Date Issued: April 8, 2019

File: ST-2018-006322

Type: Strata

Civil Resolution Tribunal

Indexed as: Wildeman v. The Owners, Strata Plan LMS 4005, 2019 BCCRT 436

Between:

Darrin Wildeman

Applicant

And:

The Owners, Strata Plan LMS 4005

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This is a dispute about a rodent infestation and associated remediation. The applicant, Darrin Wildeman, says that the respondent, The Owners, Strata Plan LMS 4005 (strata) failed to address a rodent infestation in his strata lot promptly and has not properly remediated the problem to prevent future infestations. He seeks $900.00 in damages. The strata denies the applicant’s claims or responsibility for the damages claimed.

2.      The applicant is self-represented. The strata is represented by a member of the strata council.

JURISDICTION AND PROCEDURE

3.      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.

4.      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.

5.      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.

6.      Under section 123 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

7.      The issues in this dispute are:

a.    whether the strata should pay the applicant for the $250.00 cost of duct cleaning;

b.    whether the strata should pay the applicant $210.00 to clean the applicant’s basement;

c.    whether the strata should pay the applicant $140.00 for carpet cleaning;

d.    whether the strata should pay the applicant $300.00 and fix the area where the rodents entered his strata lot.

BACKGROUND AND EVIDENCE

8.      The strata is located in Surrey, British Columbia. In 2015, the applicant purchased strata lot 66, which is a townhouse-style strata lot also referred to as unit 74.

9.      The relevant bylaws were filed at the Land Title Office in 2004. Bylaw 2 requires that an owner must repair and maintain their strata lot, except for repair and maintenance that is the responsibility of the strata. Bylaw 8 provides that the strata must repair and maintain common assets, common property (CP) that has not been designated as limited common property (LCP), and LCP.

10.   The evidence suggests that in early 2017, several strata lot owners reported the presence of mice or rats in their garage areas. Investigation showed the presence of Norway rats. At that time, the strata did not have a pest control plan or contractor. It would appear that the strata council at the time (of which the applicant was a member) decided not to take action as it was felt that the rodents were related to garbage bins, and that the problem would be addressed by removing the food source.

11.   In April of 2017, the applicant noticed that his basement was infested with rodents. He sent an email message to the property manager, who informed him that pest control was the strata’s responsibility.

12.   The strata engaged a pest control contractor which inspected the strata lot. The contractor discovered rodent droppings throughout the basement ceiling. The contractor recommended the installation of galvanized screening in gaps between the fascia siding/soffit and the concrete foundation surrounding the perimeter of the building, as well as a one-way door system to allow rats to exit but not re-enter. The contractor also recommended preventative screening to be installed on the rooftop of the entire building. The strata decided to proceed with the installations under the applicant’s strata lot. It is not clear whether the strata has yet made a decision about the preventative work recommended by the contractor.

13.   The interior remediation work by the pest control contactor involved cutting into the ceiling of the applicant’s basement to remove pests and waste. Later, a different contractor repaired the drywall and repainted the ceiling.

14.   The applicant corresponded with the property manager about his view that the work was not being performed quickly enough and that a mess had been left behind. The applicant also raised a concern that an area of insulation under a bay window was not being addressed. The property manager advised that the strata would be focusing on the drywall repairs, as the insulation issue was one that could affect all of the strata lots.

POSITION OF THE PARTIES

15.   The applicant’s position is that the strata was negligent in not addressing the issue properly, promptly, or with competent contractors. He expressed the view that the strata did not take the matter seriously due to other strata-related issues, and noted that his landscaping business was fired by the strata for no reason.

16.   The applicant says that he lost the use of a portion of his home for over a year as a result of the infestation. Although the basement was partially repaired in 2018, the applicant says that items remain outstanding. He says the hole to the strata lot is not fixed and the entrance area is full of feces. the applicant also states that there is outstanding work under the bay window, all of the recommendations from the pest control contractor have not been completed, the ceiling should have been painted after the repair, and his ducts need to be cleaned.

17.   The applicant seeks orders for $900 in compensation for duct cleaning, cleaning of the carpets and basement, and outstanding work. He also requests compensation from the strata for not being able to use his basement for a year.

18.   The strata denies that it failed to address the pest issue promptly, and says that it took all reasonable steps to remedy the situation. According to the strata, work on the pest issue and repairs to CP were delayed as the applicant did not provide access to the strata lot and refused to move furniture to facilitate the work. The strata also says that the applicant engaged in home renovations during this time frame, which delayed the repairs.

19.   The strata admits that the work in the applicant’s basement created dust and debris. however, it says that the applicant declined the contractor’s offer to clean it up. The strata points out that the applicant asked that the entire basement and carpet be cleaned, when the mess was confined to a small area. However, the strata says that it has decided to pay for half the cleaning invoice and charge it back to the contractor. The strata characterises the duct cleaning as an extended measure the applicant chose to use, and says that the pest control company did not advise that this work was necessary.

20.   The strata’s position is that the area where the rodents entered was fixed by the pest control contractor. It says that the applicant is requesting additional insulation in the window well, which is an issue that could potentially affect all units. The strata says it does not have enough information to make a decision on this matter, which will need to be discussed at an upcoming annual general meeting.

21.   The strata’s view is that it is not responsible for the applicant’s claims, and asks that they dismissed.

ANALYSIS

22.   The evidence before me shows that Norway rats were present in various areas of the strata’s property. It would appear that the rodents entered the applicant’s strata lot through an area under the applicant’s strata lot that is open to the outside. The applicant’s basement ceiling and furnace room (which is located in the basement) were affected. The infestation did not spread to the other floors of the strata lot.

23.   The evidence suggests that there were communication and scheduling difficulties that impacted the progress of the project. However, there is insufficient evidence to support a determination that the strata or the applicant acted deliberately to create delays. Further, the evidence does not show that the protracted time frame resulted in additional damages. Although the issue created an inconvenience, I am not satisfied that the evidence establishes that the applicant was unable to use his entire basement for over a year, as he claims.

24.   The applicant suggests that his status as a past president of the strata council and the fact that his landscaping company had provided services to the strata somehow affected the manner in which the strata dealt with the rodent issue in his strata lot. I do not find that the evidence supports this conclusion.

25.   In his submissions, the applicant states that his ceiling should have been painted after the repair work was completed. The strata’s submissions and the evidence before me show that this work has been done, although perhaps not to the applicant’s specifications. Accordingly, I will not address this issue.

Duct Cleaning

26.   The applicant seeks an order that the strata pay for duct cleaning, which he values at $250.00. The strata says that the pest control contractor did not recommend this service. The strata also says that, while it cleans dryer ducts, strata lot owners are responsible for their own furnaces and ducts.

27.   The applicant arranged for his furnace to be inspected on November 8, 2017. The technician removed 2 dead rats from the blower compartment of the applicant’s furnace. The invoice contains recommendations from the technician that the drywall be re-installed and “furnace duct system should be cleaned”. The applicant obtained a quote of $394.88 for this service from a different contractor. The applicant did not explain the discrepancy between this amount and the $250 he claims for duct cleaning.

28.   As discussed above, bylaw 8 limits the strata’s responsibility for repair and maintenance to common assets, CP that has not been designated as LCP, and LCP. In addition, section 72 of the Strata Property Act (SPA) requires the strata to repair and maintain CP and common assets.

29.   Section 1 of the SPA defines CP as including “pipes, wires, cables, chutes, ducts and other facilities for the passage or provision of water, sewage, drainage, gas, oil, electricity, telephone, radio, television, garbage, heating and cooling systems, or other similar services” if they are located within a floor, wall or ceiling that forms a boundary between 2 strata lots, between a strata lot and the CP, or between a strata lot or CP and another parcel of land.

30.   As noted above, the strata lot has a townhouse-style design. It is not clear whether the furnace ducts are located in interior structures or in locations described in section 1 of the SPA. Based on the evidence before me, I am unable to conclude that the furnace ducts the applicant wants to have cleaned amount to CP.

31.   There is no indication here that the strata has agreed to clean the furnace ducts in the past, or that it would be negligent for the strata to not clean the ducts. In these circumstances, I do not find that that the furnace ducts are the responsibility of the strata under the SPA or the bylaws. Accordingly, the applicant is not entitled to funding from the strata for duct cleaning.

Basement & Carpet Cleaning

32.   The parties agree that the remediation work in the applicant’s basement resulted in some mess. The applicant provided photographs that show white dust, what appears to be small chunks of drywall, and other debris on the floors in his basement area and furnace room. The photographs do not show staining on the carpets. The applicant claims $210.00 for the cleaning of his basement and $140.00 for the shampooing of the basement and stair carpeting.

33.   The invoice for cleaning services describes “post construction cleaning” for $210.00. It does not describe what areas of the strata lot were cleaned, or what tasks were performed. The carpet cleaning invoice for $139.65 does not describe the areas that were cleaned, but notes “some stain in the rooms”. It is not clear whether these stains were related to the remediation work. It is also not clear to me why shampooing of the carpets was necessary to address the debris rather than simply vacuuming it, which presumably could have been covered by the cleaning that had been performed already.

34.   As discussed above, the strata has provided the applicant with $110.00 to cover a portion of the cleaning fees. I do not find that the applicant has established that extensive cleaning and the shampooing of the carpets was necessary to address the mess left behind by the contractors engaged by the strata. I find that the applicant is not entitled to further damages in this regard.

Area of Rodent Entry

35.   The parties disagree as to whether the areas of rodent entry have been fixed.

36.   In an August 27, 2018 exchange of email messages between the applicant and the strata’s property manager, the applicant advised that the screening and one-way door installed by the pest control contractor were loose and could allow access to rodents. He included an image showing a gap between the screening and the door. In reply, the property manager stated that he had asked the pest control contractor to investigate the screens.

37.   It is not clear whether the investigation described by the property manager has occurred. The strata must ascertain the status of this item and, if it has not been addressed, must do so under its responsibility to maintain CP on the exterior of a strata lot.

38.   The applicant also raised concerns about the insulation under a bay window. The strata’s submission suggests that there may be a lack of or insufficient insulation in similar areas in all strata lots. However, I do not find that the applicant is requesting “additional” insulation, but rather the replacement of insulation he says was destroyed by the rats. He provided images of a similar area in another strata lot. It is not clear from the images whether the insulation in the applicant’s strata lot is soiled as compared to the other lot. However, the images show that the insulation has been removed or damaged such that it does not cover the entire area in a way that is consistent with the image of the other strata lot.

39.   Based on the evidence before me, I am satisfied that the insulation under the applicant’s bay window requires replacement. I find that this falls under the strata’s responsibility to maintain the CP exterior of a strata lot.

40.   The email messages provided in evidence indicate that the strata was considering providing the applicant with insulation for this area so he could replace it himself. If this has not been done already, the strata must arrange for the replacement of the insulation under the bay window. My decision does not impact the strata’s ability to consider the larger issue of insulation in the applicant’s strata lot, or other strata lots.

41.   The applicant claimed $300 in damages for this area. However, the evidence does not establish that he has suffered damages or losses in this or any other amount. I dismiss this aspect of his claim.

TRIBUNAL FEES AND EXPENSES

42.   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. As the applicant has been partially successful in this dispute, I order the strata to reimburse the $225 in tribunal fees paid by the applicant. He did not make a claim for dispute-related expenses.

43.   The strata must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the owner.

DECISION AND ORDERS

44.   I order that, within 60 days of the date of this decision, the strata must:

a.    ensure that the investigation of the screening and one-way door installed in the applicant’s strata lot has been conducted by the pest control contractor, and that any necessary repairs have been completed;

b.    if it has not been done already, arrange for the replacement of the insulation under the bay window area of the applicant’s strata lot; and

c.    reimburse the applicant’s tribunal fees of $225.00.

45.   The applicant is also entitled to post judgment interest under the Court Order Interest Act, as applicable.

46.   The remainder of the applicant’s claims are dismissed.

47.   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.

 

48.   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.