Date Issued: October 16, 2017

File: ST-2017-00129

Type: Strata

Civil Resolution Tribunal

Indexed as: Tam v. The Owners, Strata Plan BCS 282, 2017 BCCRT 93

Between:

Wing Yin Tam

Applicant

And:

The Owners, Strata Plan BCS 282

Respondent

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.         The applicant, Wing Yin Tam (owner) owns strata lot 29 (SL 29) in the respondent strata corporation, The Owners, Strata Plan BCS 282 (strata). The owner claims the strata and its plumbing contractor were negligent in not properly maintaining a common property drain pipe given the strata’s duty to repair and maintain common property.  The owner seeks orders that the strata is responsible to repair damage to SL 29 resulting from the backup of water from the common property plumbing drain and that they be reimbursed for tribunal fees paid.

2.        The strata denies it was negligent and claims the common property drain pipe only services the owner’s strata lot and that the owner is responsible for resulting repairs. 

3.        The owner is self-represented.  The respondent is represented by an authorized strata council member.

4.        For the reasons that follow, I find the owner is responsible to repair damage to    SL 29 resulting from the backup of the common property plumbing drain, except for the emergency repairs completed by the strata.

JURISDICTION AND PROCEDURE

5.         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, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.         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.

8.         The applicable tribunal rules are those that were in place at the time this dispute was commenced.

9.         Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make one or more of the following orders:

a.     order a party to do or stop doing something;

b.     order a party to pay money;

c.      order any other terms or conditions the tribunal considers appropriate.

ISSUES

10.      The issues in this dispute are:

a.     Is the strata responsible for the repair and maintenance of the blocked drain line? If so, was the strata negligent in the performance of its duty to repair and maintain?

b.     Who is responsible for repairing the damage to SL 29 caused by the blocked drain line?

c.      Is the strata responsible to reimburse the owner for tribunal fees paid?

BACKGROUND AND EVIDENCE

11.      While I have reviewed all of the evidence and submissions provided, I have only set out below what is necessary to give context to my decision.

12.      The strata consists of 232 strata lots of which 7 strata lots are non-residential. The balance of 225 strata lots are apartment style strata lots located into high-rise towers or townhouse style strata lots located above parking areas.

13.      The owner purchased SL 29, a townhouse-style strata lot, in March 2015.

14.      The strata’s bylaws are substantially those filed by the owner developer in March 2003 and are not the Schedule of Standard Bylaws under the Strata Property Act (SPA).

15.      The bylaws create separate sections for residential strata lots and non-residential (commercial) strata lots but do not transfer responsibility for repair and maintenance of common property, other than limited common property, to either separate section.

16.      The strata does not have a bylaw requiring it to repair and maintain any part of a strata lot.

17.      The relevant bylaw in effect at the time the damage occurred was bylaw 3.1. Bylaw 3.1 requires the strata to repair and maintain common assets and common property of the strata, except limited common property that is the responsibility of the separate section. There is no limited common property at issue in this dispute.

18.      In May 2016, the strata had several common property drain lines flushed by Werner Smith Mechanical Inc. (Werner Smith), a contractor specializing in such work. The strata provided advance notice to owners that Werner Smith required access to individual strata lots for the work to be performed.

19.      On June 10 2016, the owner advised the strata that water was backing up from the drain line servicing their washing machine (drain line) whenever their washing machine was discharging water and that an appliance repair company had confirmed the owner’s washing machine was in good working order.

20.      The parties agree that the drain line, located below the owner’s strata lot at the ceiling level of the common property garage, is common property and was blocked causing the washing machine discharge water to back up into SL 29.

21.      The strata had the drain line cleared and partially replaced by Werner Smith on June 16, 2016.

22.      The strata arranged for emergency repairs to be completed to SL 29 on June 16, 2016 by Platinum Pro-Claim Restoration (Platinum), resulting in an invoice of $955.74 dated September 21, 2016.

23.      On September 28, 2016, the strata sent the owner a copy of Platinum’s invoice and advised it had charged back the $955.74 invoice amount to the owner’s account.

24.      The strata does not have a bylaw that authorizes it to charge back an invoice to an owner or owner’s account.

25.      Platinum provided a $10,971.64 estimate for the repairs to SL 29.  It appears these repairs have not been done.

26.      The strata’s insurance deductible for sewer back up and water damage is $15,000.

POSITION OF THE PARTIES

27.      The owner argues that the blockage in the drain line was supposed to be covered under the annual maintenance work completed Werner Smith in May 2016 and, given the drain line is common property, the strata is responsible for damage to the owner’s strata lot. The owner further argues that the strata and Werner Smith were negligent in failing to ensure that the blocked drain line was cleared.

28.      The owner requests that I order the strata to pay for the damage sustained to SL 29 as a result of the blocked drain line and that I order the strata to reimburse them $225 for tribunal fees paid for this dispute.

29.      The strata argues that it is not liable for damage to a strata lot simply because the damage originated from common property. Given the strata’s insurance does not cover the cost of repairing SL 29 and the strata’s bylaws do not require it to pay for the resultant damage to SL 29, the strata says the owner is responsible to repair the damage to SL 29. The strata further argues that it was not negligent in its duties relating to repair and maintenance of the common property drain line nor is it responsible for the negligence or mistakes of its contractor, if any.

30.      The strata requests that I find the owner responsible to repair their own strata lot.

ANALYSIS

Is the strata responsible for the repair and maintenance of the blocked drain line? If so, was the strata negligent in the performance of its duty to repair and maintain the drain line?

31.      As previously noted, the parties agree the drain line servicing the owner’s washing machine is common property, was blocked, and caused the washing machine discharge water to back up into SL 29 which resulted in damage to SL 29.

32.      Also as previously noted, the strata’s bylaws create separate sections but do not transfer the responsibility of repairing and maintaining common property from the strata to a section. Further, bylaw 3.1 requires the strata to repair and maintain common property.

33.      As a result, I find there is no obligation on the part of a section within the strata to repair and maintain common property and that the strata is the only appropriate respondent in this dispute.

34.      Pursuant to section 72 of the SPA and bylaw 3.1, I find the strata is responsible to repair and maintain common property, which includes the drain line.

35.      Was the strata negligent in the performance of its duty to repair and maintain the drain line? For the reasons that follow I find the strata was not negligent in it responsibility to repair or maintain the drain line.

36.      In order to find the strata to be negligent, I must find that the strata owed the owner a duty of care, the strata breached the standard of care, the owner sustained damage, and that the damage was caused by the strata’s breach.

37.      Given the drain line is common property I agree the strata owed the owner a general duty of care regarding the repair and maintenance of the drain line.  I also agree the owner sustained damage.

38.      With respect to the repair of the drain line, the evidence shows the strata repaired the blocked drain line in a timely fashion. The owner notified the strata of the leak in their strata lot on June 10, 2016 and on June 16, 2016 the strata repaired blocked drain line. I find the strata was not negligent in repairing the drain line.

39.      The issue is whether the strata breached its duty of care to the owner with respect to the maintenance of the drain line and that a breach of that duty caused the damage in SL 29. 

40.      The owner asserts that the May 2016 scope of work for Werner Smith should have included the drain line but has not provided any expert evidence to substantiate their assertion.  The owner also says that the strata arranged for Werner Smith to clear all drain lines in May 2016. The owner says if that work had been completed properly, the blocked drain line would have been identified and corrected, and would not have backed up causing damage to SL 29.

41.      Put another way, the owner says that the strata breached its duty by failing to take reasonable steps to ensure the drain line was properly maintained so as to prevent water backing up into SL 29 but does not offer any supporting evidence.

42.      The evidence indicates that for at least the past two years, the strata retained Werner Smith to flush drain lines of the strata’s buildings, although it appears that the work completed in 2015 was not as extensive in 2016. That is, clearing of main drain lines from locations where cleanouts were accessible was undertaken in 2015, whereas in 2016 access was requested to all strata lots and roof levels. I find the strata accepted the more extensive option in 2016 on the recommendation of Werner Smith.

43.      Further, it is clear from the evidence that the scope of work for the drain cleaning included only main plumbing stacks and horizontal plumbing lines that had existing cleanouts. Specifically, the scope of work agreed to by the strata did not include the drain line from SL 29.  This was confirmed by Werner Smith in an email dated August 18, 2017, after the drain had been repaired. Werner Smith wrote that the main stack to which the drain line for SL 29 was connected was cleaned “but [the] branch line was not part of the main stack, and only serves the one laundry machine in the suite above [SL 29], and it was not cleaned for two reasons: 1) none of the individual suite drainage was included in the quote, 2) there is no-cleanout on this line to provide access.”

44.      Based on the evidence presented and the submissions of the strata, I find the strata reasonably relied on the expertise of Werner Smith in determining what preventative maintenance work should be completed with respect to drain cleaning and the scope of work did not include the drain line.

45.      The strata is not an insurer. The courts have found that a strata corporation, when repairing and maintaining common property, is not held to a standard of perfection but is required to act reasonably when fulfilling its obligations. If the strata’s contractor failed to carry out work effectively, the strata should not be found negligent if the strata acted reasonably in the circumstances. (See Kayne v. LMS 2374, 2013 BCSC 51, 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)).

46.      The standard of the strata when meeting its obligations to repair and maintain common property is therefore one of reasonableness. That Werner Smith did not clean all common property drain lines, and specifically the drain line, does not mean the preventative maintenance program adopted by the strata is unreasonable. 

47.      I find the preventative maintenance program the strata had in place to clean the main drain lines of the buildings was reasonable in attempting to ensure the main common property drain lines were free-flowing without blockage.  I find it would be unreasonable to expect the strata to ensure that every common property drain line be cleaned each year as, in my view, such an expectation would exceed the standard of reasonableness.

48.     There is no evidence to suggest the strata knew or ought to have known about the blocked drain line. The strata submits this was the first incident of a blocked laundry drain line known to the strata’s representative in the last 9 years of serving on the strata council. The owner did not dispute this statement and I accept the strata’s submission.

49.     In the result, I find that the strata was not negligent in the performance of its duty to repair and maintain common property.

50.     With respect to the owner’s submission that Werner Smith was negligent, I note the burden of proof to establish negligence rests with the owner. I find the owner has not established that Werner Smith was negligent in the work it did. Further, even if Werner Smith was negligent in failing to properly service the drain, I have found that it was reasonable for the strata to rely on Werner Smith in 2016 to determine what lines should be cleaned and to complete the cleaning of only the main common property drain lines.

51.     I have found the strata was responsible for clearing the blockage and repairing the drain line and that it was not negligent in its duty to repair or maintain common property. The remaining question is:  who is responsible for repairing the damage to SL 29 caused by the blocked drain line?

Who is responsible for repairing the damage to SL 29 caused by the blocked drain line?

52.      There are two aspects to this issue. Firstly, there are emergency repair costs undertaken by the strata and charged back to the owner. Secondly, and more importantly, there are costs to repair SL 29, which repairs I understand have not been completed.

53.      I will first address the outstanding repairs to SL 29.

54.      The owner links the responsibility of repairing the resultant damage caused by the blocked drain line to the responsibility of repairing and maintaining the common property pipe. That is not the case.  When determining the obligation to repair resultant damage not covered by the strata’s insurance, the strata’s bylaws must be considered.

55.      As noted previously, the strata does not have a bylaw that requires it to repair or maintain any portions of the strata lot.

56.      The strata is not obligated to reimburse an owner for expenses that the owner incurs in carrying out repairs to their strata lot, which is the owner’s responsibility under the bylaws, unless the strata has been negligent in repairing and maintaining common property. (See Basic v. Strata Plan LMS 0304, 2011 BCCA 231)

57.      As the resultant damage was entirely within SL 29, the strata has no responsibility for the repairs, unless the strata has been negligent.

58.      I have found the strata was not negligent in repairing the drain line servicing the owner’s washing machine. For the reasons stated above, I find the owner is responsible for completing the repairs to their strata lot caused by the blocked drain line.

59.      With respect to the emergency repair costs, the evidence indicates that the strata retained Platinum to complete emergency repair costs to the SL 29 interior, totaling $955.74. There is no evidence to suggest there was discussion between the strata and the owner about these costs or that the owner agreed to pay the emergency repair costs.

60.      By letter dated September 28, 2016, the strata, through its property manager, held the owner responsible for the emergency repair costs completed by Platinum but gave no explanation as to why.

61.      The charge back of the Platinum invoice is not captured by section 116 of the SPA and is commonly referred to as a non-lienable amount, as it cannot be included in the amount of the Certificate of Lien filed under section 116. In order to collect a non-lienable amount, the strata must have the authority to do so under a valid and enforceable bylaw or rule that creates the debt. (See Ward v. Strata Plan VIS #6115, 2011 BCCA 512)

62.      Arguments on the validity of the charge back of the invoice to the owner strata lot were not presented by either party. However, as evidenced in the Dispute Notice, the owner submits the amount was paid to the strata to avoid collection and further legal expense threatened by the strata. The owner also submits in the Dispute Notice that they requested a hearing but that the property manager said a hearing was not necessary.

63.      The owner has requested the strata be responsible for all costs related to the damages and repair of SL 29 and I infer that includes the emergency repair. expenses contained in the Platinum invoice.

64.      As noted earlier, the strata does not have a bylaw that gives it authority to charge back a non-lienable amount to an owner’s strata lot or an owner’s account. Given that such a bylaw does not exist, I find the charge back of Platinum’s invoice to the owner’s account was not permitted and is therefore invalid.

65.      In summary, I find that the owner is responsible for repairing the damage to SL 29 caused by the blocked drain line, save and except the $955.74 paid by the strata for emergency repairs completed by Platinum.

66.      I recognize the owner’s frustration in attempting to obtain information from the strata with regard to this dispute and especially concerning are the varied responses provided by the strata as to why it felt the owner was responsible for the damage related to SL 29.

67.      I also express concern regarding a comment made by the strata’s representative in argument suggesting that the strata could have completed the interior repairs to SL 29 and then charged the repairs back to the owner. In future, the strata may wish to consider whether it has the proper authority to complete strata lot repairs and to charge an owner for the repair costs, given the potential for a dispute by the relevant owner.

Is the strata responsible to reimburse the owner for tribunal fees paid?

68.      Under section 49 of the Act and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable expenses related to the dispute resolution process. I see no need to strata from this general rule. The strata has been the more successful party in this dispute but did not pay any tribunal fees.

69.      Accordingly, I make no order with respect to reimbursement of tribunal fees.

DECISION AND ORDERS

70.      I order that the strata, within 30 days of the date of this order, reimburse the owner $955.74 with respect to the amount of the Platinum invoice paid by the owner.

71.      The owner’s remaining claims are dismissed.

72.      Under section 167 of the SPA, an owner who brings a tribunal claim against the strata corporation is not required to contribute to the expenses of bringing that claim. I order the strata to ensure that no part of the strata’s expenses in defending this dispute is allocated to the owner.

73.      The Court Order Interest Act applies to the tribunal and I must award interest to the owner. I calculate interest on $955.74 from September 28, 2016 to the date of this order to be $7.06. Accordingly, I order the strata to pay the owner $7.06 in interest.

74.      The owner is also entitled to post judgment interest post-judgment interest under the Court Order Interest Act.

75.      Under section 57 of the Act, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia, a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia.

76.      Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia. However, the principal amount or the value of the personal property must be within the Provincial Court of British Columbia’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the Act, the Applicant can enforce this final decision by filing in the Provincial Court of British Columbia a validated copy of the order which is attached to this decision.  The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.