Date Issued: June 16, 2020

File: ST-2019-010030

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan EPS 3948 v. Decoursey, 2020 BCCRT 666

Between:

The Owners, Strata Plan EPS 3948

Applicant

And:

WILLIAM JUN HARRIS DECOURSEY

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      The applicant strata corporation, The Owners, Strata Plan EPS 3948 (strata), says that the respondent, William Jun Harris Decoursey, caused a kitchen fire in his strata lot on about July 13, 2018 that led to the release of fire sprinklers. The water from the fire sprinklers undisputedly damaged multiple strata lots and the common property.

2.      The strata seeks reimbursement of $5,000 for its insurance deductible, plus $518 for a sprinkler head replacement.

3.      Mr. Decoursey denies the strata’s claims. He says he was not doing anything out of the ordinary while cooking and there was only a “short flame”. He says the sprinkler head went off because it was too sensitive and positioned too close to the stove.

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

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

6.      The CRT 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 CRT’s mandate of proportional and speedy dispute resolution, I decided I can fairly hear this dispute through written submissions.

7.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT 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 CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

9.      As a preliminary matter, Mr. Decoursey says that he spoke with two technicians about the sprinkler head but could not obtain their written statement because of the pandemic. It is unclear from Mr. Decoursey’s submissions why he was unable to obtain the written statements in electronic form or by mail, despite the Coronavirus pandemic. Since Mr. Decoursey did not ask for more time to obtain these statements, I decided to proceed without returning the matter to the parties for more evidence or submissions. In making this decision, I was also mindful of the CRT’s efficient dispute resolution mandate.

ISSUES

10.   The issues in this dispute are:

a.    Was the sprinkler head incorrectly installed in Mr. Decoursey’s strata lot?

b.    Must Mr. Decoursey reimburse the strata $5,000 for its insurance deductible and $518 for the sprinkler replacement?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, the strata bears the burden of proving its claims on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

The Incident

12.   Mr. Decoursey owns strata lot 47 (unit 609) on the 6^th floor of the strata building. On about July 13, 2018, Mr. Decoursey was cooking on his gas range stove top when the strata building’s fire sprinklers went off. Mr. Decoursey says he was cooking normally and the fire sprinkler in his kitchen was triggered because it was sensitive and placed too close to his gas stove.

13.   The documents in evidence show that Incredible Restorations, hired by the strata, removed the excess sprinkler water from the building on July 13, 2018. There is no dispute that the sprinklers caused water damage to several strata lots and the common property. However, there is no evidence of any fire damage in the Incredible Restorations report or at all. As for the cause, the Incredible Restorations emergency report states: “fire sprinkler of 609 blew from cooking fire/smoke”.

14.   The strata repaired the water damage under its insurance policy less a $5,000 deductible, which it paid to Incredible Restorations. The strata also paid $518 for a “sprinkler system inspection and fire alarm service call”. The sprinkler head in Mr. Decoursey’s unit 609 was replaced during this service call. The strata asked Mr. Decoursey to reimburse the $5,000 insurance deductible and $518 sprinkler replacement. Mr. Decoursey did not pay.

15.   The strata’s position is that Mr. Decoursey is responsible for the loss because he caused a fire by cooking, which caused the sprinklers to release water, which in turn, damaged the strata lots and common property. Mr. Decoursey does not dispute that his cooking set off the sprinklers or the water damage. However, he says it was only set off because the wrong sprinkler head was installed too close to his gas stove. Mr. Decoursey says he is therefore not responsible for the insurance deductible or sprinkler replacement costs.

Was the sprinkler head incorrectly installed in Mr. Decoursey’s strata lot?

16.   On July 13, 2018, T&T Fire Protection Inc. (T&T) inspected and replaced the sprinkler in unit 609. Mr. Decoursey says the T&T employee told him that the wrong sprinkler head was in place. I accept that the T&T employee gave Mr. Decoursey this information because it is consistent with his email of the same date. T&T was a subcontractor of Mircom Technologies Limited (Mircom), who the strata hired to inspect the sprinkler on July 13, 2018. The T&T employee who replaced the sprinkler head stated in a July 13, 2018 email to Mircom:

The sprinkler head was a 155 degree Residential Pend that was located 2 1/2 ft away from a stove. The sprinkler head is supposed to be a 175 degree Residential Pend within that range.

17.   Mircom forwarded the T&T employee’s statement to the strata’s property manager on July 13, 2018 and told her that “unfortunately all other sprinkler heads for that particular location in the other units are still 155 degree”. However, Mircom seemed to later retract its reliance on the T&T employee’s statement about the sprinkler head. Specifically, Mircom’s July 20, 2018 email to the property manager states:

I would like to rectify our statement regarding the distance between the sprinkler head and the gas stove. You are right about that. I trusted too much his experience.

18.   There is no further evidence from Mircom or the T&T employee that explains the emailed statements quoted above.

19.   Mr. Decoursey submitted a photograph of the new sprinkler head that he says has a “yellow dye heat rating” but he does not explain what the yellow colour rating means. At any rate, I find the photograph does not help Mr. Decoursey establish that the original sprinkler head was the wrong type.

20.   The strata says the 155 degree sprinkler head in Mr. Decoursey’s unit 609 was the correct type and distance from the kitchen stove. The strata provided a written statement from the original installer, GPM Fire Protection Inc. (GPM). GPM stated that the 155 degree residential sprinkler was installed in unit 609 during construction and positioned 2 feet, 6 inches from the kitchen stove. GPM stated that the sprinkler head installation was consistent with the National Fire Protection Association (NFPA) and BC Building Code requirements, and approved by the municipal inspectors. The municipal fire suppression systems approval in evidence shows it was approved in October 2015.

21.   Mr. Decoursey did not provide any expert opinion to contradict the GPM statement, although it was open to him to do so. I have no information about the T&T employee’s qualifications or the technical information he relied on. Therefore, I have put no weight on the hearsay opinion in the T&T employee’s email to Mircom, which also appears inconsistent with the NFPA table.

22.   The NFPA table in evidence states that the minimum distance from the edge of a “kitchen range” to an ordinary-temperature sprinkler is 18 inches (1 ½ feet) and the distance to an intermediate-temperature sprinkler is 9 inches (0.75 feet). I understand from the parties’ submissions that an ordinary-temperature sprinkler is a 155 degree sprinkler and an intermediate-temperature sprinkler is a 175 degree sprinkler. The sprinkler installed in Mr. Decoursey’s strata lot was a 155 degree sprinkler. Based on the NFPA table, the sprinkler head must be at least 1 ½ feet from a stove. There is no dispute that it was about 2 ½ feet from the stove in Mr. Decoursey’s unit 609.

23.   Mr. Decoursey says that the NFPA also recommends intermediate-temperature sprinklers when the ambient temperatures are between 101 and 150 degrees Fahrenheit. He says in the summer the ambient temperature can exceed 100 degrees Fahrenheit. However, Mr. Decoursey did not provide a copy of the NFPA ambient temperature recommendation or temperature measurements in his strata lot. Also, Mr. Decoursey has not shown that he is an expert on the subject matter and so, I find his own opinion is not persuasive.

24.   Based on the NFPA table in evidence, together with the GPM statement, and the municipal approval, I find that the 155 degree sprinkler was likely within a permissible distance from the kitchen stove in unit 609. I note that there is no evidence before me that the sprinkler head or system was tested and found to be faulty. Therefore, I find the sprinkler did not release because of a fault. I find it is more likely than not that the sprinkler released because Mr. Decoursey’s cooking created enough fire or heat to trigger the fire alarm and suppression mechanism.

Must Mr. Decoursey reimburse the strata $5,000 for its insurance deductible and $518 for the sprinkler replacement?

25.   Section 158 of the Strata Property Act (SPA) says that a strata corporation may sue an owner to recover an insurance deductible if the owner is “responsible” for the loss or damage that gave rise to the claim.

26.   The BC Supreme Court interpreted SPA section 158 in The Owners, Strata Plan LMS 2835 v. Mari, 2007 BCSC 740. The court held that “the choice of the term ‘responsible’ provides the strata with the opportunity to allocate, to a particular owner, the cost of an insurance deductible in cases where an owner was thought to be responsible for a loss” (see Mari at paragraph 12). The court held that an owner may be responsible even where their conduct was not legally negligent. The court in Mari did not discuss the applicability of the strata’s bylaws.

27.   The strata’s relevant bylaws filed in the Land Title Office that relate to an owner’s liability for loss or damage are as follows:

Bylaw 3.4 Use of property – An owner is responsible for any loss or damage to any strata lot, common property, limited common property or common assets:

a) if that damage or loss results from the owner’s carelessness or that of any tenant, occupant [...]; and

b) if that damage originates within that owner’s strata lot, including water egress from the owner’s strata lot or the failure of the owner’s plumbing fixtures.

Bylaw 3.5 An owner shall indemnify and save harmless the strata corporation from:

a) the expense of any assessment, construction, maintenance, repair or replacement rendered to the common property, limited common property, common assets or to any strata lot caused or contributed to by the owner […], but only to the extent that such expense is not reimbursed from any insurance policy; and

b) all amounts paid by the strata corporation in the form of deductibles for insurance claims the strata corporation makes in relation to damage or loss caused or contributed to by the owner….

28.   Mr. Decoursey says he does not believe he was careless when cooking. The strata says that bylaw 3.5 does not require “carelessness”. I agree. Only the strata’s bylaw 3.4 uses the language of “carelessness”. I find it was open to the strata to include the word “carelessness” when drafting bylaw 3.5 if it intended to apply that standard, and it did not. I find the bylaws should be read separately and “carelessness” is not the applicable standard under bylaw 3.5.

29.   Mr. Decoursey is the only person with information on what happened immediately before the sprinklers went off as there are no witnesses. Mr. Decoursey’s evidence is that he is a professional chef, was cooking scallops normally, and only caused a short flame. However, he provided no other details of the incident. Since Mr. Decoursey admits his cooking caused a flame in his strata lot, and he has not proven that the sprinklers were faulty or incorrectly installed, I find that Mr. Decoursey caused or contributed to the sprinklers going off and the strata’s subsequent loss. I find that Mr. Decoursey is responsible under bylaw 3.5(b) to reimburse the strata for its $5,000 insurance deductible.

30.   The strata claims $518 for the sprinkler head “replacement”. The strata’s invoice shows it paid $518 for the sprinkler system inspection and fire alarm service call. The sprinkler head was undisputedly replaced during the service call. I find the strata incurred this expense because Mr. Decoursey’s cooking set off the fire alarm system. The sprinkler expense was not covered under the strata’s insurance policy. I find Mr. Decoursey is responsible for the $518 sprinkler expense under bylaws 3.5(a).

CRT FEES, EXPENSES AND INTEREST

31.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I therefore order Mr. Decoursey to reimburse the strata for CRT fees of $225.00. The strata claimed no dispute-related expenses.

32.   The Court Order Interest Act (COIA) applies to the CRT. The strata’s November 2018 letters requesting payment asks for “prompt attention” but includes no due date. I find that payment was due within a reasonable time of the letters, which I find is December 1, 2018. I find the strata is entitled to pre-judgement interest on the $5,518 debt from December 1, 2018 to the date of this decision. This equals $162.74.

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

ORDERS

34.   I order that within 60 days of this order, Mr. Decoursey pay the strata a total of $5,906.92, calculated as:

a.    $5,000.00 as reimbursement for the insurance deductible,

b.    $518.00 as reimbursement for the sprinkler inspection and service call,

c.    $163.92 in prejudgment interest under the COIA, and

d.    $225.00 in CRT fees.

35.   The strata is also entitled to post-judgement interest under the COIA, as applicable.

36.   Under section 57 of the CRTA, a party can enforce this final CRT decision by filing a validated copy of the attached order in the Supreme Court of British Columbia (BCSC). Once filed, a CRT order has the same force and effect as a BCSC order.

37.   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, this final decision can be enforced by filing a validated copy of the attached order in the BCPC. Once filed, a CRT order has the same force and effect as a BCPC order.