Date Issued: January 7, 2021

File: ST-2020-005112

Type: Strata

Civil Resolution Tribunal

Indexed as: Lee v. Erno, 2021 BCCRT 19

Between:

CHARLES LEE

Applicant

And:

BRADY ERNO and JENNIFER ERNO

RespondentS

INTRODUCTION

1.      This dispute is about water damage repair costs and rental loss.

2.      The applicant, Charles Lee, co-owns Strata Lot 17 (SL 17) in The Owners, Strata Plan 524 (strata). Mr. Lee rents his strata lot to a tenant. The respondents, Brady Erno and Jennifer Erno, own Strata Lot 23 (SL 23), which is located 2 floors above SL 17.

3.      Mr. Lee says water leaked from SL 23 on July 5, 2018 into SL 17 and caused damage to his strata lot. Mr. Lee says the leaking water is a nuisance under the strata’s bylaws and so the respondents are responsible for the water damage to his strata lot. Mr. Lee claims $9,604.64 in repair costs and $1,764.57 for 21 days’ lost rental income.

4.      The respondents say they did not breach the strata’s nuisance bylaw and, that if they did, the bylaw does not require them to pay Mr. Lee’s water repair costs. They ask that the dispute be dismissed.

5.      Mr. Lee is represented by his insurance adjuster. The respondents are represented by Mr. Erno.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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.

10.   Under section 61 of the CRTA, the CRT may make any order or give any direction in relation to a CRT proceeding it thinks necessary to achieve the objects of the CRT in accordance with its mandate. The CRT may make such an order on its own initiative, on request by a party, or on recommendation by a case manager.

ISSUE

11.   The issue in this dispute is whether the respondents are liable in nuisance for the water damage to SL 17 or Mr. Lee’s lost rental income and, if so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this one the applicant, Mr. Lee, must prove his claim on a balance of probabilities. I have reviewed all the evidence and submissions provided by both parties, but only refer to that necessary to explain my decision. I note that Mr. Lee provided no reply submissions, despite being given the opportunity to do so.

13.   It is undisputed that, on July 5, 2018, the respondents’ washing machine leaked water. The respondents do not dispute that the water leaked into Mr. Lee’s strata lot, or that the leaked water caused damage to his strata lot. Photos and repair estimates submitted by Mr. Lee’s insurer show water damage to Mr. Lee’s walls and floors. Based on these documents and the parties’ submissions, I find the Ernos leaking washing machine was the cause of water damage to Mr. Lee’s strata lot. The question then becomes whether the respondents are responsible for that water damage.

14.   Mr. Lee says the respondents’ insurance agent found the Ernos were not negligent in causing the water leak. Mr. Lee does not dispute this finding. Rather, he says the Ernos need not be negligent to be responsible for the water damage under the strata’s bylaw 6. From his submissions, I find Mr. Lee has not based his claim on negligence and so I will not consider whether the respondents might be responsible in negligence.

15.   On November 5, 2014 the strata filed a package of bylaws with the Land Title Office, which are an addition to the SPA’s Schedule of Standard Bylaws. Mr. Lee relies on the strata’s bylaw 6, which says, in part, that an owner shall not “do anything which will unreasonably interfere with any other owner”.

16.   I agree with the respondents that bylaw 6 does not make owners responsible to pay for damages incurred by neighbouring owners as a result of a leak. The bylaw does not explicitly say that, and I find it would be speculative to infer that meaning. The strata’s bylaws apply between the strata and the strata lot owners, and do not create an entitlement to damages or reimbursement between owners unless explicitly stated (see the non-binding decision Dalal v. Won, 2020 BCCRT 1268).

17.   I disagree with Mr. Lee that bylaw 6 means that an owner is responsible if it does anything, including a load of laundry, which creates a nuisance. Bylaw 6 codifies the legal principle of nuisance, which is when a person unreasonably interferes with the use or enjoyment of another person’s property (see the non-binding decision of Zale et al. v. Hodgins, 2019 BCCRT 466). There are some exceptions.

18.   In Theberge v. Zittlau, 2000 BCPC 225, the BC Provincial Court said the fact that a person did not know about a potential nuisance was an excuse, unless they ought to have discovered the nuisance by using reasonable care. The court referred to Kraps v. Paradise Canyon Holdings Ltd. [1998] B.C.J. No. 79 (BCCA) in stating that liability in nuisance relies on actual or constructive knowledge of the hazardous condition, and the occupier’s lack of reasonable care in responding to it. In other words, an owner is not responsible for escaping water that they did not know of and could not reasonably be expected to know of.

19.   Based on a July 6, 2018 invoice, I find a plumber attended at the respondents’ unit on July 6, 2018 to address the leak. I agree with Mr. Lee that the invoice documents the plumber’s opinion that, over time, a shut off valve had become loose from the previous owner’s misuse. Although the plumber documented his first name, he did not give his full name, set out any qualifications he had, or explain how he reached the opinion that the previous owner had misused the machine’s shut off valve. For these reasons I find the July 6, 2018 plumbing invoice does not qualify as expert evidence under CRT Rule 8.3 and I place little weight on the plumber’s opinion about the cause of the washing machine leak.

20.   Even if I had accepted that the Ernos’ washing machine leaked due to the previous owner’s misuse of the shut off valve, I would not have found this proved the respondents were liable in nuisance. That is because the plumber said it was the previous owners’ misuse of the machine that led to the valve failure, not the respondents. Further, the plumber did not indicate that the Ernos should have been aware of the misuse or been alerted to the potential valve failure and resulting leak.

21.   Mr. Lee presented no other evidence about the cause of the leak or whether the Ernos should have known of the potential for the leak. There is no indication that, when the Ernos discovered the water leak, they failed to respond to it in a timely manner or a reasonable way. For these reasons, I find Mr. Lee has failed to prove that the Ernos are responsible in nuisance, or under bylaw 6, for the water leak. I dismiss Mr. Lee’s claim for repair costs.

22.   Even if I had found the respondents responsible in nuisance, I would have found that Mr. Lee failed to prove his claim for lost rent, as he provided no evidence of his damages, or the amount of rent he lost. I dismiss Mr. Lee’s claim for lost rent.

23.    Under section 49 of the CRTA, and the CRTA rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. As Mr. Lee was unsuccessful in his claims, I find he is not entitled to reimbursement of any fees or expenses.

ORDER

24.   I dismiss Mr. Lee’s claims and this dispute.