Date Issued: July 6, 2023

File: SC-2022-006806

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Xu v. Sequeira, 2023 BCCRT 566

Between:

HUI ZHEN XU

Applicant

And:

RICHARD SEQUEIRA and MARIA CRISTINA VALDEZ SEQUEIRA

Respondents

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      This small claims dispute is about a water leak in a strata building.

2.      The applicant, Hui Zhen Xu, owns a strata lot (unit 122) which is located below unit 326, owned by the respondent Maria Cristina Valdez Sequeira. Richard Sequeira is unit 326’s property manager. Without meaning any disrespect, I will refer to the parties by their first names, as the respondents share the same last name and none of the parties specified their titles. The applicant asked to be referred to as Jilly.

3.      Jilly and Maria each rent out their respective units. Jilly says Maria and Richard are responsible for reimbursing them $2,913 in lost rental income after a leak in unit 326 caused water damage in unit 122. Jilly says their tenants had to move out of unit 122 for 2 months during repairs. Richard says since they are not unit 122’s owner, they are not liable for Jilly’s lost rental income. Maria says neither they nor their tenants were negligent in causing the water leak, so they are not liable for the claimed amount. Maria’s tenants are not parties to this proceeding.

4.      Jilly is self-represented. Richard represents themself and Maria.

JURISDICTION AND PROCEDURE

5.      These are the Civil Resolution Tribunal’s (CRT) 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.

6.      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.

7.      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.

8.      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

9.      The issue in this dispute is whether the respondents are responsible for reimbursing the applicant $2,913 for lost rental income due to water leak damage.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicant Jilly must prove their claims on a balance of probabilities, meaning “more likely than not”. I have read all the parties’ submissions and evidence but refer only to that which I find necessary to explain my decision. Though they each provided a Dispute Response, the respondents confirmed they were both relying on Richard’s submitted evidence and written argument.

11.   Around March 7, 2022, water leaked from unit 326 into unit 122, damaging unit 122’s floors and walls. The leak originated from the bathroom plumbing when Maria’s tenants’ child accidentally pulled on the toilet’s water lines, presumably disconnecting them. The strata corporation (strata) hired On Side Restoration (On Side) to provide emergency services and complete repairs to the affected units. On Side’s work schedule required the affected units’ occupants, including Jilly’s tenants, to vacate the units for about 2 months in September and October 2022 while On Side completed the repairs. None of this is disputed.

12.   Though Jilly did not pay for any of On Side’s repair work, they say they lost $2,913 for 2 months’ rent when their tenants were required to temporarily move out of unit 122. Jilly says Maria is liable for their loss because it was Maria’s responsibility to ensure unit 326 was properly maintained and damage caused by Maria’s tenants was dealt with promptly and adequately. Jilly also claims against Richard as the property manager but says they “firmly believe” Maria is “fully responsible” for the damage to unit 122, including the lost rental income. While they do not use these words, I infer Jilly says Maria and Richard were negligent in preventing the water leak that damaged unit 122 and in failing to properly address the leak right after it happened.

13.   In previous CRT decisions, tribunal members have found that where one strata lot owner seeks to recover from another for the cost of water damage, they must prove liability under either the law of negligence or the law of private nuisance (see, for example, Zale et al v. Hodgins, 2019 BCCRT 466 and Yu v. Yang, 2022 BCCRT 119). Other CRT decisions do not bind me, but I agree with this conclusion, and find Jilly must prove Maria and Richard were either negligent or caused a nuisance.

14.   To succeed in negligence, Jilly must prove Maria and Richard owed them a duty of care, they breached the applicable standard of care, and Jilly sustained damage caused by the breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

15.   I find that as neighbours in a strata building, Maria owed Jilly a duty of care. I find the applicable standard of care is reasonableness (see, for example, De Angelis v. Dodd, 2023 BCCRT 69 and Burris v. Stone et al, 2019 BCCRT 886). So, the question is whether Maria’s conduct as unit 326’s owner fell below the standard of a reasonable strata lot owner.

16.   What about Richard’s liability in negligence? I find that as unit 326’s property manager, Richard owed Jilly a duty to take reasonable care to avoid conduct that created an undue risk of harm to them. In Shen v. Chan, 2016 BCSC 1370, affirmed in 2018 BCCA 4, the court noted 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 conducted.

17.   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).

18.   Here, I find the same thing is required to prove liability in negligence or nuisance, namely that Maria and Richard knew or should have known about the leak and unreasonably failed to prevent it or respond to it in a timely way.

19.   Though Jilly says Maria was generally responsible for ensuring unit 326 was maintained, she does not say Maria unreasonably failed to prevent the leak by improperly maintaining unit 326’s bathroom plumbing. The evidence does not show there were previous problems with the toilet’s plumbing or signs of imminent failure before the leak occurred, or that Maria’s tenants reported any such issues. As noted above, Maria does not dispute the respondents’ assertion that the leak was due to a child pulling on the toilet’s water lines and On Side’s estimate indicates the leak was caused by a failed water line to the toilet. The estimate also shows that at the strata’s request, On Side attended on March 7, 2022, the day of the leak, and on subsequent days, to provide emergency electrical, water mitigation, and structural drying assessment services. There is no evidence Maria was aware or should have been aware of the leak at the time it happened. Based on these facts, I find there is no evidence Maria acted unreasonably or failed to act in the circumstances.

20.   To the extent Jilly argues Maria’s tenants’ actions caused the leak and Maria is responsible because they are the owner, I disagree. In Shahgaidi v. Zhang, 2018 BCSC 2082, the court found an owner should not be held responsible for their tenant’s acts unless the owner directly authorized them or there was a high degree of probability that the nuisance (leak) would result from the purposes for which the property was rented out. Like in this dispute, that case involved escaping water from one strata lot to another. The court concluded that the fact that water was included in the tenant’s rent was insufficient to find a leak was an inevitable consequence of the lease. So, the owners in that case were not liable in nuisance because they did not specifically contemplate the nuisance or become aware the nuisance was ongoing.

21.   Based on Shahgaidi, I find the leak in this case was not an inevitable consequence of the tenancy, whether or not water was included in the rent. So, I find Maria is not liable for the leak in negligence or in nuisance, and I dismiss Jilly’s claims against Maria.

22.   I turn to Richard. Jilly does not say, nor is there evidence, that Richard created an undue risk to Jilly in performing their duties as property manager or failed to reasonably prevent or respond to the leak. The evidence shows that the leak was first reported to the strata or to the strata’s agents, and that they promptly arranged for the emergency repair work. Again, there is no evidence Richard knew or should have known of the leak when it happened. So, I find Jilly has not proven Richard is liable for the leak in negligence or in nuisance. I dismiss Jilly’s claims against Richard.

23.   I note that even if I had found the respondents liable for the leak, I would have dismissed Jilly’s damages claim in any event, because they provided no evidence of the claimed $2,913, such as a tenancy agreement or bank records.

24.   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. Jilly was unsuccessful, so I dismiss their CRT fee claim. Maria and Richard were successful but paid no fees, and none of the parties claimed dispute-related expenses.

ORDER

25.   I dismiss the applicant’s claim and this dispute.