Date Issued: February 11, 2022

File: SC-2021-003929

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Lutsker v. Hildebrandt, 2022 BCCRT 163

Between:

ANDREY LUTSKER

Applicant

And:

JASON HILDEBRANDT

Respondent

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.      This dispute is about water damage repair costs in an apartment.

2.      The applicant, Andrey Lutsker, owns apartment #105. The respondent, Jason Hildebrandt owns apartment #307, which is located above #105.

3.      Mr. Lutsker says water leaked into his apartment from #307 on November 12, 2019. Mr. Lutsker’s insurer retained a restoration company to repair the damage. Mr. Lutsker claims $2,000 for his insurance deductible cost.

4.      Mr. Hildebrandt agrees the water leaked from his apartment #307 and damaged unit #105. However, he says the repair costs should have been much less than $2,000 claimed. He says it was Mr. Lutsker’s choice to file an insurance claim and allow more extensive repairs. Mr. Hildebrandt also says he paid Mr. Lutsker $1,900 as agreed, but that Mr. Lutsker returned the payments.

5.       Both parties are self-represented.

JURISDICTION AND PROCEDURE

6.      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.

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.      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.

10.   Mr. Lutsker provided evidence after the CRT’s deadline to do so had passed, which Mr. Hildebrandt objects to. Mr. Hildebrandt had the opportunity to review the evidence and respond to it in his submissions, which he did. So, I find Mr. Hildebrandt was not prejudiced by the late evidence. Keeping in mind the CRT’s mandate, which includes informality and efficiency, I allow the late evidence and will consider it below.

ISSUE

11.   The issue in this dispute is how much Mr. Hildebrandt must pay Mr. Lutsker for the water damage, if anything?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, Mr. Lutsker must prove his claims on a balance of probabilities because he is the applicant. I have read all the parties’ submissions and weighed the evidence, but only refer to that necessary to explain my decision.

13.   The parties agree that the November 12, 2019 water leak came from Mr. Hildebrandt’s water line to his fridge. I accept this as true because it is supported by a November 12, 2019 email from the strata corporation (strata)’s contractor who saw the leak and disconnected the water line to stop it.

14.   It is undisputed that the water leak damaged Mr. Lutsker’s ceiling and wall. Based on Mr. Lutsker’s photos and video, as well as the contractor’s email, I find the water dripped through Mr. Lutsker’s ceiling, causing the drywall to swell, bubble and discolour. It also loosened the drywall tape.

15.   Mr. Hildebrandt admits responsibility for the water leak, and for repairing the water damage in Mr. Lutsker’s apartment. However, he disagrees with the steps Mr. Lutsker took, and the costs spent, to repair the water damage.

16.   It is undisputed that Mr. Lutsker filed a claim with his insurance company, who retained FirstOnSite Restoration (First) to inspect and repair the damage. Based on First’s January 30, 2020 invoice, and Mr. Lutsker’s photos, I find First removed the damaged drywall, contracted out asbestos testing and abatement, then repaired and painted the ceiling and wall, for a total cost of $6,991.26. Mr. Hildebrandt does not suggest that First’s work repaired any pre-existing damage or any damage unrelated to the November 12, 2019 leak. Rather, he says First did more work than necessary in the circumstances.

17.   Mr. Hildebrandt says Mr. Lutsker should have used a dehumidifier and waited for the ceiling and wall to dry out, then paint over the stained drywall with mould resistant paint, rather than remove the damaged drywall. Mr. Hildebrandt says that is what the strata did to repair his ceiling when the roof leaked water into #307 several years ago. Contrary to Mr. Hildebrandt’s argument, I do not find that any strata lot owner should expect any water ingress into their apartment to be dealt with in the same way. I find the reasonableness of Mr. Lutsker’s repairs should be based on the circumstances of that particular leak to that particular apartment, and not on how different water damage in a different apartment was repaired.

18.   Further, Mr. Hildebrandt did not provide any expert evidence to support that only waiting and painting were needed to fix Mr. Lutsker’s ceiling and drywall. I find the required extent of water damage repair is something which is not within common knowledge and so requires expert evidence (see Bergen v. Guliker, 2015 BCCA 283). I do not accept as expert evidence Mr. Hildebrandt’s opinion that drywall removal was unnecessary or that internal mould was not a concern in the circumstances. This is because he has not established how he is qualified to give such an opinion and, in any event, his opinion would not be neutral, given he is a party in this dispute.

19.   Mr. Hildebrandt provided an October 26, 2021 letter from Chris Lloyd, of Chris Lloyd Painting Ltd. I find Mr. Lloyd’s stated 25 years of experience in the painting and renovation trades qualifies him as an expert in these areas under the CRT rules.

20.   Mr. Lloyd says he verbally told Mr. Hildebrandt in November 2019 that the best way to repair the water damage in #105 would be to let the area dry out on its own then retexturize and repaint the damaged ceiling. Mr. Lloyd based his opinion on a verbal description of “some visible damage” to an approximately 2 by 4 foot area of the ceiling. In Mr. Lloyd’s experience, involving insurance companies and restoration companies resulted in aggressive remediation. Mr. Lloyd does not say that such remediation is unnecessary, but I find it is implied in his opinion. Despite Mr. Lloyd’s experience, I give his opinion little weight because he did not view the water leak, the water damage, or any photos of it. Mr. Lloyd also did not address the ceiling damage, the loosened drywall tape, or the bubbled and swollen drywall.

21.   I find First’s November 2019 estimate identifies what work was necessary to repair Mr. Lutsker’s water damaged ceiling and wall. Given that First inspected the leaking water on November 12, 2019, and the resulting water damage in person, I find it was in a better position to assess the damage and determine what repairs were necessary. I prefer and accept First’s November 2019 estimate and January 30, 2020 invoice detailing the necessary work, over Mr. Lloyd’s opinion.

22.   Contrary to Mr. Hildebrandt’s argument, I find Mr. Lutsker did not prevent Mr. Hildebrandt or his contractor of choice from accessing #105 to view the water damage or give an opinion on repair costs. Correspondence between the parties in November 2019 shows the parties attempting to arrange access until, 2 weeks later, Mr. Lutsker decided to proceed with his insurance claim. The correspondence shows Mr. Lutsker agreed to allow Mr. Hildebrandt’s contractor of choice to complete the work, if the contractor was licensed and would provide a written opinion that drying and painting was sufficient repair in order to satisfy Mr. Lutsker’s insurer. It is undisputed that Mr. Hildebrandt did not provide that information at that time. On balance, I find Mr. Lutsker acted reasonably in the circumstances, to repair the water damaged drywall.

23.   It is undisputed that Mr. Lutsker did not pay First’s $6,991.26 invoice, but that his insurer did. It is also undisputed, and Mr. Lutsker’s banking records show, he paid $2,000 as an insurance deductible on the claim. So, I find Mr. Lutsker’s damages are the claimed $2,000 and order Mr. Hildebrandt to pay him that amount.

24.   To the extent that Mr. Hildebrandt argues he should only have to pay the $1,900 the parties settled on, I find the agreement is no longer binding. Based on their March and April 2021 emails, I find the parties agreed to settle the matter for $1,900, to be paid by cheque by Mr. Hildebrandt. Although Mr. Hildebrandt said he “should be able to settle by the end of next week” on March 20, 2021, he did not pay the full amount at that time. Instead, he gave Mr. Lutsker 19 monthly post-dated cheques for $100 each, which Mr. Lutsker returned. Contrary to Mr. Hildebrandt’s argument, I do not find the parties’ lack of specific payment terms meant that he could pay whenever and however he wished. Rather, I find the agreement contained an implied agreement that the $1,900 would be paid in full, once Mr. Hildebrandt received new blank cheques from his bank. So, I find Mr. Hildebrandt’s postdated cheques did not fulfill the parties’ agreement but was a counteroffer, which Mr. Lutsker refused when he returned the cheques.

25.   Overall, I find Mr. Hildebrandt must pay Mr. Lutsker $2,000 in damages.

26.   The Court Order Interest Act applies to the CRT. Mr. Lutsker is entitled to pre-judgment interest on the $2,000 from December 16, 2019, the date he paid his insurance deductible, to the date of this decision. This equals $35.73.

27.   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. Contrary to Mr. Hildebrandt’s argument, I find Mr. Lutsker was not obliged to settle this claim for $1,900 paid in monthly installments to avoid filing this dispute. Given his success in this dispute, I find Mr. Lutsker is entitled to reimbursement of his full CRT fees of $125.

28.   I also allow Mr. Lutsker’s claimed $35.37 in dispute-related expenses for his attempts to serve Mr. Hildebrandt by courier and registered mail as supported by the invoices in evidence.

ORDERS

29.   Within 30 days of the date of this order, I order Mr. Hildebrandt to pay Mr. Lutsker a total of $2,196.10, broken down as follows:

a.    $2,000 in damages,

b.    $35.73 in pre-judgment interest under the Court Order Interest Act,

c.    $160.37 for $125 in CRT fees and $35.37 for dispute-related expenses.

30.   Mr. Lutsker is entitled to post-judgment interest, as applicable.

31.   Under section 48 of the CRTA, the CRT will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the CRT’s final decision.

32.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.