Date Issued: June 3, 2020

File: ST-2019-006842

Type: Strata

Civil Resolution Tribunal

Indexed as: Letendre v. Moayed, 2020 BCCRT 614

Between:

KIMBERLEY LETENDRE

Applicant

And:

ALI AKBAR SOLEYMANI MOAYED, NEZHAT RASHTI-ZADEH and The Owners, Strata Plan LMS 748

Respondent

INTRODUCTION

1.      This dispute is about a water leak in a strata corporation.

2.      The applicant, Kimberley Letendre, own a strata lot (unit #106) in the respondent strata corporation, The Owners, Strata Plan LMS748 (strata). Mr. Ali Akbar Soleymani Moayed and Ms. Nezhat Rashti-Zadeh, own unit #206, which is the strata lot above Ms. Letendre’s. Ms. Letendre says that water escaped from unit #206 on May 25, 2017 resulting in damage to her strata lot. Ms. Letendre says that Mr. Moayed and Ms. Rashti-Zadeh said they had no insurance coverage, so she had to claim the repairs on her insurance, resulting in a $500 deductible.

3.      Ms. Letendre also says that this resulted in an increase of $1,428.00 in insurance premiums over 3 years. Ms. Letendre also states that her husband had to take 2 days off work to deal with the damage and requests $686.50 in lost wages. In total, Ms. Letendre requests $2,614.50.

4.      Ms. Letendre further says that Mr. Moayed and Ms. Rashti-Zadeh installed laminate flooring without the strata’s permission which has led to increased noise. She requests an order that Mr. Moayed and Ms. Rashti-Zadeh reinstall the original flooring. Ms. Letendre represents herself.

5.      The strata says that the cost of the leak was below their insurance deductible and therefore it was appropriate for Ms. Letendre to seek reimbursement for the deductible and premium increase from Mr. Moayed and Ms. Rashti-Zadeh. The strata says that it acted reasonably in trying to get Ms. Moayed and Ms. Rashti-Zadeh to remove the hard surface flooring but was unsuccessful. The strata is represented by a strata council member.

6.      Ms. Rashti-Zadeh denies liability for the water damage. She says that Ms. Letendre came to her strata lot and there was no water anywhere. She says that a plumber checked her strata lot and there was no leak. Ms. Rasti-Zadeh is represented by her daughter.

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. In some respects, this dispute amounts to a “she said, they said” scenario with both sides calling into question the credibility of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

9.      Ms. Rashti-Zadeh’s husband, Mr. Moayed, is co-owner of their strata lot and was named as a respondent in this dispute but did not provide a Dispute Response or a submission. Ms. Rashti-Zadeh’s daughter submits that Mr. Moayed has been out of town travelling so he has not received notice of the dispute. Although Mr. Moayed was named as a respondent and did not file a separate Dispute Response, in the circumstances I find that Ms. Rasti-Zadeh’s response constitutes a response for both her and Mr. Moayed. I make this finding as their interests and liability in this dispute are the same.

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.

12.   I note that Ms. Rashti-Zadeh submitted late evidence about the leak. Ms. Letendre objects to this evidence being accepted. Because I have decided that Ms. Letendre’s water leak claim is out of time under the Limitation Act (LA), which I will discuss below, I have not considered this evidence.

ISSUES

13.   The issues in this dispute are:

a.    Is Ms. Letendre’s water leak claim out of time under the LA?

b.    Did Mr. Moayed and Ms. Rashti- Zadeh breach any of the bylaws and, if so, should I order them to replace their laminate flooring?

EVIDENCE AND ANALYSIS

14.   In a civil dispute such as this, the applicant must prove her claims on a balance of probabilities. I have reviewed all of the evidence provided but refer only to evidence I find relevant to provide context to my decision.

Is Ms. Letendre’s water leak claim out of time under the LA?

15.   It is undisputed that water entered into Ms. Letendre’s strata lot on May 25, 2017. Ms. Letendre says that a plumber went to the Mr. Moayed and Ms. Rashti-Zayed’s strata lot and observed water on the floor, under appliances, and on the front of cabinets but that he could not find a burst pipe.

16.   I note that there is a plumber’s invoice on file dated May 25, 2017 that states there was water under Mr. Moayed and Ms. Rashti-Zahed’s dishwasher, on the countertop and cabinet face. The plumber’s invoice indicated that they said that a pot of water spilled. The plumber’s invoice also stated that the plumber tested and inspected the kitchen sink and faucet as well as the dishwasher and all were functioning properly. The plumber said he could not find the source of the leak.

17.   On May 26, 2017, the strata sent Mr. Moayed and Ms. Rashti-Zayed a letter indicating that the total amount of the water damage was less than the strata’s insurance deductible so it would not be filing an insurance claim. The strata told Mr. Moayed and Ms. Rashti-Zayed that based on the plumber’s observations the water flow came from their strata lot so they were responsible. The letter also stated that they should contact their insurance company and file a claim.

18.   Ms. Letendre does not take issue with the strata’s decision not to file an insurance claim and does not argue that the strata is responsible for reimbursing her the insurance deductible. She also does not claim that the strata delayed in informing her of the decision not to file a claim. She agrees with the strata that Mr. Moayed and Ms. Rashti-Zayed are responsible but says they told her that they did not have insurance and would not reimburse her. She has provided no evidence as to how they told her this or when.

19.   Ms. Rashti-Zayed submits that it was not about whether she had insurance but that she and her husband said they were not responsible for the leak so would not reimburse the deductible. She points to the fact that the plumber did not find a leak. She did not address the plumber’s statement that said they spilled a pot of water.

20.   I find I do not have to address whether Mr. Moayed and Ms. Rashti-Zadeh were responsible for the water leak because Ms. Letendre’s water leak claim was not filed in time under the LA. In British Columbia, the current LA came into effect on June 1, 2013. Under the LA a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known that injury, loss or damage had occurred, and also that the injury, loss or damage was caused by or contributed to by an act or omission and that the act or omission was that of the person against whom the claim is or may be made. Finally, having regard to the nature of the injury, loss or damage, a person knew or reasonably ought to have known that a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. The incident occurred on May 25, 2017. Ms. Letendre did not file this dispute until August 26, 2019.

21.   I invited the parties to make submissions on whether the dispute was out of time under the LA. Ms. Letendre says that the repairs were finished in September 2017 and the bill was sent to Ms. Rashti-Zadeh and Mr. Moayed but they refused to pay it. Ms. Letendre says her husband told Mr. Moayed how much he owed but that he ignored them. Ms. Letendre does not indicate when this happened. She says that Mr. Moayed and Ms. Rashti-Zadeh went away in September or October of 2018 and only Ms. Rashti-Zadeh then came home in January 2019. At that point Ms. Letendre’s husband told Ms. Rashti-Zadeh that they owed money for the water leak but Ms. Rasti-Zadeh said the leak did not have anything to do with them. Ms. Letendre says that at the end of May 2019 the strata told her to file a claim with the tribunal.

22.   Ms. Letendre’s submissions were disclosed to the respondents. The strata indicated it had no submissions on the issue. Ms. Rashti- Zadeh submits that the reason Ms. Letendre waited so long before filing was because Mr. Moayed usually took care of matters likes this and that Ms. Letendre saw it as a good opportunity to file a claim when Mr. Moayed was not in town.

23.   There is no question that Ms. Letendre was aware of the water leak on May 25, 2017. The strata made its decision not to file an insurance claim on May 26, 2017. This evidence leads to the conclusion that Ms. Letendre had knowledge of the claim in May 2017. Ms. Letendre has not provided evidence to support her statement that she only found out in September 2017 that Mr. Moayed and Ms. Rasti-Zadeh were claiming they were not responsible and that they would not pay the deductible. Ms. Letendre says that the repairs were only finished in September 2017, she has provided no evidence to show this either. She also says that the insurance company sent Mr. Moayed and Ms. Rashti-Zadeh the invoice. There is no copy of this invoice in evidence and no statement from the insurance company corroborating this.

24.   Based on the evidence, I find that Ms. Letendre had knowledge of the matters in the claim or reasonably ought to have known about the claim on the day the incident occurred or at the very latest on May 26, 2017 when the strata decided it was not filing an insurance claim. I do not accept Ms. Letendre’s statement that she only became aware of the claim in September 2017 as she had not provided evidence to establish this. Ms. Letendre knew in May 2017 that her claim was against Mr. Moayed and Ms. Rashti-Zadeh but she did not file the dispute until August 26, 2019. I find that she is out of time under the LA and I dismiss Ms. Letendre’s claims for reimbursement of the insurance deductible, insurance premium increases, and lost wages.

Did Mr. Moayed and Ms. Rashti- Zadeh breach any of the bylaws and, if so, should I order them to replace their laminate flooring ?

25.   Bylaw 5.4 states that no other flooring except wall to wall carpeting with underlay is allowed in a strata lot with the exception of the bathroom, kitchen and the first five feet of the front foyer unless the owner received prior written approval of council to install flooring.

26.   I note that Bylaw 3 deals with an owner not using a strata lot in a way that causes a nuisance or causes unreasonable noise, but this bylaw was not referred to in the evidence. The only letters provided by the strata indicate that they had investigated and were imposing fines because of the alteration of property. However, since Ms. Letendre’s complaint is about noise, I have considered Bylaw 3 as well.

27.   Ms. Letendre says that the previous owners of Mr. Moayed and Ms. Rashti-Zahed’s strata lot installed laminate flooring in 2014. She submits that then Mr. Moayed and Ms. Rashti-Zahed installed laminate flooring in 2018 although the strata told them it was not allowed. Ms. Letendre says that they are purposely making noise as retaliation for her complaints to the strata. It is unclear if Ms. Letendre is referring to the water leak complaints or noise complaints. She says the noise involves deliberate stomping, allowing children to run and jump with shoes on, as well as extremely heavy walking. She states that the strata’s property management company told her not to engage with Mr. Moayed and Ms. Rashti-Zahed about the noise complaints. She says that the property management company told her to seek assistance from the tribunal.

28.   Ms. Letendre has provided no evidence about this claim. Ms. Letendre has not provided evidence of the complaints she says she filed with the strata. She also did not provide any evidence showing the amount of noise she is experiencing. There are no sound recordings, noise logs, witness statements, or communications where she specifies when the noise occurred, how often it was, or how loud it was.

29.   Mr. Moayed and Ms. Rashti-Zahed did not make a specific reply to this claim. The strata says that it took Mr. Moayed and Ms. Rashti-Zahed to the tribunal to have the hard surface removed and the fines paid but that this was not resolved by the tribunal.

30.   The strata has not provided a copy of a decision from this tribunal that dealt with this issue. I have searched the tribunal’s published decisions and there is no decision involving the strata and Mr. Moayed and Ms. Rashti-Zahed.

31.   The strata has provided documents dating between August 2017 and February 2018 about whether Mr. Moayed and Ms. Rashti-Zahed had approval to alter their strata lot and a letter demanding that they stop renovations. None of the documents provided by the strata show that this was in response to Ms. Letendre’s noise complaints.

32.   The documents show that Mr. Moayed and Ms. Rashti-Zahed requested to change the carpets with laminate flooring on August 3, 2017 and this is what led to the disagreement about alterations. Mr. Moayed and Ms. Rashti-Zahed argued that they had permission to change the flooring based on approval to install laminate granted to the previous owner. It is unclear how this disagreement ended, but I find the issue of whether the Mr. Moayed and Ms. Rashti-Zahed breached the flooring bylaw is irrelevant as it is not decisive of Ms. Letendre’s claim about noise. That is, even if Mr. Moayed and Ms. Rashti-Zahed were allowed to replace the flooring with laminate they still can be found in breach of the noise bylaw.

33.   There is a gap in documentation provided by the strata between November 16, 2017 and February 17, 2018 when Mr. Moayed wrote to the strata and requested that it hire a contractor to inspect the underlay of the bedroom floor as that was the room allegedly in violation of Bylaw 5.4.

34.   On April 3, 2018, the strata sent Mr. Moayed and Ms. Rashti-Zadeh saying because they had refused to permit a contractor to inspect the flooring in the entryway, dining area and kitchen, which was the area causing the noise complaints, the strata had no choice but to start a legal action and the penalties would continue to apply.

35.   On May 27, 2019 the strata sent Ms. Letendre a letter saying that it felt it had exhausted all efforts (including issuing complaint letters and fines) regarding the dispute between her and Mr. Moayed and Ms. Rashti-Zahed. It suggested that she seek assistance from this tribunal or through legal counsel. The strata did not supply any evidence of complaints, letters, or fines after April 3, 2018. Similarly, Ms. Letendre has provided no evidence of complaints she filed or specifics of how the strata dealt with them.

36.   Based on the evidence, I find that Ms. Letendre has not proved that Ms. Rashti-Zadeh and Ms. Moayed are making an unreasonable amount of noise or causing a nuisance. The evidence also does not establish that the laminate flooring was installed in violation of the bylaws. Further, Ms. Letendre has not provided sufficient evidence showing the level of noise, its duration, the times of day it happens, and the type of noise.

37.   Therefore, I deny Ms. Letendre’s claim about flooring noise. To be clear, nothing in this decision prevents Ms. Letendre from making noise complaints in the future to the strata and requesting they investigate them under Bylaw 3. The strata is obligated to carry out this investigation. Ms. Letendre can also file another dispute if the parties are unable to resolve future noise complaints.

TRIBUNAL FEES AND EXPENSES

38.   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. Because Ms. Letendre was unsuccessful in her claims, she is not entitled to reimbursement of her tribunal fees. There was no claim for expenses.

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

ORDER

40.   I dismiss Ms. Letendre’s claims and this dispute.