Date Issued: July 22, 2019
File: ST-2018-006826
Type: Strata
Civil Resolution Tribunal
Indexed as: Burris v. Stone et al, 2019 BCCRT 886
Between:
Morgan Burris
Applicant
And:
Brandon Stone, Lillian Howard, and Cheleah Howard Barres
RespondentS
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REASONS FOR DECISION |
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Tribunal Member: |
J. Garth Cambrey, Vice Chair |
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INTRODUCTION
1. The applicant, Morgan Burris, owns a strata lot in a strata corporation, The Owners, Strata Plan BCS 3528 (strata), which she rents out. Ms. Burris is self-represented, and the strata is not a party to this dispute.
2. The respondent, Brandon Stone, also owns a strata lot in the strata which, at all materials times, was rented to the respondents, Lillian Howard and Cheleah Howard Barres (collectively the tenants). Mr. Stone is self-represented. The tenants were not represented in these proceedings.
3. Ms. Burris alleges she suffered loss and damage to her strata lot (1809) as a result of water escape from Mr. Stone’s strata lot (2109) located above. Ms. Burris claims the respondents are jointly and severally responsible for her loss and damages caused by the flood because of their negligence. She claims the tenants are also jointly and severally responsible in nuisance and trespass. She asks for an order of $3,609.81 in damages. The claimed damages include the cost the applicant incurred to repair the flooring in 1809 plus compensation she paid to her tenant for 6 days’ rent and increased hydro costs.
4. Mr. Stone denies responsibility for the cause of the flood and for any alleged loss or damage suffered by Ms. Burris. He asks that claims against him be dismissed.
5. For the reasons that follow, I find the tenants responsible for the applicant’s claimed damages.
JURISDICTION AND PROCEDURE
6. 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.
7. 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.
8. 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.
9. 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
10. The issues in this dispute are:
a. Who is responsible for causing the water to enter 1809?
b. Is the applicant is entitled to damages totalling $3,609.81 broken down as follows:
i. $3,229.81 for the cost to replace part of the flooring in 1809,
ii. $360.00 paid to her tenant for the period her tenant did not occupy 1809, and
iii. $20.00 paid to her tenant for increased hydro costs.
BACKGROUND, EVIDENCE AND ANALYSIS
11. I will first address the status of the tenants in this dispute.
12. The tenants were named as respondents but failed to file a Dispute Response. I am satisfied the tenants received the Dispute Notice by registered mail based on the evidence provided in that regard. Specifically, I find the tenants were each provided with a copy of the Dispute Notice by registered mail on September 19, 2018.
13. Tribunal rule 4.1 says that “a party” named as a respondent who fails to respond to a properly served Dispute Notice is in default. As discussed below, I find I may assume the tenants are liable because they are in default.
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 applicant must prove all of her claims on a balance of probabilities.
16. The strata is an airspace parcel strata corporation located in Vancouver, B.C. The parties’ strata lots are residential strata lots in a 40-storey high rise tower.
17. The applicant’s strata lot is located on the 18th floor, 3 floors below the strata lot owned by the respondent, Mr. Stone, which is located on the 21st floor.
18. It appears from the Land Title Office (LTO) filings that the strata files new consolidated bylaws whenever it amends its bylaws. That is, the bylaw amendments are consolidated with existing bylaws and filed as 1 new set of bylaws. Based on this understanding, I find the strata’s applicable bylaws are those filed at the LTO on May 24, 2016. Subsequent bylaw amendments were filed after the cause of action arose for this dispute and are not applicable.
19. The relevant bylaws are summarized as follows:
a. Bylaw 2.1 states an owner must repair and maintain their strata lot except for maintenance that is the strata’s responsibility under the bylaws, including, among other things:
b) interior plumbing fixtures ad components, including caulking and sealing.
b. Bylaw 3.1 states an owner, tenant or occupant of a strata lot or any of their visitors or guests must not:
b) use or permit the use of the strata lot in a manner which would create a nuisance, or which would disrupt the owner, tenant or occupant of “any of the Strata Lots”.
c. Bylaw 3.1 requires an owner to hold harmless and indemnify the strata from any expense to any strata lot that is the responsibility of the owner, but only to the extent the expense is not covered by the strata’s insurance policy, including an insurance deductible.
d. Bylaw 8 requires the strata to repair a strata lot but the duty to repair is restricted to the structure and exterior of the building, and certain things on the building’s exterior or that front on common property, and structures that enclose patios, balconies and yards.
20. The relevant facts in this dispute are straightforward and undisputed.
21. On about December 7, 2017 the applicant’s tenant discovered water had entered 1809 causing damage to, among other things, the flooring in 1809. I infer other strata lots between the units were also affected given it is clear the total damage exceed the strata’s $25,000 applicable insurance deductible. It is undisputed that the water came from 2109.
22. Neither the applicant or Mr. Stone were resident in their respective strata lots at the time of the water leak. Both 1809 and 2109 were rented out as I have noted.
23. The cause of the leak was described in a December 7, 2017 email from the respondent, Lillian Howard, to Mr. Stone (her landlord) that was provided in evidence. In that email, Ms. Howard stated there was mechanical maintenance being completed in the building that required the water to 2109 to be turned off. I infer the date of the mechanical work was December 6, 2017. Ms. Howard further stated that before she left for work at 2 PM on December 6, she “did not check to see if the [kitchen] taps were turned off, when the water was turned back on, the tap was open and caused a flood.”
24. All costs to repair 1809 were covered by the strata’s property insurance policy with the exception of the flooring, as it was found to be an improvement or betterment, which was excluded under the policy.
25. As a result of the repairs to 1809, the applicant’s tenant was unable to live in apartment for 6 days following the incident because of workers opening walls, removing flooring, and drying the apartment with blowers and dehumidifiers.
Who is responsible for causing the water to enter 1809?
Mr. Stone
26. I will first address the applicant’s claim that Mr. Stone was negligent.
27. In order for the applicant to be successful in her negligence claim, she must prove Mr. Stone owed her a duty of care, that he breached the standard of care, and the applicant’s damage was caused by Mr. Stone’s breach of the standard of care. The applicant must also prove the damage was foreseeable. The applicant argued all of these points.
28. While I agree Mr. Stone, as an owner in the same strata corporation owed the applicant a duty of care under the strata’s bylaws, I do not find he breached the standard of care, which is well established to be that of reasonableness. Given, that Mr. Stone was not present at the time of the leak, it is not reasonable for me conclude that he had any part in the water leak. There is no evidence before me the Mr. Stone was aware of the mechanical maintenance that required the water to be turn off in 2109 or that he was aware that kitchen tap was turned on and not turned off by one of his tenants. There is also no evidence to suggest Mr. Stone ought to be aware of these things. For these reasons, I find the applicant’s claim Mr. Stone was negligent must fail and I dismiss her claim against Mr. Stone.
29. While Mr. Stone provided a compelling argument as to why he should not be found liable in nuisance, I will not address those argument here as the applicant has expressly stated in her submissions she did not make that claim against him.
Mr. Stone’s tenants
30. I find the statements made by Ms. Howard in her December 7, 2017 email to Mr. Stone to be an admission of responsibility for the leak that damaged 1809.
31. I turn now to the respondent, Cheleah Howard Barres.
32. As earlier noted, I have found both the respondent tenants, including Ms. Howard Barres, to be in default under the tribunal rules as they received a copy of the Dispute Notice and chose not to respond. I find I can draw an adverse inference and assume liability on the part of Ms. Howard Barres for 2 reasons.
33. First, assumed liability in negligence for water leaks applies to occupants, which I find includes tenants, unless the tenants can provide an explanation there was no breach of a duty or obligation. See Westsea Construction Ltd. v. Billedeau, 2010 BCPC 109 at paragraphs 32 and 39.
34. Second, case law has established that if a party fails to produce evidence in favour of their position, and has no reasonable explanation for failing to call the evidence, an adverse inference may be drawn: Zawadski v. Calimoso, 2011 BCSC 45; Homayoon moini v. David brian martin, 1996 CanLII 1552 (BC SC) – para. 20-21.
35. It is not clear from Ms. Howard’s email to Mr. Stone, if she admits full responsibility for causing the leak in 1809 as the references “we” which I infer includes Cheleah Howard Barres. Therefore, I draw an adverse inference and assume liability of the respondent tenant, Cheleah Howard Barres, and find that she is also responsible for causing the water to leak into 1809.
36. Given these findings, I do not need consider the applicant’s arguments about nuisance or trespass.
Is the applicant entitled to compensation?
37. From the photographs provided in evidence I accept 1809 was uninhabitable immediately following the water leak.
38. Based on the evidence, I am satisfied that the applicant’s tenant did not live in 1809 for 6 days and that the applicant refunded her tenant $360.00 for 6-days rent. I also accept there was an increase in hydro costs for 1809 as a result of the air driers and dehumidifiers used to dry the floors, walls and ceilings in 1809 and find the applicant paid her tenant $20.00 for increased hydro costs. I also find the amounts paid by the applicant to her tenant to be reasonable in the circumstances.
39. As for the applicant’s claim for flooring repairs, the evidence is that she paid her flooring contractor the lessor of 2 quoted repairs, being $3,229.81. The repairs completed were for partial replacement of flooring, staggering new floor boards to existing floor boards, in the damaged area. The alternate quotation considered by the applicant was to replace all damaged flooring in 1809 at a cost of $5,188.56. I find the cost of the repairs and the applicant’s choice of the less expensive work to be reasonable in the circumstances.
40. Based on my conclusions above, I find the respondent tenants, Lillian Howard and Cheleah Howard Barres, jointly and severally responsible to reimburse the applicant her claimed damages totalling $3,609.81 and I so order.
TRIBUNAL FEES, EXPENSES AND INTEREST
41. 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 to deviate from the general rule in this case. Given the tenants were the unsuccessful parties, I order them to pay the applicant $225,00 for tribunal fees. Although the applicant claimed $31.20 in dispute-related expenses, she did not provide an explanation of what the expenses were or proof of payment. I decline to order reimbursement of the applicant’s claimed expenses.
42. The Court Order Interest Act (COIA) applies to the tribunal. Under the COIA, the applicant is entitled to pre-judgement interest on the $3,609.81 she paid as a result of the water damage from the date the cause of action arose, until the date of this decision. For convenience, have used the date the flooring invoice was paid as the date the cause of action arose. On that basis, I calculate the pre-judgement interest to be $75.03.
DECISION AND ORDERS
43. I dismiss the applicant’s claims against the respondent, Brandon Stone.
44. I order the tenants, Lillian Howard and Cheleah Howard Barres, to pay the applicant, within 14 days of the date of this decision, $3,909.84 broken down as follows:
a. $360.00 for the rent reimbursement the applicant paid to her tenant,
b. $20.00 for the additional hydro expenses the applicant paid to her tenant,
c. $3,229.81 for the applicant’s flooring expense,
d. $225.00 for tribunal fees, and
e. $75.03 in pre-judgement interest under the COIA.
45. The applicant is also entitled to post-judgement interest under the COIA, as applicable.
46. The applicant’s remaining 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 123.1 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 123.1 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.
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J. Garth Cambrey, Vice Chair |