Date Issued: March 28, 2017

File: ST-2016-00053

Civil Resolution Tribunal

Indexed as: Rawle v. The Owners, Strata Plan NWS 3423, 2017 BCCRT 15

BETWEEN:

Kevin Rawle

APPLICANT

AND:

The Owners, Strata Plan NWS 3423

RESPONDENT

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

 

1)        The applicant Kevin Rawle (the owner) owns strata lot 72 (SL72), in a strata corporation known as The Owners, Strata Plan NWS 3423 (the strata). This dispute arose because a fireplace exhaust pipe, also known as a flue, was found to be disconnected in the SL72’s fireplace wall cavity. The owner says the smoke fumes from the fireplace vented into the wall space, causing severe damage.

 

2)        In addition to reimbursement of $225 in tribunal fees, the owner wants the strata to pay him $3,000, half the roughly $6,000 the owner says he spent to “repair the damage”.

 

JURISDICTION AND PROCEDURE

 

3)        These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness. The tribunal also recognizes any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

 

4)        The tribunal 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 tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

 

5)        The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I heard this dispute through written submissions because I find there are no significant credibility issues or other reasons requiring an oral hearing. In particular, to the limited extent there is a dispute in the evidence as to what was said between the parties, I find I can fairly and adequately resolve that conflict based on the documentary evidence and written submissions. Neither party requested an oral hearing.

 

6)        Under section 48.1 of the Act, in resolving this dispute the tribunal may make one or more of the following orders:

 

a)     order a party to do something;

 

b)     order a party to refrain from doing something;

 

 

c)      order a party to pay money.

 

ISSUES

 

7)        There are two issues in this dispute:

 

a)     Is the strata responsible for any of the owner’s replacement costs for his fireplace and the surrounding wall area?

 

b)     Should the strata reimburse the owner the $225 in fees he paid the tribunal?

 

POSITION OF THE PARTIES

 

8)        The owner says the strata’s roofing contractor likely disconnected his fireplace flue. The owner wants the strata to reimburse him $3,000, which is roughly half the amount the owner spent in replacing his fireplace and the surrounding drywall, tile surround, and mantel, which repair work included the flue re-connection. The owner says the strata left him with no choice to investigate and make the repairs himself.

 

9)        The strata says it acted reasonably in investigating the owner’s concerns and the owner’s discovery of the fireplace flue disconnection. The owner did not obtain the strata’s permission to alter the fireplace wall cavity or to make the replacements and improvements. Further, the strata says that unless it is proven the strata was negligent, which the strata denies, the strata is not responsible for any damage or repairs to the owner’s strata lot. Finally, the strata says that if any liability is found, it should at most be for the cost of re-connecting the fireplace flue, which the strata says is somewhere between $0 and $787.50.

 

10)     The owner also wants the strata to reimburse him the $225 in fees he paid the tribunal,

$125 for an application fee and $100 for the tribunal decision fee. The strata objects to paying these fees, particularly as it offered $500 to resolve the matter, which the owner rejected.

 

BACKGROUND AND EVIDENCE

 

11)     The strata complex was built in around 1991, and contains a total of 104 strata lots. The owner’s SL72 is in a multi-storey building that contains 6 strata lots. SL72 is on the second or top floor. The SL72 fireplace is located in its north wall, with the SL72 limited common property balcony on the exterior side of the wall.

 

12)     In October 2001, the strata passed new bylaws that replaced all previous bylaws of the strata. The strata’s bylaws do not expressly discuss fireplace flues. The strata’s relevant bylaws are summarized as follows:

 

a)     Bylaw 2: an owner must repair and maintain the owner’s strata lot, except for where the bylaws say it is the strata’s responsibility.

 

b)     Bylaw 5: an owner must obtain the written approval of the strata before altering a strata lot that involves common property located within the boundaries of a strata lot. The owner must also obtain written approval before alterations involving the building structure or chimneys attached to the exterior of a building. The strata must not unreasonably withhold its approval, but may require the owner to take responsibility for any expenses related to the alteration.

 

c)      Bylaw 6: an owner must obtain the written approval of the strata before altering common property. As a condition of approval, the strata may require the owner to agree to take responsibility for any expenses relating to the alteration. I note there is no provision similar to bylaw 5(2) that the strata must not unreasonably withhold its consent.

 

d)     Bylaw 8: the strata must repair and maintain common property, including certain limited common property such as the building structure, building exterior, and balconies.

 

13)     In this case, a chronology will be helpful. Generally, the dates and other information below is a compilation of the undisputed evidence of both parties. However, I have expressly identified the one area where there is some significant dispute, namely what was said on February 14, 2016 after the strata inspected the open fireplace wall cavity.

 

14)     On February 1, 2016 the owner noticed a crack in the wall above his fireplace, where the wall met the ceiling, with soot visible in the crack. He contacted the strata council, expressing concern about structural damage following a significant earth quake a few weeks prior. There was no concern expressed at this time about the fireplace flue, presumably because its disconnection was unknown at that time.

 

15)     The next day, February 2, 2016, the strata council president visited SL72 and noticed discolouration along the length of the crack, about 12” to 18” in length. The strata council president says he asked the owner to write a letter to the council setting out the problem, in accordance with the strata’s protocol for non-emergency  matters.  The owner did not write a letter at that time.

 

16)     On February 5, 2016, the strata council president sent a contractor, LR, to SL72, who inspected and found no structural damage other than the noted crack. LR has worked on the strata’s site for many years and had made prior repairs to the building. The strata considers LR reliable and competent. LR’s opinion at the time was that the crack was a result of minor building movement, which was not uncommon. Further, LR concluded the dust deposits along the crack were due to air moving between the flue chase and the SL72 living room. According to the owner’s reply submissions to the tribunal, at that point the strata stated it relied upon LR and that he and his spouse were “on our own”.

 

17)     According to the owner, he was “not satisfied with” LR’s explanation and “decided to open the wall to view the wall cavity and the exhaust pipe.” The owner did not seek the strata’s permission to do so. After opening up the wall, on February 13, 2016 the owner called the strata council president to say he had found the flue disconnected.

 

18)     On February 14, 2016, the strata council president returned, noted the two holes in the drywall above the fireplace, and took photos of the wall cavity. According to the owner, the fireplace cavity was “full of soot”, which the strata says is an exaggeration given what is shown in the photos. According to the owner’s January 15, 2017 letter to the tribunal, at that point they could find no explanation for the disconnection and they parted company with the owner stating he “would seek answers from others”. In contrast, the strata says the owner said “don’t worry about it. I’m going to take care of this myself”, noting the owner had said he was planning to install a new fireplace insert anyway, and his contractor would re-attach the fireplace flue. The strata also says it asked the owner again to write a letter to the council, which the owner ultimately did on February 26, 2016, after he had torn away the wall and replaced the fireplace. However, given the owner’s final words of “don’t worry about it”, the strata says that on February 14, 2016 it understood the matter to be closed. The owner denies he said “don’t worry about it” or that the strata should have considered the matter concluded.

 

19)     On or about February 15, 2016, the owner retained a contractor, C, to inspect the fireplace area. Without notice to the strata, the owner then had C remove the drywall and fireplace surround. C’s May 14, 2016 invoice totaled $1,660 for “work performed” in repairing and replacing the drywall and installing new tiles. According to a March 12, 2016 invoice, the owner bought a new fireplace and installation for $3,261.30 from company F. F installed the fireplace at some point before February 26, 2016, and included the flue reconnection at no charge. The owner also spent $1,006.03 for new travertine tiles and a maple fireplace mantel, although the tile surround and mantel work was not completed until mid-May 2016. All of the owner’s receipts total $5,927.33. As noted above, in this dispute he claims $3,000, which is roughly half.

 

20)     In his February 26, 2016 letter to the strata, the owner wrote that he had contacted a fireplace company who did an inspection and advised that fireplace replacement was recommended as the fireplace was nearing the end of its intended life span. While the owner produced letters from contractor C and fireplace company F, neither of them provide the opinion that the original fireplace was at the end of its intended life span. The letter from F notes it discussed with the owner an “exhaust leak and the possibility of upgrading their fireplace to a more efficient heating fireplace”, as the original was designed for aesthetics. F stated that on examination there were streaks of black carbon deposits and obvious signs of combustion products coming out from behind the wall. F wrote that the only way to reconnect the flue properly was to open up the wall and reconnect the flue to the top of the fireplace with at least two screws. F’s point was that it was impossible to re-connect the flue from within the fireplace.

 

21)     In his February 26, 2016 letter, the owner also wrote that the inspector also advised the “most likely reason” for the flue’s disconnection was as a result of roofers knocking the exhaust stack while installing a new roof. I have no such opinion directly before me. The owner stated that the strata had a new roof replaced over 5 years ago, and he wrote that the inspector stated “this was a common occurrence” in strata complexes. The owner further wrote in this letter to the strata that he had his fireplace replaced with a modern unit and the flue re-attached “so we will have no further worries”. The owner said he was concerned that his unit may not be the only unit with a disconnected flue and that a “very real fire hazard” may exist that could burn down a block of units, similar to a fire that occurred a “few years ago”. He recommended every unit be checked. I note there is no other evidence before me of any fire in the strata, although  as discussed below there is a November 18, 2016 letter from the strata’s former council president about a flue disconnection in one other unit 8 years prior, which was apparently re-connected without incident. There is no suggestion in this February 26, 2016 letter that the owner faulted the strata in its response to his fireplace issue, and the owner did not set out any cost associated with the repair work or make any demand for reimbursement.

 

22)     The owner provided the tribunal with a photo of the new fireplace and surrounding wall area. The photos show a fireplace insert with tile surround, a wood mantel about halfway up the wall, attached to the top of the tiled area. Above the mantel is just a painted drywall wall. The owner also provided a photo of that same painted drywall wall where it meets the ceiling, with what might be a crack with some soot, but a crack is not particularly remarkable or visible in the photo. There is also a photo showing the slate tile covering on the exterior wall above the owner’s balcony.

 

23)     The contractor C’s opinion was that the drywall was heat damaged and brittle, caused by many years of hot escaped flue gasses, and needed replacement. C said it would have been more expensive to do the repair from the balcony exterior wall, rather than opening up the interior drywall wall. Apart from C’s opinion about the damaged interior drywall wall, I have not been provided with any explanation as to why the fireplace, mantel, or tile surround needed to be replaced as a result of the flue disconnection.

 

24)     As referenced above, the strata provided the tribunal with a November 8, 2016 letter (apparently mis-dated as 2015, rather than 2016) from a formal strata council president. He wrote that about 8 years prior, another strata lot advised the council that their fireplace flue had come detached from their fireplace, which they learned from a strata contractor who was replacing a metal roof cap on their fireplace chimney stack. In the letter, the former council president wrote that the re-connection was accomplished by strata volunteers, at no cost, by taking off an area of the slate rock cladding and cutting a hole in the particle board underneath. This provided access to the fireplace flue chase, and all of the work, including re-attachment of the particle board and exterior cladding, was completed within 3 hours.

 

25)     After the owner’s February 26, 2016 letter, the strata began an inspection of all strata lots, and most inspections have been completed and none have revealed a disconnected flue.

 

26)     The owner states he needed to do the repairs because it was cold in February and he needed heat. The strata submits the original fireplace was largely decorative and was never intended to be a main heat source, as the strata lot is heated by recirculated hot water heating through in-floor piping.

 

27)     In June 2016, the strata made a $500 offer to the owner, as a fair estimate of the cost to reconnect the fireplace flue, which the owner rejected. The strata has since rescinded that offer.

 

ANALYSIS

 

28)     The strata submits that the applicant owner’s decision to open up the fireplace wall was in fact the start of the fireplace renovations that he had already decided to make. The strata says this explains the speed of the owner’s demolition and fireplace replacement. The strata submits it also explains the owner’s reluctance to write to council until after the work was largely completed.

 

29)     The owner submits that he was “forced to take on the repairs” because the strata council relied upon its contractor LR and “then refused to listen to another word” and that the strata stated the owner and his spouse “were on our own”. However, as noted above, the owner had the council president return to inspect the wall cavity. Based on the owner’s own evidence, he intended to research the cause of the disconnection and obtain quotes. The owner then proceeded to remove the wall and replace the fireplace without notice to the strata.

 

30)     I will first address whether the wall cavity and the fireplace flue are common property, or as claimed by the applicant, limited common property. Unless otherwise shown on the strata plan, under section 68 of the Strata Property Act (SPA), the boundary of a strata lot is at the midpoint of the walls. There is no notation on the strata plan as to strata lot boundaries, and so section 68 of the SPA applies.

 

31)     I acknowledge that the north wall of SL72 that contains the owner’s fireplace has the SL72 limited common property balcony on the other side. While the balcony is limited common property, the exterior building wall is common property. I say this because by definition, limited common property must be shown on a strata plan and so it cannot be a vertical surface such as the exterior building wall above the balcony.

 

32)     Next, the SPA’s definition of “common property” does not expressly deal with a fireplace flue. However, it does include pipes, chutes, ducts, and other facilities for the passage or provision of heating and cooling systems or other similar devices if they are located within a wall that forms a boundary between a strata lot and the common property. Based on section 68 and the definition of “common property” in the SPA, I find that SL72’s fireplace flue is common property. This is relevant because bylaws 5 and 6 required the owner to obtain the strata’s permission to alter common property. He did not obtain that approval. The interior wall in which the fireplace sits, and the  tile surround and mantel, are all part of the owner’s SL72.

 

33)     Based on the strata’s bylaws and section 72 of the SPA, the strata has the obligation to repair and maintain common property, which here includes re-connection of the fireplace flue inside SL72’s wall.

 

34)     I turn now to the nature and extent of the strata’s obligations to repair and maintain. As set out in sections 3 and 72 of the SPA, the strata is responsible for managing and maintaining common property for the benefit of owners, and has a statutory duty to repair and maintain it. However, the SPA does not address claims by owners for damage caused by the strata or by others associated with it, such as contractors.

 

35)     The strata is not an insurer. Courts have held that a strata is not held to a standard of perfection. Rather, it is required to act reasonably in its maintenance and repair obligations. If the strata’s contractors fail to carry out work effectively, the strata should not be found negligent if it acted reasonably in the circumstances. The strata has no liability to reimburse an owner for expenses that the owner incurs in carrying out repairs to their strata lot, which are the owner’s responsibility under the bylaws, unless the strata has been negligent in repairing and maintaining common property.  In  other words, I find the strata is correct in their submission that it is not responsible for the damage or repairs to SL72, unless it is established that the strata acted negligently (see Kayne v. LMS 2374, 2013 BCSC 51, and John Campbell Law Corp v. Strata Plan 1350, 2001 BCSC 1342, and Wright v. Strata Plan No. 205, 1996 CanLII 2460, aff’d 1998 CanLII 5823 (BCCA)).

 

36)     The strata submits that unless it knew or ought to have known about the owner’s flue disconnection, as being more than the “one off” referenced in a November 8, 2016 letter from a former strata council president, the strata has no liability in this dispute. The strata also submits that when rare matters such as the disconnected flue comes before the strata council, it triggers discussion and a series of research initiatives to enable the council to consider its responsibilities and liabilities, which takes a reasonable period of time. In the absence of an emergency, I find this is a reasonable approach.

 

37)     So, was the strata negligent here? Should the strata be responsible for any of the costs claimed by the owner to replace his fireplace (which included a flue re-connection at no charge), the interior wall, tile surround, and mantel? The answer is no to both questions. My reasons follow.

 

38)     First, when the owner found the crack and soot line, the strata council president immediately attended and arranged for its trusted contractor to inspect. At that point, I find the strata could not have reasonably been aware that a flue disconnection was a likely problem. I say this because the only other instance was approximately 8 years before the owner’s. I acknowledge the owner’s submission that he knew at the time it was soot, rather than dust as suggested by LR. Given the context of the owner’s expressed concern, namely a recent earthquake, it was not unreasonable or negligent for the strata to accept LR’s opinion at that point, even though that opinion may have been incorrect.

 

39)     Second, after the owner opened up the wall above the fireplace without prior permission from the strata, he called the strata on February 13, 2016. The council president attended the next day, which was timely and reasonable. Based on the photos I have seen, I agree with the strata that it is an exaggeration to say the wall cavity was full of soot. There was a line of soot, perhaps 2”, at the bottom of the flue where it would connect with the fireplace. There may have been some soot staining on some parts of the drywall walls, which also could have been shadows. I also note the handprint on the interior drywall wall, which the strata points to as evidence that the wall cavity was not covered in soot.

 

40)     Third, I agree with the strata that the wall cavity did not present a need for immediate work. I also find that the original fireplace was largely decorative and was never a primary heat source, and the opinions before me support that conclusion. I accept that the strata reasonably would need time to discuss amongst council as to what to do.

 

41)     I turn then to what happened next. The owner’s submissions in his January 15, 2017 letter to the tribunal amount to a complaint that the strata failed to offer to repair the flue disconnection, rather than that they refused to do anything. Based on that letter, at the end of the February 14, 2016 visit by the council president, the owner said that he stated he “would seek answers from others”. In his February 26, 2016 letter to the strata, the owner did not register any complaint with the strata’s approach to date and instead the owner said that having replaced his fireplace he would have no further worries. I find the tone of these two letters leads to the conclusion that the owner had likely told the strata something like “don’t worry about it” on February 14, 2016. The weight of the evidence does not support a conclusion that the strata was at that point left with the task of re-connecting the flue. I find it simply does not make sense that the strata would otherwise leave and take no further action at all, having seen the disconnected flue. The owner has not disputed that he had told the strata he had planned to replace his fireplace anyway. Overall, on a balance of probabilities, I find the strata was not negligent in failing to take steps to re-connect the flue and in accepting words to the effect “don’t worry about it”, given the owner’s stated intention to replace his fireplace anyway.

 

42)     Further, in the owner’s submissions to the tribunal he said that he told the strata he would try to find out what caused the problem, but that he never relieved the strata from the responsibility of repairing the problem. The owner said that he took three weeks before notifying the strata on February 26, 2016 because he needed time to research the cause of the problem and receive quotes.

 

43)     The problem with the owner’s approach is that having found the disconnected flue, he did not contact the strata to advise them of the cause until after he had arranged for the work to be done. In doing so, the strata was left with no opportunity to arrange for the flue reconnection themselves. Such an approach is not consistent with the strata’s bylaws. There is insufficient explanation before me as to why the owner could not have contacted the strata before starting the repair and replacement work.

 

44)     In summary, I have concluded that the strata was not negligent in handling the owner’s flue disconnection. The strata is therefore not liable for the cost of repairs and replacements of the owner’s fireplace and surrounding wall area. I am mindful of the tribunal’s mandate that includes the recognition of the relationship between the parties that will likely continue after this tribunal proceeding has ended. The cost of the fireplace replacement represented a large portion of the applicant’s claim. I pause to note that I cannot see on what basis the fireplace itself needed to be replaced as a result of the flue disconnection. While the owner may have accepted the original fireplace was nearing the end of its life span, its replacement would not appear to be the strata’s responsibility.

 

45)     I turn then finally to the cost of re-connecting the fireplace flue, which was the strata’s responsibility had it been given the opportunity to repair it. The owner’s cost of re- connecting the fireplace flue was zero, because it was included with the cost of the installation of his new fireplace insert. I have found above the fireplace replacement was the owner’s responsibility in any event. At the same time, I accept the strata’s evidence that through volunteer labour it may have been able to re-connect the flue at essentially no cost to the strata. Based on the photos provided, it appears the flue could have been re-connected through holes in the drywall above the fireplace, although I acknowledge LR’s quote for $787.50 was for re-connection through the exterior wall.

 

46)     The material point here is that after exposing the flue disconnection, the owner took on vast repairs and replacements without the strata’s knowledge or permission. The owner chose to buy a new fireplace, which was installed with no additional cost for the flue connection. In all of the circumstances, I do not consider it appropriate to make an order for the strata to pay the owner anything for the flue re-connection, as such an order would reflect an arbitrary amount that does not represent any actual loss.

 

DECISION

 

47)     The strata was not negligent in the circumstances before me. The owner is not entitled to reimbursement for any of his costs associated with the replacement of his fireplace and surrounding wall area.

 

48)     As the owner was not successful in this dispute, I find that he is not entitled to reimbursement of the $225 he paid for tribunal fees.

 

ORDER

 

49)     I order that the claims of the applicant are dismissed.