Date Issued: January 26, 2023

File: SC-2022-001338

Type: Small Claims

Civil Resolution Tribunal

Indexed as: De Angelis v. Dodd, 2023 BCCRT 69

Between:

SYLVIA DE ANGELIS and MITCHEL AZMIER

Applicants

And:

SHERYL DODD, JAKOB SCHOU, and FERNIE LODGING COMPANY, INC.

Respondents

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This small claims dispute is about water damage in a strata lot. The applicants, Sylvia De Angelis and Mitchel Azmier, own unit 215 in a resort strata corporation. The individual respondent, Sheryl Dodd, owns unit 315, which is directly above unit 215. The other individual respondent, Jakob Schou, co-owned unit 315 with Ms. Dodd when the leaks are said to have occurred. The strata corporation is not a party to this proceeding.

2.      The applicants say unit 315 leaked water into unit 215 in 2019 and 2020. The applicants claim $5,000 in negligence and nuisance for water damage repairs and other expenses. Ms. De Angelis represents both applicants and is a lawyer.

3.      Ms. Dodd and Mr. Schou disagree with the claim. They say they were not negligent and were not aware of any leaks. They also say that the applicants negligently delayed reporting the leaks. Ms. Dodd and Mr. Schou are each self-represented.

4.      None of these parties lived in these strata lots when the leaks happened. The respondent property manager, Fernie Lodging Company Inc. (FLC), inspected and cleaned unit 315 between occupancies. FLC denies responsibility for the leaks and resulting damage. FLC is represented by its owner, Mike Delich.

5.      As I explain below, I find the applicants have not proved that any respondent unreasonably failed to prevent the leaks, so I dismiss their claim.

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.

Preliminary decision on limitation periods

10.   On July 12, 2022, the CRT issued a preliminary decision about whether the applicants’ claims should be dismissed as out of time under the Limitation Act. The CRT found that the first leak occurred in July 2019. Because the applicants filed their application for dispute resolution on February 20, 2022, more than 2 years after they discovered the first leak, the CRT found the applicants’ claim about the first leak was out of time. The applicants argue that they should have been granted a suspension or extension of the limitation period due to Mr. Azmier’s health condition and the COVID-19 pandemic. They say they did not have sufficient characters to explain this in their preliminary submissions. I find the applicants raised the issue in those submissions and there is no evidence that they asked for a character limit increase for those submissions. I am satisfied that the applicants had a reasonable opportunity to argue the limitation period issue. I find the limitation period issue has been decided. In any event, I agree that any claim about damage from the first leak is out of time.

11.   The CRT vice chair who issued the preliminary decision did not determine exactly when the second leak occurred, but found that the applicants discovered the leak on February 22, 2020. So, the CRT found that the applicants’ claim for damages resulting from the second leak was not barred by the Limitation Act and could proceed. Although that conclusion is not binding on me, I reach the same conclusion on the evidence before me. However, given my decision to dismiss the claim on its merits, nothing turns on this.

12.   For clarity, even though the applicants’ claim about the first leak is out of time, I find evidence about the first leak may be relevant to the issue of what a reasonable person would have done to prevent the second leak.

ISSUES

13.   The issues in this dispute are:

a.    Did any respondent unreasonably fail to prevent the second leak?

b.    If so, what are the applicants’ damages?

BACKGROUND AND EVIDENCE

14.   In a civil proceeding like this, the applicants must prove their claims on a balance of probabilities, meaning more likely than not. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

15.   In 2018, Ms. Dodd and Mr. Schou jointly purchased unit 315 as a vacation property. A title certificate confirms that Ms. Dodd purchased Mr. Schou’s half of unit 315 in May 2020, after the second leak.

16.   When not using unit 315, Ms. Dodd and Mr. Schou often made it available for short-term accommodations. They contracted with FLC to clean and maintain unit 315 between short-term occupancies and in vacant periods.

17.   It is undisputed that on July 26, 2019 there was a leak from unit 315’s dishwasher supply line valve. Escaping water damaged unit 215 and first floor common property. The damage in unit 215 was limited to staining on the kitchen and living room ceiling.

18.   As noted above, I accept that the applicants discovered the second leak on February 22, 2020. The applicants say they were in unit 215 on February 15, 2020, and there were signs of water damage. When they returned on February 22, 2020, they discovered a stained but dry ceiling. Photos show brown staining on unit 215’s bathroom ceiling, particularly around the fan but also along a wall and above the shower.

19.   The applicants did not alert any respondents about the potential leak at that time. Instead, the applicants emailed Ms. Dodd and Mr. Schou about their damaged ceiling 18 months later, on August 13, 2021. Ms. Dodd expressed surprise at the delay in her reply email.

20.   The applicants explain that they were not in unit 215 from March 2020 until August, 2021 due to the COVID-19 pandemic and health issues. Mr. Azmier said in emails that the damage looked like a single incident with a large volume of water such as a toilet or bathtub overflow. The ceiling was dry upon discovery and remained dry thereafter. The applicants say they monitored the bathroom for leaks between February 2020 and August 2021 by asking guests to look for leaks and installing sensitive cameras.

21.   Ms. Dodd says that had she been informed right away, she would have immediately investigated and contacted a plumber. She said she inspected her bathroom within days of receiving the August 13, 2021 email and found no visible water leaks. She insisted on having a plumber do an inspection with access to both units. The applicants insisted on being present.

22.   Ms. Dodd selected Copper Tip Plumbing & Heating (Copper) to investigate. Copper’s inspection and repair work happened on August 20, August 27, and September 2, 2021. One or both applicants were present on August 20, although Ms. Dodd was not. It is not clear who attended with Copper on August 27 and September 2. The plumber, Charles Jennings, provided initial job notes and later provided a report at the applicants’ request for use in this dispute. I discuss Mr. Jennings’s evidence below.

ANALYSIS

23.   The applicants rely on both the law of negligence and nuisance.

24.   To succeed in negligence, the applicants must prove that the respondents owed them a duty of care, the respondents breached the applicable standard of care, and the applicants sustained damage caused by the breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

25.   I find that as neighbours in a strata building, Ms. Dodd and Mr. Schou owed the applicants a duty of care. I find the applicable standard of care is reasonableness (see Burris v. Stone et al, 2019 BCCRT 886, a non-binding but persuasive decision). There is no real dispute that unit 215’s bathroom ceiling stains were caused by water escaping unit 315. The question is whether Ms. Dodd’s and Mr. Schou’s conduct in allowing water the escape fell below the standard of a reasonable strata lot owner.

26.   As for FLC, I find that as a property manager working in the unit above the applicants’ unit, FLC owed the applicants a duty to take reasonable care to avoid conduct that created an undue risk of harm to them. As noted by the BC Supreme Court, a property manager is expected to take reasonably quick steps to investigate the source of a leak brought to its attention, and arrange for repairs to be carried out (see Shen v. Chan, 2016 BCSC 1370, affirmed in 2018 BCCA 40. The question is whether FLC unreasonably failed to investigate signs of a potential leak or to bring them to Ms. Dodd’s or Mr. Schou’s attention.

27.   A nuisance occurs when a person unreasonably interferes with the use or enjoyment of another person’s property. Where a person does not intentionally create a nuisance, they will only be liable if they either knew or reasonably should have known about the potential nuisance and failed to do anything to prevent it (see Theberge v. Zittlau, 2000 BCPC 225, at paragraphs 33 to 36). With that, I find that the applicants must prove the same thing to succeed in negligence or in nuisance: that one or more respondents unreasonably failed to prevent the leak.

28.   As I explain below, I am unable to conclude that any respondent unreasonably failed to prevent the second leak. In order to find that a person should have prevented a leak, the evidence must be reasonably clear about how the leak happened.

29.   How did the leak happen? There are at least 3 possibilities. The first is the applicants’ original theory, which they have since abandoned, that there was a single water escape incident of higher volume that dried quickly and did not recur. Although Ms. Dodd and Mr. Schou deny knowledge of such a leak, it is undisputed that unit 315 was rented to short-term occupants from February 16 to February 19, 2020, a few days before the applicants discovered the ceiling stains. It is possible that these occupants experienced a water leak and did not report it.

30.   The second possibility is a leak from a toilet supply line valve. However, as the applicants note, their own expert, Mr. Jennings, “ruled it out” as a potential source of the leak. So, I find it is not necessary to address the applicants’ arguments that the respondents should have taken more care to maintain the toilet supply valve.

31.   The third possibility is a blackwater leak from the toilet. The applicants say the respondents unreasonably failed to maintain their toilet based on evidence they say shows the toilet was loose or rocking. The applicants rely on Sandhu v. The Owners, Strata Plan LMS 1148, 2020 BCCRT 325, where a CRT vice chair found that the owner did not meet the standard of care where the toilet was loose upon inspection. In making that finding, the vice chair relied on Strata Plan LMS 2446 v. Morrison, 2011 BCPC 519. In that case, the BC Provincial Court said that owners are expected to monitor whether the plumbing fixtures within their strata lot are operating properly, and where they fail to do so, they are negligent. I accept the reasoning in these decisions. So, respondents may be negligent if the toilet was loose upon inspection or obviously leaking.

32.   Ms. Dodd says the toilet did not rock when she inspected for leaks on August 16, 2021. Mr. Schou also says he stayed in unit 315 in February 2020 and did not notice a rocking toilet. FLC says it would have reported any leaks to Ms. Dodd, but does not specifically address toilet rocking in its brief submissions.

33.   The applicants rely heavily on Mr. Jennings’s report to argue that the toilet was loose or rocking. It is undisputed that Mr. Jennings has 15 years experience as a journeyman plumber and gasfitter and has significant experience in commercial and residential leak detection. Mr. Jennings’s qualifications are not disputed, and I accept that he is qualified under the CRT’s rules as an expert in plumbing and leak testing.

34.   Mr. Jennings undisputedly visited unit 215 and unit 315’s bathrooms in August and September 2021. He said in his report that in unit 315 he found a “leaking toilet/flange junction.” He said the toilet was “clearly loose/rocking and leaking.” Upon removing the toilet, he noted the wax ring seal was not fully compressed and was “clearly leaking”, and the “floor and subfloor area was wet with blackwater.” So, he removed and replaced the toilet, installed a new wax ring, and siliconed the flange to the floor tile. I understand from context that the flange serves as a connection from the toilet to the drain pipe.

35.   Mr. Jennings concluded that “a loose (rocking) toilet from its flange and a compressed wax ring seal was readily evident as the source of the leak.” He added that during his inspection he told the applicants that they should have the materials between their ceiling and the unit 315 sub-floor inspected and replaced or disinfected, and checked for mould, as the space was exposed to toilet blackwater.

36.   There are some important differences between the job notes Mr. Jennings’ made during the August 2021 inspections and the expert report he prepared for this dispute. First, although Mr. Jennings’s report said that the toilet itself was clearly loose or rocking, his earlier notes only said the toilet flange was loose and the toilet needed a new wax seal and to be siliconed and resecured. The job notes did not indicate that the toilet was physically loose from its bolts and would have rocked when in use.

37.   Mr. Jennings’s report is undated, but he invoiced for it on August 9 2022, so I find the report was prepared about a year after his inspection. Mr. Jennings did not supply with his report any photos taken inside unit 315 and does not say whether he looked at any photos or his job notes to refresh his memory before preparing the report. Given the time that passed, I find the job notes are more reliable evidence. In any event, even Mr. Jennings’s report did not confirm that the toilet was rocking upon normal use, such as simply sitting on it.

38.   This means I find the facts here are different from those in Sandhu. In Sandhu, the toilet was undisputedly “broken”. It was loose on its mounting points, the flange had cracked, and the wax seal had failed. Here, the toilet was not visibly broken and I am not persuaded that it was rocking or loose upon use.

39.   The other difference between Mr. Jennings’s report and the job notes is that the job notes do not mention blackwater or a wet floor and subfloor in unit 315’s bathroom. The job notes suggest that there was no active leak and Mr. Jennings was only investigating what caused the leak 18 months earlier, while Mr. Jennings’s report indicates an active blackwater leak.

40.   An active blackwater leak in August 2021 is inconsistent with the applicants’ evidence that their ceiling drywall was wet only once, in February 2020, quickly dried, and was never wet again. The applicants say Mr. Jennings advised them that blackwater may have been entering the subspace and evaporating or being absorbed by insulation before it could drip onto their ceiling, other than a single time that there was enough water to overload an “impermeable barrier.” I do not accept this evidence as it is hearsay. Mr. Jennings’s report did not say this or otherwise explain how unit 215’s stained ceiling remained dry if there was an active blackwater leak from unit 315’s toilet.

41.   Overall, I find there are too many inconsistencies between Mr. Jennings’s report, his contemporaneous job notes, and the applicants’ observations of their ceiling to confirm the cause of the second leak. I do not accept the applicants’ position that the second leak was an active blackwater leak that lasted 18 months but only caused damage once. I also do not accept that the toilet was clearly loose or rocking. So, even assuming that the leak originated from the toilet, which is not proved, it is not clear what the applicants reasonably could have done to prevent a leak.

42.   Perfection is not required of a strata lot owner. It is undisputed that Ms. Dodd and Mr. Schou hired a property manager who performed regular inspections, cleaning and maintenance. They did not leave the unit unoccupied for extended periods of time. Ms. Dodd took immediate action when notified of the potential leak. She insisted on having a plumber inspect and repair her bathroom. I find that Ms. Dodd and Mr. Schou did what reasonable strata lot owners would do. As for FLC, I find the applicants have not shown that it failed to do anything that could have prevented the leak.

43.   In summary, I find the applicants have not proved the cause of the leak that damaged their ceiling and have not proved that the respondents unreasonably failed to prevent the leak. I therefore dismiss the applicants’ claims.

44.   Under section 49 of the CRTA and CRT rules, a successful party is generally entitled to recover their CRT fees and reasonable dispute-related expenses. The respondents were successful but did not pay CRT fees or claim expenses. I dismiss the applicants’ claim for reimbursement of CRT fees and their claim for reimbursement for Mr. Jennings’s report given that they were unsuccessful.

ORDER

45.   I dismiss the applicants’ claims and this dispute.