Date Issued: January 7, 2020

File: ST-2019-003440

Type: Strata

Civil Resolution Tribunal

Indexed as: Greene v. The Owners, Strata Plan KAS 1244, 2020 BCCRT 22

Between:

Gary Greene

Applicant

And:

     The Owners, Strata Plan KAS 1244

Respondent

 

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.      This dispute is about repair and maintenance of a strata corporation’s common property.

2.      The applicant, Gary Greene (owner), owns a strata lot in the respondent strata corporation, The Owners, Strata Plan KAS 1244 (strata). He was also a strata council member at times relevant to this dispute.

3.      The owner says that the strata has failed to properly repair and maintain its common property. Specifically, he says the strata has failed to properly repair and maintain dyer vents, exhaust vents, a stairwell vent, and the strata building’s roof. He also says the strata has not addressed mould concerns in the attic space of the building and that it has not properly investigated, and repaired water damage caused by owners.

4.      The owner requests orders that the strata:

a.    Repair dryer vents, exhaust vents and a stairwell vent to building code standards,

b.    Investigate and repair water damage caused to common property by owners,

c.    Investigate and properly repair roof deficiencies, and

d.    Retain an engineer to investigate, report on, and provide remedies to eliminate mould in the building’s attic space.

5.      The strata says it has met its repair and maintenance obligations. It denies the owner’s claims and asks that they be dismissed.

6.      The owner is self-represented. The strata is represented by a strata council member.

7.      For the reasons that follow, I mostly find in favour of the owner except with respect to the alleged need to investigate and eliminate mould in the attic space.

JURISDICTION AND PROCEDURE

8.      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 (CRTA). 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.

9.      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.

10.   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.

11.   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, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

Preliminary Decision on Jurisdiction

12.   The original Dispute Notice for this dispute was issued June 11, 2019 and named several council members and 1 council-member-owned company as respondents.

13.   On October 8, 2019, the tribunal issued a preliminary decision (Greene v. Moxham et al, 2019 BCCRT 1176) about the owner’s claims against the named strata council members and company plus related remedies. The tribunal member determined the tribunal’s jurisdiction over the owner’s claims arose under section 31 of the SPA, which relates to a strata council member’s duty of care, and found the claims were outside the tribunal’s jurisdiction. She refused to resolve the owner’s original claims about the alleged conduct of council members, including his claim for punitive damages, under section 10(1) of the CRTA.

14.   The tribunal member also ordered the names of the individual council members and the company removed from the style of cause. She stated the owner’s remaining claims could continue through the tribunal’s usual process.

15.   I agree with the tribunal member’s reasoning, and confirm that the owners’ original claims, including his claim for punitive damages, arising under section 31 of the SPA are outside the tribunal’s jurisdiction.

16.   Also on October 8, 2019, the tribunal issued an Amended Dispute Notice consistent with the tribunal’s preliminary decision I have just described. The strata, as the sole remaining respondent, did not amend its Dispute Response. I have relied on the Amended Dispute Notice, the strata’s original dispute response to the extent it applies to the continuing owner’s claims, and the parties’ subsequent submissions in deciding the owner’s remaining claims below.

Additional Requested Remedies

17.   In his submissions, the owner seeks additional or alternate remedies that do not fall within the requested remedies identified in either the Amended Dispute Notice or the tribunal decision plan (TDP). They include requests for specific orders that the strata:

a.    pursue outstanding warranty roof repairs from Elite Roofing (Elite),

b.    complete specific mould related repairs to the attic space,

c.    enforce pet bylaws,

d.    send a letter to the strata’s insurer about the dryer vents,

e.    install dryer vents to service certain strata lots at the strata’s expense, and

f.     recommend the strata council members attend seminars relating to the strata’s operation.

18.   Given these matters were not identified in the Amended Dispute Notice or TDP, I decline to address them. I find it would be procedurally unfair to the respondent strata to do so, as the strata had no opportunity to respond to these requests when providing its evidence.

ISSUES

19.   The issues in this dispute are:

a.    Has the strata failed to investigate and properly repair roof damage?

b.    Has the strata failed to investigate, or take appropriate steps to remove mould observed in the building’s attic space?

c.    Has the strata failed to investigate and properly repair water damage caused by owners?

d.    Has the strata failed to properly repair dryer vents, exhaust vents, and a stairwell vent?

e.    What remedies, if any, are appropriate?

BACKGROUND, EVIDENCE AND ANALYSIS

20.   I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.

21.   In a civil proceeding such as this, the applicant owner must prove each of his claims on a balance of probabilities.

22.   The strata was created in June 1993 and exists under the Strata Property Act (SPA). It consists of 96 residential strata lots in a 4-storey building located in Vernon, B.C.

23.   The strata filed a complete new set of bylaws at the Land Title Office on November 21, 2017 which are relevant to this dispute. Subsequent amendments filed November 6, 2018 are not relevant to this dispute. I address bylaws relevant to this dispute in my analysis below, as necessary.

24.   In 2010, the strata replaced the building’s asphalt shingle roofing. The work was completed by Elite and included a “10-year workmanship warranty”. I infer from the evidence that On Top Inspections (OTI) inspected the roof replacement work when the roof was being replaced by Elite.

25.   In September 2017, OTI provided a “re-inspection” report (OTI report) that identified several roofing deficiencies and made recommendations about required roof repairs. Some of the recommendations addressed mould present in the attic space.

26.   In July 2019, Healthy Homes IAG (HHI) was retained by the strata to investigate the mould condition in 2 areas of the building’s attic space. I infer the areas inspected are the areas of concern identified by the owner as the owner did not state otherwise.

27.   There are common laundry facilities in the building available to all strata owners. There are also some strata lots where in-suite washing machines and clothes dryers have been installed without the strata’s prior written authorization as required under bylaw 5. The strata has identified that some strata lots have clothes dryer vents connected to the strata lot’s bathroom exhaust fan vent.

The law about common property maintenance and repair

28.   The owner says strata “deserves a strata council that maintains and repairs common property to the standards laid out in the SPA.” The strata says its obligation to repair and maintain common property is measured by the test of what is reasonable in all of the circumstances. For the following reasons, I agree with the strata.

29.   Under section 72 of the SPA, the strata is obligated to repair and maintain common property and common assets. As I discuss in detail below, I find the property that forms the subject of this dispute is common property of the strata. Section 72 allows the strata to take responsibility for specified portions of a strata lot or make an owner responsible for repair and maintenance of limited common property (LCP). In either case, strata must pass a bylaw in order to shift its responsibility to an owner, and it has not done so. Section 72 also states the strata may make an owner responsible for repair and maintenance of common property, other than LCP, but only if identified in the Strata Property Regulation (regulations). The regulations do not currently permit the strata to make an owner responsible for common property.

30.   The strata correctly relies on The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363 in support of its position. In Hall, the BC Supreme Court (BCSC) considered a strata corporation’s appeal of a B.C. Provincial Court decision which found the strata corporation responsible for reimbursing Mr. Hall the cost of replacing windows and doors that the court determined were common property.

31.   The findings in Hall can be restated generally as follows:

The strata corporation's obligation to repair and maintain is measured against a test of what is reasonable in all of the circumstances: Taychuk [v. Owners, Strata Plan LMS 744, 2002 BCSC 1638] at para. 30; Wright v. The Owners, Strata Plan No. 205 (1996), 1996 CanLII 2460 (BC SC), 20 B.C.L.R. (3d) 343 (S.C.), aff’d (1998), 1998 CanLII 5823 (BC CA), 43 B.C.L.R. (3d) 1 (C.A.).”

32.   Hall considered the lower court’s review of the meaning of “repair and maintenance” and agreed that the strata’s duty to repair and maintain can involve a duty to replace (see paragraph 23).

33.   As noted in Weir v. Strata Plan NW 17, 2010 BCSC 784, a strata corporation may have several reasonable options available to undertake necessary repairs. The fact that one of the options may be a more cautious approach or even turn out in hindsight to be the less wise or preferable course of action will not give the court (or tribunal) a basis for overturning a strata council’s decision regarding the repair option selected, as long as the option selected is reasonable one.

34.   The Weir decision also confirmed that, in assessing what is “reasonable”, a strata corporation may take into account the available financial resources of the owners to undertake the necessary work.

35.   What is reasonable in the circumstances also depends on the likelihood of the need to repair, the cost of further investigation, and the gravity of the harm sought to be avoided or mitigated by investigating and remedying any discovered problems (Guenther v. Owners, Strata Plan KAS431, 2011 BCSC 119 at paragraph 40).

36.   Based on the court’s findings in Guenther, I find that part of the strata’s duty to repair includes a duty to investigate the need for repair. Like the duty to repair, the duty to investigate is similarly limited to what is reasonable in the circumstances.

37.   The strata also relies on Oldaker v. The Owners, Strata Plan VR1008, 2007 BCSC 669. In Oldaker, the court restated its well-established findings that the strata is not an insurer obligated to fulfill an owner’s demand for maintenance, and is generally entitled to rely on repair and maintenance advice received from its professionals.

38.   All of the BCSC decisions cited above are binding precedents that the tribunal must follow.

Has the strata failed to investigate and properly repair roof damage?

39.   There is no dispute the roof is common property. I find it falls under the definition of common property under section 1(1)(a) of the SPA as it is part of the building shown on the strata plan that is not part of a strata lot.

40.   The owner says that repairs covered by Elite’s 10-year warranty have been abandoned, which I infer means the strata has not pursued all repairs allegedly covered under the warranty. He also says the strata has accepted repairs completed by Elite under warranty that are unsatisfactory given the repairs are not those set out in the OTI report. The owner also says that recommended roof repairs approved by the strata ownership in 2018 have not been completed.

41.   The strata says the repairs completed by Elite in 2010 were done “to code” and there have been no reported roof leaks. As for the repairs approved by the owners, the strata says its new property manager discussed the need for the approved repairs with Elite and Elite determined the repairs were not necessary, “given the age and functioning of the roof.” Based on its property manager’s discussion with Elite, the strata says “the funds that were set aside for the [roof] repairs were not required as the repairs were not essential.”

42.   Given the strata retained OTI to complete its report in 2017, there is no basis for a claim that the strata failed to investigate roof damage. However, based on the evidence, I find no significant roof work, such as that recommended in the OTI report, has been done. Therefore, the remaining question is whether the strata has properly repaired roof damage. I find it has not.

43.   I agree with the owner that asking Elite to determine what repairs were necessary, based on the OTI report, was not reasonable. Elite provided a 10-year warranty on the original shingle roof replacement in 2010. The warranty document is not before me. However, I accept OTI’s findings that:

a.    New cap flashing was installed over old cap flashing contrary to the re-roofing specifications,

b.    Some of the nails used to secure roof vents had “popped” and required replacement with cladding fasteners,

c.    Numerous roofing nails had cut through the shingle surface or were about to. Theses areas required removal and replacement of the shingle or, alternatively, installation of a 2” x 2” piece of shingle under the existing shingle with plastic roofing cement to cover the hole in the shingle.

44.   OTI found Elite was responsible for the warranty repairs described in its report noting these details were first identified by OTI in 2010 at the time Elite completed the reroofing work. The OTI report reiterates its findings of outstanding warranty work that still existed in September 2017. I find it was unreasonable for the strata not to have Elite complete the warranty work identified by OTI in 2017. This is especially so, given the likelihood such warranty work would have been completed at no cost to the strata.

45.   At the September 25, 2108 AGM , the strata passed a ¾ vote to approve a roof repair expense up to $12,000 expense from its contingency reserve fund (CRF). The strata admits the expense was based on a quote obtained from another roofing contractor although it is unclear if the expense included outstanding warranty work identified in the OTI report.

46.   The strata is obligated to follow the instructions of its owners to proceed with roof repairs as authorized at the September 25, 2018 AGM and I find it did not. The wording of the approved ¾ vote to spend “up to $12,000” does not in itself relieve the strata from doing any roof work (my emphasis). There are no minutes in evidence to suggest the owners withdrew their September 2018 approval for the roof repairs by passing a subsequent ¾ vote to that effect. There is also no other evidence to suggest the strata did not have funds in its CRF to complete the repairs, or that there were other, more pressing common property repairs that would require the strata to hold off repairing the roof.

47.   Based on the foregoing, I find the strata investigated the roof in 2017 but failed to take appropriate steps to repair the roof as identified in the OTI report or as approved by its ownership.

48.   I order that the strata correct all roof deficiencies identified in the OTI report and approved by the owners at the September 25, 2018 AGM. Bearing in mind possible weather conditions at this time of year, I order that the strata complete the work by June 1, 2020.

Has the strata failed to investigate, or take appropriate steps to remove mould observed in the building’s attic space?

49.   There is no dispute the attic space in question is common property that the strata is responsible to repair. I find this to be true based on sections 1(1)(a) of the SPA that defines common property and section 68 of the SPA that says the boundaries of a strata lot are the midpoint between the structural portion of the strata lot’s ceiling and the adjacent common property.

50.   The owner says the strata first became aware of mould concerns in the attic space in 2016, but has done little to address the issue, save for some improved ventilation. He says the mould continues to present health risks to strata occupants and needs to be properly addressed. The strata says it consulted several experts about the mould found in the attic, including the author of the OTI report, who reported the mould issue when inspecting the roof in 2017.

51.   The essence of the mould dispute is that the owner believes additional mould remediation is required, whereas the strata believes adequate work has been completed based on the HHI report. On this issue, I agree with the strata for the reasons that follow.

52.   The owner cites Taylor et al v. The Owners Strata Plan 1801, 2018 BCCRT 925 in support of his position. In Taylor, I found the strata corporation was responsible for reimbursing Ms. Taylor and Mr. Link over $21,000 in mould remediation repair costs they paid that related mainly to a water damaged crawlspace. I do not find the facts in Taylor bear any similarity to the facts in this case. Here, the owner is not seeking reimbursement of money spent to repair common property as was the case in Taylor, but rather seeks an order that the strata remediate mould found on common property.

53.   As I have mentioned, the strata’s duty to remediate the mould in this case is based on the test of reasonableness.

54.   According to a February 7, 2019 email from the strata’s property manager, the OTI report author confirmed in a telephone call that the recommended mould action was “clear and simple.” The alleged recommended action of OTI was to ensure the soffit vents are not blocked with insulation, install rafter vents, ensure all attic areas are properly insulated and that the roof vents are working properly.

55.   The matter of mould existing in the roof attic space was reported in council meeting minutes as early as June 2016. The strata council obtained quotes on mould remediation since that date and although it is unclear exactly what work was completed, it is evident that some work was done, such as the installation of rafter vents and properly aligning 2 roof vents.

56.   The strata also obtained a July 22, 2019 report from HHI, authored by Craig Hostland, P. Eng. A copy of Mr. Hostland’s credentials were provided and I find Mr. Hostland meets the requirements of an expert witness under tribunal rule 8.3. The owner disagrees with the findings made by Mr. Hostland but provided no contrary opinion other than his own. Rather, the owner provided general information on the causes of mould in attic spaces from the American Industrial Hygiene Association (AIHA) dated December 2011 and an article from an associate of Cornell University dated February 2005.

57.   The HHI report is based on a physical inspection of the attic space on July 19, 2019. The report indicates “speck like” dry black staining was “observed increasing in intensity towards the south soffit areas” and that the attic space was dry, the staining was inactive, and there was no visible damage to the structure. The report also stated that conditions that would allow high humidity or “extensive moisture intrusion” causing dry or wet rot were not present. The recommended remediation was to monitor the situation and increase soffit venting if required.

58.   I accept the HHI report over the assertions of the owner and general statements made in the articles provided by the AIHA and Cornell University. I prefer the HHI report because it was based on a physical inspection by an expert of the actual mould present, and the expert provided a specific opinion about what remediation was required. Therefore, I find it is reasonable for the strata to rely on the HHI report and that it has taken reasonable steps to address any mould issues related to the attic space. I dismiss this aspect of the owner’s claim.

Has the strata failed to investigate and properly repair water damage caused by owners?

59.   The owner says the strata council, through its property manager, requires individual owners to repair common property damage resulting from water leaks from a strata lot. He says the strata is responsible for repairs to common property. He says that requiring owners to complete common property repairs may lead to insufficient repairs being completed and is contrary to the SPA.

60.   The strata admits that individual owners are informed they must repair any common property if the total estimated cost of repair, including the owner’s strata lot, is less the strata’s insurance deductible.

61.   For the following reasons, I agree with the owner that permitting or requiring individual owners to repair common property could lead to insufficient repairs being completed to common property. More importantly, I find the strata’s actions and stated repair method for common property repairs caused by owners is contrary to the SPA and the strata corporation bylaws.

62.   Bylaw 2(1) states that repairs to a strata lot are the owner’s responsibility except for repair and maintenance that is the strata’s responsibility under the bylaws. Under bylaw 8(d), the strata takes responsibility for certain strata lot repairs and maintenance, but none apply to this dispute.

63.   The owner cites 2 separate cases of water damage to common property hallways caused by a plugged strata lot sink and leaking hot water tank, both of which are the responsibility of the relevant strata lot owner under strata bylaw 2(1). The leaks occurred in February and March 2019 respectively. The owner’s concern is that interior ceiling spaces and walls of affected common property hallways were not properly dried after the water leaks. He provided photographs in support of his claim showing the walls and ceiling spaces were not opened up for drying. It is unclear from the photographs what common property got wet. The strata did not dispute the hallway walls and ceilings were wet, nor did it provide contrary evidence showing the spaces had been investigated and dried.

64.   The interior hallways are common property and are therefore the strata’s responsibility to repair under section 72 of the SPA and also under bylaw 8(b). As I have mentioned earlier, the strata cannot make an owner responsible for maintenance and repair of common property because there are no enacted regulations under section 72(2)(b) permitting it to do so. I find by requiring an owner to repair the common property hallways following a strata lot water leak, the strata is acting contrary to section 72 and bylaw 8(b).

65.   I find the strata has mistaken its duty to repair with its duty to insure. The strata’s obligation to repair common property is distinctly different from its obligation to insure common property. Put another way, the amount of the strata’s water damage deductible does not affect the strata’s obligation to maintain and repair common property under section 72 or bylaw 8(b).

66.   The bottom line is that the strata is responsible to repair the common property and may rely on its restoration contractor to determine the extent of the necessary repairs, which may include opening up common hallway walls and ceilings to effect proper drying. The procedure used by the strata is flawed and does not follow the SPA.

67.   The proper procedure for common property repairs following a water leak is for the strata to complete them, including any emergency restoration work. The strata is required to have insurance coverage for the repair of common property, but that does not excuse the strata from completing the common property repairs if the amount is less than the deductible. If it is later determined that the owner is responsible for the water leak, the strata may then seek recovery of the repair costs from the responsible owner if it has a bylaw permitting it to do so (such as bylaw 36 possibly). If the water damage is covered by insurance, the deductible is a common expense of the strata under section 158(1) of the SPA that must also be paid by the strata. However, the strata may choose to recover the deductible amount from the responsible owner through the court or this tribunal as permitted under section 158(2) of the SPA.

68.   I find the strata has failed to investigate and properly repair water damage caused by owners. Given the time that has passed since the early 2019 water damage occurred, I make no order about the repair of common property resulting from past leaks.

69.   However, effective immediately, I order the strata to comply with section 72 of the SPA and specifically, to investigate, repair and maintain common property affected by water leaks from a strata lot at its cost.

70.   Nothing in this decision restricts the strata from making an owner or tenant responsible for the costs associated with such water damage and/or charging associated costs to the owner or tenant through a properly approved bylaw.

Has the strata failed to properly repair dryer vents, exhaust vents, and a stairwell vent?

71.   Under section 1(1)(b) of the SPA, common property is defined to include ducts if they are located within a floor, wall or ceiling that forms a boundary between 2 strata lots or between 1 strata lot and common property.

72.   I will first address the owner’s claims about dryer vents and exhaust vents. I infer the owner means bathroom fan exhaust vents as the parties agree that some in-suite dryers are connected to the strata lot’s bathroom exhaust vent.

73.   There is evidence in strata council meeting minutes that in-suite laundry equipment was installed as early as 2010, but it is unclear whether such installations were approved by the strata. The fact that some dryers were installed without the strata council’s authority is not determinative of who is responsible for maintaining and repairing a dryer vent.

74.   The owner and strata agree there are 18 or 19 in-suite clothes dryers installed throughout the strata. The strata says, and I accept, that it is in the process of determining how all in-suite dryers are venting and that “if the connection was not installed professionally, the owner is asked to remove it.” I have found the strata’s duty to repair includes a duty to investigate. Therefore, based on the strata’s current investigation, I cannot find the strata has failed to repair common property dryer or bathroom exhaust vents.

75.   I find the real issue is whether the dryer vents and bathroom exhaust vents are common property and whether an affected owner has taken any responsibility under an alteration agreement. Absent a valid alteration agreement, the strata cannot require an owner or tenant to maintain and repair common property.

76.   The owner says there are no alteration agreements on file with the strata and the strata did not object to the owner’s assertion. If this is the case, based on the definition of common property described above, any dryer vent duct travelling within a floor joist space, or through the attic space to a roof or soffit vent, is common property and therefore, the strata’s responsibility to maintain and repair under section 72 of the SPA.

77.   The owner also says that because there are no dryer vents visible on the exterior of the building from the first through 3^rd floors, any in-suite dryer installations that do not vent through the bathroom exhaust fan vent, must vent into the walls or attic space. I do not agree. I find it is possible some in-suite dryers could be a ‘ventless’ type of dryer, in which case the dryer would vent directly into the strata lot and would not be connected to common property ducting.

78.   Until the strata concludes its investigation and determines the number of in-suite dryers that have common property ducting, I cannot determine if the strata has failed to repair the dryer vents.

79.   The strata submitted that because the in-suite dryers are not original, the strata lot owners are responsible to clean the vents. I find that is incorrect for the reasons set out above.

80.   The strata has an obligation to maintain and repair common property as I have mentioned. If, following its investigation into dryer vents, including the use of bathroom exhaust vents as dryer vents, the strata determines there is common property venting, it must take appropriate steps to repair and maintain the common property involved. That includes further investigation into any common property dyer or bathroom exhaust vents for cleaning.

81.   For these reasons, I order the strata to retain a professional to investigate the condition of the common property dryer vents and bathroom exhaust vents of the strata lots that the strata has identified were connected to dryer vents. The investigation must be completed by a professional familiar with vents and ducting within 60 days of the date of this decisions and any recommendations made as a result of the investigation must be undertaken by a professional familiar with vents and ducting within 120 days of the date of this decision.

82.   Nothing in this decision restricts the strata from charging back its cost of further investigation or vent cleaning to an owner or tenant if it is entitled to do so under the terms of an alteration agreement or its bylaws.

83.   As for the stairwell vent duct, the owner says it is not properly installed, is a safety hazard, and contributes to the attic mould problem.

84.   I accept the stairwell vent is located in the section of the roof where mould is evident as this was not disputed by the strata. From photographs provided by the owner, I agree the vent duct is poorly installed. The duct does not fully extend from the attic floor to the roof vent, but is several inches short at both ends. Batt insultation has been inserted in the end gaps.

85.   The duct material is accurately described by the owner as a “cardboard tube” commonly used when forming concrete. There is no evidence that the duct is contrary to the building code as suggested by the owner, nor is there evidence that the installation was ever inspected by the municipal authority as suggested by the strata.

86.   I do not agree the ducting poses a safety issue as suggested by the owner. Just because the ducting may not support a person attempting to use it for balance, doesn’t mean the duct is a safety issue. I find it is also likely that a properly installed duct, securely attached at the top and bottom may, also not support a person, depending on the duct material used.

87.   Finally, it appears from the evidence that the ducting for the stairwell vent was altered when a fire damper was installed in early 2019, after the HHI report on mould investigation. Therefore, in its current state, the ducting was not considered by HHI as a possible contributor to the attic mould. I find if the duct was adequately sealed at both ends, it could not contribute to mould in the attic.

88.   For these reasons, I find that further investigation of the stairwell vent ducting that is the subject of this dispute is required by the strata at its cost, including a determination of building code violations.

89.   As with the common property dryer ducts and bathroom exhaust fan ducts, the stairwell duct investigation must be completed by a professional familiar with vents and ducting within 60 days of the date of this decision. Any recommendations made as a result of the investigation must be undertaken by a professional familiar with vents and ducting within 120 days of the date of this decision.

90.   The strata may use the same professional for the dryer vent ducting and bathroom exhaust fan ducting as it does for the stairwell vent ducting.

TRIBUNAL FEES AND EXPENSES

91.   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 find the owner was mostly successful. I order the strata to reimburse the owner $225 for tribunal fees. The owner did not claim dispute-related expenses, so I order none.

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

DECISION AND ORDERS

93.   I order that the strata:

a.    Within 14 days of the date of this dispute, pay to the owner $225 for tribunal fees.

b.    by June 1, 2020, to correct all roof deficiencies identified in the OTI report and as approved by the owners at the September 25, 2018 AGM,

c.    immediately comply with section 72 of the SPA and specifically, at its cost, to investigate, repair and maintain common property affected by any new water leaks from a strata lot.

d.    Immediately retain one or more professionals to investigate the condition of the common property dryer vents, bathroom exhaust fan vents of the strata lots that the strata has identified were connected to dryer vents, and the common property stairwell vent duct associated with this dispute. The investigation(s) must be completed by a professional familiar with vents and ducting within 60 days of the date of this decision and any recommendations made as a result of the investigation must be completed by a professional familiar with vents and ducting within 120 days of the date of this decision.

94.   I dismiss the owner’s remaining claims.

95.   The owner is entitled to post-judgement interest under the Court Order Interest Act, as applicable.

96.   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 BCSC. Once filed, a tribunal order has the same force and effect as a BCSC order.

97.   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, a party 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.