Date Issued: October 5, 2020

File: ST-2020-003080

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan LMS 1915 v. Robbins, 2020 BCCRT 1122

Between:

The Owners, Strata Plan LMS 1915

Applicant

And:

GILLIAN ROBBINS, KATHERYNE ROBBINS and MARK ROBBINS

RespondentS

INTRODUCTION

1.    This dispute is about who must pay for emergency repairs following a water leak in a strata corporation.

2.      The applicant, The Owners, Strata Plan LMS 1915 (strata), is a strata corporation existing under the Strata Property Act (SPA). The respondents, Gillian Robbins, Katheryne Robbins, and Mark Robbins (the Robbins) own strata lot 37 (SL37) in the strata. The strata is represented by a strata council member in this dispute. The Robbins are represented by Mark Robbins.

3.      The strata says the Robbins are responsible to pay $813.93 for the cost of emergency repairs following a drain leak in SL37. The Robbins say they are not liable because they did not authorize the work.

4.      For the reasons set out below, I find the Robbins must pay the $813.96 chargeback for the emergency repairs.

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 in writing, by telephone, videoconference, 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.

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.

ISSUE

9.      Must the Robbins reimburse the strata $813.96 for emergency repairs?

REASONS AND EVIDENCE

10.   The evidence shows that on July 28, 2019, Insurance Restoration Pro (IRP) attended SL37 to address a leak coming from the bathroom sink. IRP’s photos show that there was a large hole in the drain pipe in the vanity cabinet, immediately below the sink. The photos also show that the bottom of the vanity cabinet holding the sink was saturated with water. IRP placed an air mover and dehumidifer to dry the water.

11.   IRP’s invoice shows that it charged $813.96 for this work, which included 4 hours of labour. The strata sent the Robbins a letter on September 12, 2019 charging back $813.96 to their strata lot account. The strata says it had to mitigate damage, and since the emergency repair cost arose from within SL37 the Robbins must pay the chargeback.

12.   In a September 27, 2019 email to the strata, Mark Robbins wrote that the emergency repair bill was unjustified, as the drain leak was not an emergency. He said no water line had to be turned off, there was no risk of further damage with delayed action, he did not authorize the work. He also said IRP’s bill was “exorbitant”, as he could rent a dehumidifier for $52 per day, and has his own fans and heaters.

13.   The strata confirmed its position that the Robbins must pay the chargeback in a September 30, 2019 email, and in letters dated November 12, 2019 and December 18, 2019. None of the strata’s correspondence to the Robbins mentions any bylaw. However, in its submissions to the CRT, the strata relies on bylaw 8(3). It submits that under bylaw 8(3), the Robbins are responsible to pay the chargeback because it was less than the amount of the strata’s insurance deductible.

14.   I find the strata’s bylaws are those registered with the Land Title Office on June 24, 2011, plus 1 set of amendments which are not relevant to this dispute.

15.   In Ward v. Strata Plan VIS #6115, 2011 BCCA 512, the BC Court of Appeal said that in the absence of a bylaw or rule giving it authority to do so, a strata corporation cannot charge an owner for costs it has incurred. In Ward, the charge in question was for legal fees. However, in Rintoul et al v. The Owners, Strata Plan KAS 2428, 2019 BCCRT 1007, a CRT vice chair applied the reasoning in Ward in a dispute where the strata had charged strata lot owners for a damaged hydroelectric line. The vice chair concluded that since the strata had no bylaw allowing it to charge back the repair costs, the owners were not obligated to pay. He found the reasoning in Ward applied to repair charges, and not just to legal fees. Although Rintoul is not a binding precedent, I find its reasoning persuasive and rely on it.

16.   As stated above, the strata relies on bylaw 8(3). I agree that bylaw 8(3) applies to this dispute, and permits the strata to charge back the $813.96 the charges for investigation and drying.

17.   I paraphrase the parts of bylaw 8(3) relevant to this dispute as follows:

•         A strata lot owner is deemed responsible for any loss or damage, however, caused, to a strata lot, common property or assets, or limited common property, if the loss or damage arises totally from within their strata lot.

•         The owner must reimburse the strata for the cost of repairing or remedying the damage, up to the amount of the strata’s insurance deductible.

•         Any cost the owner is responsible for under this bylaw is considered an expense chargeable to the owner, and will be added to their monthly assessment, due and payable on the date of the monthly assessment payment.

•         An owner who fails to pay the costs or remedying loss or damage under this bylaw must reimburse the strata and save it harmless against costs and expenses required to collect the reimbursement.

18.   There is no dispute that the water leak arose totally from within SL37. This is confirmed by the photos from IRP. I also find that IRP’s photos prove there was damage arising from the leak. The photos show that the laminate material forming the vanity cabinet was saturated, stained, swollen, and bubbled. I find this evidence shows there was a need to mechanically dry the area, which is what IRP billed for.

19.   Giving these findings, I find the Robbins are responsible under bylaw 8(3) to reimburse the strata for IRP’s work.

20.   The Robbins say the strata should have contacted them to authorize the work before calling IRP. However, the strata says, and the Robbins do not dispute, that the Robbins’ tenant contacted the strata’s property manager directly about the leak. The strata says it was reasonable in the circumstances to take the immediate action of calling an emergency restorer, to prevent further damage and mold. Based on IRP’s photos, I agree. The photos show that the cabinet under the sink was saturated and it’s laminate material was swollen. The photos also show that the moisture readings under the cabinet were at 99%. I also place some weight on the fact that SL37 shares walls with the common property hallway and lobby, and with another strata lot. It is also located above the strata’s common property parking. Given all of this evidence, I find it was reasonable to call the emergency restorer and take immediate steps to dry the water, to prevent further damage from moisture or mold.

21.   The Robbins also say that IRP’s invoice was excessive. I do not agree. While it is likely the Robbins could have performed the work more cheaply themselves, that is not the relevant standard under bylaw 8(3). I find that IRP’s charges, and the work performed, were clearly explained in its invoice and in its March 29, 2020 email to the strata. In the circumstances, I find this is not a situation where it would have been appropriate to get quotes and choose the most economical option.

22.   For all of these reasons, I find the Robbins must pay the $813.93 chargeback. I also find the strata is entitled to pre-judgment interest on this amount, under the Court Order Interest Act (COIA). I find the interest is payable from September 12, 2019, when the strata first gave written notice of the chargeback. The interest equals $13.71.

CRT FEES AND EXPENSES

23.   As the strata was successful in this dispute, in accordance with the CRTA and the CRT’s rules I find it is entitled to reimbursement of $225.00 in CRT fees.

24.   The strata’s submissions include a reference to “third party costs” incurred to facilitate debt collection. However, the strata did not provide particulars about what these costs were, and did not provide evidence about them, such as invoices or receipts. I therefore order no reimbursement.

25.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to the Robbins.

ORDERS

26.   I order that within 30 days of this decision, the Robbins must pay the strata a total of $1,052.64, made up of:

a.    $813.93 for the restoration work,

b.    $13.71 in pre-judgment interest under the COIA, and

c.    $225 for CRT fees.

27.   The strata is entitled to post-judgment interest under the COIA, as applicable.

28.   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.