Date Issued: July 12, 2021

File: ST-2020-005886

Type: Strata

Civil Resolution Tribunal

Indexed as: Rados v. Li, 2021 BCCRT 760

Between:

DANIELLE RADOS

Applicant

And:

XINWEI LI, ZHI ZHENG and The Owners, Strata Plan VIS6828

RespondentS

INTRODUCTION

1.      This dispute is about a strata lot water leak. The applicant, Danielle Rados, co-owns a strata lot in the respondent strata corporation, The Owners, strata Plan VIS6826 (strata). The respondents, Xinwei Li and Zhi Zheng own a strata lot (unit 215), located directly above Ms. Rados’ strata lot. Ms. Rados says that water leaked from unit 215 to her strata lot, causing damage. Ms. Rados says that the strata, Xinwei Li and Zhi Zheng are responsible for the repair costs under the bylaws. Ms. Rados claims $3,373.34.

2.      The strata denies Ms. Rados’ claim. It says that is not responsible for the repairs under the bylaws because the damage was limited to Ms. Rados’ strata lot and the repair costs were less than the strata’s insurance deductible.

3.      Neither Xinwei Li nor Zhi Zheng filed a Dispute Response.

4.      Ms. Rados is represented by an employee of her insurer, Intact Insurance. The strata is represented by a strata council member.

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, 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.

7.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

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.

Subrogation

10.   Ms. Rados provided undisputed evidence showing that her insurer paid for all her claimed damages, except for a $500 deductible. As such, I infer that Ms. Rados is making this application for dispute resolution on a subrogated basis on behalf of her insurer. Subrogation is when a third party, such as an insurer, assumes another party’s legal right to collect a debt or damages.

11.   I find that subrogation is permitted under section 36 of the Insurance Act. Based on this legislation, I find Ms. Rados is permitted to bring her claim for the full amount of damages, and that she (rather than the insurer) is correctly named as the applicant.

Jurisdiction Issue

12.   A jurisdiction issue arises about whether Ms. Rados’ claims against respondents Xinwei Li and Zhi Zheng falls within the CRT’s strata property jurisdiction.

13.   Ms. Rados claims that water leaked from a washing machine in respondents’, Xinwei Li’s and Zhi Zheng’s strata lot, into her strata lot and that these respondents are responsible for the resulting water damage under the bylaws. However, although Ms. Rados does not specifically say this, I find that this is also a tort claim of negligence.

14.   Ms. Rados filed her dispute against the respondents under the CRT’s strata property jurisdiction set out in the CRTA section 121. However, just because the dispute involves strata property does not mean it is a strata property dispute under the CRTA. Section 121 gives the CRT jurisdiction over a claim “in respect of the [Strata Property Act ( SPA)]” and sets out the scope of the CRT’s strata property jurisdiction. Under CRTA section 121(c), the CRT is given jurisdiction to decide a claim “in respect of the SPA” over the use or enjoyment of a strata lot. By contrast, CRTA section 118 gives the CRT jurisdiction to resolve a claim for damages based in tort, including negligence, that is not “in respect of” the SPA.

15.   At my request, CRT staff contacted the parties and asked if they would agree to move the dispute to the CRT’s small claim’s jurisdiction. None of the parties agreed.

16.   In the non-binding but persuasive CRT decision Alameer v. Zhang, 2021 BCCRT 435, the Vice Chair stated that a strata lot owner may simultaneously have an obligation to a strata corporation under the bylaws and may also be liable to another owner in a tort based on the same conduct. Yet, the Vice Chair said that a tort claim is not “in respect of” the SPA simply because the owner has a parallel duty under the bylaws. I agree with the Vice Chair.

17.   Under CRTA section 1(2), if the CRT may validly categorize a claim as either small claims or strata property, the claim must be decided under the strata property jurisdiction. In other words, the CRT may decide a claim involving just 2 strata lot owners under its small claims jurisdiction only if the CRT determines that the claim is outside of its strata property jurisdiction. I find that Ms. Rados’ claim against the respondents, Xinwei Li and Zhi Zheng is outside the CRT’s strata property jurisdiction for the following reasons.

18.   The interpretation of the CRT’s jurisdiction under CRTA section 121 is of key importance. The Supreme Court of Canada has found the phrase “in respect of” is one with the widest possible scope. However, it is not a phrase of infinite reach, and when interpreting the phrase, consideration must be given to the context in which the words are found: Sarvanis v. Canada, 2002 SCC 28 at paragraphs 22 and 24. The words here are found in the context of the SPA and CRTA. Like the Vice Chair in Alameer, after applying Sarvanis, my review of the CRTA and SPA leads me to conclude that a dispute “in respect of” the SPA is one that could only proceed by relying on the SPA. A harmonious reading of the SPA supports the conclusion that the CRT’s jurisdiction over claims for use and enjoyment of a strata unit must involve the strata in some way, whether directly or indirectly. Claims involving 2 strata lot owners such as this one, seldom depend on the SPA because they have an independent basis in tort, here negligence. While strata corporation bylaws apply to strata lot owners, they are often not relevant because strata lot owners cannot enforce bylaws against other owners. Put another way, because Ms. Rados’ claim against the respondents, Xinwei Li and Zhi Zheng does not involve the strata or a strata matter, the SPA is not triggered. So, I find that I do not have jurisdiction to decide Ms. Rados’ claims against Xinwei Li or Zhi Zheng as a claim arising under the SPA.

19.   In summary, I find that Ms. Rados’ claims against Xinwei Li or Zhi Zheng are properly within the CRT’s small claims jurisdiction under CRTA section 118. I find this claim against Xinwei Li and Zhi Zheng is not “in respect of” the SPA, giving me no jurisdiction to decide this claim. For these reasons, I refuse to resolve Ms. Rados’ claims against Xinwei Li and Zhi Zheng under CRTA section 11(1)(a)(i). It remains open for Ms. Rados to make a further application for dispute resolution against Xinwei Li and Zhi Zheng under the CRT’s small claims jurisdiction, subject to any limitation period.

Limitation period

20.   Although the parties’ application for dispute resolution, Dispute Response and submissions did not discuss the Limitations Act (LA), I gave Ms. Rados and the strata an opportunity to provide submissions about whether this dispute was started in time under the LA. However, since neither party provided any submissions relating to the LA, I find that this issue is not raised in this dispute and I do not make any findings relating to the LA in this decision.

ISSUE

21.   The issue in this dispute is whether the strata is responsible for the cost of repairing Ms. Rados’ strata lot.

EVIDENCE AND ANALYSIS

22.    In a civil proceeding like this one, Ms. Rados as the applicant, must prove her claim on a balance of probabilities. I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant to provide context for my decision.

23.   The strata is a strata corporation created in 2009 under the SPA and consists of 60 residential, apartment-style strata lots in a 3-storey building.

24.   The strata filed a complete set of amended bylaws at the Land Title Office on March 13, 2017 which I find govern this dispute.

25.   Ms. Rados and the strata agree that water leaked into her strata lot from a washing machine in unit 215, directly above Ms. Rados’ strata lot, on August 21, 2018. Based on this agreement, I accept this as accurate.

26.   Balfour Property Restoration (Balfour) provided emergency water remediation services to Ms. Rados’ strata lot. Balfour’s October 15, 2018 invoice of $1,851.89 says that water damage originated above both of Ms. Rados’ bathrooms. Since the invoice was prepared by a restoration tradesperson, I am satisfied that it meets the criteria for an expert report under CRT rule 8.3. Based on Balfour’s invoice, and Ms. Rados’ and the strata’s agreement that the water leak originated from unit 215 above Ms. Rados’ strata lot, I find that the water leak caused the damage in Ms. Rados’ strata lot.

27.   The strata sent Ms. Rados emails on August 24, 2018 and October 24, 2018 saying that the strata would not repair her strata lot’s water damage. The strata said that it was not responsible for the repairs because the water did not originate from common property and the total damage was less than the strata’s insurance deductible.

28.   Ms. Rados provided Balfour’s October 29, 2019 repair estimate of $1,521.45 to perform drywall repairs and paint the ceilings. Based on this undisputed estimate, I find that the drywall and ceilings in the bathrooms in Ms. Rados’ strata lot were damaged by the water leak.

29.   Ms. Rados provided insurance documents showing that her insurance company paid Balfour’s October 15, 2018 water remediation invoice of $1,851.89 and the insurance company paid Balfour $1,021.45 for the wall and ceiling repairs. Ms. Rados’ insurance documents say that $500 was deducted from the repair payment for Ms. Rados’ insurance deductible. I infer that Ms. Rados was responsible for the $500 deductible under her insurance policy.

30.   Ms. Rados claims that the strata is responsible under bylaws 2, 3 and 42 for the cost of her strata lot repairs. For the reasons that follow, I disagree.

31.   Bylaw 2 says that owners must repair and maintain their strata lot, except for repairs and maintenance that are the strata’s responsibility. There is no dispute that the water leak originated from a washing machine in unit 215’s strata lot. Bylaw 8(d) says that the strata’s responsibility to repair and maintain strata lots is limited to the structure of building, the exterior of the building, attached items such as chimneys, stairs, balconies, fences and railings. I find that unit 215’s washing machine is not within the scope of bylaw 8(d), so the strata did not have an obligation to repair and maintain it under bylaw 2.

32.   Further, I find that the damaged drywall and ceiling is part of Ms. Rados’ strata lot for the following reasons. Section 68(1) of the SPA identifies the boundaries of a strata lot where the strata lot is separated from common property or another strata lot by a wall or ceiling. Section 68(1) says the strata lot boundary is midway between the surface of the structural portion of the wall or ceiling that separates the strata lot from the common property or another strata lot, unless the strata plan identifies different boundaries. Ms. Rados provided photographs which appear to show the water damage was located on her walls’ and ceiling’s interior surfaces. Based on these photographs, I find that the damaged drywall and ceiling are part of Ms. Rados’ strata lot under section 68(1) of the SPA and within her responsibility to repair and maintain under bylaw 2.

33.    Ms. Rados also relies on bylaw 3 which says that an owner cannot use their strata lot in a way that causes a nuisance to another person or causes damage to the parts of a strata lot which the strata corporation must repair and maintain under the bylaws or insure under SPA section 149. However, while bylaw 3 prohibits owners from damaging common assets, common property and fixtures attached to a strata building, I find that bylaw 3 does not impose a repair obligation on the strata.

34.   Ms. Rados also relies on bylaw 42. Bylaw 42(6) says that an owner is responsible for any water leaking from appliances in their strata lot. Bylaw 42(8) says that any uninsured repair costs will be levied against that owner’s strata lot account. Bylaw 42(9) says owners must maintain insurance to cover losses from water leaks

35.   Based on these bylaws, Ms. Rados argues that the strata was required to repair the water damage to Ms. Rados’ strata lot, at the strata’s expense, and then chargeback these costs to the owners of unit 215’s strata lot account. I disagree. I find that bylaw 42 does not impose an obligation on the strata to repair strata lots. Bylaw 42(8) authorizes the strata to charge back repair costs if it incurred such costs. However, I find that the bylaw 42 does not require the strata to undertake these repairs to strata lots.

36.   For the above reasons, I find that Ms. Rados has not proved that the strata had an obligation under the bylaws or the SPA to repair her strata lot. So, I dismiss her claim against the strata.

CRT FEES AND EXPENSES

37.   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 Ms. Rados was unsuccessful in her claim against the strata, I dismiss her request for reimbursement of CRT fees. The strata did not request reimbursement of dispute-related expenses.

38.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. Rados.

ORDERS

39.   I dismiss Ms. Rados’ claim against the strata.

40.   I refuse to resolve Ms. Rados’ claim against Xinwei Li and Zhi Zheng.