Date Issued: November 24, 2023

File: SC-2022-009505

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Klimes v. Milani Plumbing Heating & Air Conditioning Ltd.,

2023 BCCRT 1016

Between:

JANA KLIMES

Applicant

And:

MILANI PLUMBING HEATING & AIR CONDTIONING LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This dispute is about damage from a water leak. The applicant, Jana Klimes, hired the respondent, Milani Plumbing Heating & Air Conditioning Ltd. (Milani), to install a kitchen faucet. The faucet or a supply line component later leaked and damaged the cabinet below.

2.      Ms. Klimes says Milani’s improper installation caused the leak. She claims $2,097.21 for emergency repair costs. Ms. Klimes’s insurer, who represents her in this dispute, reimbursed her for the loss. So, I find Ms. Klimes makes this claim on a subrogated basis, which is where a third party such as an insurer assumes another person’s legal right to collect a debt or damages.

3.      Milani disagrees with the claim. It says the leak was caused by the poor quality of the faucet Ms. Klimes undisputedly supplied or mechanical damage that happened after installation. Milani is represented by an employee.

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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

7.      The issue in this dispute is whether Milani is responsible for the water leak, such that it must reimburse Ms. Klimes for the $2,097.21 emergency repair costs.

EVIDENCE AND ANALYSIS

8.      As the applicant in this civil proceeding, Ms. Klimes must prove her 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.

9.      Ms. Klimes owns a condominium unit in BC. In May 2021, Ms. Klimes asked Milani to install a new kitchen faucet. A Milani technician attended but Ms. Klimes required a different faucet that would accommodate her water filter. The parties agreed that Ms. Klimes would supply her own faucet and Milani would return to install it. Milani returned on August 21, 2021 and installed the faucet Ms. Klimes provided.

10.   On August 25, 2021, Ms. Klimes called Milani because the kitchen faucet was leaking. Milani attended on August 27. Milani’s job notes indicate the technician found a “slight drip leak,” and in response, “tightened leak coming from supply line.” There is no evidence that this first leak caused any damage. The notes also said, “hot water is very hot, could be causing washers to fail” and “customer supplied faucet was not in the best condition.” There is no invoice in evidence, and I infer Milani did not charge Ms. Klimes for its work that day.

11.   On October 25, 2021, Ms. Klimes called Milani about the same faucet leaking. Milani attended the next day. The invoice said there was a leak at the supply line threaded coupling. The invoice said the leak stopped when the coupling was tightened.

12.   The second leak undisputedly damaged the under-sink cabinet. Onside Restoration Services Ltd. attended and made repairs. The total cost of those repairs, including 10% overhead, 5% profit, and taxes, was $2,097.21, which is what Ms. Klimes claims here.

13.   So, is Milani responsible for the water leak? Ms. Klimes says her insurer’s inspection showed that the leak was due to Milani’s “improper” installation. Although Ms. Klimes does not use the term, I find she argues that Milani’s faucet installation was negligent.

14.   The difficulty for Ms. Klimes is that she does not explain how Milani’s installation work was improper or negligent. There is no evidence from anyone who inspected the faucet and supply lines except Onside. Onside’s repair estimate said the loss was caused by a “faulty kitchen faucet.” It did not say anything about how the faucet or supply lines were installed, or about the connection that actually leaked. Finally, it did not say how it determined that the faucet was faulty.

15.   In professional negligence cases, expert evidence is generally required to establish the standard of care. The 2 exceptions are where the standard is non-technical and within an ordinary person’s knowledge, and when the breach of the standard of care is egregious and therefore obvious (see Schellenberg v Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paragraph 112). I find neither of these exceptions apply here. I find that faucet installation, and in particular how tight connections should be, is technical and beyond ordinary knowledge. I find that expert evidence is required to explain how Milani’s faucet installation breached the standard of care. There is no such evidence here.

16.   Ms. Klimes seems to rely on the fact that the supply line leaked from a connection point shortly after installation and then again around 2 months later. I find this insufficient to establish that there was something wrong with Milani’s installation. Other possible leak causes include improper usage and mechanical damage or loosening from the sliding drawer under the sink that photos show contacting the supply lines. The evidence does not include a statement from Ms. Klimes denying these causes.

17.   I conclude that Ms. Klimes has not met her evidentiary burden of proving that Milani’s installation was negligent, and I dismiss her claim. This means I do not need to consider what weight, if any, to give to a statement from Milani’s owner Vern Milani provided as expert evidence.

18.   Under section 49 of the CRTA and CRT rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. Milani was successful but did not pay CRT fees. I dismiss Ms. Klimes’s claim for CRT fees. Neither party claims dispute-related expenses.

ORDER

19.   I dismiss Ms. Klimes’ claims and this dispute.