Date Issued: October 18, 2018

File: ST-2017-006899

Type: Strata

Civil Resolution Tribunal

Indexed as: Lynn v. The Owners, Strata Plan NW 1629, 2018 BCCRT 630

Between:

John Lynn

Applicant

And:

The Owners, Strata Plan NW 1629

Respondent

 

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

INTRODUCTION

1.         The applicant, John Lynn (owner), owns a strata lot (SL2) in the respondent strata corporation, The Owners, Strata Plan NW 1629 (strata).

2.         The owner alleges the strata failed to repair and maintain the building exterior and seeks compensation for damage resulting from water ingress into SL2. The owner also seeks reimbursement of legal expenses.

3.         The owner is self-represented. The strata is represented by a strata council member.

4.         For the reasons that follow, I dismiss the owner’s dispute.

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

ISSUES

9.         The issues in this dispute are:

a.      Who is responsible for the flooring repairs to SL2?

b.      Is the owner entitled to reimbursement of $225.00 for tribunal fees or $600.00 for legal fees?

BACKGROUND AND EVIDENCE

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

11.      In this tribunal proceeding, the owner must prove their claim on a balance of probabilities. 

12.      The strata is a 112-unit residential high-rise strata corporation located in Burnaby, B.C. 

13.      I find the relevant strata bylaws include the Schedule of Standard Bylaws under the Strata Property Act (SPA).  There are other bylaw amendments that do not apply, including bylaw amendments passed under the Condominium Act, but those bylaws do not replace the Schedule of Standard Bylaws under the SPA (see Strata Property Regulation 17.11).

14.      The parties agree that water entered SL2 from the exterior building wall.  They also agree that the total water damage sustained in SL2 is below the $25,000 deductible of the strata’s insurance policy.

15.      On or about December 12, 2015, the owner noticed water in his strata lot below a kitchen window.  He immediately contacted the strata’s caretaker and property manager, who arranged for the strata’s plumbing contractor to inspect SL2, who was on-site completing a plumbing retrofit. 

16.      The plumbing contractor attended the same day and determined the water ingress was not as a result of a plumbing leak.  The strata then dispatched a contractor to attend to emergency repairs that evening and for another contractor (Circle) to attend to other necessary repairs.

17.      Circle attended SL2 on December 14, 2015 and determined the water ingress was originating from the building exterior.  Circle recommended the strata retain an engineer to further investigate the building envelope or that an alternate contractor with expertise in exterior building repairs repair the exterior wall immediately adjacent to the kitchen wall of SL2.

18.      The owner attempted to file an insurance claim with his own insurer but the claim was denied because the insurer found the claim related to water seepage, which was an exclusion under his policy.

19.      On January 8, 2016, the strata retained Bemco Pacific Services (Bemco) to investigate the exterior wall.  Bemco replaced the portion of the exterior wall immediately adjacent to SL2 but water ingress in SL2 reoccurred on March 13, 2016, after the exterior wall was replaced.

20.      At its January 18, 2016 strata council meeting, the strata retained Strata Engineering to complete a building envelope condition report, based on the recommendation of Circle.

21.      On March 28, 2016, the owner wrote to the strata advising that he would proceed with replacing the floor in SL2 for which he expected to be fully compensated by the strata.

POSITION OF THE PARTIES

22.      The owner says the strata takes a reactive approach to repairs and failed to replace the laminate flooring in SL2, which was not damaged through any fault of the owner.  The owner says the strata forced him to undertake removal and replacement of his baseboard and flooring because of its lack of attention to the matter.

23.      The owner seeks payment of $14,873.00 as compensation for his loss plus reimbursement of $600.00 for legal fees.

24.      The strata says it took reasonable steps to attend to any required building envelope repairs.  It says it was having difficulty with its property manager, which it eventually replaced, and although frustrating to the strata council and possibly the owner, any delay in the repair was due to the owner’s actions.

25.      The strata also says the owner’s flooring was upgraded from original and that it was not responsible for the flooring replacement based on the advice of its property manager.

26.      The strata asks that the owner’s claims be dismissed.

ANALYSIS

Who is responsible for the flooring repairs to SL2?

27.      The building’s exterior wall is common property of the strata.  Section 72 of the SPA states the strata is responsible to repair and maintain its common property and may, by bylaw, take responsibility for repair and maintenance of specified portions of a strata lot. The strata has no such bylaws.

28.      Standard bylaw 2 says that the owner is responsible for repair and maintenance to his strata lot except for repair and maintenance that is the strata’s responsibility. 

29.      Bylaw 8 says the strata must repair and maintain common property.

30.      To be successful in an action for negligence, the owner must demonstrate that the strata owed a duty of care to him, that the strata breached the standard of care, that the owner sustained damage, and that the damage was caused by the strata’s breach.  (See Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.)

31.      The strata has a duty to repair the common property leak under section 72 of the SPA and bylaw 8. The issue here is whether the strata has breached its standard of care, which is one of reasonableness, in its approach to repairs of the common property wall.

32.      The evidence shows that the owner notified the strata when he first noticed the water entering his strata lot. The strata took immediate steps to attend to the emergency water extraction in SL2. The strata took steps to attend to repairing the source of the common property wall that included a total replacement of the exterior wall section adjacent to SL2. 

33.      Nothing turns on the fact the strata told the owner it would not replace the laminate flooring in SL2 because it was not original to the strata lot. The owner does not contest that the flooring was not original.  Absent a bylaw making the strata responsible for a strata lot’s flooring, a finding that the laminate flooring was not original would likely only be relevant in the case where there was an accepted water damage claim under the strata’s insurance policy, which is not the case here.

34.      I find the steps taken by the strata to investigate and replace the section of wall over a 3-month period between December 2015 and March 2016 were reasonable.

35.      That the wall leaked again after it was replaced does not mean the strata was negligent. The courts have found that if a strata corporation’s contractor or consultant fails to carry out work effectively, the strata corporation should not be found negligent if it 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 #205, 1996 CanLii 2460 (BC SC), aff’d  1998 BCCA 5823).

36.      There is no evidence before me to suggest the strata did not act reasonably when it retained Bemco to replace the exterior wall section.  It relied on Bemco to make the new wall watertight and in following the case law noted above, I find the strata did not breach the standard of care, which is reasonableness.  As such, I find the strata was not negligent when it attended to the exterior building repairs.

37.      For these reasons, I dismiss the owner’s claim.

Is the owner entitled to reimbursement of $225.00 for tribunal fees or $600.00 for legal fees?

38.      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 reason in this case to deviate from the general rule. I find the strata to be the successful party but it did not pay tribunal fees or claim dispute-related expenses.

39.      As for the owner’s request for legal fees, even if the owner had been successful, tribunal rule 132 permits me to make an order for legal fees only in extraordinary cases, which I find do not exist here.

40.      Therefore, I decline to order the strata to pay the owner $600.00 for legal fees.

41.      The strata corporation must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the owner, unless the tribunal orders otherwise.

DECISION AND ORDER

42.      I order that the owner’s dispute be dismissed.