Date Issued: May 15, 2020

File: ST-2019-008444

Type: Strata

Civil Resolution Tribunal

Indexed as: Dean v. The Owners, Strata Plan LMS2714, 2020 BCCRT 542

Between:

PATRICIA DEAN

Applicant

And:

The Owners, Strata Plan LMS2714

RESPONDENT

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      The applicant Patricia Dean owns strata lot 47 (unit 47) in the respondent strata corporation The Owners, Strata Plan LMS2714 (strata).

2.      This dispute is about ventilation installation problems the applicants says are causing odours to enter unit 47 from unit 46. The applicant says, and the strata disagrees, that the strata failed to address the ventilation issue.

3.      The applicant’s son and his family live in unit 47. In 2018 the strata installed a new roof. The applicant says that, since then, her family noticed ventilation issues, including odours, in unit 47.

4.      The applicant asks that the strata access the adjacent unit, unit 46, to inspect the ventilation fully, including by using a camera. The applicant also asks for an order that the strata re-route the exhaust termination vents for unit 46 and 47, which are on common property (CP), to above the roof skirt.

5.      The strata says it investigated the source of the odours, including having roofers determine whether there were roof-related ventilation problems. The strata says it obtained a report that the odours could not be coming from unit 46. The strata says it would consider a request for repair but has no authority to force access to unit 46. The strata asks me to dismiss the dispute.

6.      The applicant is self-represented. The strata is represented by strata council member MH.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

ISSUE

11.   The issues in this dispute are:

a.    should I order the strata request that unit 46 permit a contractor access to complete a CP ventilation inspection, including a camera inspection; and

b.    should I order the strata to repair the vent terminations from the exhaust vents of unit 46 and 47?

EVIDENCE AND ANALYSIS

12.   I have reviewed materials filed by the parties, but only refer to them below as I find relevant to my decision.

Bylaws

13.   The applicable Bylaws are those filed at Land Title Office on February 22, 2016. I find the following Bylaw excerpts relevant to this dispute:

Bylaw 7 – an owner must allow a person authorized by the strata to enter the strata lot at a reasonable time, on 48 hours’ written notice, to inspect, repair or maintain CP or any portions of a strata lot that are the strata’s responsibility to repair and maintain under the bylaws or to insure under the SPA section 149.

Bylaw 8 – the strata must repair and maintain the CP that is not limited CP, and the strata lot where it involves the building’s structure, exterior, chimneys, stairs, balconies and other things attached to the building’s exterior, fences, railing and similar structures that enclose patios, balconies and yards.

Background

14.   This strata is a townhouse-style complex. Units 46 and 47 are side by side. They have a wall between them, and a central CP attic. As well, units 45 and 46 share attic space between them within the central attic structure.

15.   In February 2018, the strata replaced the roofs of all its buildings.

16.   In September 2018, the applicant wrote to the strata’s then property manager AE several times about concerns that something was wrong with the ventilation in unit 47, including “fumes”. The applicant says the problem began after the roofs were changed. The applicant says she or her family might have noticed and reported it earlier but they were often occupied away from the strata because her husband was seriously ill.

17.   In November 2018, the applicant continued to email the strata, noting her suspicion that there may be an issue in the neighbour’s attic.

18.   On November 20, 2018, the strata council decided to send 3 council members to visit units 46 and 47 to assess the issue. However, some members could not attend. It is not clear based on the evidence before me whether anyone visited unit 46. The strata does not contest, and I find, that the then strata council president smelled an undue level of odour in unit 47.

19.   On December 8, 2018, the applicant wrote to AE asking that the strata open a warranty claim with the roofing company. The applicant asked that the roofing company inspect the “work done in Units 46 and 47”. In this communication, AE related the problem to “cooking odours”.

20.   On December 10, 2018 the applicant wrote to AE again saying that the problem continued.

21.   On December 16, 2018, the applicant again wrote to AE. The applicant explained that she had met with someone named PW, at the strata’s suggestion, regarding the faulty ventilation in unit 47, and that a contractor had inspected unit 47 and recommended several repairs to bring the unit “up to code”. The applicant reported that the vent to outside had been “partially covered by siding” with the result that airflow was incomplete and bad air was returning into the townhouse due to an absent venting flap.

22.   On December 17, 2018, SD, the applicant’s brother-in-law and a licensed contractor and building technologist, emailed the applicant his opinion that deficiencies in the kitchen exhaust fan ductwork were causing exhaust fumes from townhouse 46 to enter unit 47.

23.   To address the issue, SD recommended the exhaust ducts have flaps to prevent air from outside entering the duct. As well, SD wrote that the outlet “should exit through a proper exhaust hood (with a flap) through the skirt roof so the fumes don’t get trapped in or under the soffit.” SD recommended that these changes be made to unit 46’s venting. While SD is related to the applicant, I nonetheless accept his opinion as a person qualified to assess ductwork deficiencies requiring repair. I say this because his opinion is consistent with that of TP, which I discuss below.

24.   On Tuesday January 15, 2019 the applicant wrote to AE explaining that she had some repairs conducted in unit 47.

25.   On January 17, 2019 AE wrote back to the applicant to say that the strata had retained an independent consultant to provide a report regarding her concerns.

26.   On February 4, 2019, the applicant appeared before strata council.

27.   On March 15, 2019, the applicant emailed the property manager to ask about the findings from the strata’s ventilation investigation in unit 46. The applicant noted that the smell had not been as much of a problem since the February 4 strata council meeting but had become noticeable again as the weather warmed.

28.   The property manager replied to say that the strata had someone check the attic venting cavity and 2 roof vents, which they assessed were functioning correctly and not in need of repair.

29.   On March 21, 2019, the applicant emailed the property manager again about the ongoing odour problem.

30.   On April 9, 2019, the strata met and approved a motion to retain Fehr Strata Repairs Ltd. to repair the soffit or siding for 34 units for $14,000. The applicant says she hoped these soffit repairs would include units 46 and 47 and address her concerns, but they did not. The strata did not provide evidence about or otherwise address these soffit repairs.

31.   On June 4, 2019 a strata agent AH wrote to the applicant saying that the strata agreed that the applicant could hire a licensed contractor at her own expense to propose a plan to address the ventilation issue, subject to certain conditions. The strata would then review the plan and consider approving the scope of work.

32.   On June 25, 2019, TF of Fehr Strata Repairs Ltd. emailed the applicant and explained that, in September 2018, he advised the property manager to have an HVAC company investigate the ventilation issue regarding units 46 and 47.

33.   On July 24, 2019, TP of Atmosphere AC Systems Ltd. examined unit 47 and the exterior vent terminations for unit 46, at the applicant’s request. TP made the following recommendations to address the odour issue:

a.    Snake the unit 46 venting to check that there are no gaps or disconnections.

b.    Unit 46 and 47 vent terminations were half covered, with half going out the wall and the other half shooting into the soffit. TP offered his opinion that the vent should not exhaust into a soffit and should be repaired.

c.    Remove the wall cap and re-route vents to go up into the soffit and shoot out a soffit wall cap.

34.   On July 24, 2019, the applicant wrote to the strata enclosing Atmosphere’s recommendation that unit 46 be inspected, by having an inspection camera snake the unit 46 venting, for a cost of $400 plus GST.

35.   On September 19, 2019, the applicant emailed strata council to ask whether the unit 46 owners would like to speak to TP directly to confirm there would be “no cost or inconvenience to them.”

36.   On October 9, 2019 the applicant emailed strata council to say that she spoke with the unit 46 owner, who agreed to have TP investigate in unit 46 if the strata agreed.

37.   On October 15, 2019, the applicant wrote to strata council saying she was dismayed to learn that TP was not able to access unit 46. The applicant wrote that she would be filing a dispute with the tribunal.

38.   On October 22, 2019, AH responded on behalf of the strata. He wrote that the strata was relying on a report from a duct cleaner, MS, who had offered a November 2018 opinion that there was “no fixable cause” for the odour observed in unit 47.

39.   AH wrote “Please note that if your trade propose anything that require access to unit 46 or will make alterations to the common areas or existing venting, Strata will not consider.” (quote reproduced as written)

40.   The strata’s October 22, 2019 letter attached MS’s November 16, 2018 invoice. On the invoice, MS wrote that he had inspected the kitchen exhaust fan in unit 46 and found that it was working well and “venting strong outside”. MS noted “slight” lingering cooking smells in unit 46. MS found no “fixable cause” for smells there were reported in unit 47.

41.   SD reviewed MS’s notes on the November 16, 2018 invoice and wrote that the issue was with venting that terminates in the soffit and just below it. SD said the smell would then travel through and under the soffit, entering unit 47. SD recommended that unit 46 venting be fixed so that it would terminate above the skirt roof, which he noted was also a BC Building Code requirement.

Must the strata arrange for a contractor to access unit 46 for an inspection of the ventilation system, including a camera inspection?

42.   Based on section 1 of the SPA, I find that at least parts of the ventilation system that must be accessed from inside unit 46 are CP, because they are located within a wall, floor or ceiling that forms a boundary between unit 46 and CP or another strata lot.

43.   The strata is responsible for the repair and maintenance of CP: SPA, section 72. For this reason, I find that those parts of the ventilation system are the strata’s obligation to maintain.

44.   The strata must consider the best interests of all owners when making repair and maintenance decisions. When deciding how to fix or replace CP, the strata has discretion to approve “good, better or best” solutions to any given problem. Following the binding decision of the British Columbia Supreme Court in Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784 at paragraphs 28 and 29, I would not interfere with a strata’s decision to choose a “good,” less expensive, and less permanent solution, although “better” and “best” solutions may be available. Having said that, in this dispute, given the opinions of SD and TP, I find that there are ventilation installation problems that the strata must address somehow.

45.   Under Bylaw 7, the strata can conduct such an inspection on 48 hours’ written notice to the unit 46 owner. Because SD and TP both recommended a camera inspection, the applicant documented a recurrent odour issue confirmed by a strata council member and given the identified deficiencies with the vent terminations, I find that the strata is obliged to conduct an inspection from the CP attic and, if it cannot visualize the relevant ventilation from there, then request access to unit 46, to determine whether there are any further CP ventilation deficiencies for it to address.

46.   The strata must accomplish the inspection by complying with Bylaw 7 and may either use the contractor suggested by the applicant or another contractor of its choice, given Weir. Due to the nature of the concern, I find that the inspection must include a camera snaking of the CP attic and, if necessary, other ventilation if it is only accessible from inside unit 46 but relates to CP inspection.

Must the strata repair the terminations from the exhaust vents of unit 46?

47.   Based on section 1 of the SPA, I find that ducts and vents exiting unit 46, on the building’s exterior, are CP. I find that it is the strata’s obligation to repair and maintain these vent terminations.

48.   I find that MS’ inspection in fall 2019 was a visual inspection only. MS did not use a camera to visualize inside the venting. MS did not comment on the status of the unit 46 vent terminations. For these reasons, I find that MS did not provide an opinion either on the interior of unit 46’s venting nor on the unit 46 vent terminations.

49.   I find that, based on the opinions of two qualified contractors SD and TP, the vent terminations are deficient because they are partly covered and vent into the soffits and the wall. Based on their opinions, I find that this could cause improper build up of vent by-products, including grease, on the wall and soffits. Both contractors recommended that this vent termination be re-routed to above the roof skirt to avoid further problems. According to SD, this is also a BC Building Code requirement. While I have considered that SD’s opinion may be impacted by his relationship to the applicant, I accept it because it is consistent with TP’s independent opinion.

50.   Part of the tribunal’s mandate is to recognize any relationships between the parties that will likely continue after a tribunal proceeding ends. Here, the strata suggested that the applicant’s complaint were motivated by “bad blood” between her and the unit 46 owners. There was no evidence to support this contention.

51.   Strata lot owners are entitled to prepare their choice of food in their homes, so long as doing so does not create a nuisance or hazard to another person. The applicant did not complain about the unit 46 owner or ask that the strata impose fines. I prefer the applicant’s evidence that the occupants of units 46 and 47 lived harmoniously for some time until the odour issue arose, which caused understandable frustration.

52.   I find that the strata must repair the vent terminations for unit 46 and 47 by re-routing them to a level above the roof skirt with proper venting flaps applied. Again, given Weir, the strata may choose the precise method of addressing the issue and the contractor it retains.

53.   I decline to order vent termination re-routing in other parts of the strata because the only evidence before me is specific to this part of the building. The strata may consider whether any other vent termination re-routing is necessary to fulfil its repair and maintenance obligation.

TRIBUNAL FEES and EXPENSES

54.   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 therefore order the strata to reimburse the applicant for tribunal fees of $225. The applicant did not claim dispute-related expenses.

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 120 days of this decision:

57.   the strata obtain a ventilation inspection through the CP attic and, if that does not allow a thorough inspection of CP venting, then request a ventilation inspection from inside unit 46, after providing notice under Bylaw 7. The inspection should include a camera inspection, and be completed by the strata’s choice of contractor;

a.    the strata to provide a copy of the ventilation inspection report to the applicant,

b.    the strata, through its choice of contractor, repair the vent terminations for units 46 and 47, and any other CP ventilation deficiencies identified on the ventilation inspection report.

c.    For the vent terminations, the strata must instruct the contractor to re-routing them to above the roof skirt and apply proper venting flaps, and

d.    the strata pay the applicant $225 for her tribunal fees.

58.   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.

59.   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.