Date Issued: September 7, 2018

File: ST-2017-00011

Type: Strata

Civil Resolution Tribunal

Indexed as: Taylor v. The Owners, Strata Plan K 748, 2018 BCCRT 503

Between:

Linda Taylor                          

Applicant

And:

The Owners, Strata Plan K 748

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.        The applicant, Linda Taylor (owner) owns strata lot 9 (SL9) in the respondent strata corporation, The Owners, Strata Plan K 748 (strata).[1]

2.        The owner is represented by a lawyer, Matthew Fischer. The evidence indicates that the owner is elderly, with many health problems, and her lawyer is instructed by her daughter, Barb Taylor. Barb Taylor is the owner’s caregiver, and lives in SL9. The evidence also indicates that since 2010, Barb Taylor has acted in the owner’s place in all dealings with the strata. For convenience, in this decision I have referred to Linda Taylor as “the owner” and Barb Taylor as “Ms. Taylor”.

3.        The strata is represented by a lawyer, Silvano Todesco.

4.        Ms. Taylor says the strata failed to repair and maintain common property. She says the strata refuses to address structural and building envelope failures, and refuses to remediate resulting damage to SL9. She seeks an order that the strata be ordered to purchase SL9, or alternatively that they be ordered to repair the building and SL9. She also seeks damages for loss of use and living-out expenses, plus reimbursement of legal fees.

5.        The strata says some common property repairs were completed in 2015, and some are in the process of being repaired. The strata says the common property repairs were addressed in a reasonable amount of time. The strata says any other problems reported by the owner originate from her own strata lot, or are due to the owner’s failure to maintain her strata lot, so they are her responsibility to repair.

6.        For the reasons set out below, I find that the strata has not failed in its duty to maintain and repair common property. The applicant is therefore not entitled to the requested remedies, except for specific repairs to the gutters, downspouts, and roof edge.

JURISDICTION AND PROCEDURE

7.        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.

8.         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, as I find I can fairly resolve the issues based on all of the documentary evidence and submissions before me, which I note were rather lengthy. This conclusion is consistent with the tribunal’s mandate to provide speedy and efficient dispute resolution services, as noted in Yas v. Pope, 2018 BCSC 282.

9.        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.

10.     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

11.     The issues in this dispute are:

a.  Has the strata failed to adequately repair or maintain common property?

b.  If so, what are the appropriate remedies?

BACKGROUND FACTS

12.     I have read all of the evidence provided, which is extensive. I refer only to evidence I find relevant to provide context for my decision.

13.     The strata complex is made up of 72 strata lots, configured as townhouses with 3 to 5 strata lots per building. The owner’s strata lot, SL9, is an end unit townhome, built in 1989. The owner, along with her late husband, has owned the SL9 since April 1989. It is connected by a common wall to one other strata lot in the same building. It is a one-story wood frame building with a crawlspace underneath and an attic above.

14.     The strata complex has a long and complicated history of remedial repairs. Documents provided in evidence show that the strata buildings are built on “highly plastic” clay soil that swells when it becomes wet. This was known and addressed in engineering documents prior to construction, but still led to extensive ground movement, settling, and foundation issues throughout the strata complex. There were new home warranty claims by 1994, which involved geotechnical assessments, engineering reports, and extensive remedial work affecting numerous strata lots in the strata plan.

15.     In 1994, Ms. Taylor’s father was involved in a new home warranty claim. The insurer’s engineer reported that the building containing SL9 had foundation movement due to surface water sources such as downspouts, drainage piping, irrigation systems, and negative site grades. Remedial work to the exterior drainage was performed under that claim, and in February 1999 the engineer reported that the work was completed to his satisfaction.

16.     In early 2009, the owner and Ms. Taylor reported to the strata council that the foundation of SL9 had sunk and cracked, resulting in cracks to the interior walls and ceiling, the fireplace tiling, and the kitchen countertop. The strata engaged a contractor to perform foundation work in June 2009. This included adding manually adjustable jacks and new support beams in the crawlspace.

17.     After the repairs, Ms. Taylor reported more cracking in the interior walls and ceiling, as well as “popping” sounds.

18.     In May 2010, a licensed builder from Triple Creek Contracting inspected the foundation of SL9, and reported that there seemed to be little foundation movement since the extensive repairs were done in 2009. The builder said the new support beams were level, and did not seem to have moved. He also said the crawlspace was dry, with no visible moisture spots. He said there were hairline cracks in the skim-coat concrete, which seemed to be only normal shrinkage. The builder also reported that there was no apparent movement in the roof system. He concluded that all repairs seemed to be working, but should be monitored for future movement.

19.     Ms. Taylor hired engineer Craig Hostland to inspect SL9 on September 14, 2010. His written report said the crawlspace support structure showed deficiencies and irregularities, including temporary beams and beam supports, leaning posts, posts not mechanically fastened, beams and floor systems not properly supported, improper post footings, substandard workmanship, and incomplete/improper shimming. Mr. Hostland said the work likely did not meet the safety standards in provincial and national building codes. He also said that water intrusion in the northwest corner of the crawlspace indicated that the perimeter drainage repairs were not completed correctly. Mr. Hostland concluded that the repairs conducted were incomplete and significantly deficient.

20.     In November 2010, the strata paid for additional repairs. A contractor put a new support beam and jacks in the crawlspace, and installed new jack post bases. The exterior ground was excavated to investigate and repair the source of water in the crawlspace.

21.     In September 2011, Ms. Taylor reported to the strata council that the concrete patio outside SL9’s back door was dropping. In November 2011, she reported a gap under the back door sill.

22.     In August 2012, the strata paid for more repairs. The patio was excavated and replaced. Further work was conducted in the crawlspace to level the building. The strata’s contractor patched and painted some drywall inside SL9, and some windows were replaced.

23.     In November 2012, Ms. Taylor reported new cracks in the interior walls. She asked the strata to hire a structural engineer to inspect the settling problems. Ms. Taylor repeated this request throughout 2013. She also reported that the outside gutters, which are common property, were damaged and needed repair.

24.     In May 2014, Alison McLeod, a structural engineer hired by the strata, inspected the main floor and crawlspace of SL9. She said there was evidence of moisture in the crawlspace at the fireplace footing, and the non-structural concrete floor was cracked. She said the exterior concrete patio was sloped toward the house. Ms. McLeod also said there was an unknown water source (pipe) tied into the perimeter drainage, which was sloped in the wrong direction. She recommended remedial work, as follows:

•      Slope the concrete surfaces away from the building.

•      Move the roof drains out of the perimeter drainages and extend them 6 feet away from the house.

•      Locate the source of unknown water and move it away from the house.

25.     After discussions between lawyers representing the strata and the owner, the strata agreed to pay for further repairs in August 2014. The parties agreed that Mr. Hostland, the engineer originally hired by Ms. Taylor, would oversee the project.

26.     In an October 29, 2014 notice to all owners, the strata council reported that the strata was responsible to remediate outstanding and serious issues in SL9, due to poor decisions by the strata council in the past and inadequate workmanship by its contractors.

27.     Work was performed from September 2014 to August 2015. On Mr. Hostland’s recommendation, this work included mould remediation due to water entering the crawlspace.

28.     In July 2015, Ms. Taylor reported that the interior floors in SL9 were not level. Ned Stewart, who is a strata council member and also one of the builders who worked on the repairs, wrote a July 22, 2015 email to Mr. Hostland stating that they found no issues with the floor not being level. Mr. Stewart wrote that the digital level showed nothing out of the ordinary.

29.     Mr. Hostland wrote a completion report for the project on August 13, 2015. He wrote that he had conducted final site inspections and “this letter is to confirm our general satisfaction with the work conducted and completed as scoped.” He noted that the project included the following:

•      Repair of the perimeter and roof drainage

•      Reslope ground

•      Patch foundation

•      Reinforce foundation after slope delineation

•      Completion of directed repairs

30.     Mr. Hostland also wrote that as shown in the geotechnical reports, the ground conditions around SL9 and in the general area were such that further settlement and building movement were likely. He said the intent of the project was to “somewhat mitigate” those future events, as past work to redirect water away from the foundation and shore up the settling structure were incomplete and poorly conducted, and likely contributed to moisture intrusion and building movement. Mr. Hostland wrote that the foundation was less likely to have seasonal movements with the removal of the visible water issues. He said the shoring in the crawlspace was improved in an acceptable manner, and the sealing of the floor to the concrete to reduce moisture intrusion was also acceptable.

31.     On January 13, 2016, the owner’s lawyer wrote to the strata stating that the strata had not met its statutory duty to repair and maintain the common property. He said the strata had largely ignored, or taken insufficient steps, to address serious and fundamental problems that were destroying SL9. He said the work done by the strata only worsened the situation. The letter outlined the past problems and repairs in detail. The letter said that Mr. Stewart, who was in a conflict of interest as a strata council member, provided Mr. Hostland with incomplete information about the floor level readings. It also said that Mr. Hostland’s closure report only said the work was fine with respect to personal safety.

32.     The owner’s lawyer wrote that the work completed in 2015 was not holding up, and there was now a huge, expanding gap between the roof and the rest of the building. The letter asked the strata to do the following:

•      Hire a new engineer to create a remediation plan

•      Pay for work, supervised by the engineer, intended to provide a lasting remedy to the issue

•      Fully remediate the interior of SL9

•      Pay the owner’s past and current legal expenses based on the strata’s bad faith conduct

•      Alter the soil outside SL9 to ensure no problems recurred

33.     The letter said that in the alternative, the strata should purchase SL9 from the owner for $324,000, plus $15,000 in costs.

34.     In another letter dated April 19, 2016, the owner’s lawyer wrote that Ms. Taylor was concerned about water ingress, general dampness, and risk of mould. He said SL9 was unsaleable, as it was in a partly repaired state with walls and floors continuing to shift. In a November 1, 2016 letter, he requested that the strata pay for mould abatement, as his clients reported mould-related symptoms.

35.     On November 2, 2016, Ms. Taylor hired Brian Sanjenko, a licensed home inspector, to inspect SL9. Mr. Sanjenko recommended the following repairs:

•      Reslope and clean exterior gutters.

•      Repair downspouts, which were put together backwards.

•      Repair roof flashings, specifically the drip flashing at the southwest corner of roof, and the areas around and on top of the chimney chase.

•      Add “Z” flashing to bottom of exterior walls.

•      Possibly re-slope exterior sidewalk.

•      Add new vapour barrier to crawlspace floor.

•      Seal all joints and holes in furnace ductwork in crawlspace, and install hepa furnace filter.

36.     Mr. Sanjenko also recommended adjusting the interior doors and kitchen cabinets, and repairing interior wall cracks. He said this might be an ongoing issue since the home is located in an area known for expansive soil. He said there was no visible moisture in the crawlspace, although there were relatively high moisture readings around the crawlspace perimeter.

37.     Mr. Sanjenko wrote that indoor air quality testing in September 2016 showed an increased presence of stachybotrys mould spores in the crawlspace compared to previous testing in 2014.

38.      The owner’s lawyer requested a hearing before the strata council, which was held in December 2016. A transcript of the hearing was provided in evidence. He said he thought the building envelope was compromised, the previous repairs had not stabilized the structure, the floors were not level, and the cracks were getting worse. He asked the strata to remediate the structural, geotechnical, and building envelope issues, and also repair damage to the interior of SL9 caused by failure to originally and correctly repair the structure. He also repeated his suggestion that that the strata purchase SL9.

39.     In a December 14, 2016 letter, the strata said it would repair the gutters, flashing issues, and other issues identified in Mr. Sanjenko’s report. The strata said that it would not undertake further repairs based solely on a building inspector’s report and pictures taken by the owner’s lawyer. The letter said that all parties had agreed in August 2014 that a professional team chosen by Ms. Taylor would address the air quality and building envelope concerns in SL9, all recommendations were following from August 2014 to May 2015, and at the end Mr. Hostland, the engineer selected by Ms. Taylor, signed off on the work.

40.     The strata’s letter said it was important to recognize that the strata was built on clay, and as stated in all the professional reports, there would always be movement and shifting that affected all strata lots. The strata said that if Ms. Taylor believed there were other issues to repair, the onus was on her to provide a report from a professional engineer to give a clear understanding of what needed to be done. The letter said the information provided by the owner, including an air quality report, various pictures, video footage, and Mr. Sanjenko’s report, was piecemeal in its approach, had no explanation of causes or possible repairs, and contradicted Mr. Hostland’s August 2015 report signing off on the completed repairs. The strata concluded that unless Ms. Taylor provided a report from a credible professional, such as an engineer, they would rely on Mr. Hostland’s report.

41.     After the owner’s lawyer filed this dispute, the strata hired another engineer, Alexandre Bouchard, to complete a building condition assessment of SL9. Mr. Bouchard attended SL9 on March 23 and April 11, 2017, and reviewed documents including foundation design specifications, geotechnical reports, and prior inspection reports. He also cut into the exterior walls in 8 places to obtain samples, which were observed and tested for moisture. Mr. Bouchard wrote as follows in his July 19, 2017 report:

•      SL9 is in a known geotechnically sensitive area with soil subject to large moisture-related volume changes. As the soil will inevitably be subject to seasonal moisture content variations, the structure would be subject to variable sub-surface loads due to soil volume changes. Therefore, above average movement of structures and associated cracking was anticipated.

•      No evidence of significant differential displacement was observed.

•      The observed cracking in the exterior walls was largely within the stucco cladding, and was common to the 3 strata lots in that building. The observed cracking in the stucco was common for aged face-sealed stucco assemblies with no planned expansion joints. Otherwise, exterior cracking was limited to cementitious parging around the threshold of the northwestern access door.

•      The condition of the exterior walls was fair, and they were performing as anticipated, with the exception of the area near the chimney.

•      There was deterioration near the chimney assembly, with storm water accumulating along the sloped roof and discharging onto the chimney. There was moisture within the nearby wall assembly, and evidence of surface deterioration.

•      The gutters were inconsistently sloped, there were exposed wood components along the edge of the roof assemblies, and there were concerns about the location of the downspouts to discharge accumulated rainwater.

•      The chimney problems should be addressed throughout the strata complex within 1 to 3 years. Remediation would involve removing the stucco cladding from the exterior of the chimney, replacing any deteriorated materials, reinstating a properly designed cladding system around the chimney assembly, and possibly installing a drainage channel.

•      While there were an above-average number of hairline cracks within SL9, much of the cracking could be the result of previous remedial actions such as adding supports, either due to movement of the structure at the time of the remedial actions and/or the settling of the structure into a stable position after the remediation.

•      The cracks were reviewed for evidence of movement or differential settlement, but this was not observed.

•      The observed cracking is aesthetic in nature, and would not require significant remedial efforts in the foreseeable future.

•      Ongoing monitoring of site conditions for evidence of movement or differential settlement is recommended, until the extent of the previous structural remedial efforts could be confirmed and deemed appropriate for site conditions.

•      There was no visual evidence of mould growth, although it was possible that the mould spores identified in 2014 could have originated from moisture-related deterioration of exterior wall assemblies. Comprehensive air sampling should be undertaken and interpreted along with previous air sampling results to provide an opinion on mould presence within SL9.

42.     Mr. Bouchard visited SL9 again to conduct a field review on December 6, 2017. In a December 7, 2017 email to the strata’s lawyer, Mr. Bouchard said the site conditions remained largely the same as observed in March and April 2017, and as such the findings in his July 2017 report remained representative of the site conditions. He said there was no evidence of moisture infiltration along the crawlspace walls. Mr. Bouchard said that while a few telepost jacks were loose, the common practice in the strata complex was to periodically readjust these, which had not recently been done. He said that while there were some uneven surfaces along the floor of SL9, this was an “inconvenience deficiency” which was anticipated and associated with the shifting building structure. He said the hairline cracking along the walls and ceilings of SL9 were an aesthetic deficiency resulting from the shifting building structure.

43.     The strata hired Stantec, an engineering firm, to conduct mould testing. Stantec provided a May 18, 2017 report signed by an environmental technologist, an engineer, and an occupational health professional. The report said Stantec was engaged to assess for the presence and extent of mould in SL9, and to assess whether mould-impacted building materials were amplifying airborne mold particles. The report stated as follows:

•      Spore trap air samples showed results indicating of what would typically be expected of indoor concentrations.

•      There were greater levels of aspergillus/penicillium spores in the crawlspace compared with outdoor samples. Although that might indicate a crawlspace amplifier for this mould, daily fluctuations in outdoor airborne spore types are common, aspergillus/penicillium particles are common to outdoor air, and may be present outdoors in quantities/predominance similar to that detected in the crawlspace.

•      General conditions and air quality within crawlspaces are expected to be different from other indoor/occupied spaces.

•      Airborne mould particle conditions within the crawlspace did not appear to be impacting the air within the occupied areas of SL9.

•      The only elevated moisture levels in the assessed building materials were in moisture-stained areas of the concrete crawlspace floor. No current moisture intrusion issues were observed in the crawlspace, and no suspect mould growth was observed on the crawlspace surfaces.

•      In general, moisture conditions that would support mould growth were not observed.

•      Mould remediation was not recommended, as no suspect mould was observed.

44.     Ms. Taylor engaged Apex EHS Services to do a mould assessment and scope of work for mould remediation of SL9. Apex’s July 17, 2017 report states as follows:

•      There was approximately 4 feet of visible water damage on spray foam insulation applied to the concrete in the northeast corner of the crawlspace.

•      The only area of confirmed mould growth was in a 1 square foot area on the concrete floor on the east side of the crawl space, adjacent to an area of water staining.

•      The moisture content of the floor joists, the underside of the wood subfloor, and the drywall in the crawlspace was below the threshold to support mould growth.

•      No visible mould was identified in the remainder of the building.

•      Building finishes were below the moisture threshold to support mould growth.

•      Mould air samples collected from the spare bedroom and living room/kitchen were quantitatively lower and qualitatively similar to outdoor reference samples, suggesting that mould growth within the crawlspace was not negatively impacting on air quality.

45.     Apex recommended removing some of the spray foam insulation from the northeast corner of the crawlspace, followed by abrasive cleaning of any visible mould there and around the 1 foot visible mould patch on the east side of the crawlspace.

46.     Apex did a second mould assessment on December 12, 2017. Their follow-up report, dated December 14, 2017, states as follows:

•      The water damage on the spray foam insulation in the northeast corner of the crawlspace did not appear more extensive than in July 2017.

•      Confirmed mould growth and water staining in the crawlspace did not appear more extensive.

•      No other areas of suspect visible mould growth or water damage were identified in the crawlspace.

•      Suspect visible mould growth and water damage were not identified within damaged areas of exterior stucco and interior drywall.

•      The moisture content readings in the crawlspace and elsewhere in the building were below the threshold to support mould growth.

•      Apex said that mould air samples collected from the spare bedroom and living room/kitchen on July 6, 2017 and from the spare bedroom and master bedroom on December 12, 2017 were quantitatively and qualitatively similar to outdoor reference samples suggesting that mould growth within the crawlspace was not negatively impacting on air quality in these areas.

47.     Ms. Taylor obtained a report from Claus Gerlach, a Red Seal carpenter who visited SL9 on January 27, 2018. Mr. Gerlach reported problems with the roof gutters. He said there were sloping floors and drywall cracks. He also said the shimming between the foundation and the wall was inconsistent with the BC Building Code.

REASONS AND ANALYSIS

48.     The owner’s lawyer says the strata has failed to repair and maintain the building and its drainage. He submits that the common property adjacent to SL9 has numerous deficiencies, which has led to interior damage. These claimed deficiencies include the following:

•      Compromised building envelope, including expanding gap between the roof and the rest of the building

•      Unstable structure

•      Strata lot floors not level

•      Worsening exterior cracks

•      Water ingress

•      Dampness

•      Mould, leading to poor air quality

49.      The strata’s duty to repair and maintain common property is set out in sections 3 and 72 of the Strata Property Act (SPA). Section 3 of the SPA says the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners. Section 72 says the strata corporation must repair and maintain all common property. Repairs of limited common property may be delegated to individual owners under a strata corporation’s bylaws.

50.      The parties agree that the crawlspace under SL9, as well as the roof, exterior walls, and surrounding ground, are common property. The strata does not dispute its obligation to maintain these areas, but says it has met its duties in this regard with all the previous repair work, including the extensive repairs in 2015.

51.      As stated in Wright v. The Owners, Strata Plan #205, 996 CanLII 2460 (S.C.), aff’d (1998), 43 B.C.L.R. (3d) 1, 1998 CanLII 5823 (C.A.), the strata’s duty to repair is limited, and the strata only has a duty to make repairs that are reasonable in the circumstances. In Wright the BC Supreme Court stated as follows:

As appears from the record of its proceedings the Council was at all times alive to its repair and maintenance responsibilities; and throughout the period of the plaintiff’s ownership of her strata lot took steps to remedy the defects which she drew to its attention . . .

The [strata corporation] are not insurers. Their business, through the Strata Council, is to do all that can reasonably be done in the way of carrying out their statutory duty; and therein lies the test to be applied to their actions. Should it turn out that those they hire to carry out work fail to do so effectively, the defendants cannot be held responsible for such as long as they acted reasonably in the circumstances: and in this instance I have to say that the defendants did just that. They cannot be found to have been negligent.

52.      In assessing the extent of the strata’s the duty to repair under the SPA, the standard is not perfection. Determining what is reasonable may involve assessing whether a solution is good, better, or best:  Weir v. The Owners, Strata Plan NW 17, 2010 BCSC 784. Also, an owner cannot direct the strata how to conduct its repairs: Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241. The strata is entitled to prioritize its repairs:  Warren v. The Owners, Strata Plan VIS 6261, 2017 BCCRT 139.

53.      The owner’s lawyer says the building containing SL9 has serious, worsening structural and envelope issues. He also says the interior of SL9 has been badly damaged by structural deformation and settling, which cannot be remediated until the building structure and envelope been properly remediated.

54.      I find the evidence before me, particularly the numerous engineering reports in evidence, does not support the conclusion that SL9 or adjacent common property have worsening and serious structural and building envelope issues. Rather, the recent engineering reports do not identify any serious, unaddressed issues with the building envelope or structure, other than some limited issues with the roof gutters and chimney area. Also, these engineering reports do not indicate that the interior of SL9 is badly damaged due to structural deformation and settling. Rather, the engineering reports completed since the last set of structural repairs was completed in 2015 indicate that the building is generally sound and safe, and that the likelihood of settling in the future is a condition of the underlying soil. The noted cracks and sloped floors were found to be aesthetic problems only.

55.      For the purpose of this dispute, I accept that all the reports provided in evidence by the parties, including geotechnical reports, mould analyses and assessments, contractor’s reports, and engineering reports, constitute expert evidence pursuant to tribunal rule 113. However, I do not put equal weight on each of these reports, as explained in my reasons below.

56.      Mr. Hostland is an engineer originally hired by Ms. Taylor. The documents in evidence confirm that Ms. Taylor agreed to have Mr. Hostland supervise the 2015 repairs. For example, in an April 24, 2015 email to strata council members, Ms. Taylor wrote, “Craig Hostland was our agreed upon project manager/technical expert.” For that reason, and because Mr. Hostland is a certified engineer who assessed the building envelope and structure before and after the 2015 repairs, I place significant weight on his opinion. Mr. Hostland was asked to provide a report certifying that the 2015 repairs were completed to his satisfaction, and he did so on August 13, 2015. He confirmed “general satisfaction with the work conducted and completed as scoped”. Mr. Hostland said the intent of the project was not to eliminate past construction errors, but to improve the condition of the building for occupant safety.

57.     The owner’s lawyer submits that Mr. Hostland only certified the repairs as to occupant safety, which did not meet the full extent of the strata’s duty to repair. I disagree. Mr. Hostland’s previous reports from September 2010 and September 2014 identified problems with the foundation, crawlspace jacks, water intrusion, and mould. His August 13, 2015 completion report indicated that those issues were repaired to an acceptable level. He wrote that the foundation was less likely to have seasonal movements with the removal of the visible water issues. He said the shoring in the crawlspace was improved in an acceptable manner, and the sealing of the floor to the concrete to reduce moisture intrusion was also acceptable. His report did not recommend any changes or further work.

58.      The owner and Ms. Taylor would like the foundation and drainage to be repaired so that no foundation problems ever occur again. However, they have not provided expert evidence indicating that such a solution is possible, or how it would occur. Mr. Hostland’s August 13, 2015 report said ground conditions around the building were such that future settlement and building movements were likely, and “solutions were not and could not be guaranteed.” Similarly, every other engineering report in evidence, including a geotechnical report written before the building was constructed, said that future foundation movement was likely due to the clay soil. Thus, I do not find that the strata’s failure to provide a guaranteed permanent solution constitutes a breach of its duty to repair common property.

59.      The onus of proof in this dispute is on the owner, and I find the owner has not established that the strata failed to maintain and repair the building’s foundation. The strata carried out extensive foundation and drainage repairs in 2015, as recommended and supervised by Mr. Hostland, the parties’ agreed-upon engineer. There is no evidence indicating that Mr. Hostland recommended additional or different repairs to any part of the building that were not carried out.

60.      Building inspector Mr. Sanjenko investigated the site and provided recommendations at Ms. Taylor’s request in November 2016. In his written report, Mr. Sanjenko recommended repairs to gutters and flashing, but did not recommend any foundation repairs.[2] Rather, he said further evaluation by a geotechnical or structural engineer might be required.

61.      There had already been at least 2 geotechnical engineering studies of the strata plan site, which apparently were not provided to Mr. Sanjenko. The strata hired another structural engineer, Mr. Bouchard, to inspect SL9 and its building in March and April 2017. In addition to Mr. Hostland’s opinion, I place significant weight on Mr. Bouchard’s report, because he is a certified engineer who inspected the site on 2 occasions, and because he conducted an extensive background review of the previous geotechnical, engineering, and building inspection reports. He also reviewed correspondence from Ms. Taylor and the owner’s lawyer, and spoke to Ms. Taylor, so he was aware of their concerns about the building.

62.      Mr. Bouchard reported that there was no evidence of significant differential displacement of the building. He said the wall cracks were reviewed for evidence of movement or differential settlement, but none was found. He said the cracks were aesthetic and did not require significant remedial efforts in the foreseeable future. He also said the cracks could be the result of previous remediation such as adding supports, due to movement at the time of the remediation or post-remediation settlement of the building.

63.      Mr. Bouchard said that due to the nature of the underlying soil, above average movement of structures and associated cracking was anticipated. Mr. Bouchard did not recommend any further work to the building’s foundation, although he identified certain problems with the roof gutters, and the chimney area on the roof.

64.      As neither party has provided expert evidence suggesting further foundation repairs after the completion of the 2015 repairs, I find the strata has not failed in its duty to maintain and repair the foundation under SL9.

65.      I note that in his January 27, 2018 letter, carpenter Mr. Gerlach said there were problems with the roof gutters and the shimming between the foundation and the floor. He also said the interior floors sloped incorrectly. I accept Mr. Gerlach’s opinion about the roof gutters because it is largely consistent with that of Mr. Bouchard and Mr. Sanjencko. However, I am not persuaded by Mr. Gerlach’s opinion about the foundation. First, he did not recommend any specific repairs. More importantly, his report is based solely on a visual inspection and Ms. Taylor’s description about why and how certain repairs were performed. He did not appear to review or have knowledge of any of the previous geotechnical or engineering reports. He suggested that moisture might have entered the exterior building walls and caused water to enter along the foundation and footings. However, he was not aware that Mr. Bouchard had already tested core samples from the walls and found them sound and acceptably dry.

66.      I find Mr. Gerlach’s opinion unpersuasive because it is speculative, and because it is based on incomplete information. Mr. Gerlach was unaware of prior engineering reports and testing. His report concludes with a number of questions about who conducted the repairs, how the foundation was underpinned, the cause of the sinking foundation, and whether a geotechnician or engineer was consulted. The answers to these questions are known, and are addressed in prior engineering and geotechnical reports in evidence. Mr. Gerlach’s recommendations are all for investigations that had already been done by engineers, such as testing the moisture in the walls (completed by Mr. Bouchard) and inspecting the exposed foundation (completed by Mr. Hostland).

67.      For all of these reasons, I put little weight on Mr. Gerlach’s report. Moreover, Mr. Gerlach did not recommend any specific repairs, but only recommended more investigation without being aware of the very recent engineering report by Mr. Bouchard. I prefer the evidence set out in Mr. Bouchard’s July 2017 report, and in Mr. Hostland’s August 2015 report. The owner has not produced a reasoned opinion from a qualified engineer to contradict those reports, and so I rely on them. Accordingly, I find the strata has met its duty to repair and maintain the building structure and envelope.

68.     While SL9 has some problems, such as drywall cracks and sloping floors, there is no engineering report in evidence indicating a need for immediate repairs to the building foundation or envelope. Ultimately, the building is built on problematic soil and is likely to continue to shift. However, as stated previously, the strata is not required to provide a perfect solution to this ongoing problem, and is not obligated to guarantee that no future problems will occur. The evidence before me does not establish that SL9 is worse than all other strata lots in the strata plan. For example, the owner’s next-door neighbour, PL, provided a signed statement which says many owners in the complex have cracks in their walls, and her own patio door is sticky in the winter. The March 2018 depreciation report (also completed by Mr. Bouchard) says cracking of interior finishes is common throughout the strata complex, due to displacement of foundations and associated building components. Another strata lot in a different building had water infiltration into the crawlspace underneath it. The depreciation report recommends different types of maintenance and repair work throughout the strata plan over time. However, the evidence before me does not establish that the strata has failed to meet the standard of making repairs to common property that are reasonable in the circumstances.

69.     Because the strata was not negligent in maintaining or repairing common property, it is not obliged to repair the interior of SL9, including the sloped floors. The case law is clear that the strata is not an insurer, and short of negligence, which I find does not apply here, the strata is not responsible for repairs to the interior of a strata lot: Vasilica v. The Owners, Strata Plan NW 17, 2018 BCCRT 216; Di Lollo v. The Owners, Strata Plan BCS 1470, 2018 BCCRT 24.

Mould

70.      The owner’s lawyer provided extensive evidence and submissions about mould in SL9. He said the strata failed to correctly handle drainage and maintain the building envelope, leading to water ingress and mould contamination. He says the strata should be ordered to conduct mould abatement and remediation.

71.      I do not agree that mould abatement should be ordered in this dispute, as the expert evidence before me does not support the conclusion that there was significant water ingress after 2015, or that SL9 is contaminated by mould.

72.      Mr. Sanjenko’s November 2016 report said that although there were relatively high moisture readings in the crawlspace, there was no visible mould. He said air quality tests in September 2016 indicated an increase in the presence of stachybotrys mould in the crawlspace, but he did not recommend mould remediation. There is no expert report in evidence indicating that the amount of stachybotrys mould spores found in September 2016 (72 fungal structures per cubic metre) represents a harmful or problematic amount of mould. Moreover, the September 2016 laboratory report cited by Mr. Sanjenko indicates that there was no stachybotrys in the air sample from the heat register vent, or the in the family room/living room sample. Thus, I find that Mr. Sanjenko’s report does not establish mould contamination, or the need for mould remediation.

73.      Also, there was no expert analysis of the September 2016 laboratory results provided in evidence, so those results do not, on their own, establish a need for mould remediation.

74.      Similarly, the Stantec report from May 2017 said that mould spore air testing showed results typical of indoor concentrations. Stantec said that while there was a higher concentration of aspergillus/penicillium spores in the crawlspace, crawlspace air was expected to be different from that in occupied spaces, and this did not appear to impact the inside of SL9. The report said moisture conditions that would support mould growth were not observed, and mould remediation was not recommended, as no suspect mould was observed.

75.      Apex, the firm hired by Ms. Taylor, also said that no visible mould was found outside the crawlspace, and mould growth in the crawlspace was not negatively impacting air quality inside SL9. Apex tested for mould in July and December 2017, and repeated these conclusions after both sets of testing. Although Apex recommended isolated cleaning around a 1 foot patch of mould in the crawlspace, they did not recommend any remediation inside SL9, and did not indicate any problem with the air quality in SL9. Rather, Apex said the moisture content readings in the crawlspace and elsewhere in the building were below the threshold to support mould growth.

76.      I find that the evidence before me does not support the conclusion that mould remediation is required. The air quality was tested 4 times from November 2016 to December 2017, using different laboratories and testing methods, and none of the testing found problematic levels of mould inside SL9. While the owner and Ms. Taylor obtained medical reports from physician Dr. Gilhooley indicating negative physical responses to mould exposure, Dr. Gilhooley did not refer to any of the mould testing reports. It appears that Dr. Gilhooley based his opinion that mould remediation was required on information conveyed by Ms. Taylor. He made no reference to the distinction in the mould testing reports between mould levels in the crawlspace and mould levels inside SL9. For example, while he referred to stachybotrys mould, none of the testing showed any stachybotrys spores inside SL9. Because Dr. Gilhooley did not base his medical opinion on actual mould testing results, I find it unpersuasive and do not rely on it.

77.      For all of these reasons, I decline to order the strata to pay for mould remediation.

 

Gutter and Chimney Repairs

78.     Mr. Sanjenko, Mr. Bouchard, and Mr. Gerlach all identified problems with the gutters on the roof above SL9. They all said some of the gutters were sloped the wrong way, which had the potential to allow water leaks into the building envelope. According to an affidavit from strata council member Mr. Steward, the strata intends to complete the repairs identified by Mr. Bouchard, under his supervision.

79.     It appears from the evidence that some of the repairs identified by Mr. Bouchard have not been completed. As Mr. Bouchard’s engineering report was commissioned by the strata for the purpose of identifying needed repairs, I find that the strata is obliged to complete the repairs identified by Mr. Bouchard as part of its ongoing duty to maintain and repair common property.

80.     I order the strata to complete the repairs recommended for immediate attention by Mr. Bouchard due to the evidence of conflict between the parties in the process of completing such repairs. However, I note that I do not find that the strata has failed in its maintenance or repair obligations in this regard. I order the repairs for the purpose of clarity, and to avoid an area of potential future conflict, in keeping with the tribunal’s mandate that includes being mindful of ongoing relationships.

81.     For that reason, the strata must complete the following repairs on the building envelope around SL9, if not already completed, as identified in Mr. Bouchard’s July 2017 report:

a.  Correct improper sloping of gutters.

b.  Correct gutters to prevent discharge of water onto chimney (see page 11, Bouchard report).

c.   Properly cover and remediate any exposed wood components along the edge of the roof assemblies (page 11, Bouchard report).

d.  Relocate downspouts to discharge completely into storm water management infrastructure (pages 4 and 11, Bouchard report).

82.     Within 180 days of this decision, the strata must provide the owner’s lawyer with a copy of a report from Mr. Bouchard or another certified structural engineer chosen by the strata, certifying that the above-listed repairs have been satisfactorily completed.

83.     I note that Mr. Bouchard also recommended remedial work to the chimney attached to SL9, comprised of removing the stucco cladding, replacing any deteriorated materials underneath, and recladding. Mr. Bouchard said this work should be addressed throughout the strata plan within 1 to 3 years. As it was not identified as urgent, I do not make an order for completion. Such work will form part of the strata’s short to medium-term maintenance plan.

Summary

84.     For all of these reasons, and based on the evidence before me in this dispute, I find the strata has met its duty to repair and maintain common property. The owner is not therefore not entitled to remedies based on a breach of that duty, such as purchase of SL9 by the strata, foundation remediation, remediation inside SL9, mould remediation, additional engineering investigations, or damages.

85.      The strata is required to repair the gutters, exposed wood components on the roof, and downspouts, as set out above.

86.     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 dispute-related expenses. As the owner was largely unsuccessful in this dispute, I do not order reimbursement of tribunal fees or dispute-related expenses.

87.      The owner requested reimbursement of legal fees. As set out in the tribunal’s rules, the tribunal generally does not order reimbursement of legal fees. This follows from the general rule in section 20(1) of the Act that parties are to represent themselves in tribunal proceedings. I see no reason to depart from this general rule in this case, particularly since the owner was largely unsuccessful in this dispute. I therefore do not order reimbursement of legal fees.

DECISION AND ORDERS

88.     I order the strata to complete the following repairs on the building envelope around SL9, if not already completed, as identified in Mr. Bouchard’s July 2017 report:

a.  Correct improper sloping of gutters.

b.  Correct gutters to prevent discharge of water onto chimney.

c.   Properly cover and remediate any exposed wood components along the edge of the roof assemblies.

d.  Relocate downspouts to discharge completely into storm water management infrastructure.

89.     I order that within 180 days of this decision, the strata must provide the owner’s lawyer with a copy of a report from Mr. Bouchard or another certified structural engineer chosen by the strata, certifying that the 4 above-listed repairs have been satisfactorily completed.

90.     I order that the strata and its contractors do not have to obtain permission from the owner or Ms. Taylor to access or work on the building exterior, including the roof.

91.      Under section 189.4 of the SPA, an owner who brings a tribunal claim against a strata corporation is not required to contribute to any monetary order issued against the strata corporation or to any expenses the strata corporation incurs in defending the claim. I order the strata to ensure that no part of the expenses incurred by the strata in defending this claim are allocated to the applicant owner.

92.     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.

93.     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.