Date Issued: October 31, 2023

File: SC-2023-000447

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Bickenbach v. Sakamoto, 2023 BCCRT 936

Between:

DALE NICHOLAS BICKENBACH

Applicant

And:

ANDREW SAKAMOTO

Respondent

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      This small claims dispute is about water damage in a strata corporation (strata).

2.      The applicant, Dale Nicholas Bickenbach, owns a strata lot (unit 2), directly below the respondent’s, Andrew Sakamoto, strata lot (unit 4). The strata corporation (strata) is not a party to this dispute. It is undisputed that there was a water leak from Mr. Sakamoto’s bathtub in unit 4 that damaged the ceiling in unit 2. Mr. Bickenbach says Mr. Sakamoto is responsible for the damage resulting from the leak. In the Dispute Notice, Mr. Bickenbach claims $3,200 from Mr. Sakamoto for the cost of repairing the damaged ceiling and legal fees, with no breakdown provided. In his later written argument and evidence, Mr. Bickenbach claims $517.83 for lost rent and $2,786.27 for expenses incurred to repair the water damage, totaling $3,304.10.

3.      Mr. Sakamoto does not dispute that the leak occurred but denies any responsibility for Mr. Bickenbach’s claimed damages.

4.      Both parties are self-represented.

JURISDICTION AND PROCEDURE

5.      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.

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 and that an oral hearing is not necessary.

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.

ISSUE

8.      The issue in this dispute is whether Mr. Sakamoto is responsible for Mr. Bickenbach’s claimed damages resulting from the water leak.

EVIDENCE AND ANALYSIS

9.      As the applicant in this civil proceeding, Mr. Bickenbach must prove his claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submitted evidence and argument but refer only to what I find relevant to provide context for my decision. I note Mr. Sakamoto did not provide any documentary evidence, despite having the opportunity to do so.

10.   It is undisputed that on October 16, 2022, Mr. Bickenbach discovered water damage to unit 2’s ceiling and that the water leak originated from unit 4. Mr. Sakamoto says that the water leak was caused by a failed gasket in the overflow access in unit 4’s bathtub. Mr. Bickenbach’s evidence includes an October 31, 2022 email from Alta Plumbing and Heating Inc. (Alta) who performed repairs to Mr. Sakamoto’s bathtub. In this email, Alta confirmed that the “cause of the leak was fixed by replacing the gasket, and the missing screw to the tub”.

11.   Mr. Sakamoto argues, in essence, that he is not responsible for the water damage in unit 2 just because the leak started in his strata lot.

12.   Previous CRT decisions 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). Prior CRT decisions do not bind me, but I agree with this analysis and I apply it here. So, I have considered Mr. Sakamoto’s liability in both negligence and nuisance.

13.   To succeed in negligence, Mr. Bickenbach must prove that Mr. Sakamoto owed him a duty of care, that Mr. Sakamoto breached the standard of a reasonable strata lot resident, causing damage, and the damage was a reasonably foreseeable consequence of the negligent act or omission (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

14.   I find that Mr. Sakamoto owed Mr. Bickenbach a duty of care as a neighbouring strata lot owner or resident. It is undisputed that Mr. Bickenbach suffered water damage and lost rental income as a result of having to cancel an AirBnB booking soon after the water leak occurred. I find these are both reasonably foreseeable consequences of a water leak. The question is whether Mr. Sakamoto’s conduct fell below the standard of a reasonable strata lot resident.

15.   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. In other words, Mr. Sakamoto is not automatically liable for the leak repair costs and Mr. Bickenbach’s lost rent, just because the leak originated in unit 4 (see Theberge v. Zittlau, 2000 BCPC 225 at paragraphs 33 to 36).

16.   With that, I find Mr. Bickenbach must prove the same thing to succeed in negligence and nuisance: that Mr. Sakamoto failed to take reasonable steps to avoid causing water damage to unit 2.

17.   Based on Alta’s email, I find the water leak was most likely caused by a failed gasket and a missing screw. Mr. Bickenbach does not argue that Mr. Sakamoto was, or should have been, aware of any issues with the gasket or that there was a missing screw that was causing water to leak from unit 4’s bathtub. I also find the evidence does not establish that Mr. Sakamoto failed to reasonably maintain the bathtub’s overflow gasket, or that he should have identified the failed gasket or missing screw and reasonably anticipated a leak would occur. I note in his written argument, Mr. Sakamoto says that he thought the “faceplate of the overflow was cosmetic” but having spoken to the plumber, his assumption was incorrect. However, I find the evidence before me does not establish that the missing screw Alta refers to is for the faceplate, or that Mr. Sakamoto removed any screws from the bathtub or overflow faceplate, causing the water leak to occur. So, I find the evidence does not show that Mr. Sakamoto failed to reasonably prevent the leak. Accordingly, I find he is not liable in negligence or nuisance.

18.   For the above reasons, I find Mr. Bickenbach has failed to prove that Mr. Sakamoto is responsible for his ceiling repair costs or lost rental income. I dismiss Mr. Bickenbach’s claims accordingly.

19.   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. Since Mr. Bickenbach was unsuccessful, I dismiss his claim for reimbursement of his paid CRT fees. Mr. Sakamoto did not pay any CRT fees and does not claim any dispute-related expenses, so I award no reimbursement.

ORDER

20.   I dismiss Mr. Bickenbach’s claims and this dispute.