Date Issued: August 31, 2021

File: ST-2020-007090

Type: Strata

Civil Resolution Tribunal

Indexed as: Verigin v. The Owners, Strata Plan VR112, 2021 BCCRT 950

Between:

LAWRENCE VERIGIN

Applicant

And:

The Owners, Strata Plan VR112

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This dispute is about repairs and maintenance in a residential strata building. The applicant, Lawrence Verigin, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan VR112 (strata). Mr. Verigin says that an exterior wall has been sinking for more than 20 years and that this has caused sloping to the ceiling, valance, walls and floors inside his strata lot. He says the strata has failed to address the problem, and asks for an order that the strata repair the exterior wall and “ceiling damage due to wall movement” using a scope of work proposed by an engineer he consulted. The strata says that the exterior wall is “not compromised or deteriorating” and that it will not repair something that is structurally safe.

2.      Mr. Verigin is self-represented. The strata is represented by a member of the strata council.

JURISDICTION AND PROCEDURE

3.      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). CRTA section 2 says the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

4.      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. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice and fairness.

5.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, even where the information would not be admissible in court. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.      Under CRTA section 123, 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.

7.      Under CRTA section 61, 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.

8.      In this case, a CRT Vice Chair issued a preliminary decision on April 15, 2021 in response to the strata’s request that the CRT dismiss or refuse to resolve the dispute as Mr. Verigin did not request a strata council hearing before commencing this dispute as required by section 189.1(2) of the Strata Property Act (SPA). The Vice Chair determined that the strata was aware of the nature of Mr. Verigin’s claims before the Dispute Notice was issued and decided to waive the requirement for a hearing using the authority under section 189.1(2)(b) of the SPA.

ISSUES

9.      The issues in this dispute are:

a.    Whether the area in question falls within the strata’s responsibility to repair and maintain,

b.    Whether the strata has failed to repair or maintain common property (CP), and

c.    Whether the strata must perform the repairs requested by Mr. Verigin.

EVIDENCE AND ANALYSIS

10.   The strata was built in the 1970s and is comprised of 42 residential strata lots in a 3-storey building with a basement. Mr. Verigin owns strata lot 40, which is also known as suite 306. Suite 306 is located above a storage area and suites 106 and 206.

11.   Mr. Verigin says, and the strata council meeting minutes confirm, that he has complained a number of times over the years about the sloped floors and a sagging ceiling valance in his strata lot. The evidence suggests that there are less significant issues with sloping in suites 106 and 206.

12.   In 2012, the strata retained Spratt Emanuel Engineering Ltd. (SEE) to perform a structural review of the building near suites 206 and 306 where settlement was suspected. In SEE’s August 16, 2012 report, SEE documented sloping floors in suite 306, less significant sloping in suite 206, and no visible sloping in 106. SEE’s opinion was that the sloping in suite 306 was “due to inadequately leveled framing of the section of the building”. SEE recommended that the strata monitor the issue to determine if the sloping was progressing.

13.   SEE re-assessed the building and documented the results in a January 17, 2014 report. According to SEE, the floor sloping in suites 206 and 306 was approximately the same as it had been in 2012. SEE gave the opinion that the floor sloping was due to the cumulative effects of wood shrinkage in the wood framing structure. SEE also stated that “the floor slopes are completely due to differential wood frame settlement exacerbated by incorrect anchorage to the concrete block firewall and not due to wood rot or other water damage”. According to SEE, there was “no simple or inexpensive way” to fix the problem as using concrete to level the floors would exceed the structural capacity of the floor joists, and cutting open the floor sheathing to build up new joists would be disruptive and expensive and “difficult to justify versus the marginal benefit resulting”.

14.   On May 18, 2014, the strata’s property manager wrote to Mr. Verigin to share SEE’s conclusion that there was no significant structural issue to be addressed. The property manager advised that the strata would continue to measure the sloping to determine whether it was progressing.

15.   The strata commissioned a May 2, 2014 depreciation report, in which the authors stated that the building’s foundations and structures were in acceptable condition, with the exception of “suspected settlement” of the southern exterior wall near units 206 and 306. The authors recommended further investigation, including structural monitoring to track the movement of the structure, if any.

16.   In 2016, Mr. Verigin commenced a CRT dispute seeking an order that the strata fix the problem with his floors. He withdrew that dispute in December of 2018.

17.   In the meantime, the strata retained a different engineering firm, Dubas Engineering Inc. (Dubas) to assess the situation. Dubas’ June 22, 2017 report documented sloping in the floor and balcony in suite 306 and floor sloping in suites 106 and 206. Dubas noted SEE’s opinion that the sloping was caused by settlement in the wood frame, but stated that sloping floors would have been an issue in the entire building if this was the cause.

18.   Dubas gave the opinion that the sloping floors were “related to sloping/sagging of the first- floor concrete slab”. Dubas could not determine whether this was related to the building’s original construction or whether it occurred over time. Dubas recommended an analysis of the concrete slab and monitoring of the floors in suites 106, 206 and 306. It said that relevelling of the floors could be considered once it was determined that the concrete slab was structurally sound.

19.   As set out in its February 6, 2018 report, laser measurements taken by Dubas showed that the floors and balcony in suite 306, the suspended slab in the parkade, and the brick cladding on an exterior wall were sloping. Dubas provided an opinion that the problem may be that the suspended slab was poured out of level, which caused both shrinkage in the exterior wall and the exterior wall framing to distort and slope the floors in the strata lots above.

20.   Dubas took new measurements in June 2018 to compare with the February 2018 results. It explained in its June 21, 2018 report that the laser measurements were the same, indicating that there had been no movement in suite 306. Dubas stated that there was no indication of progressing settlement in the exterior wall and floor assembly.

21.   The minutes of the December 17, 2018 strata council meeting show that the strata decided that monitoring of the slope by the engineer would continue as needed.

22.   Mr. Verigin arranged for Tash Engineering Ltd. (Tash) to inspect his strata lot and propose a solution for the sloping problem. One of Tash’s engineers inspected the exterior of the building and suite 306, and produced a September 1, 2020 report recommended remedial work to address the sloping. The scope of work included removing drywall, attaching a beam and header, and pouring self-levelling compound on the floor. Tash did not comment on the possible cause of the sloping, but recommended ongoing monitoring for “signs of further deterioration, moisture penetration and excessive deflections”.

23.   After submitting his application for dispute resolution to the CRT, Mr. Verigin requested a hearing with the strata council about the “exterior failing wall issue”. After a November 25, 2020 presentation to the strata council, the strata council requested that Mr. Verigin provide more information about the costs involved with the proposed repairs.

24.   In response, Tash provided a January 6, 2021 project management agreement to the strata that set out a $24,000 cost for the work it proposed in the September 1, 2020 report.

25.   The strata consulted another engineering firm, Read Jones Christoffersen Ltd. (RJC), about the sloping situation and Tash’s proposed scope of work. In a May 21, 2021 draft report, RJC reviewed the reports from SEE, Dubas and Tash and the building’s architectural drawings. According to RJC, it is likely that the floor slopes are caused by the slope in the suspended slab, deficiencies in the wood frame structure, or active differential settlement of the concrete foundations. RJC also stated that the slopes in the floor structure are “of concern”.

26.   RJC recommended additional investigation and assessment by a structural engineer, and possibly a geotechnical study to exclude the possibility of differential soil settlement. According to RJC, any repair work “would be wasted” if the building’s foundations are actively settling. RJC specifically stated that no additional loads (including the self-levelling compound proposed by Tash) should be applied to the structure without determining whether the structure could “accommodate additional loading”. RJC’s opinion was that it could not, and that the structure would need to be strengthened in consultation with a structural engineer.

27.   It is not clear whether the strata council had an opportunity to discuss RJC’s draft report before it was submitted in evidence for this dispute. It is also not clear whether the strata has received a final version of RJC’s report.

28.   Mr. Verigin says the strata has failed to fix the problem with the exterior wall that has caused his floors to slope, and which he says adversely affects the value of his strata lot. Mr. Verigin submits that the strata has ignored the problem as it does not want to spend the money to fix it and his requests are “falling on deaf ears”. Mr. Verigin did not provide evidence to support his claim that the sloping floors impact the value of his strata lot.

29.   The strata denies that it ignored the problem and says that it has investigated the issue and its engineers have advised that there is no need for repairs to the CP. The strata says it is not bound to repair CP if it is not deemed to be in need of repair. The strata says it offered to do some repairs to the owners’ strata lot in 2014, but he declined to permit them. The strata submits that the deficiencies are related to the original construction of the building, the exterior wall is not failing, and it does not need to be repaired.

Is the area in question the strata’s responsibility to repair and maintain?

30.   Section 72(1) of the SPA says that a strata corporation must repair and maintain CP and common assets. According to section 72(3), a strata corporation may, by bylaw, take responsibility for the repair and maintenance of specified portions of a strata lot.

31.   The strata’s bylaw 8, which was filed at the Land Title Office in 2002, says that the strata must repair and maintain CP and some limited common property, including the structure and exterior of the building and doors, windows and skylights on the exterior of a building or that front on the CP. Bylaw 8 also makes the strata responsible to repair and maintain those portions of the strata lots involving the structure and exterior of the building and doors, windows and skylights on the exterior of a building or that front on the CP.

32.   I find that the exterior wall is within the scope of CP and is the strata’s responsibility to repair and maintain both under the SPA and the bylaws.

33.   The evidence before me does not contain a definitive answer about what is causing the sloping floor and ceiling issues in the strata lots. However, the consensus among the engineering reports is that the problem is related to the wood framing, the suspended concrete slab, or the building’s foundation. I find that each of these items is structural in nature and, under the bylaws, is the strata’s responsibility to repair and maintain. This is so whether the items are located inside or outside of the strata lots.

34.    Based on the evidence before me, and no matter what the source of the deficiencies, I find that the areas involved with the issues in Mr. Verigin’s strata lot are within the strata’s scope of responsibility to repair and maintain.

Has the strata failed to repair or maintain the area?

35.   The standard of care that applies to a strata corporation with respect to repairs and maintenance is reasonableness (see Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784 at paragraph 23). When faced with a range of possible solutions to solve a problem, the fact that a strata chooses a good solution instead of the best solution does not render its approach unreasonable (see Weir at paragraph 28).

36.   When a strata corporation retains a professional to perform its maintenance and repair obligations and reasonably follows that professional’s advice, the strata corporation has fulfilled its statutory duty, even if that professional was wrong (see, for example, Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74 and Joshi v. The Owners, Strata Plan NW 1833, 2019 BCCRT 39.

37.   The strata has engaged several engineering firms and received advice about the possible cause of the problem and ways to address it. To date, the strata has followed SEE’s and Dubas’ advice to monitor the situation in favour of performing costly repairs that may not solve the problem completely. I find that this approach was reasonable, even if not the best, in the circumstances.

38.   RJC’s advice appears to differ. RJC’s draft report makes recommendations beyond the scope of simply monitoring the building for any possible movement. Even though the strata had SEE and Dubas perform a number of assessments over the years, RJC has recommended additional assessments and has stated that the floor sloping in suite 306 is “of concern”. The evidence does not indicate whether RJC produced a final report or whether the strata has made any decisions about RJC’s recommendations in the approximately 4 months since the draft report was created. However, there is no indication in the available evidence that the strata has disregarded RJC’s report.

39.   I find that, to date, the strata has acted reasonably in following the engineers’ advice. While Mr. Verigin may have preferred that the strata approached the matter differently, I find that the strata has not refused to repair or maintain the structure of the building as he suggests.

Mr. Verigin’s proposed repairs

40.   Mr. Verigin asks for an order that the strata perform the repairs recommended by Tash. The strata’s position is that these repairs are not necessary.

41.   A strata corporation does not have a duty to repair or maintain CP according to the requirements of a specific owner (see Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241 at paragraph 51). Although not binding upon me, I agree with the reasoning in Swan. The key consideration is whether the proposed repairs are reasonable as contemplated in Weir.

42.   As discussed above, Tash recommended repairs to level the floors inside suite 306, including the use of levelling compound. I note that Mr. Verigin’s request for an order includes work to the exterior wall. Mr. Verigin states in his submissions that Tash planned to return to the building for more assessments then “jack up the 12 foot width section of the wall back up to level, starting from the first floor, then second and third to get everything back to level where it should be, and shore up the framing in the suites, thus not having to add any floor leveler to any of the upper suites” (reproduced as written). Although not entirely clear, I infer that this work involves the exterior wall. As this scope of work is not reflected in Tash’s report or the project management agreement, I will not consider it.

43.   As noted by the strata, Tash recommended a scope of repair work without assessing the cause of the problem. I give weight to RJC’s opinion that any repairs would be “wasted” if there are problems with the foundation that have not yet been discovered.

44.   I also find that the proposed scope of work might be unsafe from a structural perspective. Tash did not comment on the impact of the weight of the levelling compound on the building’s structural safety. By contrast, both SEE and RJC offered specific opinions that the weight of levelling compound might be too heavy for the existing structure. RJC recommended additional assessment and possible strengthening of the floor structure before a levelling compound is used. There are no other opinions before me that offer a different view of the safety of applying a levelling compound to the building’s existing structure.

45.   Given the outstanding question of the foundation’s status and the potential safety issue involved with the use of the levelling compound, I find that Mr. Verigin’s proposed repairs are not reasonable. While I will not order the strata to undertake the repair work proposed by Mr. Verigin, I reiterate that the strata has the responsibility to repair and maintain the building’s structure, which includes whatever is causing the floor and ceiling issues inside suites 106, 206 and 306. Although the strata may decide on a different course of action, nothing in my decision would prevent the strata from undertaking all or part of Tash’s recommended repairs in the future.

CRT FEES AND EXPENSES

46.   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. As Mr. Verigin was not successful, I dismiss his claim for reimbursement of CRT fees.

47.   Mr. Verigin claimed $1,050 in engineering costs, presumably for Tash. I note that Mr. Verigin chose not to submit Tash’s report or project management agreement in his evidence, and that these were submitted by the strata. There are no invoices included in the evidence. Even if Mr. Verigin had been successful, I would not have ordered the reimbursement of expenses that are not supported by documentation.

48.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Verigin.

ORDER

49.   I dismiss Mr. Verigin’s claims and this dispute.