Date Issued: May 13, 2019

File: ST-2018-006753

Type: Strata

Civil Resolution Tribunal

Indexed as: Lenard v. The Owners, Strata Plan VR 97, 2019 BCCRT 570

Between:

Carol Lenard

Applicant

And:

The Owners, Strata Plan VR 97

Respondent

REASONS FOR DECISION
Tribunal Member:	Sarah Orr

INTRODUCTION

1.      The applicant, Carol Lenard (owner), owns strata lot 3 (unit 104) in the respondent strata corporation, The Owners, Strata Plan VR 97 (strata). The owner says 2 water leaks have caused damage to her strata lot, resulting in a loss of rental income, causing her to suffer health issues and lose the full use and enjoyment of her strata lot. The owner wants the strata to find the source of the water leaks and to pay her $5,000 for the cost of repairing the damage to her strata lot caused by the leaks. She also wants the strata to complete the repairs without attaching conditions or requiring her or future owners of her strata lot to waive their right to make future claims. She also wants the strata to pay her $10,000 for lost rental income and $10,000 for lost enjoyment of her strata lot and resulting health issues.

2.      The strata says it had determined the sources of the water leaks, and that under the bylaws the owner is responsible for repairing the damage to her strata lot. The strata says the minor damage on the wall of the owner’s strata lot caused by the first water leak did not prevent her from renting out her strata lot. They say the owner has been able to use her strata lot to its fullest extent and any health issues she may have suffered were not caused by any acts or omissions of the strata.

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

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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.

7.      The applicable tribunal rules are those that were in place at the time this dispute was commenced.

8.      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

9.      The issues in this dispute are:

a.    Is the strata required to find the source of the water leaks into the owner’s strata lot, repair the damage caused to her strata lot, and compensate her $5,000?

b.    Is the strata required to pay the owner $10,000 for lost rental income?

c.    Is the strata required to pay the owner $10,000 for loss of enjoyment of her strata lot and resulting health issues?

BACKGROUND AND EVIDENCE

10.   The strata is a 10-floor apartment-style complex established in 1973. In March 2006 the strata filed a complete new set of bylaws with the Land Title Office (LTO) which specifically stated that the Standard Bylaws of the Strata Property Act (SPA) did not apply. In 2014 and 2016 the strata deposited bylaw amendments with the LTO. On December 7, 2017 the strata filed bylaws with the LTO which repealed and replaced all pre-existing bylaws except for 2 bylaws relating to pet and rental restrictions which continued.

11.   The strata has a bylaw restricting rentals to 5 strata lots at any one time. On November 22, 2017 the strata granted the owner permission to rent out her strata lot provided she had a lease agreement in place for a rental by March 1, 2018 and submitted to the strata a Form K within 2 weeks of renting the strata lot.

12.   On November 27, 2017 the owner notified the property manager that the wall next to her sliding glass door in her strata lot was “bubbling” which she assumed was caused by a water leak. Two strata council members investigated immediately. The owner says they told her the damage “wasn’t a big deal” and that it was her responsibility to fix it.

13.   On December 6, 2017 the strata retained a concrete restoration company (Polycrete) to investigate the water leak in the owner’s strata lot. Polycrete determined there was a 6-inch crack on the exterior stucco wall that seemed to be causing slow water seepage. Polycrete recommended that the strata hire a painter to seal the crack and paint the affected area.

14.   On January 4, 2018 the owner emailed the property manager asking for an update as to when the strata would repair her wall. She stated that she could not rent out her strata lot until the wall was repaired. In response to the owner’s request for an update, on January 4, 2018 the property manager emailed a strata council member asking the council to obtain a quote from a painter. The email states that they needed to move quickly, as the owner wanted to rent out her suite and her cut-off date was March 1, 2018.

15.   In January 2018 the strata hired painters (Prostar) to seal the crack on the exterior wall outside the owner’s strata lot and repaint the affected area. Prostar investigated the leak inside the owner’s strata lot on January 24, 2018, however they said the affected wall was completely dry despite the heavy rain the previous few days, and they were unable to locate a crack in the stucco on the exterior wall. In an email to the property manager Prostar suggested the leak may be coming from a radiator pipe in the wall, and suggested the strata contact a plumber to investigate.

16.   At its February 25, 2018 meeting the strata council says that based on Prostar’s investigation they decided to wait for the end of the rainy season to determine if there were any further signs of leakage, and if not, they would have the owner’s wall repainted.

17.   On March 21, 2018 and March 23, 2018, the owner asked the strata council for an update on the situation. The property manager responded on March 26, 2018 referring her to the minutes of the February 25, 2018 council meeting.

18.   At its March 28, 2018 meeting the strata council confirmed they were waiting for dry weather to address the water leak. Council confirmed they had received legal advice that the owner was responsible for repairing any damage inside her strata lot, even if the source of the damage originated from common property.

19.   On April 9, 2018 the strata informed the owner that since she had not submitted a Form K, the strata’s permission for her to rent her strata lot had expired on March 1, 2018 and her name had been moved to the bottom of the rental waitlist. The letter stated that the peeling paint on the wall in her strata lot had no bearing on its rentability.

20.   On April 16, 2018 the owner asked the property manager for an update on the water leak and asked whether she should repair her wall on her own and send the bill to the strata.

21.   In a letter dated April 19, 2018, the strata conveyed to the owner its decision to wait for dry weather to address the water leak. In the letter they told her she was free to paint the wall in her unit if she wished. The owner says that in this letter the strata told her they would perform all necessary repairs to her strata lot, however I find the letter does not state that.

22.   On June 6, 2018 a strata council member entered the owner’s strata lot to investigate the damage. The strata submitted a photograph they say the strata council member took that day. The photograph shows the interior wall of the owner’s strata lot which has 2 water marks next to the sliding balcony door. One mark appears to be the size of a coin, and the other appears to be the size of a person’s hand, but I cannot determine precise scale from the photograph. I note there is no statement from that council member in evidence.

23.   At its June 28, 2018 meeting the strata council decided to retain a contractor to expose the wall and investigate the source of the water leak. They also determined that even though it was the owner’s responsibility to repair the damage inside her strata lot they would make a one-time exception and paint the affected wall, conditional on the owner signing an indemnity agreement. There is no evidence that the owner signed an indemnity agreement or that the strata painted the wall in the owner’s strata lot.

24.   On July 18, 2018 the strata property manager asked GCT Contracting Inc. (GCT) to investigate the water leak.

25.   On July 22, 2018 the owner received an estimate from Universal 5 Star Drywall Sys. (Universal) for $2,800 to cut out drywall in the affected area of the wall, repair the wall, and repaint.

26.   At some point during the summer of 2018 the owner started an insurance claim for the damage in her strata lot, and her insurer sent Onside Restoration (Onside) to make some test cuts in the wall to investigate the source of the water leak.

27.   On August 3, 2018 the owner informed the strata that Onside had investigated her strata lot that day and determined the source of the water leak was the strata lot above hers, unit 204. She told the strata she held them responsible for the cost of repairs to her strata lot and expected the repairs to be completed within 10 business days. She did not provide any detailed information about the source of the water leak.

28.   Onside’s August 4, 2018 report stated that the unconfirmed source of the water leak was water damage from the exterior of the building. It stated that water appeared to have entered through the exterior balcony of unit 204, and that they noted signs of previous stucco repair. The owner said during this visit Onside started drying the walls, and they removed part of the wall where they discovered evidence of new water leakage. However, this is not indicated in Onside’s report. She said Onside considered the water leak a health and safety issue because of the potential for mould to develop, however that is also not indicated in Onside’s report, and I find there is no evidence mould existed anywhere in or near the owner’s strata lot. The Onside report does not indicate the existence of an active water leak. On the evidence before me it does not appear the owner sent Onside’s report to the strata at that time.

29.   On August 9, 2018 the strata asked the owner by letter if there was evidence of an active water leak, but they say the owner failed to respond to this letter, and there is no evidence she did so.

30.   At some point in the spring of 2018 the owner had requested a hearing before the strata council to discuss the water leak. After months of scheduling and rescheduling and 2 hearings the owner cancelled, on August 27, 2018 the owner had a hearing before the strata council to discuss the water leak. The owner asked the strata to retain an engineer or other licenced professional to identify the source of the leak and repair it at the strata’s expense. She also asked the strata to repair all the damage caused to her strata lot by the leak since November 2017.

31.   On August 31, 2018 the strata sent its written decision to the owner’s counsel informing them that the council had decided to retain a qualified professional to investigate the source of the leak and make recommendations for any necessary repairs. The strata said it decided that if the source of the leak was identified and repair was recommended, and if such repairs fell within the strata’s responsibility under its bylaws, it would undertake to repair the source of the leak. Finally, the strata said it decided not to repair the damage in the owner’s strata lot until a professional investigated the source of the leak, because there was no evidence it was the strata’s responsibility or that the damage had worsened since November 2017.

32.   On September 4, 2018 the owner asked the strata to retain a building envelope engineer in addition to other licensed professionals to investigate the source of the leak and to repair the damage by September 18, 2018.

33.   On September 7, 2018, the strata responded to the owner’s request and said it was in the process of retaining an engineer, but that it would be unable to commit to such a tight time frame. The strata reiterated that it would only repair and maintain any damage if it fell within the strata’s responsibility as set out in the bylaws.

34.   On September 7, 2018 the owner notified the strata that the water leak had caused extensive damage to her walls and hardwood flooring.

35.   On September 20, 2018, the strata retained Sense Engineering (Sense) to investigate the source of the water leak.

36.   On October 5, 2018 the owner notified the strata that Onside had informed her the affected wall had been previously repaired, and she requested information from the strata about this previous repair. 

37.   On October 11, 2018 Sense inspected the owner’s strata lot as well as the strata lot directly above hers, unit 204. They provided their report to the strata on October 12, 2018. The report says they water tested the affected wall, window and balcony for 60 minutes with a blower door assembly to simulate wind driven rain. They also recorded the interior temperature and humidity to determine whether interior condensation could have caused the water marks. The report indicates that Onside had already opened the affected wall, and Sense reviewed the interior of the wall but did not open the wall themselves.

38.   Sense found no cracks or defects on the exterior of the wall allowing water in and said the water stains did not appear to be caused by a leak in the wall itself. They also determined the water stains were unlikely to have been caused by interior condensation. Sense determined that the dining area window and balcony door both leaked, but that those leaks did not appear to be the cause of the water stains on the wall. Sense recommended the strata may consider replacing the weather stripping at the window and balcony door, even though it would be unlikely to address the cause of the water stain.

39.   Sense determined there was a crack in the concrete wall at the corner of the balcony door curb in unit 204. They found the crack had been partially caulked but that the caulking had not bonded to the concrete curb. After spraying water over the crack for 3 minutes a wall stain formed in the owner’s strata lot 150 millimeters from the pre-existing wall stains.

40.   Sense recommended the crack should be routed and caulked, the corner joint of the balcony door frame should be sealed, and the door weather stripping replaced. Sense estimated the cost of these repairs at $1,000 plus tax, and that the strata should retain a contractor experienced with building envelope repair to complete them.  

41.   On October 23, 2018 the strata sent the owner the Sense report and told her council was not aware of any leak in or repair to the affected wall prior to November 2017.

42.   On October 26, 2018 a strata council member asked the property manager to obtain an estimate from Prostar for the repairs recommended in the Sense report.

43.   On October 31, 2018 the owner notified the strata that since it had been raining her walls and ceiling had been leaking (water leak #2). This is the first time the owner reported a new water leak to the strata since November 2017 (water leak #1).

44.   The evidence indicates that the strata immediately hired contractors who determined the source of the leak was a hole in the water heater in unit 204, which was immediately repaired.

45.   On November 13, 2019, the strata told the owner it had received notice from its insurer that drying was not required in the owner’s strata lot, and the only required repairs to the owner’s strata lot were drywall and ceiling repair, for which the owner was responsible. The strata told her if the repairs exceeded its insurance deductible she could make a claim on the strata’s insurance.

46.   On November 29, 2018 the property manager sought an estimate for replacing the weather stripping on the sliding doors of 2 strata lots from Wolfgang Commercial Painters, but they declined the work.

47.   On December 3, 2018 the property manager sought an estimate from GCT for the repairs recommended in the Sense report, and shortly thereafter GCT completed the repairs. The strata submitted GCT’s invoice for this work for $886.20.

48.   On December 7, 2018 the strata informed the owner that the repairs recommended in the Sense report had been completed in unit 204. They also informed her they wished to replace the weather stripping on her sliding door and requested access to her unit.

49.   Also on December 7, 2018, the strata informed the owner that the radiator pipe leak in unit 204 that caused water leak #2 had been repaired immediately, and that the strata would take care of any necessary drying, but the cost of repair would be the owner’s responsibility. The strata asked the owner to notify them if she required drying in her unit. The letter indicates that the owner had filed a claim with the strata’s insurer for the repairs, but the repair costs were less than the deductible, so the insurance policy was not triggered. There is no evidence the owner notified the strata that she required drying in her strata lot after receiving this letter.

50.   On December 12, 2018 the owner’s insurer notified her by email that the strata’s failure to repair the source of the leak exacerbated the damage to her strata lot, and the insurer believed the strata was culpable for the additional damage. It is unclear from this statement if the insurer is referring to the damage from water leak #1, or whether she is strictly referring to the damage from water leak #2.

51.   On December 18, 2018 the strata notified the owner that all repairs recommended in the Sense report were completed, and the leaking hot water pipe in unit 204 causing water leak #2 had been repaired immediately. They also notified the owner that a contractor would be on site on December 21, 2018 to assess the damage from water leak #2 to determine if it affected any of the common property or any areas the strata was obligated to repair.

52.   On January 7, 2019 the owner told the strata that water leak #2 continued for over 5 weeks until it was repaired on December 7, 2018. However, I find the evidence does not support this claim. The evidence before me indicates that GCT completed the repairs recommended in the Sense report related to water leak #1 on December 6, 2018, and that the strata notified the owner of this on December 7, 2018. It is possible the owner was confused about the chronology of events when she wrote this email.

53.   In the same email the owner says she never received a fan or de-humidifier, so she made her own arrangements for that equipment in mid-December 2018. However, there is no evidence indicating the owner hired anyone to perform this work at that time. She said water leak #2 was in the same area as water leak #1 and it is impossible to determine which damage was caused by each leak, but that the strata was responsible for repairing both leaks. She said as of that date the damage to her unit had not been repaired.

54.   On January 8, 2019 Onside sent the owner an estimate of $16,964.58 to repair the damage to her unit.

55.   On January 9, 2019 the owner reported to the strata that her contractors had demolished the wall and found there was still water leaking. She submitted photographs which show the entire interior of the wall had been removed. Some of the photographs show a person pointing at a wall, and she says this is the Onside contractor pointing out water damage on the wall. However, these photographs do not establish the existence of an active water leak at that time, and there is no other evidence to support this claim. Aside from this letter, there is no evidence or indication of an active water leak in the owner’s strata lot after early November 2018.

56.   On January 10, 2019 the strata told the owner its contractors were unable to access her unit on December 21, 2018, and they rescheduled for January 21, 2019. The owner says she was out of town on December 21, 2018.

57.   On January 28, 2019 the owner notified the strata that the damage to her unit had not been repaired, and the strata’s contractor Incredible Restorations had attended her unit on January 21, 2019. She says the only evidence the strata had repaired the water leaks was a strip of duct tape on the outer wall of the unit above her. She said she required written confirmation from the strata that the leak had been properly repaired before work started on her unit.

58.   The owner submitted many photographs which she says show the water damage from November 2017 progressing over time. However, none of the photographs are date-stamped, and many of them are very blurry or are close-ups, so I cannot determine from these photographs exactly how or when the damage progressed, and what, if any, of the damage or marks were caused by water testing or her contractors test-cutting the wall.

ANALYSIS

59.   In a civil claim like this one the owner is responsible for proving her claim on a balance of probabilities. This means I must find it is more likely than not that the owner’s version of events is correct.

60.   I have reviewed all of the parties’ submissions and evidence but refer only to that which is relevant to my decision.

Is the strata required to find the source of the water leaks into the owner’s strata lot, repair the damage caused to her strata lot, and compensate her $5,000?

61.   Section 72 (1) of the SPA and the strata’s bylaws require the strata to repair and maintain common property. In fulfilling this obligation, the strata must act reasonably in the circumstances. The strata may rely upon the advice and guidance of professionals. If it has several reasonable options available for undertaking necessary repairs or maintenance, it may not be faulted for taking a more cautious approach or for taking an approach that in hindsight turned out to be a less preferable course of action, as long as the option it chose was reasonable in the circumstances (see Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784).

62.   Bylaw 3.1 states that an owner must repair and maintain their strata lot except for repair and maintenance that is the responsibility of the strata under the bylaws.

63.   Bylaw 12.1 in the 2006 bylaws and bylaw 10.1 (d) in the 2017 bylaws both require the strata to repair and maintain a strata lot to the extent it relates to the structure or exterior of the building, or to doors, windows, or skylights on the exterior of the building or that front onto common property. I do not find the damage to the interior wall of the owner’s strata lot is contemplated by bylaw 10.1 (d), and therefore I find the bylaw does not require the strata to repair and maintain that wall. 

64.   The strata relies on the Supreme Court’s decision in John Campbell Law Corporation v. Strata Plan 1350 (2001 BCSC 1342) in which the court said there is no strict liability on a strata corporation arising from its duty to repair and maintain common property if a failure of common property causes damage to a strata lot, and that strata corporations are not insurers. The strata says it is only liable for the damage to the owner’s strata lot if she can prove the strata’s negligence caused the leaks (Kayne v. LMS 2374, 2013 BCSC 51). I agree. The courts have repeatedly confirmed this. Therefore, the strata is only responsible for repairing the damage to the owner’s strata lot if the owner can establish that the strata owed her a duty of care, breached its standard of care, and the damage in her strata lot was caused by the strata’s breach.

65.   The strata acknowledges it owes the owner a duty of care, the standard of which is reasonableness. However, the strata says it did not breach its duty of care to the owner, and therefore it was not negligent. For the following reasons, I find the strata was not negligent.

66.   The strata submitted its most recent depreciation report to show that the exterior wall of the building was in good condition and well-maintained. They say they hired contractors in 2012 to clear, repair and paint the exterior walls, and to re-caulk the windows and doors. They say that prior to November 27, 2017 there was no indication the crack in unit 204’s balcony required repair.

67.   Once the owner notified the strata of water leak #1 it acted quickly to send 2 council members and Polycrete to investigate. Following Polycrete’s recommendations they hired Prostar approximately 6 weeks later who were unable to find the source of the leak or additional signs of water leakage. Based on the information the strata received from Polycrete and the fact the strata had no knowledge of new water leakage or increasing damage to the owner’s strata lot, I find it was reasonable for the strata to wait for the end of the rainy season before investigating further.

68.   The owner says she notified the strata on several occasions after November 2017 that the water ingress was getting worse, however I find there is no evidence she did so until October 31, 2018 when she reported water leak #2. The owner says her photographs show the wall damage deteriorating over time. However, as noted above, I find these photographs do not establish when or how damage deteriorated, and I cannot determine from these photographs whether and to what extent Onside’s cutting of the wall affected that damage.  

69.   The strata says when its council member investigated the damage to the owner’s strata lot on June 6, 2018 they found no further damage or indication of further water leakage since November 2017. However, the strata continued its investigation. At its June 28, 2018 strata meeting it decided to retain a contractor to open the wall and investigate the source of the leak. After the owner’s hearing in August which took several months to schedule, the strata responded by hiring Sense, who determined the source of the water leak in October 2018. By December 10, 2018 the strata had hired a contractor who completed the repairs Sense recommended. In the circumstances I find the strata acted reasonably in investigating and repairing the source of water leak #1.

70.   The owner says the only evidence the strata repaired the leak discovered by Sense is a strip of electrical tape on the balcony of unit 204. However, I find this claim is not supported by the evidence. The strata submitted an invoice from GCT which clearly shows they completed the repairs as described in the Sense report in December 2018.

71.   With respect to water leak #2, the strata says this does not form part of the owner’s claim, presumably because the Dispute Notice was issued in September 2018 before water leak # 2 occurred. However, as there is evidence before me related to water leak #2, I find I must address it. It is undisputed that the source of water leak #2 was within the strata lot above the owner’s, not from common property. The evidence shows the strata repaired the source of the leak immediately and offered to dry the owner’s strata lot, but the owner declined this offer. The evidence indicates that the strata’s insurer determined the cost of repairing the owner’s strata lot did not exceed its deductible, and therefore the owner was responsible for the entire cost of repairs either on her own or through her own insurer.

72.   The owner claims $5,000 in compensation from the strata. In her submissions she says this amount is for an envelope engineer to determine the source of the water leak, but she acknowledges that this was accomplished through the Sense report. However, she says she is also claiming $5,000 in compensation to pay Onside for the cost of taking down her wall and for running fans and dehumidifiers in her strata lot; for increased hydro costs from running the fans and dehumidifiers; and for increased heating costs because the insulation was removed from her wall. However, the owner did not submit a receipt from Onside, or her hydro or heating bills to support these claims.

73.   The owner also says she has spent $18,000 on painting, insulation, hardwood flooring, baseboards and furniture removal, and replacement living expenses for 3 weeks, and that this cost continues to increase. She has not submitted receipts for any of these alleged expenses.

74.   At the same time, the owner says she still has an active water leak in her strata lot, that she cannot stay in her living room, dining room or kitchen because of the dampness, mold, noise from fans and dehumidifiers, and the cold streaming in from the exposed and uninsulated exterior brick wall. I find this is inconsistent with her claim that she has paid for repairs. I also find these claims are not supported by the evidence.

75.   On the evidence before me I find the strata found and repaired the source of both water leak #1 and water leak #2. I find the owner has not established the strata was negligent in its investigation or repair of the sources of either water leak #1 or water leak #2, and therefore it is not required to repair the damage to the owner’s strata lot or compensate the owner for any repair work. I dismiss this claim.

76.   As I have found the strata is not required to repair the owner’s strata lot, I find it is unnecessary to address the owner’s concern about conditions attached to any repairs the strata completes in her strata lot.

Is the strata required to pay the owner $10,000 for lost rental income?

77.   The owner wants the strata to compensate her for lost rental income and she says her claim has now increased to $14,000 because it has been an additional 4 months since she first started this dispute that she has been unable to rent her strata lot.

78.   The owner says the strata told her in early 2018 that she could still rent out her strata lot despite the damage from water leak #1, but that “by that time my condo was leaking profusely and fans were operating day and night.” It is unclear which time the owner is referring to, but regardless, I find her claim that fans operating in her strata lot prevented her from renting it out are unsupported by the evidence. After water leak #1, there is no indication that the owner had any work done in her strata lot or noticed any new water leaking until the summer of 2018, which was well past her deadline of March 1, 2018 to secure a rental agreement.  

79.   The strata says there is no evidence the owner could not rent out her strata lot. They say the owner has a duty to mitigate her damages and she submitted no advertisements or other evidence to show that she attempted to rent out her strata lot to prospective tenants. I agree. The evidence suggests that in January 2018 there was no active water leak and the damage to the owner’s wall was minimal. While it is reasonable that the damage could have reduced the amount of rent the owner could have charged, there is no evidence she attempted to find anyone to rent her strata lot at all, even for a reduced price. It is the owner’s responsibility to prover her claim, and I found she has not done so. I dismiss this claim.

80.   In her reply submissions the owner asks for reinstatement of the strata’s permission to rent out her strata lot. However, this request is not part of her original claim, and since she raised it in her reply submissions, the strata did not have an opportunity to respond to it. In any event, as I have dismissed the owner’s claim for lost rental income, I find there is no legal basis on which the strata is required to reinstate its permission for her to rent out her strata lot, and I dismiss this claim.

Is the strata required to pay the owner $10,000 for loss of enjoyment of her strata lot and resulting health issues?

81.   The owner says the stress of the water leak and resulting damage to her strata lot since November 2017 have caused and exacerbated several health issues for which she has sought treatment.

82.   The owner submitted a letter from her doctor dated September 24, 2018 which states that over the past year she had endured “undo stress and hardship requiring medical visits and treatment due to her water damage in her apartment.” The letter does not indicate the nature of the treatments.

83.   The owner submitted another letter from a different doctor dated October 3, 2018 who had seen her over the previous 4.5 years to manage her health condition. The letter states that since the water leak in her wall in November 2017 she had suffered frequent lapses of her condition, and that she has been frustrated and angry by the strata’s failure to help repair her wall. The letter says the owner considered moving out of her apartment.

84.   The owner says her doctor prescribed medication for her exacerbated health issues and puffers for her dry cough and nausea since December 2017, however she submitted no evidence to support this claim. She says her quality of life is diminished.

85.   While I can appreciate that the damage to the owner’s strata lot caused her stress and frustration, the owner must establish that the strata’s negligence, or intentional actions, caused an exacerbation to her pre-existing health concerns or caused her to suffer new health issues. I have already found the owner has not established the strata was negligent, and there is nothing in the evidence before me to indicate any intentional actions the strata took to harm or injure the owner. I find the owner has not established that any act or omission of the strata caused or exacerbated her health concerns or caused her to lose enjoyment of her strata lot. I dismiss this claim.

86.   The owner says in her reply submission that members of the strata council and the property manager verbally abused and harassed her and defamed her character, however she did not raise these allegations as part of her initial claim, and the strata did not have an opportunity to respond to them. In any event, I find there is no evidence to support any of these claims, and I dismiss them.

TRIBUNAL FEES AND EXPENSES

87.   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. Since the owner was unsuccessful I find she is not entitled to reimbursement of her tribunal fees or dispute-related expenses. The strata has not claimed reimbursement for any tribunal fees or dispute-related expenses.

88.   The owner also claims reimbursement of her legal fees, however the tribunal generally only makes such orders in extraordinary circumstances, and I find there is nothing extraordinary about this case. I dismiss this claim.

DECISION AND ORDERS

89.   I dismiss the owner’s claims, and this dispute.