Date Issued: November 29, 2023

File: SC-2022-008316

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Huang v. Yu, 2023 BCCRT 1033

Between:

YOUCAI HUANG

Applicant

And:

WENDY LAI-WAN YU and VINCENT KA FAN YU

Respondents

REASONS FOR DECISION
Tribunal Member:	Peter Mennie

INTRODUCTION

1.      This dispute is about responsibility for water damage in a strata lot.

2.      The applicant, Youcai Huang, owns a strata lot directly below a strata lot owned by the respondents, Wendy Lai-Wan Yu and Vincent Ka Fan Yu.

3.      Mr. Huang says that his ceiling was damaged by a toilet leaking in the respondents’ strata lot. He claims $400 in damages.

4.      The respondents say they were not aware of the leak below their bathroom floor and that they are not responsible for any damage to Mr. Huang’s ceiling.

5.      All 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.

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.

ISSUE

9.      The issue in this dispute is whether the respondents are responsible for Mr. Huang’s ceiling damage.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicant Mr. Huang must prove his claims on a balance of probabilities. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

11.   Mr. Huang says that his bathroom ceiling was damaged by a toilet leaking in the respondents’ strata lot. He says the leak occurred on February 11, 2022, and he reported it to his strata’s building manager immediately. On February 14, 2022, the strata’s building manager hired a plumber to inspect Mr. Huang’s ceiling.

12.   Mr. Huang provided the plumber’s invoice which states that the plumber found water damage in Mr. Huang’s ceiling. After cutting a hole in the ceiling, the plumber observed a pipe which had rusted because of a slow leak caused by the respondents’ toilet wax seal being faulty. The plumber confirmed this by observing water dripping when the respondents’ toilet was flushed. The plumber replaced the respondents’ toilet wax seal which fixed the leak.

13.   Mr. Huang paid $400 to fix the hole in his ceiling after the respondents refused to pay. He says this is the third time that his ceiling was damaged by a leak from a toilet in the respondents’ strata lot. He says the respondents’ strata lot had another owner when the first two leaks occurred and the previous owner paid for his repairs.

14.   The respondents say that the leak was not visible in their unit and happened below their floor. They say they had no way of knowing that Mr. Huang’s ceiling had water damage. They say they took immediate action when they learned of the water leak.

15.   Previous CRT small claims decisions have found that where one strata lot owner seeks to recover from another for the cost of water damage, they must prove liability in negligence, nuisance, or under a specific strata bylaw making an owner liable to their neighbour for the damage (see, for example, Ali v. Stringhetta, 2023 BCCRT 678 at paragraph 18). I agree with this analysis and apply it here. I will consider each of these claims in turn.

Strata bylaws

16.   Mr. Huang says that the strata bylaws require the respondents to pay for the damage to his ceiling. He relies on bylaw 3(11) which says that owners who do not follow necessary procedures to manage condensation and humidity in their suites are responsible for damage caused to other owners.

17.   I find that bylaw 3(11) does not apply to this dispute. The plain and ordinary meaning of “condensation” and “humidity” do not apply to a water leak from a toilet. I agree with the respondents’ submission that this bylaw applies to circumstances such as humidity from a hot shower or condensation on windows.

18.   Mr. Huang also relies on bylaw 3(2). This bylaw says that an owner must pay for damage to common property, common assets, or parts of any strata lot which the strata corporation must repair under the bylaws or section 149 of the Strata Property Act.

19.   I find that bylaw 3(2) does not apply to this dispute. Bylaw 3(2) is limited to “common property”, “common assets”, and parts of the strata lot which the strata must repair. This bylaw refers specifically to such repair costs being charged to an owner’s strata lot account. I find this bylaw refers to an owner’s liability for the strata’s repair costs, rather than any repair costs paid by other owners.

20.   Finally, Mr. Huang points to bylaw 44(2) which says that an owner will indemnify the strata corporation for any damage they cause that the strata corporation must repair which is not covered by insurance.

21.   In Averin et al v. Ball, 2019 BCCRT 608, a tribunal Vice Chair considered a similar bylaw in a dispute between strata lot owners about water damage. The Vice Chair found that this bylaw referred to the recovery of an insurance deductible paid by the strata corporation and did not apply to claims between owners. While tribunal decisions are not binding upon me, I find the reasoning in Averin applicable. So, I find that bylaw 44(2) does not apply to this dispute.

22.   Nowhere in the strata’s bylaws does it say that an owner is liable to another owner for damage to their strata lot or private property. So, I find that the strata’s bylaws do not address water damage as between the parties and are not relevant to this dispute.

Negligence and nuisance

23.   In order to establish negligence, Mr. Huang must prove that the respondents owed him a duty of care, that the respondents breached their standard of care, and that the water damage to Mr. Huang’s ceiling was caused by the respondents’ breach of the standard of care.

24.   I find that the respondents owed Mr. Huang a duty of care as a neighbouring strata lot owner. I also find that Mr. Huang suffered damages as a result of the water leak from the respondents’ toilet. The issue is whether the respondents’ conduct fell below the standard of a reasonable strata lot owner.

25.   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, the respondents are not automatically liable just because the leak originated in their strata lot (see Theberge v. Zittlau, 2000 BCPC 225 at paragraphs 33 to 36).

26.   I find Mr. Huang must prove the same thing to succeed in negligence and nuisance: that the respondents failed to take reasonable steps to avoid causing water damage to Mr. Huang’s strata lot.

27.   It is undisputed that the water leak came from the respondents’ strata lot. Based on the notes in the plumber’s invoice, I find it most likely that the leak occurred because the respondents’ toilet wax seal was faulty. However, this is not sufficient to establish negligence or nuisance. The standard of care is based on what would be expected of an ordinary, reasonable, and prudent person in similar circumstances.

28.   In his reply submissions, Mr. Huang says that the strata council reminded owners to replace their toilet wax seal at every annual general meeting. However, the strata council’s communications to its residents are not in evidence and it is not clear whether the respondents attended these meetings. So, I find it unproven that the respondents were told to replace their toilet wax seal.

29.   The evidence does not establish that the respondents acted unreasonably in the circumstances. I place significant weight on the fact that the plumber had to cut a hole in Mr. Huang’s ceiling to confirm that the leak occurred when the respondents’ toilet was flushed. I find this is consistent with the respondents’ argument that the water leak was not visible in the respondents’ strata lot, that the respondents did not know their toilet wax seal was faulty, and that a reasonable person would have been unaware of the water leak. So, I find the respondents are not liable in negligence or nuisance and dismiss Mr. Huang’s claim.

30.   As discussed in Zale et al v. Hodgins, 2019 BCCRT 466 at paragraph 21, it can be surprising for an owner to learn they are responsible for repairs to their strata lot even though the source of the damage originated from someone else’s strata lot. However, in the absence of negligence, nuisance, or a specific bylaw making an owner liable to their neighbour for the damage, an owner is responsible for the cost to repair their own strata lot even though they did nothing to cause the damage.

CRT FEES AND EXPENSES

31.   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. Huang was unsuccessful, I dismiss his claim for reimbursement of his CRT fees. Neither party claimed any dispute-related expenses.

 

 

ORDERS

32.   I dismiss Mr. Huang’s claim and this dispute.