Date Issued: July 18, 2018

File: ST-2017-005925

Type: Strata

Civil Resolution Tribunal

Indexed as: Wang v. Kabli, 2018 BCCRT 338

Between:

Zheng Wang

Applicant

And:

Mohammed Kabli

Respondent

REASONS FOR DECISION
Tribunal Member:	Michael J. Kleisinger

INTRODUCTION

1.        The applicant Zheng Wang (applicant) wants the respondent Mohammed Kabli (respondent) to pay for the damage caused to his unit by a water leak from the respondent’s unit. The applicant also seeks recovery of lost rental income and payment for the time and effort to bring this dispute.

2.        For the reasons that follow, I find that the respondent must pay for the damage to the applicant’s unit and for the lost rental income.

3.        Both parties are self-represented.

JURISDICTION AND PROCEDURE

4.        The Civil Resolution Tribunal (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.

5.        The tribunal has discretion to decide the format of the hearing. I decided to hear this dispute through written submissions, because I found that there were no significant issues of credibility or other reasons that might have required an oral hearing.

6.        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.

7.        Pursuant to the Act and tribunal rules, the tribunal may order a party to do or stop doing something, order a party to pay money, and order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.        The issues in this dispute are:

a.      Is the respondent responsible for the damage caused to the applicant’s unit?

b.      If so, what are the applicant’s damages?

BACKGROUND AND EVIDENCE

9.        The parties own adjacent strata lots in a strata corporation (strata). The applicant rents his unit to a tenant (tenant).

10.     On July 26, 2017, the respondent informed the tenant that water appeared in the respondent’s kitchen. The respondent suggested that the water may have come from the bathroom in the applicant’s unit.

11.     On July 27, 2018, the tenant informed the applicant of her discussion with the respondent. She told the applicant that if the respondent did not hire a plumber, the strata would do so the following day. She did not report any water found in the applicant’s unit.

12.     The applicant contacted the respondent to arrange for a viewing of the respondent’s unit. The respondent sent the applicant 2 pictures of the affected areas in his unit.

13.     In the morning of July 28, 2017, the applicant attended both units. He says that he did not observe any water in his unit. While in the respondent’s unit, the applicant observed the respondent’s parents using the kitchen sink. The applicant informed the respondent’s father to contact the strata and a plumber.

14.     In the afternoon, the restoration company hired by the respondent determined that the leak came from under the respondent’s sink. At that point, the applicant learned that water from the leak had crossed into his unit, damaging the carpet, walls and some of the tenant’s furniture in the unit’s bedroom. The applicant notified the respondent of the damage.

15.     The applicant hired the same restoration company to repair his unit. Between July 30 and August 8, 2017, the restoration company repaired the water damage to the applicant’s unit.

 

16.     In a report prepared on September 29, 2017, the restoration company summarized its findings as follows:

(a)    The leak originated from the respondent’s unit underneath the sink at the hook-up for the garburator.

(b)    The ABS trap under the sink failed and proceeded to leak for an undetermined amount of time.

(c)    The water ran from the leaking sink underneath the wall to the applicant’s unit.

(d)    The escaped water damaged the carpeting in the applicant’s unit.

17.     On or about October 6, 2017, the applicant paid $2,999.43 to the restoration company for the repairs to his unit. Later that month, the applicant reduced his tenant’s rent by $350 for one month to compensate her for the inconvenience during the repairs.

18.     The respondent has refused to pay the applicant for the repair costs.

POSITION OF THE PARTIES

19.     The applicant says the respondent should pay for the damage to his unit. He says that the respondent did not act appropriately when the leak first appeared in the respondent’s unit. He says that the respondent’s family continued to use the sink, despite the appearance of escaped water in the kitchen.

20.     The respondent says he is not responsible for the damages because the strata’s bylaws require owners to pay for repairs to their units. He says the leak was a “sudden and accidental” event for which he cannot be found negligent.

ANALYSIS

Is the respondent responsible for the damage to the applicant’s unit?

21.     The respondent correctly states that, under the strata’s bylaws, each owner is responsible to maintain and repair their unit. That said, where an owner negligently causes damage to a neighbour’s unit, he or she may be required to pay for all foreseeable damage that flows from the negligence.

22.     To succeed in a claim for negligence, the applicant must prove each of the following on a balance of probabilities:

(a)    The respondent owed the applicant a duty of care;

(b)    The respondent breached the standard of care;

(c)    The applicant sustained damage; and

(d)    The damage was caused, in fact and in law, by the respondent’s breach of the standard of care.

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27

23.     As noted in Mineault v. Kamloops (City), 2017 BCSC 316 at paragraph 67, where water flows from one property to an adjoining property, courts routinely find that the parties owe a duty of care to each other with respect to that water. In my view, the respondent owed a duty of care to the applicant and other neighbours whom he might reasonably foresee would be at risk of harm if water escaped from his unit.

24.     The standard of care expected of the respondent is not perfection. Rather, the standard is what would be expected of an ordinary, reasonable, and prudent person in the same circumstances. One must look at the particular facts of the case to determine whether the respondent acted reasonably.

25.     In my view, a reasonable response to finding water in one’s kitchen would be to immediately explore the cause of the escaped water and make efforts to ensure the problem did not continue and spread. One would expect an owner in such circumstances to turn off the water to the affected area, inspect areas in the kitchen where water could leak (such as the sink’s pipes), and immediately call a professional for assistance. In my view, an unreasonable response would be to do nothing to address the issue for 2 days.

26.     I find the respondent took an unreasonable approach to the problem. The respondent found water in his kitchen on July 26, 2017. He did not obtain professional help until 2 days later. In the interim, there is evidence that people in his unit continued to use the sink where the leak was ultimately found.

27.     The respondent provided no evidence of the steps he took to determine the source of the leak or to remedy the problem after finding the water in his kitchen. This is not a case where the source of the leak was in the walls or ceiling or otherwise hidden. As ultimately determined, the source of the leak was under the sink, which I find was readily accessible to the respondent. One would have expected that a prudent inspection under the sink would have shown some evidence of the leak.

28.     I find that the respondent failed to act reasonably after first finding water in his unit. While he may not be blamed for the mechanical failure of the pipe under his sink, I find he was required to take immediate and proper steps to assess and resolve the problem once discovered. He did not do so. In failing to seek professional assistance until 2 days after finding water in his unit (and even then, only at the applicant’s urging), I find the respondent breached the standard of care.

29.     The applicant must also establish that that he suffered damage and that the respondent’s breach of the standard of care caused his damage. The respondent does not dispute that the applicant suffered damage, but suggests that the damage was not caused by his negligence.

30.     The test for showing causation is the “but for” test. The applicant must prove that it is more likely than not that the damage would not have occurred “but for” the respondent’s negligent act or inaction (Clements v. Clements, 2012 SCC 32 at paragraph 8).

31.     There is no evidence that the water had appeared in the applicant’s unit on July 26 or 27, 2017. During these days, the respondent knew that there was water damage in his unit, yet, according to the evidence, the respondent’s family continued to use the sink under which the leak was eventually found. The restoration company was not contacted until July 28, 2017, by which time the leak had migrated to the applicant’s unit. It stands to reason that if the respondent had immediately addressed the issue, the damage to his unit and the applicant’s unit could have been reduced or avoided. I find it is more likely than not that the applicant’s unit would not have suffered damage but for the respondent’s delay in addressing the problem.

32.     Initially, the leak under the respondent’s sink may have been a “sudden and accidental” event as the respondent describes. The respondent may have avoided liability for a sudden and accidental event that was unknown to him which ultimately damaged his neighbour’s property. However, the respondent’s failure to take appropriate action after learning of the water in his kitchen supports a finding of negligence. I find his failure to take appropriate action allowed for water to escape his unit and caused the damage to the applicant’s unit. On this basis, I find that the respondent is liable for the applicant’s damages.

What are the applicant’s damages?

33.     A person is responsible for all reasonably foreseeable damage caused by their negligence. As noted above, I find the respondent’s negligence allowed the water to migrate to the applicant’s unit. As such, he is responsible for the repair of the physical damage to the applicant’s unit caused by the water’s migration. I order him to pay the applicant $2,999.43 for the repairs.

34.     The applicant seeks $350 for lost rental income. He provided evidence that he discounted his tenant’s rent for her inconvenience during the repairs. The respondent knew that the applicant rented his unit to the tenant. The respondent should have reasonably anticipated that if his negligence caused water to damage the applicant’s unit, the tenant would need to be accommodated during the unit’s repair. As such, the lost rental income was a foreseeable consequence of the respondent’s negligence. Further, with no submissions to the contrary, I find the amount of the discount reasonable. I order the respondent to pay for the applicant’s lost rental income.

35.     The applicant also seeks $1,650 for his expenses incurred and time spent for pursuing this dispute. A participant’s time in pursuing a dispute before the tribunal is not generally compensable. I decline to make such an order. Further, the applicant has not provided any proof to support his claim for expenses, including his alleged photocopying costs. As such, I dismiss this part of the claim.

36.     Having found in the applicant’s favour, I order the respondent to pay the applicant $225 for the tribunal fees.

DECISION AND ORDERS

37.     I order that, within 30 days, the respondent pay the applicant a total of $3,601.85, consisting of the following:

a.      $2,999.43 for the repairs;

b.      $350.00 for the lost rental income;

c.      $27.42 pre-judgment interest pursuant to the Court Order Interest Act (COIA)

d.      $225.00 for tribunal fees.

38.     The applicant is also entitled to any applicable post-judgment interest pursuant to the COIA.

39.     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.

40.     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. 

Michael J. Kleisinger, Tribunal Member