Date Issued: April 20, 2020

File: ST-2019-004660

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan LMS 3824 v. Kulak, 2020 BCCRT 427

Between:

The Owners, Strata Plan LMS 3824

Applicant

And:

MYRNA KULAK and DOUGLAS KULAK

Respondents

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about costs associated with a water leak.

2.      The respondents Myrna and Douglas Kulak own unit 402 (SL24) in the applicant strata corporation The Owners, Strata Plan LMS 3824 (strata).

3.      In May 2017 and March 2018 there were water leaks in the strata building where the respondents live. The strata claims for costs for the investigation, call out, clean up and locksmith fees, which it charged back to respondents’ strata lot account.

4.      The strata claims payment for the following invoices that it charged back to the respondents’ strata lot account:

a.    $289.84 for locksmith fees when the owners did not provide access to their unit for a March 2018 water leak investigation,

b.    $469.35 for after hours investigation after a water leak was found to be caused by a faulty seal around the owners’ shower cartridge,

c.    $1,693.11 for emergency call out and clean up charges due to the March 2018 water leak, and

d.    $879.96 for investigation when a defective shower diverter and misplaced tub spout caused a May 2017 water leak.

5.      The respondents oppose the locksmith fee charge back because access to their strata lot was initially refused by their minor daughter for safety reasons, because she was home alone.

6.      The respondents also say the strata failed to comply with its bylaws and section 135 of the Strata Property Act (SPA) in imposing these charge backs. They deny liability for the charge backs.

7.      The respondents are represented by their daughter BK. The strata is represented by strata council member AB.

JURISDICTION AND PROCEDURE

8.      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.

9.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, 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.

10.   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.

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, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

Limitation Period Issue

12.   Is the strata out of time to bring its claim for $879.96 for a water leak investigation invoice it paid in May 2017?

13.   The Limitation Act applies to tribunal disputes. A limitation period is a specific time period within which a person may pursue a claim. If the time period expires, the right to bring the claim disappears. The current Limitation Act provides for a 2-year limitation period for strata claims discovered after June 1, 2013.

14.   Section 6 of the Limitation Act says that the basic limitation period is 2 years, and that a claim may not be started more than 2 years after the day on which it is discovered. Section 8 states that a claim is discovered when the applicant knew or reasonably knew they had a claim against the respondent and a court or tribunal proceeding was an appropriate remedy. For a claim to be discovered, the applicant must reasonably know that the act or omission is that of the person against whom the claim is being made.

15.   While the leak investigation took place on May 4, 2017, the invoice charge was not delivered to the respondents until July 13, 2017.

16.   The Dispute Notice was issued less than two years later, on June 18, 2019.

17.   I find that the strata discovered its claim after July 13, 2017, when it reasonably knew the owners would not pay the $879.96. I find the Dispute Notice was brought within 2 years of the strata’s discovery of its claim. I find that the strata brought its claim within the limitation period.

ISSUES

18.   The parties reached an agreement on certain issues before this adjudication, so I have not addressed those issues in this decision.

19.   The remaining issues in this dispute are:

a.    must the respondents pay the charge back amounts arising from the May 2017 and March 2018 water leaks, and

b.    must the respondents pay the charge back for the locksmith fee?

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 strata must prove its claims, on a balance of probabilities.

Bylaws

22.   The applicable Bylaws are those filed at the Land Title Office on December 20, 2001, subject to amendments that are not relevant to this dispute, except one amendment filed on July 7, 2014.

23.   I find the following Bylaws relevant:

a.    Bylaw 3 - an owner must repair and maintain their own strata lot, except where repair and maintenance is the strata’s responsibility under the bylaws.

b.    Bylaw 4.6 - an owner shall indemnify the strata from expense for any maintenance, repair or replacement of any damaged common property or strata lot caused by the owner, but only to the extent that such an expense is not met by proceeds the strata receives from any applicable insurance policy.

c.    Bylaw 4.6 - any damage done under the strata’s insurance deductible shall be considered an expense “chargeable to the owner and shall be added to and become part of the assessment of that owner’s account.”

d.    Bylaw 10.2 - if forced entry to a strata lot required due to required emergency access and the inability to contact the owner of the strata lot, the owner shall be responsible for all costs of forced entry incurred by the strata.

Background

24.   On July 13, 2017, the strata wrote to the respondents enclosing a $879.96 invoice from Total Energy Systems Ltd. for water leak investigation. The strata had paid the invoice. The strata wrote that the leak was found to be due to a defective shower diverters and misplaced bathtub spout in the respondents’ unit. The strata requested reimbursement of the $879.96 either by cheque or authorized payment from the respondents’ strata lot account. The strata issued the charge back to the respondents’ strata lot the same day.

25.   In December 2017, the strata rejected the respondents’ request to have the strata pay for and repair the damage to the interior of the strata lot.

26.   On March 1, 2018, there was a water leak in multiple units in the strata building.

27.   On March 1, 2018, a locksmith attended at the strata building with the intention of opening the respondents’ unit because they had not answered the strata’s door knock or phone call requesting access to investigate a water leak. The $289.84 locksmith’s invoice includes a note that, once the locksmith arrived, the respondents answered their door.

28.   On March 7, 2018, the strata wrote to the owners to say that the water damage was due to a leaking cartridge in their shower. The strata noted that the total damage would be less than the strata’s insurance deductible. The strata explained that the cost of clean up and any trades dispatched to affected strata lots would be charged against the respondents’ strata lot account.

29.   On March 8, 2018 the strata wrote to the applicants requesting payment of $284.84 for the locksmith invoice the strata had paid. The same day, the strata issued the charge back to the respondents’ strata lot account.

30.   On March 8, 2018 the respondents paid $265.13 to Milani Plumbing Drainage & Heating for repairs to their bathrooms, including reinstallation of trim, tightening a shower head, and installation of a new cartridge and tub spout.

31.   On March 19, 2018, the strata wrote to the respondents enclosing a $469.35 invoice the strata had paid to Total Energy Systems for after hours emergency investigation of the water leak. The strata wrote that the leak originated from a faulty seal around the respondents’ shower cartridge. The strata requested that the respondents reimburse it the $469.35. The strata issued a $469.35 charge back to the respondents’ strata lot account the same day.

32.   On April 18, 2018, the strata wrote to the respondents enclosing a $1,693.11 invoice from the Restoration Shop that the strata had paid for a March 2, 2018 emergency call out for the water leak. The strata requested the respondents reimburse it for the $1,693.11 either by cheque or by agreeing to authorize a payment from their strata account. The strata issued a $1,693.11 charge back to the respondents’ strata lot account the same day.

33.   It is undisputed and I find that the claimed charges were due to a secondary leak arising from the respondents’ strata lot, either due to the respondents’ action or inaction in maintaining their bathrooms.

 

Are the charge backs for investigation fees and emergency call out and clean-up valid?

Section 135

34.   The respondents submit that the strata failed to comply with the SPA section 135 in imposing the claimed charge backs. The strata says it complied with all SPA requirements.

35.   Section 133 of the SPA says that a strata may do what is reasonably necessary to remedy a bylaw contravention, including doing work on or to a strata lot and that it may require the reasonable costs of remedying the contravention to be paid by the person who may be fined for the contravention.

36.   Section 135(1)(c) of the SPA says the strata must not require a person to pay the costs of remedying a bylaw contravention without first giving the owner particulars of the complaint in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested.

37.   I find that sections 133 and 135 do not apply to the claimed charge backs, because they were not imposed to remedy a bylaw contravention. Rather, these are charge backs under the strata’s Bylaw authority, as discussed below, separate from any bylaw breach.

Bylaws

38.   The strata says it has Bylaw authority to charge back the claimed costs to the respondents. The respondents say the strata does not have the authority to collect these charge backs.

39.   Section 116 of the SPA sets out specific charges for which a strata corporation can file a lien against the tile of a strata lot, such as strata fees and special levies. Charges not listed in section 116 are commonly referred to as non-lienable charges.

40.   I find the contested charge backs for investigation fees, emergency call out and clean up are non-lienable charges.

41.   To collect a non-lienable amount the strata must have the authority to do so under a valid and enforceable bylaw or rule that creates the debt: see Ward v. Strata Plan VIS #6115, 2011 BCCA 512.

42.   I find that Bylaw 4.6 provides the strata with authority to charge back the owner for any maintenance, repair or replacement expenses to any strata lot that are “caused by” an owner. Based on the correspondence filed in evidence, I find that the strata was required to pay the claimed expenses because the respondents failed to properly maintain their bathrooms. That is, the respondents caused the need for maintenance, repair or replacement costs to be incurred.

43.   The remaining question is whether the claimed expenses are for maintenance, repair or replacement costs.

44.   In Robertson v. The Owners, Strata Plan NW 87, 2017 BCCRT 37, the Vice Chair considered similar bylaw language to Bylaw 4.6 and held that claimed charge backs for plumbing leak investigations are not “maintenance, repair or replacement” expenses. While Robertson is not binding on me, I find Vice Chair’s analysis instructive. I find that plumbing investigation charge backs are not charges that fall within the language of Bylaw 4.6.

45.   However, I find that any charges that involve repair, maintenance or replacement are items that the strata is entitled to charge back, under Bylaw 4.6.

46.   Below, I review the detailed invoices and determine whether they include any maintenance, repair or replacement expenses.

a.    March 5, 2018 - $469.35 invoice from Total Energy Systems Ltd.

I find that this invoice is for investigation services only. The invoice itself notes that no repairs were made. Therefore, I find this amount is not a valid charge back under Bylaw 4.6.

b.    April 10, 2018 - $1,693.11 invoice from The Restoration Shop

I find that this invoice is for repair, maintenance and replacement and falls under Bylaw 4.6. I say this because the detailed invoice explains that workers removed baseboards, drywall and insulation, applied anti-mildew treatment and cleaned debris from their work. That is, the services were not investigations, but were repair and maintenance tasks. I find that the respondents must pay this charge back.

c.    May 31, 2017 - $879.96 invoice from Total Energy Systems Ltd.

Most of the fees charged in this invoice are for investigation. However, the attending worker also replaced integral traps that were not working. I find that was a repair as contemplated by Bylaw 4.6. Based on the invoice and on a judgement basis, I estimate the repair costs within the invoice at $200, being $42.06 for material cost plus $157.94 for labour and truck charges relating to the repair.

47.   Section 112 of the SPA requires that a strata give an owner at least two weeks’ written notice demanding payment and indicating that action may be taken if payment is not made with 2 weeks, before giving an initiating notice before the tribunal. The respondents did not raise this as an issue. I find that the strata complied section 112, based on correspondence and account in arrears notices.

48.   Given my analysis above, I find that the strata has a valid charge back for $1,893.11 under Bylaw 4.6. This is a $1,149.31 reduction against the claimed charge back for these three invoices.

Are the charge backs for locksmith fees valid?

49.   The respondents submit that the strata is not entitled to charge them the locksmith fees because it was unreasonable to expect their minor daughter to provide emergency access to their strata lot when they were not home.

50.   Under Bylaw 10.2, the strata can recover costs of forced entry to a strata lot where emergency access is needed, and the owner cannot be reached. I find that this means the strata is entitled to charge the owner for the locksmith fees, regardless of the reason that strata lot access was refused. It is uncontested, and I find, that the water leak was an emergency.

51.   Under Bylaw 34.1, the strata may proceed under the Small Claims Act to recover money which the strata is required to expend due to the owner’s act, omission, negligence or carelessness. I find that the locksmith costs were incurred due to the respondents’ omission to address the request to provide access in a timelier way.

52.   I find that the locksmith fee is therefore a non-lienable debt owed by the respondent to the strata. However, because Bylaw 10.2 does not permit a charge back, I find that the strata must remove the $289.84 charge back from the strata lot account.

TRIBUNAL FEES, EXPENSES AND INTEREST

53.   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. The strata has been partially successful in this dispute. I order the respondents to pay 50% of the strata’s $225 in tribunal fee, which is $112.50. The strata did not claim dispute-related expenses.

54.   The Court Order Interest Act (COIA) applies to the tribunal. I find that the respondents must pay the tribunal interest on the $1,893.11 they owe to it, calculated from April 18, 2018, the date of invoice, to the date of this decision. This equals $66.59.

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

ORDERS

56.   I order that, within 15 days of this decision, the strata adjust the charge back on the respondents’ strata lot account by applying a credit of $1,439.15.

57.   I further order that, within 30 days of this decision, the respondents pay the strata a total of $2,072.20, broken down as:

a.    $1,893.11 in payment of the valid charge backs for repair work,

b.    $112.50 for tribunal fees, and

c.    $66.59 in COIA interest.

58.   The strata is entitled to post-judgement interest as applicable.

59.   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.

60.   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.