with the strata that there would be no practical purpose in voiding the May 18, 2016 SGM votes as they dealt with approval for funds to pay for common property repairs. In reply, the owner says he did not attend the SGM because he had lost confidence in the strata council owing to their repeated failures to answer questions or heed warnings. Quite apart from my findings that the strata did not fail to answer questions and did not unreasonably fail to “heed warnings”, I agree with the strata that the owner’s opportunity to correct any errors in the SGM notice was to attend the SGM, and then those corrections could have been considered during the meeting prior to voting and addressed in the SGM minutes. I dismiss the owner’s claims with respect to the SGM notice.
97) I have found above that the strata was not negligent and was not significantly unfair towards the owner. As such, the owner’s claims for damages cannot succeed and I need not address in detail the merits of those claims. I dismiss the owner’s claims for damages. However, given the tribunal’s mandate that includes being mindful of the ongoing relationship between parties, I will make a few further observations related to the punitive damages claim.
98) There is absolutely no evidence before me that would support a claim for punitive damages. In particular, even if I had concluded the strata was negligent in its oversight or had failed to respond to the owner’s communications detailed above, there was nothing in the strata’s conduct that amounted to “malicious, oppressive or high handed” conduct or anything that would “offend the court’s sense of decency” deserving “rebuke, punishment and deterrence”, as expressly alleged by the owner and described in the Hill v. Church of Scientology of Toronto case that in turn was cited in Macdougall ats H.O,. 2006 BCSC 180. There is further no evidence whatsoever that the strata treated the owner with contempt, as he has also alleged. I make these comments because the owner has made serious allegations against the strata that are simply not supported by the evidence, summarized above, including the owner’s own evidence he submitted to the tribunal.
99) While I have found entirely in the strata’s favour, I nonetheless see no reason to deviate from the tribunal’s general rule that legal costs will not be awarded and thus I make no order for costs payable to the strata. The strata did not pay any tribunal fees.
DECISION AND ORDER
100) I order that the applicant’s claims are dismissed.
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Shelley Lopez, Tribunal Vice Chair