Date Issued: January 8, 2019
File: SC-2018-000843
Type: Small Claims
Civil Resolution Tribunal
Indexed as: The Owners, Strata Plan EPS3335 v. EXTOL DEVELOPMENTS LTD., 2019 BCCRT 29
Between:
The Owners, Strata Plan EPS3335
Applicant
And:
EXTOL DEVELOPMENTS LTD.
Respondent
| REASONS FOR DECISION |
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| Tribunal Member: |
Kate Campbell |
INTRODUCTION
1. This is a small claims dispute about payment for plumbing repairs. The applicant, The Owners, Strata Plan EPS3335 (strata) is a strata corporation existing under the Strata Property Act (SPA). The respondent, EXTOL DEVELOPMENTS LTD. (Extol), was the owner developer of the strata.
2. The strata says that a sewer blockage that occurred on April 4, 2016 was caused by construction waste or construction defects, and seeks $2,443.35 from Extol for the drain line repairs.
3. Extol denies liability and says the sewer blockage was not due to a construction defect or construction waste.
4. The strata is represented by Robin Cullen, the strata council president. The respondent is represented by Andy Hsu, its principal.
JURISDICTION AND PROCEDURE
5. These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 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, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
7. 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.
8. Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.
ISSUES
9. The issue in this dispute is whether Extol must reimburse the strata $2,443.35 for sewer pipe repairs.
EVIDENCE AND ANALYSIS
10. In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.
11. The parties agree that construction on the strata building was completed in late January 2016, and that occupancy began around February 26, 2016.
12. The strata says that as the strata lots became occupied, numerous plumbing issues were reported to Extol for warranty repair. The strata says these issues included slow sink drainage, other drainage problems, low water pressure, drain odours, plugged toilet lines, leaking bathtub valves, and construction debris found in drains. The strata says these problems show that the overall plumbing work in the building was poor and likely deficient.
13. Documents in evidence show that a sewer backup occurred in a first floor strata lot, strata lot 111, on April 3, 2016. As there was not yet any contract with a mechanical services provider, the building management company called RN, a project manager for the company that constructed the building. RN then called Concept Plumbing and Gas (Concept), the contractor that installed the building’s plumbing. Concept and RN went to the building and investigated the backup.
14. According to RN's written statement, Concept used a power snake to clear the drain line. RN said no specific items were removed from the line. J, a Concept employee, sent RN an email on November 11, 2016. J wrote that their plumber said the blockage appeared to be caused by a wad of heavy paper towel.
15. Another sewer backup occurred the following day, on April 4, 2016. This time, the property management firm called a different plumbing contractor, C&C Mechanical (C&C). C&C’s invoice says their plumbers found “multiple units backing up on the 1st floor.” The invoice says the plumbers pulled the drainage apart, inspected the drain lines, and found a blockage at the end of a 70 foot long, 4 inch wide main drainage run. The invoice says the plumbers sucked out all the debris and blockage, and tested for correct operation. The bill for this work was $2,443.35, including GST, the amount claimed in this dispute.
16. The April 3 and 4 blockages both caused damage to some strata lots, which was later repaired by a restoration company. At the time of these blockages, a first Annual General Meeting (AGM) had not yet been held, and a strata council had not yet been elected. This means that under section 5(1) of the SPA, Extol was in the position of acting as the strata council. In that capacity, Extol filed an insurance claim. Months later, the elected strata council paid the $5,000 insurance deductible out of the contingency reserve fund. For reasons that are not explained in the evidence before me, the insurer refused to pay C&C’s invoice for $2,443.35 for the April 4, 2016 drain pipe repair.
17. The strata says Extol should pay this invoice, because it promised to do so, and because the blockage was caused by debris left in the drain pipes by construction workers. Extol says the blockage was due to owners’ misuse, and was not related to the building’s construction.
18. C&C’s invoice does not say what the blockage and debris that the plumbers removed from the drain line on April 4 consisted of. There is no other report from C&C or its plumbers clarifying the content of the April 4 blockage. There is considerable evidence before me about a rag that was pulled from the drain in strata lot 111, but the photos show it was removed on April 3, so it could not have caused the April 4 blockage.
19. I find the best evidence on the content of the April 4 blockage comes from Mr. Cullen, the strata council president. In an April 5, 2016 email to another strata lot owner, Mr. Cullen said he watched the C&C plumbers work on the blockage until they finished at 3:30 am. Mr. Cullen wrote that while the plumbers hoped to find construction waste, “unfortunately it was just accumulated sewage that was blocking the pipe.”
20. I place significant weight on this email, as Mr. Cullen set out his detailed account in writing the day after observing the events in question. Based on Mr. Cullen’s evidence, I find that the April 4 blockage was not due to construction waste. While I accept that there had been plumbing and drainage problems elsewhere in the building, these do not establish that the April 4 blockage was due to a construction deficiency.
21. The strata also says Extol promised to pay for the April 4 sewer repairs, and must fulfill that promise. I agree that Extol initially promised to pay for the repairs. In an April 6, 2016 email to strata lot owner GH, Mr. Hsu, on behalf of Extol, wrote that an insurance adjuster would make all arrangements to fix the damaged strata lots and common property. Mr. Hsu wrote, “As Extol is the current strata, no additional money will be charged to strata owners.” The strata also provided evidence that Mr. Hsu repeated this same statement verbally at the first AGM on April 13, 2016. 50 strata lot owners signed a document confirming that they heard Mr. Hsu make that statement at the AGM.
22. Mr. Hsu does not deny stating Extol would pay. However, he now says this was a mistake, and he now knows the strata corporation is responsible to pay because the blockage was caused by negligent use or misuse by owners, rather than a construction defect.
23. I find the evidence before me does not establish that the April 4 blockage was caused by negligent use or misuse of the plumbing by building residents, as alleged by Extol. Also, there is no evidence attributing the blockage to any one strata lot.
24. Under section 1.1 of the SPA, sewer pipes are included in the definition of common property “if they are capable of being and intended to be used in connection with the enjoyment of another strata lot or the common property.” In Taychuk v. The Owners, Strata Plan LMS 744, 2002 BCSC 1638, the Supreme Court of British Columbia regarded pipes inside a strata lot as common property because they were connected to other pipes that serviced other units in the building. The court said that since the pipes were common property, the strata corporation was responsible for their repair. The SPA contemplates that a strata corporation is responsible for the repair and maintenance of common property.
25. Following Taychuk, I find the blocked drain pipe at issue in the April 4, 2016 sewer backup was common property. Thus, the strata corporation was responsible for the repair. At the time of the April 4, 2016 backup, and until the first strata council was elected at the April 13, 2016 AGM, Extol acted as the strata council. However, that does not mean Extol, as a corporation, was responsible to pay for the repairs. Rather, since I have found that the evidence does not establish that the blockage was caused by construction waste, a construction defect, or otherwise by Extol, the strata corporation was responsible to pay for repairs to the common property drain pipe. I find that Extol is not obligated to reimburse the strata corporation for this expense.
26. As previously explained, Mr. Hsu, on behalf of Extol, made representations by email and at the AGM that no money would be charged to strata lot owners as a result of the April 4, 2016 backup. However, I find these statements were a gratuitous promise, and therefore unenforceable. The concept of a gratuitous promise was explained in Shamrock Fencing (1992) Ltd. v. Michael Walker, 2016 BCPC 244 (CanLII), which says that a promise is not, as a general rule, binding as a contract unless it is either made under seal or supported by some “consideration”. This means that “something of value in the eyes of the law” must be given for a promise to make it enforceable.
27. For all of these reasons, I dismiss the strata’s claim. The strata is not entitled to reimbursement of the $2,443.35 drain repair cost.
28. The tribunal’s rules provide that the successful party is generally entitled to recovery of their fees and expenses. The applicant was unsuccessful and so I dismiss the strata’s claim for reimbursement of tribunal fees. Extol did not pay any fees and there were no dispute-related expenses claimed by either party.
ORDER
29. I dismiss the strata’s claim and this dispute.
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| Kate Campbell, Tribunal Member |