Date Issued: September 24, 2019

File: ST-2019-002869

Type: Strata

Civil Resolution Tribunal

Indexed as: Minn v. Jang et al, 2019 BCCRT 1124

Between:

KAY MINN

Applicant

And:

BING FOON JANG and MARY YEE MUI JANG

Respondents

INTRODUCTION

1.      This is a dispute about water damage to a strata lot.

2.      The applicant, Kay Minn, owns a strata lot directly underneath the strata lot owned by the respondents, Bing Foon Jang and Mary Yee Mui Jang in strata corporation, The Owners, Strata Plan LMS3434. Both strata lots are tenanted.

3.      The parties agree that on September 1, 2018 water leaked from the respondents’ strata lot into the applicant’s strata lot. The applicant claims the water caused damage to her strata lot’s ceilings and floors. The applicant seeks $1,260.00 for the costs of repairs. She also claims dispute-related expenses of $40.00 for registered mail. The respondents deny they are responsible to pay for any repairs or expenses.  

4.      The applicant is self-represented. Mr. Jang represents both respondents.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The tribunal must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the tribunal’s process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. While I found that some aspects of the parties’ submissions called each other’s credibility into question, I find I am properly able to assess and weigh the documentary evidence and submissions before me without an oral hearing. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always necessary when credibility is in issue. Further, bearing in mind the tribunal’s mandate of proportional and speedy dispute resolution, I decided to hear this dispute through written submissions.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The tribunal may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

8.      Under section 123 of the CRTA and the tribunal rules, in resolving this dispute the tribunal may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    to what extent if any, the applicant is entitled to payment of $1,260.00 for the alleged water damage to her strata lot, and

b.    to what extent if any, the applicant is entitled to be reimbursed $40.00 for the cost of registered mail.

EVIDENCE, ANALYSIS AND FINDINGS

10.   In a civil claim such as this, the applicant must prove her claims on a balance of probabilities. While I have reviewed all of the parties’ evidence and submissions, I refer only to what is necessary to explain and give context to my decision.

11.   The respondents’ tenant says that on September 1, 2018 she put Drain-O in the respondents’ bathroom drain and let the hot water run. I infer the drain was blocked. It is undisputed that the water overflowed the drain and leaked into the applicant’s strata lot below.

12.   The applicant provided a statement from her tenants. The applicant’s tenants stated that they had been outside. On return, they said water was “pouring” from the bathroom ceiling. One tenant said she took a video and cleaned up the water, while the other tenant went upstairs and notified the respondents’ tenant about the flood. The tenant states that when he arrived upstairs, the respondents’ tenant was “lying on a couch …watching TV and… being totally unaware of what was happening in her bathroom.” It is undisputed that once notified, the respondents’ tenant turned off the water.

13.   The tenants’ video is about 50 seconds long. I find that the video shows quite a lot of water flowing through the ceiling vent and onto the bathroom floor. Based on the length of the video and the amount of water, I find the water must have been running unattended for some time.

14.   It is undisputed that the damage to the applicant’s own strata lot was not covered by the strata corporation or its insurance.

15.   The applicant claims that the flood damaged her floors and bathroom ceiling, plus the adjoining bedroom and kitchen ceilings. The applicant submitted photographs taken on September 1, 2018 showing water marks on the strata lot ceilings and the floor. I cannot tell from the photographs which ceilings were damaged.

16.   The applicant’s insurer inspected the water damage in September and estimated $1,513.40 to repair the applicant’s strata lot. The applicant did not proceed with the insurance claim because her deductible was $1,000. Instead, in October 2018, the applicant hired Sussex Home Services (Sussex), who repaired the applicant’s strata lot for $1,260.00. The scope of work and cost are shown in Sussex’s quote, its invoice, and the applicant’s online bank payment. Sussex’s work included replacing drywall on the bathroom ceiling, sealed and touched up stains on the bedroom and kitchen ceiling, removed transition strip under the bathroom door and reinstalled the transition strip. I find these areas are consistent with the applicant’s tenants’ description of the damage. I note that there is no evidence of another flood between September 1, 2018 and Sussex’s repairs.

17.   The respondents argue that the water could not have caused the claimed damage. The respondents submit a witness statement from the strata president that says it is “unlikely” that the water would damaged the ceiling of any room other than the bathroom. He also opines that the water must have sat for a prolonged time to damage the flooring. The respondents rely on the strata president’s statement, as expert opinion evidence. I find his title as strata president does not make him an expert in assessing water damage. To be accepted as expert opinion evidence, tribunal rule 8.3 requires the expert to state their qualifications, including any education, training, or experience to give the opinion. The strata president provided no such information. Therefore, I have put no weight on his opinion as to the extent of the damage.

18.   While I find I have no expert opinion on the damage, I am persuaded the flood damage would have cost $1,260.00 to repair. This is primarily because the insurer’s September estimate of repair costs was about $300 more than Sussex’s quote. On an insurance claim, the insurer would normally estimate the damage caused only by the insured loss event, which I find here was the flood. I would not expect an insurer to inflate the damage or the cost of repairs. This would be contrary to the insurer’s interest because it would mean the insurer would pay more than what was covered by the loss.

19.   On the combined evidence of the applicant’s tenants, her insurer, and Sussex, I find the applicant has established, on balance of probabilities, that the September 1, 2018 flood from the respondents’ strata lot damaged her strata lot and the value of her loss was $1,260.00.

20.   The next issue in this dispute is whether the respondents are liable in negligence for damage caused by the actions of their tenant. The general elements of a negligence claim are: the respondents owe a duty of care, the respondents failed to meet a reasonable standard of care, it was reasonably foreseeable that the respondents’ failure to meet that standard could cause the applicant’s damages, and the failure caused the claimed damages.

21.   I find the respondents had both a common law duty, and one imposed by the strata bylaws, to the applicant to ensure that water from the shower in their strata lot did not cause water damage to the applicant’s strata lot.

22.   As for the duty of care imposed by the bylaws, I find the relevant strata bylaws are the bylaws filed with the Land Title Office on September 25, 2006. Bylaw 2(1) says that an owner must repair and maintain the owner’s strata lot, except for repair and maintenance that is the responsibility of the strata corporation under the bylaws. I find the respondents had a duty under this bylaw to ensure the bathroom in their strata lot was reasonably repaired and maintained. Bylaw 3(1) says an owner, tenant, occupant or visitor must not use a strata lot in a way that causes a nuisance or hazard to another person. Bylaw 3(3)(b) says an owner, tenant or occupant must not do anything in or about any strata lot which will interfere unreasonably with any other owner, tenant or occupant. I find that flooding into a strata lot is a hazard that would interfere unreasonably with its owner and tenants.

23.   In situations where water escapes from a strata lot that is in the exclusive control of the respondents or here, their tenant, the law infers that the respondents are liable in negligence unless the respondents can show otherwise (see Westsea Construction v Billedeau, 2010 BCPC 109 at paragraph 39 and Fontaine v ICBC [1998] 1 SCR 424). This is not a case where the source of the water damage is unknown. As mentioned, it was caused by the respondents’ tenant allowing water to run over a plugged drain in the respondents’ strata lot bathroom.

24.   The respondents argue that the applicant failed to mitigate the loss because her tenants took a video instead of immediately collecting the water in a bucket and cleaning it up. The video shows water collecting on the floor with a bucket positioned beside so as not to collect the water. I note Sussex’s flooring repair was only about $200.00 of the total $1,260.00 loss.

25.    To prove failure to mitigate, the law puts the burden on the respondents. They must prove, on a balance of probabilities, that the applicant failed to make reasonable efforts and that mitigation was possible (see Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51).

26.   I find the applicant’s tenants did allow water to fall on the floor for about 50 seconds while taking a video. There is no objective evidence suggesting that a bucket positioned closer to the leak for 50 seconds would have prevented or reduced the loss. It would be mere speculation. I find the applicant’s tenants acted reasonably by notifying the respondents’ tenant and undisputedly, drying up the water soon after discovering the leak. I find the respondents have not established that the applicant failed to mitigate the loss.

27.   The respondents argue that they should not be responsible to pay for damage that they did not inspect or repairs they did not approve. However, the law does not require that the responsible person inspect or approve the repairs. I find it sufficient that the repairs were inspected and performed by an independent repair company. I find it was open to the respondents to have contacted the applicant if they wished to inspect and repair the damage themselves. They were only a floor apart in the same strata building and should have known of the flood through their tenant.

28.   I find the applicant has established, on a balance of probabilities, that the respondents’ negligence caused the damage to her strata lot. As mentioned, I found she proved her loss was $1,260.00. Therefore, I find the respondents must pay the applicant $1,260.00 for the repairs to her strata lot.

29.   The Court Order Interest Act (COIA) applies to the tribunal. I find the applicant is entitled to pre-judgment interest on the repair costs. I find the respondents must pay pre-judgment interest of $20.43, calculated from November 13, 2018, the date of payment of the Sussex Home Services invoice, to the date of this decision.

30.   Under section 49 of the CRTA, 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 not to follow that general rule. I find the expense of $40.00 for registered mail was reasonably incurred. I therefore order the respondents to reimburse the applicant tribunal fees of $225.00 and dispute-related expenses of $40.00, for a total of $265.00.

ORDER

31.   Within 30 days of this decision, I order the respondents to pay the applicant a total of $1,545.43, broken down as follows:

a.    $1,260.00 for the cost of repairs,

b.    $20.43 in pre-judgment interest under the COIA, and

c.    $265.00, as $225.00 in tribunal fees and $40.00 for dispute-related expenses.

32.   The applicant is also entitled to post-judgement interest under the COIA.

33.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing a validated copy of the attached order in the Supreme Court of British Columbia (BCSC). Once filed, a tribunal order has the same force and effect as a BCSC order.

34.   Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia (BCPC). However, the principal amount or the value of the personal property must be within the BCPC’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the CRTA, the applicant can enforce this final decision by filing a validated copy of the attached order in the BCPC. Once filed, a tribunal order has the same force and effect as a BCPC order.