Date Issued: July 16, 2021

File: ST-2020-009415

Type: Strata

Civil Resolution Tribunal

Indexed as: D’Souza v. The Owners, Strata Plan EPS4044, 2021 BCCRT 781

Between:

ROHAN D’SOUZA

Applicant

And:

The Owners, Strata Plan EPS4044

RespondenT

INTRODUCTION

1.      This strata dispute is about responsibility for motor vehicle damage. The applicant, Rohan D’Souza, lives in a strata lot in the respondent strata corporation, The Owners, Strata Plan EPS4044 (strata). Mr. D’Souza says the strata’s parking gate was broken, and the gate’s chain damaged his vehicle. Mr. D’Souza says the strata should reimburse the insurance deductible he paid to have his vehicle repaired. He claims $300 for his deductible.

2.      The strata says it was Mr. D’Souza’s own driving error that caused his vehicle damage. The strata says there is no basis for it to be held responsible for paying Mr. D’Souza’s deductible.

3.      Mr. D’Souza is self-represented. The strata is represented by a strata council member.

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 issue in this dispute is whether the strata is responsible for reimbursing Mr. D’Souza’s insurance deductible.

BACKGROUND, EVIDENCE AND ANALYSIS

9.      In a civil proceeding such as this, as the applicant, Mr. D’Souza must prove his claims on a balance of probabilities. While I have reviewed all the parties’ submissions and evidence, I refer only to what I find is relevant and necessary to provide context for my decision.

10.   The strata plan shows the strata was created in 2017, and it consists of both residential and commercial strata lots in a high-rise building. The strata’s applicable bylaws were filed in the Land Title Office on October 31, 2019.

11.   Based on the strata plan, I find the strata has a parking garage with 4 levels of parking, 2 of which are above ground and 2 are underground. The underground parking consists of parking level 1 (P1) and parking level 2 (P2). The parking areas on all 4 levels are marked as common property (CP) on the strata plan.

12.   This dispute arose on September 10, 2020 when Mr. D’Souza attempted to drive his vehicle down a ramp towards P1 where his parking stall is located. After entering the main parkade gate from the street, drivers must turn right to proceed down the ramp to P1. There is a gate at the top of the ramp, which strata residents can control with their FOB.

13.   Mr. D’Souza says that as he approached the ramp there was another car exiting P1, so he waited and pressed the open button on his FOB so the gate would stay open for him. Mr. D’Souza says that as he turned right onto the ramp, a chain hanging down from the gate’s motor operator got caught in his wheel and pulled along the side of his vehicle. He says he had to reverse his vehicle to release the chain and was then able to proceed to his parking stall and report the incident to the building manager.

14.   It is undisputed that the gate’s chain was hanging down in the centre of the ramp, and it damaged Mr. D’Souza’s vehicle. It is also undisputed that Mr. D’Souza made a successful claim under his vehicle’s comprehensive coverage and paid a $300 deductible to have his vehicle repaired.

15.   Mr. D’Souza sent his deductible receipt to the strata’s property manager for discussion with the strata council. In a November 9, 2020 letter, the strata advised Mr. D’Souza that it denied his request for reimbursement of his insurance deductible. In a December 20, 2020 email, Mr. D’Souza requested a hearing with the strata council, which was held on January 9, 2021. In a January 11, 2021 letter, the strata confirmed that it would not reimburse Mr. D’Souza’s deductible.

16.   Mr. D’Souza applied for dispute resolution with the CRT and the Dispute Notice for this dispute was issued January 14, 2021.

Is the strata responsible for reimbursing Mr. D’Souza’s deductible?

17.   Mr. D’Souza did not set out any basis for why the strata should be responsible for his deductible other than because it was strata property that damaged his vehicle. The strata says that it is not responsible for the deductible because Mr. D’Souza’s own driving error caused his vehicle damage.

18.   I find there are no bylaws that directly address Mr. D’Souza’s circumstances that would cause me to find the strata responsible for his vehicle damage. Nor does the SPA directly address such circumstances.

19.   Section 72 of the SPA requires the strata to repair and maintain CP and common assets. This statutory requirement is restated in the strata’s bylaw 8(a) and (b). I find that the parking gate is either CP or a common asset, it follows that the strata is responsible for the gate’s repair and maintenance. However, the standard of care that applies to a strata corporation with respect to the repair and maintenance of CP is reasonableness (see Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784).

20.   In order for Mr. D’Souza to be successful, I find he must prove the strata was negligent. To prove negligence, Mr. D’Souza must show that the strata owed him a duty of care, the strata breached the standard of care, Mr. D’Souza suffered damage, and the damage was caused by the strata’s breach of the standard of care (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at paragraph 33).

21.   I accept that the strata owes Mr. D’Souza a duty of care to ensure CP and common assets such as the parking gate are in a good state of repair and will not damage Mr. D’Souza’s personal property. So, the question is whether the strata breached the required standard of care to reasonably repair and maintain the gate. For the following reasons, I find Mr. D’Souza had failed to prove the strata breached the standard of care.

22.   First, while Mr. D’Souza says in the Dispute Notice that the building manager told him the strata council was aware of “the ongoing issue” with the gate, I find the evidence does not support that claim. The strata provided a statement from the building manager, WT, about the incident, and there is no indication in WT’s statement of any previous issues involving the gate.

23.   Further, Mr. D’Souza’s own detailed statement prepared for the purpose of this dispute suggests that WT was unaware of the broken gate until Mr. D’Souza reported it to him after the incident. Mr. D’Souza statement in evidence does not mention the claim that the strata council knew about ongoing gate issues, and he provided no further evidence in support of that claim.

24.   Next, the strata provided a series of invoices for parking gate maintenance that I find show the parking gate was regularly serviced and maintained before September 2020. A September 22, 2020 invoice stated it was for scheduled maintenance performed on August 11, 2020, where the 3 parking gates were serviced, lubricated, and manually tested, including the motor operators and safety devices. There is no indication that any of the parking gates had any ongoing issues or required further maintenance at that time.

25.   Finally, the strata provided CCTV video footage of the parkade on September 10, 2020, showing that the gate was closed and appeared to be working normally when someone opened it to exit the ramp from P1 at 7:13 a.m. The video then jumps to 7:16 a.m. and shows the gate is open and, as another vehicle comes up the ramp, a chain drops down and hangs from the gate in the middle of the ramp. The vehicle drives around the chain and exits the ramp without incident.

26.   The video footage also shows Mr. D’Souza enter the parkade, turn right onto the ramp, and drive into the chain at 7:35 a.m. There is no evidence before me that anyone had reported the broken gate in the 19 minutes before Mr. D’Souza encountered it.

27.   I find there is insufficient evidence before me to conclude that the strata, the building manager, or the property manager knew or ought to have known that the parking gate had previous issues or was broken before Mr. D’Souza attempted to drive down the ramp. Given the evidence, is unclear what the strata otherwise should or could have done to more reasonably repair or maintain the parking gate in issue.

28.   I find that Mr. D’Souza has failed to prove that the strata acted unreasonably and breached its standard of care. On that basis, I dismiss Mr. D’Souza’s claims and this dispute.

29.   Given my conclusion that the strata was not negligent in repairing or maintaining the gate, I find I do not have to address the strata’s submission that Mr. D’Souza caused his own vehicle damage.

CRT FEES AND EXPENSES

30.   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. Given that Mr. D’Souza was not successful, I find he is not entitled to reimbursement of his CRT fees. The strata did not pay any fees or claim any dispute-related expenses.

31.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. D’Souza.

ORDER

32.   I dismiss Mr. D’Souza’s claims and this dispute.