Date Issued: May 9, 2019

File: ST-2017-006550

Type: Strata

Civil Resolution Tribunal

Indexed as: Blasutig v. The Owners, Strata Plan 1474, 2019 BCCRT 552

Between:

Alice Blasutig

Applicant

And:

The Owners, Strata Plan 1474

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This dispute is about costs associated with water ingress into a strata lot.   The applicant, Alice Blasutig, says that her strata lot flooded on 2 occasions and she incurred expenses of $3,670 that she would like the respondent, The Owners, Strata Plan 1474 (strata), to reimburse.   The strata denies that it is responsible for the damages claimed by the applicant.  

2.      The applicant is represented by a non-legal representative.   The respondent 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.

7.      Under section 61 of the Act, the tribunal may make any order or give any direction in relation to a tribunal proceeding it thinks necessary to achieve the objects of the tribunal in accordance with its mandate.   In particular, the tribunal may make such an order on its own initiative, on request by a party, or on recommendation by a case manager (also known as a tribunal facilitator).

8.      Tribunal documents incorrectly show the name of the respondent as The Owners, Strata Plan, VIS 1474. Based on section 2 of the SPA, the correct legal name of the strata is The Owners, Strata Plan 1474.   Given the parties operated on the basis that the correct name of the strata was used in their documents and submissions, I have exercised my discretion under section 61 to direct the use of the strata’s correct legal name in these proceedings.    Accordingly, I have amended the style of cause above.

ISSUES

9.      Prior to this adjudication, the applicant’s insurer reimbursed her for $500 in cat sitting expenses that she had identified as a claim in her Dispute Notice.   Accordingly, I will not deal with this item, and will address the applicant’s remaining claims for $3,170 in damages.

10.   The issues in this dispute are:

a.    whether the strata should reimburse the applicant $2,000 for her insurance deductible;

b.    whether the strata should reimburse the applicant $900 for housing and meal expenses incurred by visiting relatives; and

c.    whether the strata should reimburse the applicant $270 for food lost when her freezer was unplugged.

BACKGROUND AND EVIDENCE

11.   The strata is located in Nanaimo, British Columbia and is comprised of 26 strata lots.   The applicant purchased strata lot 16, which is also known as suite 403, in 2012.  

12.   The relevant bylaws were filed at the Land Title Office in 2008.   Bylaw 2 provides that an owner must repair and maintain their strata lot, except for repair and maintenance that is the responsibility of the strata.  

13.   Bylaw 8 sets out the strata’s repair and maintenance responsibilities for common assets, common property (CP) that has not been designated as limited common property (LCP), and certain items of LCP.   According to bylaw 8(1)(c) and (d), the strata is responsible for balconies, doors, windows, and skylights on the exterior of the building or that front on CP.   Bylaw 8(e)(i) states that, in addition to pipes as described in the Strata Property Act (SPA), the strata must repair and maintain all pipes and other facilities for the provision of domestic hot and cold water from the mechanical room throughout the building, up to and including the isolation valves for each fixture in each strata lot.

14.   Bylaw 35(2) requires the strata to maintain adequate insurance and, according to bylaw 35(3), an insurance deductible in respect of a claim on the strata’s insurance is a common expense.   Pursuant to bylaw 35(6), an owner must obtain and maintain a homeowner’s insurance policy.

15.   The strata has experienced a number of leaks from pipes on CP and within strata lots over the years.   The strata has engaged in repair and maintenance projects to address these issues.   While some CP plumbing infrastructure has been upgraded, some CP and strata lot pipes have not.

16.   In September of 2016, there was a leak in a pipe within the walls and water entered the applicant’s strata lot, among others.   The pipe was a CP drain pipe from kitchen areas in several strata lots.   The strata made a claim with its insurer and paid the associated deductible.   The insurer paid the cost of repairs exceeding the deductible.

17.   While the damage from the leak was being repaired, moisture was discovered under the floor of the applicant’s strata lot.   The source of the problem was determined to be a missing seal under the patio door.   This moisture affected not only the flooring but some drywall and electrical infrastructure.   The repairs associated with the pipe leak were delayed while this additional problem was investigated and addressed.

18.   The applicant says she had to move out of her home for several months while the repairs were underway.   She made a claim with her homeowner’s insurance, but says that she did not receive full compensation from her insurer for losses she associates with the water issues in her strata lot.

19.   The applicant requested that the strata reimburse her for the deductible she paid her insurer and other expenses.   The strata’s property manager requested information from the applicant about her insurance claim and her reported losses.   The applicant provided some information in response, and the strata provided additional time for the applicant to submit the remainder of what it had requested.  

20.   On October 11, 2018, the property manager wrote to the applicant to advise that if the applicant did not reply to previous correspondence or formally request additional time to provide information by October 31, the strata would make a decision based on the available information.   It does not appear that the applicant provided any further information.   On November 26, 2018, the property manager wrote to the applicant to report the strata’s decision not to reimburse her personal expenses.

POSITION OF THE PARTIES

21.   The applicant’s position is that the strata was negligent in maintaining the CP pipes and patio doors, by failing to replace all of the CP plumbing and the main drain stack, in not obtaining more than 1 estimate for a previous plumbing project, and in not hiring an engineer to oversee that project. The applicant says the strata was aware for years that the windows and patio doors were leaking, that the sills beneath the doors were deteriorating, and that the plumbing was failing.    She submits that the water entered the strata lot as a result of the strata’s failure to address these issues.

22.   The applicant also says that the strata did not deal with the matter in an adequate manner.   She says that there was poor communication with the strata, and that the strata refused to be involved with the applicant’s insurance adjuster, which resulted in delays.

23.   The applicant seeks reimbursement of the $2,000 deductible she paid to her insurance company.   She also seeks damages for the expenses her personal insurance did not cover.   During the period of time she was not able to live in her strata lot, the applicant says she was unable to accommodate guests who were scheduled to stay with her.   The applicant states that it cost $900.00 to put the guests up in a bed and breakfast and pay for meals.   In addition,   at some point while the applicant was out of her home, she says that someone unplugged her freezer and she lost the contents of meats, produce, preserves and baking.   The applicant submits that all of the expenses she incurred were reasonably foreseeable and the result of the strata’s negligence.

24.   The strata denies that there were floods in the applicant’s strata lot, but admits that there were 2 incidents of water ingress.   The strata says that it responded to the water ingress problems in the strata lot and the repairs were paid for by the strata’s insurers.   There was a $5,000 deductible which the strata paid and, as repairs were performed, the strata considered the matter to be resolved.  

25.   The strata’s view is that it was not negligent with respect to the pipes or the patio doors.   It says that, in the previous plumbing project, the pipe in which the leak that affected the applicant’s strata lot occurred was not deemed to be in need of repair and therefore were not replaced.   The strata says it has conscientiously and consistently investigated and repaired leaks and obtained advice from professionally licenced plumbers.

26.   The strata was aware of leaks around the sides of windows and patio doors in some strata lots which it addressed with caulking.   According to the strata, it was not aware of any issues with the sills or seals between the building envelope and patio floors until the problem in the applicant’s strata lot became apparent during the repair process.    

27.   The strata states that the repair project was impacted by the discovery of the water under the floor.   The strata says a seal was needed under the patio door sill to prevent water coming under it during storms, and this had to be done and the floor dried completely before new floors could be installed. The strata states that it relied on the advice of the restoration company in this regard, and that it discussed the progress of the project with the applicant’s representative at a November 10, 2016 strata council meeting.   The strata denies that it communicated poorly with the applicant and notes that the applicant did not respond to all of its correspondence.

28.   The strata’s position is that it should not be responsible for expenses the applicant’s personal insurance company declined to pay.   It says that it is not an insurer and is not responsible for owner’s personal insurance deductible or denied expenses.   The strata submits that no one can expect a strata corporation to pay hotel costs for an owner’s guests.   The strata denies that it was responsible for unplugging the freezer, and points out that council members were only in the applicant’s strata lot when accompanied by the applicant or her representative.   The strata requests that I dismiss the applicant’s claim.

ANALYSIS

29.   The thrust of the applicant’s argument is that, had the strata done a previous plumbing project, plumbing maintenance, and window and patio door maintenance differently, she would not have experienced water ingress to her strata lot or the associated damages.   I note that the applicant has not provided proof of the amount of her insurance deductible or the other expenses and losses she claims.   However, given my conclusion below, I find that nothing turns on this.

30.   The strata may be liable for the applicant’s expenses if it was negligent in repairing and maintaining CP (see, for example, Basic v. Strata Plan LMS 0304, 2011 BCCS 231).   In order to establish the strata’s negligence, the applicant must show that the strata owed her a duty of care, that the strata breached the standard of care, and that she sustained damage as a result of that breach (Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).   The standard of care that applies to a strata corporation with respect to the maintenance of CP is reasonableness (see Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784).

31.   Pursuant to bylaw 8, the strata has repair and maintenance responsibility for CP pipes and patio doors.   I am satisfied that the strata has a duty to maintain and repair these items so as to avoid causing damage to the strata lots, including that owned by the applicant.   With the benefit of hindsight, the strata may have chosen to do things differently in terms of its repair and maintenance responsibilities.   However, I cannot rely on hindsight and the standard of perfection is not required.   I must determine whether the strata was reasonable in maintaining and repairing the pipes and patio doors and, if not, whether the applicant incurred damages as a result.

32.   There is no dispute that there have been leaks in both CP and strata lot pipes, or that the strata has undertaken repair and replacement in some areas, but not at the location that leaked in September of 2016.   While other CP pipes in the strata have required replacement as they were deteriorating or were “very thin”, there is no indication in the evidence that this was the case for the pipe that leaked into the applicants’ strata lot.  

33.   The strata’s uncontroverted evidenced is that this pipe was assessed as part of the previous project and found not to be in need of repair.   There is no indication that the strata had subsequent information about the status of the pipe or recommendations for further inspection that it did not act upon.   The September 9, 2016 Site Inspection Report from the restoration company identified the problem as a “main drain stack split in plumbing chase has led to a category 3 water escape”.   The evidence does not contain any statement or opinion that the split occurred as a result of poor maintenance or deterioration that would render failure of the pipe reasonably foreseeable.  

34.   The applicant also takes the position that the strata was negligent in not obtaining additional quotes or hiring an engineer for the previous plumbing project.   She also points out that there has been a subsequent leak in another strata lot.   It is not clear to me how these issues would have impacted the leak that occurred in September of 2016.   The applicant also notes that the strata did not proceed with a proposed inspection of visible copper lines in each strata lot.   The evidence before me shows that the strata did delay an inspection of such pipes, which it described as a “courtesy” to owners.   However, I do not find that this action establishes any unreasonable behaviour with respect to CP on the part of the strata, as the proposed inspection was aimed at infrastructure that is the property of individual strata lot and not CP.

35.   I find that the evidence before me does not support the conclusion that the strata has not reasonably maintained or repaired CP pipes, or that it breached its duty of care to the applicant in this regard.

36.   Turning to the patio door, the parties agree that there have been leaks around the windows and patio doors in some strata lots.   Strata council meeting minutes show that caulking was performed on the patio doors in some years but, although identified as an annual task, do not confirm that this occurred every year.   Although the applicant suggests that the problem would have been located (and the ingress to her strata lot prevented) had the strata responded differently, I find that the evidence does not establish that the missing seal under the sill in the applicant’s strata lot would have been discovered had the strata performed more frequent caulking or other maintenance work.   This is particularly so as the problem area was located under the sill in an area that was not visible until the flooring was removed.   The evidence here does not support an unreasonable level of patio door maintenance on the part of the strata.

37.   Further, I am satisfied that the evidence does not show that the strata acted unreasonably in dealing with the claim and repair process such that the applicant incurred damages.   According to the September 9, 2016 Site Inspection Report, the applicant’s strata lot required more repairs than the 3 other strata lots affected by the water ingress, which suggests that her strata lot sustained more damage that required repair.   The subsequent discovery of the additional point of water ingress complicated and protracted the repairs, but I do not find that the strata acted to obstruct this process.

38.   Based on the information it had at the time, I have determined that the strata acted reasonably and did not breach its duty of care to the applicant.   Accordingly, I find that the strata is not liable for the applicant’s claimed deductible or expenses.   I dismiss the applicant’s claims.

TRIBUNAL FEES AND EXPENSES

39.   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 was not successful, I dismiss her claim for reimbursement of tribunal fees.   The applicant did not claim dispute-related expenses.   The strata did not pay tribunal fees or claim dispute-related expenses.

40.   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.

DECISION AND ORDERS

41.   I dismiss the applicant’s claims and this dispute.