Date Issued: December 3, 2020

File: SC-2020-003663

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Downey v. Traub, 2020 BCCRT 1370

Between:

KATHERINE GERALDINE DOWNEY

Applicant

And:

CALVIN TRAUB and FRANK SMITH

RespondentS

INTRODUCTION

1.      This dispute is about water damage. The applicant, Katherine Geraldine Downey, says she leased commercial premises from the respondents, Calvin Traub and Frank Smith. She says the respondents failed to repair a water leak in a timely manner which resulted in damaged inventory totaling $4,236.74 Ms. Downey says that while her insurance company paid her $3,236.74, she seeks $1,000 from the respondents for the deductible.

2.      The respondents say they attended to the water leak promptly and so are not liable. They also deny Ms. Downey suffered any property damage.

3.      All parties are self-represented.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

5.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

6.      Section 42 of the CRTA says the CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUE

8.      The issue in this dispute is whether the respondents are responsible for water damage to Ms. Downey’s property, and if so, the appropriate remedy.

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant Ms. Downey must prove her claim, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

10.   The parties agree that Ms. Downey leased a commercial unit, which included a kitchen, from the respondents where she manufactured handmade jewelry. The parties did not submit the lease’s terms. The parties also agree that on May 7, 2028, water leaked from the kitchen ceiling. The respondents say they were out of town on May 7. They arranged for the plumber to inspect the leak in Ms. Downey’s unit while she was present. They say the plumber informed them there was no emergency since there was no running water and that he did not have time to repair the problem that day. The parties agree the respondents replaced an elbow pipe the next day.

11.   The parties disagree about whether the respondents were aware there may be a leak before May 7, 2018 and the extent of damage.

Are the respondents responsible for water damage to Ms. Downey’s products and supplies?

12.   In deciding this dispute, I considered the law of nuisance as well as the law of negligence. A nuisance is defined as the unreasonable interference with the use and enjoyment of property. The focus is on harm suffered, rather than the wrongful conduct. Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence, provided that the harm can be characterized as a nuisance (see St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 at paragraph 77).

13.   To be labelled a nuisance, the interference must be both substantial and unreasonable. “Substantial” interference has been defined as non-trivial. If the interference causes physical damage, the court or tribunal will usually find it to be “unreasonable.” (Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at paragraphs 19 and 50; Royal Ann Hotel Co. v. Village of Ashcroft (1979), 95 D.L.R. (3d) 756 (BCCA) at page 760).

14.   If a property owner did not actively create the nuisance, they will not be found liable unless they knew or ought to have known of the facts constituting the nuisance (Lee v. Shalom Branch #178, 2001 BCSC 1760 at paragraphs 17 to 22).

Were the respondents aware of a water leak before May 7, 2018?

15.   Ms. Downey says on May 4, 2018 she informed the respondents that a ceiling tile in the kitchen above the stove and counter was sagging and a water spot on the tile was expanding. She says the respondents sent a plumber who inspected the kitchen ceiling the same day and informed her there were at least 5 “things wrong” but he did not have time to attend to them for several weeks. Although Ms. Downey did not state the date the plumber came, I infer it was before May 7, 2018.

16.   Ms. Downey also says, at some point before May 7, 2018, Mr. Traub inspected the kitchen ceiling and informed her “everything was fine” and there was nothing to worry about. Mr. Traub did not deny this conversation took place.

17.   Since the respondents did not respond to Ms. Downey’s testimony about the events before May 7, 2018, I find more likely than not that the respondents knew there was water leaking in the kitchen ceiling. I also find that although a plumber was called, the respondents did not take reasonable steps to prevent the water leak on May 7, 2018 since they did not arrange for the leak to be repaired. And so, I find the respondents are responsible for the resulting water damage.

18.   Since the respondents are responsible under the law of nuisance, I do not need to consider whether they were negligent.

Extent of water damage

19.   Ms. Downey says on May 7, 2018, a pipe from the apartment above hers “burst” and caused a “flood” in her unit. She says the water came from the damaged ceiling tile in the kitchen. Ms. Downey says 2 days after the leak, Mr. Taub inspected the ceiling and removed a water pipe that “totally crumbled in his hands”.

20.   Ms. Downey says the water “destroyed much of [her] belongings” which included inventory, supplies, and electronic equipment. The damaged property is discussed in further detail below. Ms. Downey says she made an insurance claim for $4,236.74. She submitted an October 15, 2018 letter from her insurance company which stated that it charged her a $1,000 deductible and paid her $3,236.74 for her claim. Ms. Downey seeks reimbursement of the $1,000 insurance deductible from the respondents.

21.   The respondents deny the water leak was a “flood”. Mr. Frank says a small amount of water from the shower drain of the apartment above Ms. Downey’s unit leaked and ran down the wall. He says it was minor and resulted in a few gallons of water covering 2 square meters of the kitchen’s floor, which they cleaned up. He says the water “wet” inventory that was stored on the wall and that was in cabinets attached to the wall. The respondents also deny Ms. Downey’s products and supplies were damaged and deny the value of the damaged items was $4,236.74.

22.   The respondents submitted a text message from Ms. Downey in which she stated there was not a lot of water on the floor, but water had dripped all over the stove and sink where she stored the jewelry. Ms. Downey did not dispute the text. I infer this text was sent on or after May 7, 2018. The respondents also submitted a photograph of the kitchen that showed the damaged ceiling tile was in the corner of the kitchen above cabinets and a counter holding a microwave. Based on the text message and the photograph, I find the water damage was contained to the kitchen corner between the stove and the sink.

23.   Even though Ms. Downey’s insurance company accepted her claim, this is not determinative of the extent of damage caused by the water leak. I find Ms. Downey would have to show property damage of greater than $3,236.74, the amount she received from her insurance company, to be successful in this dispute.

24.   Ms. Downey provided several black and white photographs of jewelry, supplies, and electronic devices she says were damaged by the leak. One of the photographs of the jewelry included a note that necklaces were $20 each and bracelets were $16 each or 3 for $45, which I infer was the retail value of the items.

25.   Ms. Downey also included a photograph of several cardboard banker’s size boxes on top of the cupboard below the leak’s location that showed water damage. However, she did not submit details of the contents or whether they were water damaged. She also submitted a photograph of a list that I infer was of the damaged items. Due to the quality of the image, I find the list is indecipherable and so I give it no weight.

26.   Based on the evidence before me, I find that while Ms. Downey’s property was damaged by the water leak, she did not prove the value of the damaged property was greater than $3,236.74. Since Ms. Downey has failed to prove her damages, I dismiss her claim.

27.   The respondents say they apologized to Ms. Downey for the leak and refunded her $500 for 1 month’s rent and $250 for the damage deposit which they say should be considered when assessing damages. I find the $250 would have been payable to Ms. Downey in any event since it was a damage deposit and the respondents did not allege Ms. Downey damaged the unit during the lease. Since I have dismissed Ms. Downey’s claim, there is no set-off to consider for the respondents’ $500 rent refund to Ms. Downey.

CRT FEES

28.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Ms. Downey did not pay CRT fees or claim dispute-related expenses, so I make no order for them regardless of the dispute’s outcome. The respondents did not seek any dispute-related expenses

ORDER

29.   I dismiss Ms. Downey’s claims and this dispute.