Date Issued: May 25, 2020

File: ST-2019-000605

Type: Strata

Civil Resolution Tribunal

Indexed as: Manak v. The Owners, Strata Plan KAS 2116, 2020 BCCRT 567

Between:

MANDY MANAK

Applicant

And:

The Owners, Strata Plan KAS 2116

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      The applicant, Mandy Manak, owns strata lot 24 (SL24) in the respondent strata corporation, The Owners, Strata Plan KAS 2116.

2.      The applicant says ground settlement under SL24 caused extensive structural and non-structural damage to her strata lot. The applicant seeks the following remedies:

a.    an order that the strata “arrange and pay for the repair of all significant structural and outside damage to the building (including any cracks in the foundation and damage to the roof, windows, exterior doors and stucco)”;

b.    an order that the strata pay for the applicant’s equivalent alternative accommodation while the structural repairs are performed and completed to SL24;

c.    an order that the strata pay for a company of the applicant’s choosing to remove and remediate mold inside SL24; and

d.    legal fees.   

3.      The strata agrees that the ground is settling and causing structural and outside damage to SL24’s building. The strata says it is takings steps to repair the damage and will put the applicant’s SL24 “back to a paint ready condition”. The strata disputes that SL24 has mold or that it is required to pay for mold remediation. The strata also says it has no requirement to pay for the applicant’s alternative living accommodation or legal fees.

4.      The applicant is self-represented. The strata is represented by a strata council member.

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. Though 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 I can fairly 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.

9.      On the parties’ preliminary application to the tribunal in February 2020, the tribunal’s Vice Chair allowed the parties to submit submissions in excess of the tribunal’s normal character limit under tribunal rule 7.3. I received and considered all the parties’ submissions, including the extra submissions. However, I have only addressed the evidence and arguments to the extent necessary to explain my decision here.

ISSUES

10.   The issues in this dispute are:

a.    Must the strata repair all “significant structural and outside damage to the building” of SL24 including any cracks in the foundation and damage to the roof, windows, exterior doors and stucco?

b.    Must the strata pay for the applicant’s alternative living accommodation for the duration of the structural repairs?

c.    Must the strata remediate mold in SL24? If so, must the strata use a company of the applicant’s choosing?

d.    Must the strata pay the applicant’s dispute-related legal fees?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, the applicant bears the burden of proving her claims on a balance of probabilities.

Background

12.   The strata plan filed in the Land Title Office (LTO) shows that the strata complex is made up of strata lots with different configurations, including several 2-strata lot “duplexes”. The applicant’s SL24 is in a building shared with strata lot 23 (SL23) and was built on a sloped site.

13.   The strata has a history of ground settlement issues. The settling undisputedly caused damage to SL24 and other strata lot duplexes, including the adjoining strata lot 23 (SL23) and an adjacent duplex, strata lots 21 and 22 (SL21 and SL22).

14.   Starting in 2011, the strata had Underhill & Underhill Professional Land Surveyors (Underhill) install “benchmarks” using survey bolts and nails to monitor the movement under strata lots SL21, SL22, SL23, and SL24. The survey results in evidence are from September 26, 2011 to November 26, 2018. They show that the strata monitored the movement every six months.

15.   On October 17, 2012, the engineering firm, EHD Consulting Ltd. (EHD) provided a report for the owner developer’s home warranty insurer. EHD concluded that SL21, SL22 and SL23 had “structural defects to the load bearing foundation elements from differential settlement”. Specific to SL23 (adjoining the applicant’s SL24), EHD said there was “evidence of rotation/sliding towards the gully”. EHD recommended remediation of SL21, SL22 and SL23. For reasons that are not before me, the EHD report did not mention SL24 and there is no recommendation related to SL24. However, I note that the report was addressed to the insurer and there appears to have been a related coverage issue of a washed-out retaining wall under SL21 or SL22.

16.   The applicant says she noticed settlement issues with her strata lot and reported them to the strata in 2012. I understand the applicant was on the strata council at the time. The emails in evidence show that the applicant told the other strata council members that she was having issues with her garage doors and she wondered if it might be related to “shifting”. Again, Underhill was monitoring the “shifting” or settlement under SL24 and providing its data to the strata. The emails show that the applicant had a copy of the Underhill survey results.

17.   In 2015, the applicant emailed the strata a list of issues that she thought might be related to the ground settling under SL24. The parties met in 2016 to discuss the issues and the strata agreed to hire an engineer. Around this time, the strata was also in the process of addressing a failed retaining wall and other common property issues.

18.   The strata hired structural engineers, WestEdge Engineering Ltd. (WEE), to provide an opinion on the foundation and structure of SL24. According to WEE’s May 2016, June 2016 and November 2017 reports in evidence, WEE recommended that the strata remediate the foundation settlement issues under SL24. WEE did not say that the remediation work was urgent. WEE concluded that the movement under SL24 was “negligible” and said the foundation had been stable for the past 6 years, and that the “structure of the building is not at risk”.

19.   Based on the WEE report, the strata says it focused on other, higher priority strata repairs instead of remediating SL24. The evidence shows that at the time, the strata had several high cost projects including the retaining wall work mentioned above. As shown in the Underhill reports, the strata continued to monitor movement under SL24. In 2017, the strata performed a temporary repair by filling some cracks in SL24’s foundation.

20.   In July 2018, the strata held a hearing with the applicant to discuss, in part, the unresolved problems with SL24. The strata agreed to hire a geotechnical engineer. It hired BC Foundations Specialists Ltd. (BC Foundations) to review the foundation and structural issues. According to BC Foundation’s May 26, 2019 report, its geotechnical engineer, Nader Gendy disagreed with some of the conclusions in the WEE reports. Mr. Gendy’s opinion was that SL24 did not meet the “differential settlement allowance” under the BC Building Code (2006) and was structurally compromised. Mr. Gendy recommended that the strata perform remedial work to address SL24’s settlement issues “at the nearest possible opportunity”.

21.   The strata council minutes show that Mr. Gendy met with council on June 5, 2019 to answer questions and recommend next steps. On July 15, 2019, Mr. Gendy’s firm BC Foundations, submitted a proposal for the remediation work. The strata obtained a second proposal from “RJC Engineering” on August 27, 2019. On November 26, 2019 the owners approved a special levy to hire RJC Engineering to further assess the structural issues at SL23 and SL24.

22.   The strata says the total repairs costs may be over $1,000,000. It says its finances are “taxed” due to repairs over the years and it plans to raise funds “as soon as possible” from the owners or obtain a loan. At the time of its submissions, the strata said it was in the “process of hiring” the engineer to manage the contract to perform the SL24 remediation work.

Must the strata repair all significant structural and outside damage to the SL24 building, including the roof, foundation, windows, exterior doors and stucco?

23.   Section 72 of the Strata Property Act (SPA) says the strata corporation must repair and maintain all common property. The strata’s bylaw 6.2 also says the strata must repair and maintain all common property. Further, bylaw 6.2 says the strata must maintain and repair a strata lot, limited to the structure and exterior of the building, stairs, balconies and other things attached to the exterior of the buildings, exterior doors and windows, and other things not relevant here.

24.   The strata does not dispute its duty under bylaw 6.2 and SPA 72 to repair SL24 and it agrees to remediate the settlement related issues. While the full extent of the damage to SL24 is not in evidence, the engineering reports mention that ground settlement likely damaged the building’s exterior wall frame, foundation, garage doors, stucco, and window frames. I find these are all items that the strata is required to repair and maintain under bylaw 6.2.

25.   I find the strata must repair the structure and exterior of SL24’s building, its foundation, plus any other common property or bylaw 6.2 strata lot items caused by the settlement (the remediation work), as recommended by a qualified professional.

26.   Bylaw 6.1 says that the strata lot owner is responsible for regular repairs and maintenance to the interior of an owner’s strata lot. Therefore, I find the strata is not generally responsible for repairs to the inside of SL24. However, I find the strata is responsible to repair any new damage that the strata intentionally causes to the strata lot in carrying out its duties. My decision is consistent with the tribunal’s decisions in Thompson v. The Owners, Strata Plan LMS 2349, 2018 BCCRT 759 and Lorenz v The Owners, Strata Plan NW 2001, 2017 BCCRT 65, which are persuasive, though not binding on me.

27.   In Thompson, the respondent strata corporation repaired a leaking common property water pipe. The strata’s contractor had to cut holes in the applicant’s strata lot ceiling to inspect and repair the pipe. The tribunal member found that the strata intentionally caused the drywall damage in order to carry out its duty to repair and maintain common property. Therefore, the tribunal member ordered the strata to repair the damaged ceiling drywall at the strata’s cost.

28.   In Lorenz, the issue was a bathroom leak in the applicant’s strata lot. The tribunal’s Vice Chair ordered the respondent strata to replace a common property shower diverter to fix the leak. The strata had to remove the bathroom drywall to investigate and repair the leak. The Vice Chair ordered the strata to restore the owner’s drywall to a “paint-ready” condition as part of its repair of the common property diverter.

29.   I find the strata must repair any new damage within SL24 that it intentionally causes when carrying-out its inspections and repairs for the remediation work to a “paint-ready” condition. As the strata is not an insurer, I find the applicant is responsible for any painting or other finishing work to the “paint-ready” drywall and concrete.

30.   As mentioned above, the strata agrees to perform the remediation work and put the applicant’s SL24 back to a “paint ready” condition. The strata has already commenced the process of obtaining opinions, quotes, and hiring a contractor to manage the remediation work. In Weir v. The Owners, Strata Plan NW 17, 2010 BCSC 784, Mr. Justice Josephson said a court must be cautious before inserting itself into the strata’s process. I find the court’s caution in Weir applies here. I find no reason to be specific on the strata’s timeline to carry out the remediation work. I find the strata must perform the remediation work as soon as practical.

31.   The applicant is not exempt from paying her proportional share for the remediation work.

32.   As I have allowed the applicant’s requested remedy on this issue, I have not discussed the applicant’s significant unfairness argument that she raised in reply.

Must the strata pay for the applicant’s alternative accommodation for the duration of the structural repairs?

33.   The strata says there is no evidence that the applicant will require alternative living accommodations. I disagree. I find on the September 3, 2019 strata council meeting minutes that there is evidence that SL24 will be unliveable for about 1 week while the building is lifted for foundation repairs. However, for the following reasons, I find the strata has no duty in the circumstances to pay for the applicant’s alternative living accommodations.

34.   I find that neither the bylaws, nor the SPA require the strata to pay an owner’s alternative living accommodation. In Wright v. The Owners, Strata Plan #205, 996 CanLII 2460 (S.C.), affirmed (1998), 43 B.C.L.R. (3d) 1, 1998 CanLII 5823 (C.A.), the court said that a strata corporation is not responsible for insuring strata lot owners against their own strata lot losses. I find the strata is not required to pay for the applicant’s expenses and loss, so long as it is not negligent. Based on the evidence before me and for the following reasons, I find that the strata was not negligent.

35.   The evidence shows that the strata actively monitored the settlement issues from 2011 to 2018. I do not accept the applicant’s argument that the strata should have dealt with the SL24 settlement issue sooner after receipt of the EHD’s report in 2012. I find that structural and foundation issues are not within the knowledge of an ordinary person and required expert opinion. The EHD report did not mention or make any recommendations related to SL24. I cannot infer based on EHD’s recommendations for other strata lots that SL24’s issues were urgent. Also, the WEE structural engineer did not recommend urgent repairs.

36.   I find the strata was entitled to rely on WEE’s opinion by not performing the SL24 remediation work earlier. There is no evidence that WEE was not qualified to provide the opinion about the structural or foundation issues. In Wright, the court said that a strata corporation is not responsible for errors made by those it hires to carry out work, as long as it acted reasonably in the circumstances. Similarly, I find the strata acted reasonably by relying on WEE’s opinion even if that opinion was later contradicted by another engineer.

37.   I find the strata was also entitled to prioritize its other more urgent maintenance and repair duties as it did here (Warren v. The Owners, Strata Plan VIS 6261, 2017 BCCRT 139). The evidence shows it prioritized other urgent and expensive repair work, including a collapsed retaining wall and a water ingress issue in the common property parking lot.

38.   I find the strata acted reasonably by obtaining a second opinion by a geotechnical engineer. However, I find the strata could have acted more promptly in obtaining the opinion. The evidence does not show that the applicant would have incurred less live-out expenses had the remediation been performed earlier. Therefore, I find any delay in obtaining the report, did not cause her loss.

39.   After receiving Mr. Gendy’s recommendations, I find the strata acted reasonably by starting the process to scope the work, raise funds and select the contractor. Considering the complexity and high anticipated project costs, I find it was reasonable for the strata to obtain more than one opinion and proposal to carry out the work even though this extended the timeline.

40.   The standard is not perfection. I find the strata acted reasonably in the circumstances of the complex ground settlement problem and its need to balance other concurrent obligations. I find the strata was not negligent in its handling of the SL24 settlement issues. I dismiss the applicant’s claim for alternative living accommodation during the repairs.

Must the strata remediate mold in SL24 at its own cost?

41.   The applicant says a roof leak in 2014 and water ingress related to the settlement caused mold in SL24. She says there is mold in the bathroom, laundry room, and her son’s bedroom, which the strata disputes.

42.   The applicant says the mold cannot be remediated until the structural repairs are complete. She says the strata originally agreed that it would pay to remediate the mold.

43.   I find the applicant has not proven with objective evidence that the strata agreed to pay for the mold remediation. I find the parties discussed the water ingress issue but I find no agreement to pay in the parties’ emails or council meeting minutes. In this dispute, the strata has agreed to pay for the structural, foundation, and exterior building repairs and to put SL24 in “paint ready” condition. It has not agreed to pay for strata lot mold remediation.

44.   The applicant provided no mold testing report or other objective evidence to prove that mold exists in SL24. I cannot see mold in the photographs in evidence. Without corroborating evidence, I find that applicant’s assertions are not enough to establish mold in SL24. Therefore, I find that the applicant has not proven that there is mold in SL24.

45.   Even if mold does exist, it is the applicant and not the strata who is responsible under the strata’s bylaw 6.1 for repairs to her own strata lot. I find the strata is not responsible for mold remediation unless the strata was negligent and its negligence caused the mold. This is so even if a common property failure caused the mold (Basic v. Strata Plan LMS 0304, 2011 BCCA 231). As discussed above, I find the strata was not negligent in its handling of the SL24 settlement related issues.

46.   Considering the lack of evidence of mold, I have not discussed the strata’s argument that the applicant is out of time under the Limitation Act for the 2014 roof leak. At any rate, I also have insufficient evidence about the roof leak to find that the strata was negligent.

47.   I dismiss the applicant’s request that the strata pay to remediate mold in SL24.

Tribunal Fees and Dispute-Related Expenses, including Legal Fees

48.   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.

49.   I find the strata was in the process of responding to the building settlement issues when the applicant commenced this tribunal dispute. Based on Mr. Gendy’s recommendation in evidence, I am not satisfied that the strata would have refused to perform the remediation work without a tribunal decision. The applicant was unsuccessful in her other claims. Therefore, I find that the applicant is the unsuccessful party overall. I dismiss her claim for tribunal fees and dispute-related expenses.

50.   Had the applicant been the successful party, I still would not have awarded her legal fees. Unless there are extraordinary circumstances, tribunal rule 9.5 says that the tribunal will not order one party to pay to another party any fees charged by a lawyer or other representative in the tribunal dispute process. I find there are no extraordinary circumstances here. Consistent with the tribunal’s practice and its rules, I dismiss the applicant’s claim for legal fees.

51.   The strata initially claimed $3,591 in dispute-related expenses for “assistance and support”. However, in its submissions the strata says it has “abandoned” its claim. Therefore, I dismiss the strata’s claim for dispute-related expenses.

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

ORDERS

53.   I order that:

a.    the strata at its own cost, repair SL24’s structure, building exterior, foundation, and any other bylaw 6.2 related items damaged by the ground settlement as recommended by a qualified professional;

b.    the strata must repair to a “paint-ready” condition, any new damage that it intentionally causes to the interior of SL24 when carrying out the above remediation work;

c.    the strata must perform the remediation work as soon as practical;

d.    the applicant’s remaining claims are dismissed; and

e.    the strata’s claim for dispute-related expenses is dismissed.

54.   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.

 

 

55.   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.