Date Issued: April 7, 2020

File: ST-2019-009564

Type: Strata

Civil Resolution Tribunal

Indexed as: Coutts v. Hensman, 2020 BCCRT 381

Between:

SUSAN COUTTS and DOUGLAS COUTTS

Applicants

And:

DAVID HENSMAN and MELODY HENSMAN

Respondents

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

INTRODUCTION

1.      The applicants, Susan Coutts and Douglas Coutts, own a strata lot (SL3) in a strata corporation comprising only 3 strata lots, The Owners, Strata Plan EPS614 (strata). The respondents, David Hensman and Melody Hensman also own a strata lot (SL2) in the strata, immediately next to SL3. The applicants are represented by Susan Coutts and the respondents are represented by David Hensman. The strata is not a party to this dispute.

2.      The applicants allege the respondents damaged drainage pipes located on SL3 by “allowing an abundance of heavy garden and yard waste, including large tree branches, to be disposed on SL3”. The applicants also allege that drainage pipes located on SL2 are draining onto SL3 causing additional damage. In addition to seeking reimbursement of fees expenses and interest, the applicants seek orders that the respondents:

a.    Stop dumping garden waste and debris along the property line between SL2 and SL3 at “the southern steep foreshore slope”,

b.    Pay for the removal, replacement and reconnection of the damaged drainage pipes on the southern foreshore slope located on SL3,

c.    Clear the garden waste and debris off of the southern foreshore slope around the drainage pipes on SL3,

d.    Pay to have SL2 drainage pipes removed from SL3, redirected away from the property line between SL 2 and SL3, and the landscaping restored to its original appearance.

3.      The applicants also claim $225.00 for tribunal fees and $7,653.38 for dispute-related expenses that include the cost of a land survey.

4.      The respondents deny the applicants’ claims and say they are not responsible for the alleged damage on SL3. They also say the pipes are common property and therefore the strata’s responsibility to repair. The respondents ask that the applicants’ claims be dismissed.

5.      For the reasons that follow, I find in favour of the respondents and dismiss the applicants’ claims and this dispute.

JURISDICTION AND PROCEDURE

6.      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.

7.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, email, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

8.      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.

9.      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.

PRELIMINARY ISSUES

Strata as a party

10.   In submissions, the parties agree this dispute does not involve the strata. For that reason, I have not sought further submissions on adding the strata as a party.

Video evidence

11.   The respondents say that one of the videos provided by the applicants is contrary to the Personal Information Protection Act (PIPA) because the strata does not have a video surveillance bylaw as recommended by the Office of the Information and Privacy Commissioner for British Columbia (OIPC). They cite part of the Privacy Guidelines for Strata Corporations document prepared by the OIPC as a reason why the video should not be permitted in evidence.

12.   I have decided to allow the video into evidence for 3 reasons. First, the Privacy Guidelines for Strata Corporations document does not apply to this dispute because the strata is not a party. Second, the respondents have not provided any supporting evidence that a single video clip, likely taken on a cell phone, offends the PIPA, and I find it does not. Third, the respondents have relied on the video clip in their submissions.

13.   For these reasons, I have decided to allow the video clip showing an individual throwing branches down the southern steep foreshore slope into evidence.

ISSUES

14.   The issues in this dispute are:

a.    Did the respondents or their gardeners dispose of garden debris in a manner that damaged drainage pipes located on SL3?

b.    Should I order the respondents pay to relocate the SL2 drainage pipes?

c.    Are the applicants entitled to reimbursement of $225.00 for tribunal fees and dispute-related expenses totalling $7,653.38?

POSITIONS OF THE PARTIES

15.   The applicants claim that about October 9, 2018 the respondents’ gardeners disposed of “an abundance of heavy tree branches and garden debris over the southern steep foreshore slope”. They say this action caused damage to the SL3 drainage pipes.

16.   As a result of the respondents’ refusal to repair the damaged pipes, the applicants hired a land surveyor to establish the property line between the private yard areas that are part of SL2 and SL3. The respondents say the property line clearly establishes that the tree branches and garden debris were thrown from SL2’s private yard onto the part of the slope that is part of the SL3 private yard.

17.   The applicants also say the respondents should be responsible to relocate the drainage pipes that extend from under the SL2 private yard area on to SL3’s slope.

18.   The respondents claim the drainage pipes were not damaged by their gardeners depositing garden debris over the top of the slope. They say erosion that has taken place along the top of the slope and there is evidence of larger debris, such as a large diameter log, near the damaged pipes. They say these actions are the more likely cause of the drainage pipe damage.

19.   As for relocating drainage pipes, the respondents say they are not responsible because the pipes are common property.

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 applicants must prove their claims on a balance of probabilities.

22.   As noted, the strata includes 3 strata lots. It is located on the southwest coast of Vancouver Island in Shirley, B.C., within the Capital Regional District (CRD).

23.   The strata’s property is divided into 3 large parcels of land identified on the strata plan as private yard areas forming part of each of the 3 strata lots. The yard areas are long and narrow running north to south. The total area of each strata lot is shown as 1.275 hectares, 1.274 hectares, and 1.238 hectares for strata lots 1 to 3 respectively. There are buildings shown on the private yard areas which form part of the strata lots on which they are situated. The only common property identified on the strata plan is a driveway that traverses a portion of each of the 3 private yard areas near their northern boundaries.

24.   All 3 private yard areas front onto the Strait of Juan de Fuca on their southern boundaries. Based on the evidence, the yard areas are subject to a Riparian or Sensitive Ecosystem Permit and Steep Slope Development Permit, as referenced in an April 12, 2019 email from a manager employed by the CRD to the strata council president. Photographs provided in evidence show the private yard areas to be relatively flat, except for the southern portions of the strata lots. Each of the private yard areas drops off dramatically roughly 60 metres from the water along its southern boundary. The strata plan also shows the southern portion of each strata lot is subject to a registered covenant. Although the covenant and permits are not before me, I infer the covenant boundary is near the top of the “southern steep foreshore slope” referenced by the parties in their submissions.

25.   The parties agree that 2 drainage pipes originate from SL2 and 2 drainage pipes originate from SL3. The 4 subject pipes extend out of the slope face just below the top of the slope near the property line between SL2 and SL3. It is evident all pipes are below the surface of the level portions of the SL2 and SL3 private yard areas until they extend out past the slope face. The exposed parts of drainage pipes then run down the slope and appear to end near or before the base of the slope, which remains some distance from the water.

Did the respondents or their gardeners dispose of garden debris in a manner that damaged drainage pipes located on SL3?

26.   The applicants provided a video clip, allegedly taken October 9, 2018, that shows an individual throwing tree branches over the southern steep foreshore slope at or near the property line that divides the private yard areas of SL2 and SL3. The respondents admit their gardeners disposed of garden debris over the top of the slope and do not dispute the date the video was taken. However, the respondents say “the video did not include logs such as the 3’ log pictured [in the video] resting on the pipes”. They believe the log was transported down the slope by erosion.

27.   For the following reasons, I find the applicants have failed to prove the respondents’ gardeners caused the pipe damage.

28.   The applicants provided photographs that purport to show the slope and pipes in July 2018, before the respondents gardener was witnessed throwing tree branches over the top of the slope. However, on review of the photographs, I find the entire length of the pipes extending down the slope is not visible. It is only the pipes at the top of the slope face that are visible and that is not where the damage occurred. I do not find the photographs assist the applicants to establish the pipes were undamaged before October 2018.

29.   I agree with the respondents that the October 2018 video does not show the disposal of a “3’ log” over the top of the slope. It only shows that several tree branches, that I estimate to be about 2 meters in length and 10-15 centimetres in diameter, were thrown over the top of the slope. The video does not show where on the slope the tree branches landed as it was taken from a distance and at an angle that does not show any portion of the slope.

30.   Another video provided by the applicants, allegedly dated December 16, 2018, shows a view from the top of the slope at or near the property line diving the private yards of SL2 and SL3. I accept the main location from where the video was taken is roughly the same location as where the respondents’ gardener was throwing tree branches in the October 2018 video. The December 2018 video shows 2 tree branches, similar to those shown in the October 2018 video, standing upright in a bush about half way down the slope, and about 5 metres to the right of the damaged pipes.

31.   I find the video does show debris on top of the pipes, but it is unclear if branches of the size shown in the October 9, 2018 video are among the debris. I also find the debris includes other, smaller plant material and some soil that appears to match the soil conditions of the slope. This would support the respondents’ position that slope erosion may have caused the pipe damage. The respondents also provided an undated photograph that shows water ponding in a lawn depression near the private yard boundary. Although the photo does not show the water flowing, as submitted by the respondents, based on other photographs, I find that is more likely than not that water would flow along the depression to the top of slope if sufficient amounts accumulated in that location. I find it is also plausible that a continued flow of water could cause the slope to erode as suggested by the respondents.

32.   For these reasons, I find the applicants have not proved the respondents’ gardeners caused damage to the pipes. As a result, I dismiss the applicants’ claim that the respondents’ gardener damaged the drainage pipes.

33.   I note that the applicants say the respondents no longer permit garden debris to be disposed of over the top of the slope. I encourage the respondents to continue not permitting garden debris, or any material, to be thrown down the slope.

Should I order the respondents to pay to relocate the SL2 drainage pipes?

34.   As I have mentioned, there are a total of 4 drainage pipes and the parties agree that 2 originate from SL3 and 2 originate from SL2. The applicants say the SL2 pipes cross onto their SL3 private yard. They want the SL2 pipes removed from their yard and relocated elsewhere. I find it difficult to link the applicant’s pipe relocation request to their claim about damaged pipes as the 2 SL2 pipes were not damaged. It is only the 2 SL3 pipes that were damaged. I will address the applicants’ claim in any event.

35.   In order for me to make the requested order, I must find that the respondents are responsible for the repair of the SL2 pipes. I cannot reach that conclusion based on the evidence before me.

36.   I accept that the 2 most westerly pipes that extend past the slope face on SL3’s private yard area are the 2 pipes that relate to SL2. From the photographs provided in evidence, it appears that these 2 pipes come from below the SL2 private yard area. Based on the parties’ agreement, I accept that they do.

37.   However, just because the pipes extend out the slope face from below the private yard of SL2, does not mean they are the respondents’ responsibility. The applicants say they have reached this conclusion based on their preliminary assessment but do not say what their preliminary assessment was. Responsibility for repair and maintenance of the drainage pipes located under SL2’s private yard is determined by whether they are part of the SL2 or common property. Repair and maintenance of commo property is the responsibility of the strata under section 72 of the SPA.

38.   Under section 1(1) of the SPA, pipes for the passage or provisions of water and drainage are defined as common property it they are wholly or partially located in a strata lot and are capable and intended to be used in connection to common property. Based on this definition, I find the pipes located in the private yard of SL2 could be common property, as the respondents claim, if for example, they connect to catch basins located on the common property driveway.

39.   While the applicants say the SL3 pipes connect to the building that forms part of SL3, they provided no evidence to support their statement. Even if the statement was true, that does not mean the SL2 pipes connect only to the buildings that form part of SL2.

40.   For these reasons, I find the applicants have not proven the respondents are responsible for the SL2 pipes. I therefore dismiss the applicants claim that the respondents pay to relocate the drainage pipes.

TRIBUNAL FEES AND EXPENSES

41.   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. Given the applicants were not successful, I make no order for tribunal fees.

42.   The applicants claim $7,653.38 for dispute-related expenses but only provided evidence to support $1,381.24 for their land survey expense. However, given the applicants were not successful, I make no order for reimbursement of the land survey expenses incurred by the applicants.

43.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the applicants.

ORDER

44.   I dismiss the applicants’ claims and this dispute.