Date Issued: February 1, 2019

File: ST-2017-002074 and

ST-2018-003043

Type: Strata

Civil Resolution Tribunal

Indexed as: Jiwani v. The Owners, Strata Plan VR 1108, 2019 BCCRT 132

Between:

Rozmin Jiwani

Applicant

And:

                    The Owners, Strata Plan VR 1108

Respondent

And:

                    Rozmin Jiwani

Respondent BY COUNTERCLAIM

 

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

INTRODUCTION

1.      The applicant and respondent in the counterclaim, Rozmin Jiwani (owner), co-owns a strata lot in the respondent strata corporation, The Owners, Strata VR 1108 (strata). The strata is the applicant in the counterclaim.

2.      This dispute involves costs associated with repairing a water leak in the owner’s strata lot that occurred in December 2014.

3.      The owner says the strata was negligent in repairing a perimeter drain, which they say is common property, and that this negligent repair resulted in a water leak into their strata lot.

4.      The owner seeks orders that the strata reimburse them $9,046.29 for the cost of repairs and $33,534.03 for lost rental income.

5.      In the counterclaim, the strata disputes the owner’s claim that the leak was caused by a common property problem and says the owner should pay for the work required by the strata to determine the cause of the leak.

6.      The strata seeks orders that the owner’s claim be dismissed and that it be compensated $39,949.50 for the cost of investigative work performed.

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

8.      For the reasons that follow, I dismiss both the owner’s and the strata’s claims because they are each out of time under the Limitation Act (LA).

JURISDICTION AND PROCEDURE

9.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 121 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.

10.   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.

11.   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.

12.   Under section 123 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

13.   The issues in this dispute are:

a.    Does the LA apply to the claims in this dispute?

b.    Are the owner’s claims out of time under the LA?

c.    If not, what amount, if any, is the owner entitled to receive from the strata?

d.    Is the strata’s claim out of time under the LA?

e.    If not, what amount, if any, is the strata entitled to receive from the owner?

BACKGROUND, EVIDENCE AND ANALYSIS

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

15.   In a civil proceeding such as this, the owner must prove their claim on a balance of probabilities. The strata must prove its counterclaim on a balance of probabilities.

16.   The strata is a 25-unit residential strata corporation located in West Vancouver, B.C.

17.   On December 10, 2014, the owner’s tenant discovered a leak in the laundry room of the strata lot.

18.   The strata completed some preliminary investigation and concluded the leak, which had spread to other areas of the strata lot, was most likely coming from a shower pan within the strata lot.

19.   The strata retained Golder Associates (Golder), a geotechnical engineering firm, to investigate and report on groundwater seepage into the owner’s strata lot. Golder issued its report to the strata on April 13, 2015. The strata emailed the report to the owner on April 14, 2015. The Golder report indicated a possible leak source through the perimeter foundation wall caused by a plugged perimeter drain as a possible source of the water. The report also identified that the shower pan in the owner’s strata lot could also be a source of the water leak.

20.   I find that, based on the evidence provided, and in particular the Golder report, the cause of the leak was not conclusively determined.

21.   At my request, the parties made further submissions on the application of the LA to their claims.

Does the LA apply to the claims in this dispute?

22.   Section 13 of the Act states that the LA applies to the tribunal as if it were a court. It also says reference to a claim in the LA is deemed to include a claim under the Act. The LA defines a "claim" as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. The limitation period only applies to claims, as defined.

23.   Section 6 of the LA says of the basic limitation period is 2 years, and that a claim may not be commenced more than 2 years after it is discovered.

24.   Section 8 of the LA says that, except for special situations referred to in sections 9 to 11 that do not apply here, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:

a.     that injury, loss or damage had occurred;

b.     that the injury, loss or damage was caused by or contributed to by an act or omission;

c.     that the act or omission was that of the person against whom the claim is or may be made;

d.     that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek remedy for the injury, loss or damage.

25.   I find the LA applies to the claims in this dispute, because the parties’ respective claims are for financial losses or damage.

Are the owner’s claims out of time under the LA in dispute ST-2017-002074?

26.   The owner did not address the LA issue in her additional submissions despite being asked to do so. In its additional submissions, the strata says the claims are statute-barred. I infer the strata is referring to the owner’s claims as it would not make sense for the strata to argue its own counterclaim is out of time.

27.   Both of the owner’s claims for the cost of repairs and lost rental income arise from the same water leak that the owner admits occurred on December 10, 2014 and continued “through the winter and early spring 2015”.

28.   The Dispute Notice was issued on May 3, 2017 so if the date of discovery under the LA arose before May 3, 2015, the owner’s claims are out of time.

29.   Based on the evidence, I find the date of discovery was April 14, 2015, the date the Golder report was provided to her. This is date the owner knew or ought to have known she had a claim (also known as a “cause of action”) against the strata.

30.   Given my finding above that the date of discovery was before May 3, 2015, I find the owner’s claims, and therefore the owner’s dispute, are out of time under the LA.

31.   Accordingly, I dismiss the owner’s claims.

Is the strata’s claim out of time under the LA in dispute ST-2018-003043?

32.   The strata counterclaims for costs relating to its investigation and repair of the leak that caused damage to the owner’s strata lot in December 2014. The Dispute Notice for the strata’s counterclaim is dated May 15, 2018.

33.   Section 22 of the LA does not permit a counterclaim or “related claim” to be brought unless the first claim, here the owner’s claims, are within the basic limitation and ultimate limitation periods. Given the strata’s counterclaim is related to the owner’s claim that was out of time, it is also out of time under the LA.

34.   Accordingly, I dismiss the strata’s counterclaim.

35.   I note the strata’s counterclaim is based on the same facts as the owner’s claims. So even if I had found the owner’s claim was not out of time, I would find the strata’s counterclaim was out of time because the date of Golder report is also the date the strata’s cause of action arose.

TRIBUNAL FEES AND EXPENSES

36.   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 dispute-related expenses. I see no reason in this case to deviate from the general rule. Given neither party was successful, I find both parties must bear their own costs.

37.   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.

ORDERS

38.   I order that the owner’s claims are dismissed.

39.   I order that strata’s counterclaim is dismissed.