Date Issued: August 16, 2018

File: ST-2017-005855

Type: Strata

Civil Resolution Tribunal

Indexed as: Guistino v. Doyle, 2018 BCCRT 458

Between:

Paolo Guistino                                  

Applicant

And:

Brent Doyle

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.        The applicant, Paolo Guistino owns a strata lot in strata corporation, The Owners, Strata Plan BCS 147 (strata). The respondent, Brent Doyle, also owns a strata lot in the strata. The parties’ strata lots are side-by-side, and share a common wall.

2.        The applicant says a faulty shower drain in the respondent’s strata lot damaged his bedroom carpet due to water intrusion. The applicant seeks orders that the respondent reimburse him $1,828.88 for carpet replacement, $571.73 for cleaning costs, $1,933.45 for time lost from work, $500 for inconvenience, and $571.83 for dispute-related expenses, together with interest on all these amounts.

3.        The respondent admits responsibility for the water leak, but disputes the amounts claimed by the applicant.

4.        The parties are self-represented.

5.        For the reasons set out below, I find that the respondent must reimburse the applicant $1,828.88 for carpet replacement and $571.73 for cleaning.

JURISDICTION AND PROCEDURE

6.        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.

7.        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.

8.        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.

9.        Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make order a party to do or stop doing something, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.

ISSUES

10.     The issue in this dispute is whether the respondent must pay for carpet replacement and other repair costs, and if so, how much.

EVIDENCE, FINDINGS & ANALYSIS

11.     I have read all of the evidence provided, but refer only to evidence I find relevant to provide context for my decision.

12.     In an April 13, 2017 letter, the strata confirmed that a leak had occurred on April 9, 2017. The strata said the water was believed to have leaked from a steam shower drain in the strata lot next door. The strata said the total amount of damage was less than the strata’s insurance deductible, so the strata would not make an insurance claim and would not be involved with the repairs.

13.     The strata provided a copy of an April 9, 2017 plumber’s report stating that the respondent’s recently-installed shower drain leaked badly because it was loose and may not have had silicone.

14.     The respondent admits liability for the water leak. However, he says the applicant’s old carpet was well-worn and of poor quality, and he is not obligated to pay for a carpet upgrade. He also says the other costs claimed by the applicant are unreasonable and unsupported by evidence.

Cleaning Costs

15.     The applicant claims $571.73 for cleaning services. He has provided a June 17, 2017 invoice in that amount from Malkin Cleaners. The invoice shows that Malkin charged $270 to “test clean” the carpet, $45 for cleaning chemicals, and $135 for a synopsis and report. The invoice also included taxes.

16.     In an undated letter, a project manager from Malkin wrote that they were called in by the applicant and the senior technician saw that a water leak from next door had migrated under the wall. The manager said the bedroom carpet was soaking wet, the baseboards were swollen, and the walls were wet up to 6 inches high. The manager said he was concerned that mould had formed, and there was a noticeable smell of mildew in the bedroom. Malkin recommended opening up the drywall to check for mould, and replacing the carpet and underlay if they could not get the brown stain out.

17.     Subsequent documents indicate that the drywall was not opened, but instead the strata supplied fans to dry the water. In a June 29, 2017 letter, Malkin’s project manager confirmed that a few weeks after they first inspected the water damage, they wiped the mould off the baseboards with an antimicrobial chemical. The manager said they tried various chemicals to clean the carpets with no success, and he advised replacing the bedroom carpet and underlay.

18.     I find that the $571.73 charged by Malkin is reasonable in the circumstances, and I order the respondent to reimburse the applicant for these costs. The documents provided by Malkin confirm that the work performed was all related to water damage from the respondent’s leak.

19.     The respondent questions the timing of the cleaning services, but I find that any delay is explained by the need to wait for the water to dry. The respondent says the applicant ought to have replaced the carpets at the outset rather than trying to have them cleaned. I disagree. The applicant followed the advice of Malkin, which was reasonable in the circumstances. Also, the evidence shows that the applicant tried to contact the respondent by text, email, leaving a note under his door, and through the strata. The respondent did not provide any substantive response to the applicant’s repeated requests to get the repair process underway until a May 19, 2017 email, in which he wrote, “Proceed with what you have to do to fix the apartment. Then have your insurance company come after me. I will deal with it at that time”. In a second email, also dated May 19. 2017, the respondent wrote that if it was his place he would have fixed it long ago, then knocked on the door and presented the cost. The respondent also wrote, “Fix it and we will deal with it.”

20.     Based on the post-leak correspondence provided in evidence, I find the respondent had the opportunity to be involved in the repair process but waived it through inaction and in his May 19, 2017 email directing the applicant to “Proceed with what you have to do to fix the apartment.” It is therefore unreasonable to assert, in retrospect, that the applicant ought to have approached the repairs differently (such as by replacing the carpets before trying to have them cleaned).

21.     Also, since the correspondence shows that the respondent was uncooperative in dealing with the repairs from at least May 10, 2017 onwards, it was reasonable for the applicant to obtain the written synopsis and report from Malkin. I therefore find that the $135 charge for the synopsis and report, which is included in the cleaning invoice, is a legitimate repair-related expense.

Carpet Replacement Costs

22.     The applicant claims $1,828.88 for carpet replacement, and provided an invoice in that amount from a carpet and flooring company. The invoice specifies that the carpet and underlay was for one bedroom and closet only, and includes costs for carpet, underlay, installation, removal and disposal, removing and reinstalling closed doors, reinstalling baseboards, and moving furniture.

23.     The respondent says the applicant made no effort to get estimates for the carpet, shop for the best price, or confirm his carpet choices with the respondent. He made extensive submissions about why he should not be ordered to reimburse the entire $1,828.88. He provided alternate estimates indicating that he could have obtained different carpet for less, that a different colour carpet would have cost less, and that furniture moving could have been performed for less.

24.     I disagree with the respondent’s submissions, and find, for the same reasons as set out above, that the respondent waived his opportunity to be involved with the carpet replacement process when he failed to respond to the applicant’s inquiries, then told him to “Proceed with what you have to do to fix the apartment” in the May 19 email. The applicant sent the respondent a final email on May 19, 2017, stating the he wanted to discuss the quotes with the respondent and see if he wanted to get his own quotes before he went ahead with the work. The respondent did not follow up on this offer by reviewing the applicant’s quotes or obtaining alternate ones.

25.     In these circumstances, I find the applicant was not required to search for cheaper carpet alternatives or confirm them with the respondent. Through his email correspondence, the respondent waived his right of involvement, and agreed to pay any repair price.

26.     I also note that Malkin provided a significantly higher estimate for carpet replacement, in the amount of $2,640 that the applicant did not agree to. This indicates that the $1,828.88 paid by the applicant was a reasonable price for the type of carpet and the work performed.

27.     The respondent raised concerns that the date of Malkin’s cleaning invoice is the same as the date on the carpet invoice. He says the applicant should have waited for the cleaned carpets to dry before replacing them. I find this is not determinative. First, neither invoice actually states what day the work was performed. The applicant says the cleaning occurred on May 30, and the carpet replacement was on June 12. Also, Malkin’s reports confirm that the cleaning did not eliminate the stains. I therefore find that carpet replacement was justified immediately following the unsuccessful cleaning.

28.     The respondent submitted that the applicant replaced 16-year-old builder’s grade carpet with newer, higher quality carpet. He says he should not have to pay for the higher quality carpet, and that his reimbursement should be discounted to account for depreciation on the old carpet. The respondent cited the decision of the BC Provincial Court in Fudge v Owners, Strata Plan NW 2636, 2012 BCPC 409. In Fudge, a strata corporation was ordered to reimburse a strata lot for carpet replacement after a water leak. The court said that while carpet replacement was justified, but the reimbursement should be discounted because the original carpets were old. The court reasoned as follows in paragraph 91:

Unquestionably, when her carpets are ultimately replaced, Ms. Fudge will have in her unit floor coverings that will have a longer service life than the 19-year-old and somewhat worn carpets that the unit had in place just prior to the flood incident. It will be recalled that a damages award in Ms. Fudge’s favour in this case is intended, so far as money can do so, put her in the same position as she would have been had the negligently caused flood incident not occurred. Were I to fail to take account of the benefit of replacing old carpets with new ones—“betterment” as it is known at law—then I would overcompensate Ms. Fudge with an award that would be over-generous to her and over-burdensome to the QT Owners. I must therefore discount the award for carpet replacement to some degree to reflect the phenomenon of betterment.

29.     The court acknowledged that discounting to avoid betterment is necessarily imprecise, but concluded that the strata only had to pay for 90% of the carpet replacement cost. In making this finding, the court relied on the BC Court of Appeal’s decision in Nan v. Black Pine Manufacturing Ltd. (1991), 1991 CanLII 1144 (BC CA), 80 D.L.R. (4th) 153 at 157, (B.C.C.A.). In Nan, the Court of Appeal said the general principle in tort action was that the damages awarded should put the plaintiff in the same position he would have been in if the tort had not occurred. The court said the damages must be reasonable to both the plaintiff and the defendant, and that while replacement costs are the starting point, they may be adjusted for post-loss depreciation or post-reinstatement “betterment”, as reasonable in the circumstances.

30.     Based on the facts of this case, I find that the carpet replacement costs should not be reduced to account for betterment. In his May 19 emails, the respondent instructed the applicant to proceed with the repairs, and to “Fix it and we will deal with it.” I find that through these emails, the respondent agreed to pay for new carpets, and waived his right to any discount, such as for betterment. I find that this waiver by the respondent supersedes any potential overcompensation for the applicant.

31.     For these reasons, I find the respondent must reimburse the applicant $1,828.88 for carpet replacement.

Time Lost from Work

32.     The applicant claims $1,933.45 in compensation for time lost from work due to dealing with the leak. I decline to order this amount. While the applicant has confirmed his wage rate, he has not provided evidence confirming the specific hours or days missed from work due to the leak, and has not provided evidence to show that the various repairs could not have been performed on weekends or other scheduled time off. While I accept that the leak was inconvenient, I do not accept that it resulted in 42 hours of missed work, as claimed by the applicant. Also, I note that the tribunal generally does not order compensation for a party’s own time in dealing with a dispute.

Compensation for Inconvenience

33.     The applicant claims $500 as compensation for not being able to stay in his strata lot, as well as having to make multiple trips to it. I decline to order this amount. The applicant says he stayed with his mother, so he did not incur accommodation costs. As noted above, the tribunal does not typically order compensation for inconvenience, or for a party’s own time in dealing with a dispute.

Dispute-Related Expenses

34.     The applicant claims $571.83 in dispute-related expenses. However, he has provided no invoices or receipts to support this claim, and no particulars to explain the claimed expenses. For that reason, I decline to order dispute-related expenses.

 

 

Interest

35.     The applicant claims interest on the cleaning and carpet replacement costs. I agree that he is entitled to interest under the Court Order Interest Act (COIA). The COIA sets out the applicable interest rates, which are mandatory unless the parties have a contractual agreement that other interest rates apply. There is no contractual interest rate in this case, so I find the applicant is entitled to interest under the COIA.

36.     I have ordered the respondent to reimburse the applicant $571.73 for cleaning and $1,828.88 for carpet replacement, which equals $2,400.61. COIA interest on this amount from June 17, 2017 (the date of the relevant invoices) until the date of this decision equals $27.03.

Fees

37.     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. The applicant was successful in this dispute, and I see no reason to depart from this general rule. I therefore order the respondent to reimburse the applicant $225 for tribunal fees.

DECISION AND ORDERS

38.      I order that within 30 days of this decision, the respondent pay the applicant a total of $2,652.64, broken down as follows:

a.    $2,400.61 as reimbursement for cleaning and carpet replacement,

b.    $27.03 as prejudgment interest under the Court Order Interest Act (COIA), and

c.    $225 for tribunal fees and dispute-related expenses.

39.      The applicant is also entitled to post-judgment interest under the COIA.

40.     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.

41.     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.