Date Issued: September 16, 2020

File: ST-2020-002742

Type: Strata

Civil Resolution Tribunal

Indexed as: Bawa v. Fuller, 2020 BCCRT 1042

Between:

UPINDERJIT SINGH BAWA

Applicant

And:

KEITH FULLER

Respondent

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      This dispute is about a water leak in a multilevel, apartment-style strata corporation. The applicant, Upinderjit Singh Bawa, says his strata lot was damaged by water leaking from respondent, Keith Fuller’s strata lot. Mr. Bawa claims damages of $2,400 to store his personal property, $500 to repair damage to his ceiling, $200 to paint his walls, and $3,500 to replace flooring.

2.      Mr. Fuller denies Mr. Bawa’s claim. Mr. Fuller does not dispute that water leaked from his strata lot which damaged Mr. Bawa’s strata lot. However, Mr. Fuller says he is not responsible for this damage under the strata bylaws. Mr. Fuller also says that he was not negligent. Mr. Fuller says that Mr. Bawa is responsible for protecting himself from water damage with his own insurance.

3.      Both parties are self-represented. The strata corporation is not a party to this dispute.

JURISDICTION AND PROCEDURE

4.      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.

5.      The CRT 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.

6.      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.

7.      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.

 

ISSUES

8.      The issues in this dispute are:

a.    Did Mr. Fuller’s negligence cause water damage to Mr. Bawa’s strata lot on or about December 18, 2019? If so, what amount, if any, must Mr. Fuller pay Mr. Bawa?

b.    Did Mr. Fuller cause a nuisance by permitting water to damage Mr. Bawa’s strata lot on or about December 18, 2019? If so, what amount, if any, must Mr. Fuller pay Mr. Bawa?

EVIDENCE AND ANALYSIS

9.      I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision. I note that Mr. Fuller has not provided any submissions in this dispute despite having the opportunity to do so.

10.   Except as noted below, in a civil proceeding such as this, Mr. Bawa must prove his claims on a balance of probabilities.

11.   Mr. Bawa says he purchased strata lot 72 in December 2019 with a possession of date of December 4, 2019. Mr. Fuller owns strata lot 104, located above Mr. Bawa’s strata lot.

12.   The strata corporation was created in 1995 and consists of 128 residential strata lots in a 4-storey building.

13.   It is not disputed that water leaked into Mr. Bawa’s strata lot on December 18, 2019. Mr. Bawa says he had just finished repainting the strata lot when the leak occurred.

14.   There is little evidence relating to the source of the water leak. Epic Restoration (Epic) performed water damage remediation services to Mr. Bawa’s strata lot. Epic prepared a report that says the water came from a failed kitchen sink drain in Mr. Fuller’s strata lot. The report provided 3 photographs of a sink drain with a small bucket placed near the garbage disposal outlet.

15.   I find that Epic’s report does not meet the criteria for an expert report under CRT rule 8.3. The report does not identify the specific Epic representative who prepared the report as required by rule 8.3. Also, the report does not provide the representative’s education, training or experience that qualifies them to investigate and identify water leak sources. Further, the report did not explain how they determined the source of the leak or the nature of the drain failure. Also, there is no water present in Epic’s photographs. For these reasons, I put no weight on Epic’s opinion about the source of the leak.

16.   Mr. Fuller’s Dispute Response says the water leak came from a “building” drainpipe that failed inside his strata unit. Mr. Fuller argues that he is not responsible for this pipe. I infer that Mr. Fuller is arguing that the leaking drainpipe is common property (CP). The Strata Property Act (SPA) says that pipes are CP if they are located in a floor, wall or ceiling between strata lots. The SPA also says that pipes within a strata lot are CP if the pipes are used for the benefit of another strata lot or the CP. Since Mr. Fuller admits that the pipe leak occurred inside his strata lot, the leaking pipe will only be CP if the pipe is used for the benefit of another strata lot or the CP. Neither party provided any evidence about the use of the drainpipe by other strata lots or CP. Based on Mr. Fuller’s Dispute Response, I am satisfied that the source of the water leak was a drainpipe in Mr. Fuller’s strata lot and this drainpipe was not CP.

17.   I now turn to the issue of whether Mr. Fuller is responsible for the water damage.

Is Mr. Fuller responsible for the water damage sustained to Mr. Bawa’s strata lot on December 18, 2019?

18.   Disputes over water damage and associated repairs between strata lot owners is not uncommon. As there is no provision in the SPA that addresses this issue, I turn to the strata’s bylaws.

19.   Section 119(1) of the SPA requires a strata corporation to have bylaws and section 119(2) permits a strata’s bylaws to provide for the “use and enjoyment of the strata lots”, among other things. I find that under section 119(2), there is an implied obligation on an owner to abide by the strata’s bylaws.

20.   The strata filed a complete set of amended bylaws at the Land Title Office on December 5, 2001. Bylaw 43(1) was amended on November 25, 2003.

21.   The strata has the following bylaws relating to owners’ maintenance responsibilities:   

•          Bylaw 2(1) says an owner must repair and maintain their strata lot unless the strata corporation is responsible.

•         Bylaw 3(1) says an owner must not use their strata lot in a way that causes a nuisance or hazard to another person or unreasonably interferes with the rights of persons to use and enjoy their strata lot.

•         Bylaw 3(2) says an owner must not “cause damage, other than reasonable wear and tear, to common property, common assets or those parts of a strata lot which the Strata Corporation must repair and maintain under these Bylaws or insure under section 149 of the [SPA].”

•         Bylaw 43(1), says that if water escapes from an owner’s sinks or pipes and causes damage to another strata lot, then the owner is responsible for the cost of repairs to the CP, limited to the amount of the strata’s insurance deductible.

22.   I find that the strata’s bylaws do not contain provisions that specifically address water damage and repair costs between strata lot owners. While bylaws 2(1), 3(1) and 3(2) require owners to maintain their strata lots to avoid damaging neighbouring strata lots, none of these bylaws impose liability for breaching the bylaws. Also, bylaw 43(2) only refers to reimbursement of the strata corporation’s expenses which is not an issue in this dispute.

23.   Based on the relevant law, and the lack of any bylaw to the contrary, I find that in order to succeed in his claim, Mr. Bawa must prove that Mr. Fuller was negligent or his conduct caused a nuisance (see Averin v. Ball, 2019 BCCRT 608 and Spier v. Walton, 2020 BCCRT 149).

24.   In order to be found negligent, it must be shown that Mr. Fuller owed Mr. Bawa a duty of care, that he breached the standard of care, and Mr. Bawa sustained damage that was caused by his breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

25.   I accept that as a neighbour and fellow strata lot owner, Mr. Fuller owed Mr. Bawa a duty of care. The applicable standard of care is reasonableness (see Burris v. Stone et al, 2019 BCCRT 886 at paragraph 28).

26.   When water escapes from a strata lot in the exclusive control of the and causes damage, the respondent’s negligence is assumed, unless the respondent can provide an explanation to show otherwise (see Westsea Construction v Billedeau, 2010 BCPC 109 at paragraph 30 and Fontaine v ICBC 1998 CanLii 814 (SCC)).

27.   Since I find that the water leak occurred in Mr. Fuller’s strata lot, Mr. Fuller has an onus of providing an explanation showing that he was not negligent. As stated above, Mr. Fuller has not provided any submissions in this dispute. Mr. Fuller did not provide any explanation of the efforts he took to maintain the plumbing in his strata lot. Also, Mr. Fuller did not explain what actions he took to stop the water flow when he became aware of the leak. In the absence of any explanation, I find that it is appropriate to draw an inference that Mr. Fuller was negligent.

28.   Based on the above inference, I find that Mr. Fuller breached the standard of care. Therefore, I find that Mr. Fuller was negligent. Based on this finding, I do not find it necessary to determine whether Mr. Fuller’s conduct also created a nuisance.

What remedies, if any, are appropriate?

29.   Given my finding that the respondent was negligent in causing water damage, I now turn to Mr. Bawa’s claim for damages.

30.   As stated above, Mr. Bawa claims damages of $2,400 for rent expenses to store his personal property, $500 to repair damage to his ceiling, $200 to paint his walls, and $3,500 to replace flooring. I will consider each damage claim separately.

Rent expense

31.   Mr. Bawa says that he incurred rent expenses of $1,200 per month, for 2 months, to store his personal possessions while his strata lot was water damaged.

32.   I find that Mr. Bawa has not provided sufficient evidence to prove that the water leak caused this loss. Mr. Bawa did not provide any receipts, bank records or rent ledgers to prove that he paid rent for 2 months to store his personal property. Also, Mr. Bawa did not provide sufficient evidence to prove that the water damage prevented him from moving his personal property into the strata lot for 2 months.

33.   I find that Mr. Bawa has not proved his claim for rent damages. So, I dismiss this claim.

Ceiling repair

34.   Mr. Bawa says that it cost $500 to repair the ceiling. Epic’s photographs show that a large portion of the ceiling drywall was removed for water damage remediation. Based on the photographs, I am satisfied that Mr. Bawa’s ceiling was damaged by the water leak.

35.   In his Dispute Notice, Mr. Bawa says the ceiling repair cost $500 and the repairs required 2 visits and the painter had to match the paint. However, Mr. Bawa provided an invoice dated June 20, 2020 for $400 which he says was for the ceiling repair. The description on the invoice appears to say, “job board renovation.” Mr. Bawa does not explain why he seeks damages of $500 for the ceiling repair but the drywall invoice is only for $400. Mr. Bawa also does not explain why the Dispute Notice says the repairs were already performed but the invoice for the ceiling repairs was dated 3 months after this dispute was filed. However, despite these irregularities, I find that the amount of the drywall invoice appears to be reasonable to repair the ceiling damage shown in the photographs.

36.   Overall, I am satisfied that Mr. Bawa has proved that he has incurred $400 in losses to repair the ceiling. I find that Mr. Bawa is entitled to damages of $400 for drywall repair.

Wall repair

37.   Mr. Bawa says that the had just had the strata lot painted when the water leak occurred and damaged the wall paint. Mr. Bawa says his painters charged an additional $200 to repaint the walls after the water leak. Mr. Bawa provided an invoice dated December 20, 2019 for $1,501.05 to paint the entire strata lot. Although the painting invoice does not itemize the alleged additional charges of $200 to repaint the water damage on the walls, I find this expense to be reasonable. I find that Mr. Fuller is responsible for Mr. Bawa’s claimed painting expenses of $200.

Floor replacement

38.   I find that Mr. Bawa has not provided sufficient evidence to prove that his flooring needs to be replaced as a result of the water leak. Epic provided multiple photographs showing drying machines placed on Mr. Bawa’s flooring. However, the photographs do not show any water or water damage. Mr. Bawa provided multiple photographs showing blemishes on the laminate flooring and discoloration on the carpet. However, Mr. Bawa did not provide any evidence to show that the flooring could not be cleaned and repaired. I note that the flooring still does not appear to have been replaced.

39.   Further, Mr. Bawa has not adequately explained how he has calculated his claim for damages to the flooring. Although Mr. Bawa claims $3,500 for the replacement of living room flooring and the carpet, he provided an undated estimate of $5,454.75. Mr. Bawa did not explain the discrepancy between his flooring damage claim and his estimate.

40.   I find that Mr. Bawa has not provided sufficient evidence to prove his claimed damages for water damage to the flooring. So, I dismiss this claim.

CRT FEES, EXPENSES AND INTEREST

41.   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. Since Mr. Bawa was partially successful, I find that he is entitled to reimbursement of one-half of the CRT filing fees, being $112.50. Since neither party requested reimbursement of dispute-related expenses, none are ordered.

42.   The Court Order Interest Act (COIA) applies to the CRT. Mr. Bawa is entitled to pre-judgement interest on the damages of $600 from December 18, 2019, the date of the water leak to the date of this decision. This equals $6.82.

ORDERS

43.   Within 30 days of the date of this order, I order Mr. Fuller to pay Mr. Bawa a total of $719.32, broken down as follows:

a.    $600 for water leak damage.

b.    $6.82 in pre-judgment interest under the COIA, and

c.    $112.50 in CRT fees.

44.   Mr. Bawa is also entitled to post-judgement interest under the COIA.

45.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.