Date Issued: April 27, 2021

File: SC-2021-003167

Type: Small Claims

 

Civil Resolution Tribunal

Indexed as: Alameer v. Zhang, 2021 BCCRT 435

Between:

HADEEL ALAMEER

Applicant

And:

YI ZHANG

Respondent

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.      This small claims dispute is about a failed pipe in a strata lot that caused water damage to another strata lot.

2.      The applicant, Hadeel Alameer, owns a strata lot (unit 707) in a strata corporation, The Owners, Strata Plan BCS 3771 (strata). The respondent, Yi Zhang, owned a strata lot in the strata (unit 807) directly above unit 707 at all material times. Neither party lived in their strata lot. The strata is not a party to this dispute.

3.      Miss Alameer claims Dr. Zhang was negligent and is therefore responsible for water damage caused to unit 707 as a result of a May 17, 2020 plumbing leak. Miss Alameer claims $5,000 for her cost to repair unit 707. I note Miss Alameer has abandoned any claim amount over $5,000, the maximum amount permitted under the Civil Resolution Tribunal’s (CRT’s) small claims jurisdiction.

4.      Dr. Zhang says she was not negligent and asks that Miss Alameer’s claim be dismissed.

5.      For the reasons that follow, I dismiss Miss Alameer’s claims and this dispute.

JURISDICTION AND PROCEDURE

6.      These are the CRT’s formal written reasons. 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.

7.      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.

8.      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.

9.      Under section 61 of the CRTA, the CRT may make any order or give any direction in relation to a CRT proceeding it thinks necessary to achieve the objects of the CRT in accordance with its mandate. In particular, the CRT may make such an order on its own initiative, on request by a party, or on recommendation by a CRT case manager.

10.   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.

Preliminary Jurisdiction Matter

11.   Originally, Miss Alameer filed her dispute against Dr. Zhang under the CRT’s strata property jurisdiction set out in CRTA section 121. Section 121 gives the CRT jurisdiction over a claim “in respect of the Strata Property Act [SPA]” and sets out the scope of the CRT’s strata property jurisdiction.

12.   By contrast, CRTA section 118 gives the CRT jurisdiction to resolve a claim for damages based in tort (an act or omission that gives rise to an injury or harm to another under civil law), such as negligence, that is not “in respect of” the SPA (my bold emphasis added).

13.   During the CRT’s facilitation process, the case manager cautioned the parties that the claim may not be within the CRT’s strata property jurisdiction, and were asked to address this jurisdictional issue in their respective submissions. However, neither party did so.

14.   At my request, CRT staff contacted the parties and asked if they would agree to move the dispute to the small claims jurisdiction and they both agreed. Based on the parties’ agreement, I directed the dispute be considered under the CRT’s small claims jurisdiction. The CRT dispute documents were internally changed to reflect a new small claims dispute number. My reasons for the change follow.

15.   Under CRTA section 1(2), if the CRT may validly categorize a claim as either small claims or strata property, the claim must be adjudicated under the strata property jurisdiction. In other words, the CRT may adjudicate a claim involving just 2 strata lot owners under its small claims jurisdiction only if the CRT determines that the claim is outside of its strata property jurisdiction.

16.   This dispute is over alleged negligence arising from a failed pipe within an owner’s strata lot. Just because the dispute involves strata property does not mean it is a strata property dispute under the CRTA. The interpretation of the CRT’s jurisdiction under sections 118 and 121 of the CRTA is of key importance, as are the circumstances of this dispute, as I discuss below.

17.   The distinction between these 2 CRT jurisdictions is important because the scope of each area is different, along with the remedies available, the applicable monetary limit, and the court processes that may follow a CRT decision. For strata property disputes there is no monetary limit and a party may request the B.C. Supreme Court judicially review the CRT decision. For small claims disputes, there is a $5,000 monetary limit and a party may file a Notice of Objection, which effectively nullifies the CRT decision. Once a Notice of Objection is filed, the applicant’s option is to have the matter heard afresh by the Provincial Court.

18.   As mentioned, section 121 provides jurisdiction for matters “in respect of” the SPA. The Supreme Court of Canada has found the phrase “in respect of” is one with the widest possible scope. However, it is not a phrase of infinite reach, and when interpreting the phrase, consideration must be given to the context in which the words are found: Sarvanis v. Canada, 2002 SCC 28 at paragraphs 22 and 24.

19.   Based on my review of the CRTA and the SPA, and following Sarvanis, I find a claim “in respect of” the SPA is one that could only proceed by relying on the SPA. Claims involving 2 strata lot owners such as this one, seldom depend on the SPA because they have an independent basis in tort, such as nuisance or negligence. While strata corporation bylaws apply to strata lot owners, they are often not relevant unless the dispute involves the strata corporation. As I have mentioned, the strata is not a party to this dispute.

20.   Further, a strata lot owner may have an obligation to a strata corporation under the bylaws, and may also be liable to another owner in tort based on the same conduct. However, the tort claim is not in respect of the SPA simply because the owner has a parallel duty under the bylaws.

21.   I also note the CRT has previously concluded in a non-binding but persuasive decision that the “purpose of section 189.1 of the SPA is to attempt to have the parties resolve their dispute at a hearing before the strata council before making application to the [CRT]”: Ducharme v. The Owners, Strata Plan BCS 753, 2019 BCCRT 219 at paragraph 76. In a dispute between 2 owners where the applicant has chosen not to involve the strata corporation, as here, it is unlikely a council hearing would have any impact on resolving the owners’ issue.

22.   Finally, the British Columbia Court of Appeal in The Owners, Strata Plan NW 2575 v. Booth, 2020 BCCA 153 suggested that it may be problematic for the CRT to address tort disputes under its strata property jurisdiction that exceed the $5,000 threshold that applies to the CRT’s small claims jurisdiction (at paragraph 8):

It is important to note, in light of the nature of the claim, that this appeal does not address the constitutional or statutory jurisdiction of the [CRT] to exclusively, or at all, entertain a claim in tort, at least to this scale which is in excess of the [CRT’s] small claims limit. (Italics in original)

23.   For these reasons, I find this dispute falls under the CRT’s small claims jurisdiction.

ISSUE

24.   The sole issue is whether Dr, Zhang is responsible for the water damage that occurred to Miss Alameer’s strata lot, and if so, what damages are payable.

EVIDENCE AND ANALYSIS

25.   In a civil proceeding such as this, the applicant Miss Alameer must prove her claim on a balance of probabilities. I have read all the parties’ submissions but refer only to the evidence and arguments that I find relevant to provide context for my decision.

26.    The basic facts are not in dispute. I summarize them as follows:

a.    On the evening of May 18, 2020, a plumbing leak occurred in unit 807 that caused water damage in unit 707 and other strata lots. The water entering unit 707 was first noticed by Miss Alameer’s tenant who telephoned her. Miss Alameer contacted the strata’s night security guard who contacted Dr. Zhang and was permitted access to unit 807 by Dr. Zhang’s father, who was living in unit 807. The security guard and Dr. Zhang’s father did not locate any obvious water leak.

b.    Still on the evening of May 18, 2020, after she was notified a water leak in unit 807 could not be located, Dr. Zhang contacted a plumber, Stellar Installations (Stellar). During a telephone discussion between Dr. Zhang and the Stellar plumber, it was determined an emergency did not exist. The Stellar representative advised that they would attend unit 807 the following morning.

c.    On the morning of May 19, 2020, a Stellar plumber attended units 707 and 807. The plumber eventually identified a leaking hot water pipe inside a wall within a closet next to a bedroom in unit 807 and repaired it. According to a May 20, 2020 letter from a Stellar representative to the strata, the leak’s source was not obvious. The plumber stated the bedroom floor appeared dry until they “neared the far end of the clothes closet”. It was when the plumber opened the closet door that they discovered “a flood in the compartment” which eventually led to the leaking hot water pipe.  

d.    On May 20, 2020, the strata’s property manager informed the parties that the repaired pipe was not the strata’s responsibility and that its insurance policy would not be triggered because of a $250,000 insurance deductible.

e.    Miss Alameer did not have personal insurance to cover the damage to unit 707. She arranged for emergency and final repairs. The cost of the repairs to unit 707 for drywall, paint, flooring, and emergency drying totaled $5,318.67 based on the invoices submitted in evidence. As earlier noted, Miss Alameer has reduced her damages claim to $5,000, the CRT’s small claims limit.

Negligence

27.   Miss Alameer’s claim centers around Dr. Zhang’s actions. In particular, Miss Alameer alleges Dr. Zhang put little effort into looking into her complaint about the May 18, 2020 water leak. Miss Alameer says that had the plumber attended unit 807 in the evening of May 18, 2020, rather than the next day, unit 707 would have sustained minimal damage. She also says that a reasonable person should have noticed “a flood in their closet”.

28.   Dr. Zhang says the opposite. She says neither her father nor the security guard could reasonably identify a leak in unit 807 on the evening of May 18, 2021. She also says the decision to leave the investigation until the next morning was the plumber’s.

29.   As discussed below, I find Dr. Zhang’s explanation leads me to conclude Dr. Zhang was not negligent in addressing the water leak.

30.   To prove negligence Miss Alameer must show that Dr. Zhang owed her a duty of care, that Dr. Zhang breached the standard of care, Miss Alameer sustained damage, and Dr. Zhang’s breach caused the damage (See Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at par 33).

31.   I accept that, as the owner of unit 807, Dr. Zhang owed Miss Alameer a duty of care to ensure that the use of unit 807 did not unreasonably interfere with the use of unit 707. Specifically, Dr. Zhang owed Miss Alameer a duty of care to take reasonable steps to ensure damage to unit 707 did not originate from unit 807.

32.   The standard of care expected of Dr. Zhang is reasonableness. That is, what would be expected of an ordinary, reasonable, and prudent person in the same circumstances. So the question is, did Dr. Zhang act reasonably?

33.   There is no evidence Dr. Zhang or her father were aware of the leak prior to the evening of May 18, 2020, when the security guard notified her of the water leak into unit 707 below. There is also no evidence Dr. Zhang ought to have been aware of the leak or that she did anything to cause the leak. Both the security guard and Dr. Zhang’s father tried to locate a leak unit 807 that evening. Because the leaking pipe was inside a wall and largely confined to a closet, I find it was reasonable that the source could not be located by visible inspection. Based on Stellar’s May 20, 2020 letter, I find the leak was difficult to locate even the next morning.

34.   Stellar’s May 20, 2020 letter also confirms it was the plumber who decided it was best to attend unit 807 the next morning. I find it was reasonable for Dr. Zhang to rely on the plumber’s advice.

35.   I also find Miss Alameer has not proved her claim that identification of the leak in the evening of May 18, 2020 would have resulted in less damage to unit 707. For example, there are no photographs or other evidence that allow me to compare the extent of the damage existing in the evening May 18, 2020 to that on the morning of May 19, 2020.

36.   There is also no expert report or other evidence supporting this position. I note May 20, 2020 plumber’s letter appears to convey the plumber’s surprise about the extent of the damage to 707 on May 19, 2020 stating:

My first call was suite 707 and the ceiling was awash in water. I asked why there was no call the night previous and the occupant explained that the security guard was in the suite the night before but the leakage at that time was minimal.

37.   Although the damage may have increased overnight, I do not find the plumber’s comment helpful in establishing the extent of any increased damage.

38.   For these reasons, I find Dr. Zhang did not breach her duty or obligation to Miss Alameer. Therefore, I find Dr. Zhang was not negligent in causing the water damage to unit 707. As a result, I dismiss Miss Alameer’s claim and this dispute.

CRT FEES AND EXPENSES

39.   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. I see no reason in this case not to follow that general rule. I find Dr. Zhang is the successful party, but she did not pay CRT fees or dispute-related expenses.

40.   Miss Alameer did not claim dispute-related expenses. I note CRT staff have confirmed that Miss Alameer was reimbursed $50 in CRT fees as a result of the change in jurisdiction. So, Miss Alameer paid $175 in CRT fees, but I dismiss her claim for CRT fees as she was unsuccessful.

ORDER

41.   I order Miss Alameer’s claim, and this dispute, be dismissed.