Date Issued: March 31, 2021

File: ST-2020-006572

Type: Strata

Civil Resolution Tribunal

Indexed as: Choi v. The Owners, Strata Plan LMS 836, 2021 BCCRT 351

Between:

LA-YUN CHOI and PAUL MINN

ApplicantS

And:

The Owners, Strata Plan LMS 836

Respondent

INTRODUCTION

1.      This dispute is about payment for repair of a shower enclosure in a strata corporation.

2.      The applicants, La-Yun Choi And Paul Minn (owners), own a strata lot in the respondent strata corporation, The Owners, Strata Plan LMS 836 (strata).

3.      The parties agree that during a project to replace common property water pipes in the strata building, the strata’s contractor, Circle Restoration (Circle) removed the shower enclosure in the owners’ bathroom to access pipes within the walls. The owners say that after Circle re-installed the enclosure, the shower door was bent and misaligned, and did not open or close properly.

4.      The owners say that at one point, the strata agreed to pay Circle to replace the shower enclosure. However, the owners say they refused that offer because Circle’s glass installation subcontractor stated in an email that it would not be held responsible for any damage that might occur while removing the old enclosure. The owners say the strata then offered to pay them $858.54 to replace the shower, but they refused the offer because it would not cover the full replacement cost. In this dispute, the owners request an order that the strata pay them $1,312.50 to replace the enclosure, plus $157.50 for a “damage assessment”. The owners also request an order that the strata must pay for any damage that occurs during the removal of the old enclosure.

5.      The strata says the owners’ claims should be dismissed. The strata admits it agreed at one point to replace the enclosure, but says it is not liable to pay anything because the evidence does not establish that Circle damaged it.

6.      The owners are self-represented in this dispute. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

7.      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 legal principles. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

8.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. To some extent, the parties on each side of this dispute question the truthfulness 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. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

9.      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.

10.   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.

11.   Both parties provided late evidence after the stated deadline. Given the CRT’s mandate that includes flexibility, and since all parties had an opportunity to respond to the late evidence, I admit it and where relevant I discuss it below.

ISSUES

12.   The issues in this dispute are:

a.    Must the strata pay to replace the shower enclosure, and if so, now much?

b.    Must the strata pay for the damage assessment, and if so, how much?

c.    Should I order the strata to pay for any damage that might occur during the enclosure replacement?

FACTS AND ANALYSIS

13.   I have read all the evidence and submissions provided but refer only to that which I find relevant to provide context for my decision. As the applicants in this civil dispute, the owners must prove their claims on a balance of probabilities.

Shower Enclosure Replacement Cost

14.   It is undisputed that under the Strata Property Act (SPA) and bylaws, the owners would ordinarily be responsible to repair and maintain the interior of their strata lot, including fixtures such as the shower enclosure.

15.   In this case, the parties agree the strata’s contractor removed the owners’ shower enclosure in order to access the common property pipes in the wall. The owners say the contractor damaged the enclosure door when re-installing it, so the entire enclosure now requires replacement.

16.   The strata’s pipe replacement project, which occurred in January and February 2020, was undertaken as part of its overall duty to repair and maintain common property. This duty is set out in SPA section 72. Courts have said that a strata corporation, in discharging its repair and maintenance obligations, must act reasonably, and is not liable for damage unless it has been negligent: see Weir v. Strata Plan NW 17, 2010 BCSC 784; John Campbell Law Corp. v. Strata Plan 1350, 2001 BCSC 1342.

17.   In Wright v. Strata Plan #205 (Owners), 1998 CanLII 5823, the BC Court of Appeal held that a strata corporation is not an insurer, and is not responsible for damage as long as it acted reasonably in the circumstances. This means that even if a strata corporation’s contractors fail to carry out work effectively, the strata is not responsible, and cannot be found negligent (see Wright at paragraph 30).

18.   Based on this reasoning, I find the strata is not liable to pay to replace the shower enclosure, or to pay for the damage assessment.

19.   In making this finding, I rely on the persuasive but non-binding reasoning of a CRT vice chair in Kantypowicz v. The Owners, Strata Plan VIS 6261, 2017 BCCRT 29. In that case, workers hired by the strata power washed the exterior of the building directly above the applicant’s strata lot. The power washing was part of the strata’s common property maintenance. The parties agreed that the power washing caused a leak which caused $1,200 in damage to the interior of the applicant’s strata lot. Despite the fact that the strata’s power washing caused the leak, the vice chair found the strata was not liable for the damage because it was not negligent.

20.   In applying the reasoning in these cases to the facts before me, I find the strata is not liable to replace the shower enclosure because it was not negligent.

21.    To prove negligence, the owners must show that the strata owed them a duty of care, that the respondents breached the standard of care, that the owners sustained damage, and that the damage was caused by the strata’s breach: see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.

22.   I accept that the strata owed the owners a duty of care to repair and maintain the common property pipes, as set out in the SPA. As set out in Wright, cited above, the standard of care is reasonableness. I find that any damage to the owners’ shower enclosure was not due to the strata’s failure to act reasonably in the circumstances. Again, even if the strata’s contractors and subcontractors failed to perform the work correctly the strata is not responsible, and cannot be found negligent: see Wright at paragraph 30.

23.   The owners say the strata should not have directed the contractor to re-install the old enclosure after replacing the pipes, but instead should have purchased a new enclosure from the outset. I find the strata had no duty to do so, as there is nothing in the SPA or bylaws requiring it. Also, the owners could have purchased a new enclosure themselves, and had the strata install it. I find this would have been reasonable, given that the previous enclosure was part of the strata lot, and the evidence indicates that it was about 27 years old.

24.   A June 22, 2020 email from Circle’s owner, DF, says he was hesitant to reuse the old shower parts, and recommended a new shower. He said, “when asked to install the old shower instead, I was crystal clear that there may be issues and Circle could not warrantee the work”. For the following reasons, I find the statement from DF does not make the strata responsible. In paragraph 28 of Weir, the BC Supreme Court held that choosing a “good” solution rather than the “best” solution does not render that approach unreasonable such that judicial (or tribunal) intervention is warranted. In Weir, the court went on to reason as follows in paragraphs 30 to 31:

The course of action chosen by the respondent may or may not resolve the problems. If it does not, further remedial work…may be required. The respondent acknowledges that it will undertake that remedial work if it proves reasonably necessary.

It may even prove to be the case that the approach of the petitioner is the wiser and preferable course of action. Again, that does not render the approach of the respondent unreasonable.

25.   I find this reasoning from Weir applicable to this case. Here, the strata chose the cheaper option of re-using the old shower enclosure, despite the contractor’s reservations. This may have been unreasonable, if not for the fact that after the owners complained about the shower not working, the strata agreed to have its contractor re-do the work, and install a new enclosure. This is confirmed by various emails provided in evidence. I find this is similar to the discussion above in Weir, where the strata acknowledged it would undertake remedial work if it proved reasonably necessary.

26.   The owners then refused permission for that work, due to their concern about Glass World’s July 21, 2020 email, which said it would not be held responsible for any damage that might occur during the removal of the current enclosure.

27.   I find that based on this evidence, and the reasoning in Weir, Wright, and Kantypowicz, the strata was not negligent in this case. Rather, as in Weir, the strata chose the cheaper option of using the old enclosure, but when that did not work it agreed to have its contractor install a brand new enclosure. I find this was reasonable in the circumstances.

28.   I find it was unreasonable for the owners to refuse the offer of a new enclosure based on Glass World’s liability statement. First, I find that any further damage was speculative at that point, and could have been addressed if and when it occurred. Second, I place significant weight on a July 27, 2020 email from their preferred contractor, Pacific Shower Doors, which also said it could not guarantee there would be no damage when removing the existing enclosure, and would not be responsible for it. I find it would be unusual for any contractor to guarantee against damage in advance, and it was unreasonable for the owners to require it.

29.   In summary, I find the strata was not negligent in its approach to re-installing and offering to repair the owners’ shower enclosure. Since it was not negligent, the strata is not liable for repair costs or the cost of the damage assessment, which the evidence shows was a service call from Pacific Shower Doors. I dismiss these claims.

30.   For the same reasons, I also dismiss the owners’ claim for an order that the strata must pay for any damage that occurs during the removal of the old enclosure.

CRT FEES AND EXPENSES

31.   Under CRTA section 49 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.

32.   The strata is the successful party. It paid no CRT fees and claims no dispute-related expenses. I therefore do not award them to any party.

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

ORDER

34.   I dismiss the owners’ claims and this dispute.