Date Issued: September 7, 2021

File: ST-2020-009764

Type: Strata

Civil Resolution Tribunal

Indexed as: Blaney v. Mayer, 2021 BCCRT 973

Between:

MICHAEL JAMES ORVAL BLANEY and CARMEN ELENA YEPES

ApplicantS

And:

MERON MAYER

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This dispute is about water damage in a strata lot. The applicants, Michael James Orval Blaney and Carmen Elena Yepes, and the respondent, Meron Mayer, own strata lots in the same strata corporation. The applicants say that their strata lot was damaged by water that came from the respondent’s strata lot and that they had to make an insurance claim to address the damage. The applicants ask for an order that the respondent reimburse them for their $5,000 insurance deducible. The respondent denies that there was a water leak from his strata lot and that he is responsible for the applicants’ claimed damages.

2.      The parties are self-represented.

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). 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.

4.      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.

5.      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.

6.      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.

7.      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.

8.      As noted above, the parties to this dispute are strata lot owners and the strata corporation is not a party. As the applicants’ claims involve the interpretation and application of the strata corporation’s bylaws, I find that this is a claim “in respect of” the Strata Property Act (SPA) as contemplated by section 121(1)(a) of the CRTA and is therefore within the CRT’s strata property jurisdiction. I do not have the jurisdiction to consider a tort claim for negligence in this dispute, and will confine my analysis to the liability for damage created under the strata corporation’s bylaws.

ISSUES

9.      The issues in this dispute are:

a.    Whether water leaked from the respondent’s strata lot, and

b.    If so, whether, under the strata corporation’s bylaws, the respondent must reimburse the applicants for their $5,000 insurance deductible.

EVIDENCE AND ANALYSIS

10.   In a civil dispute like this, the applicants bear the burden of proof on a balance of probabilities. The parties provided evidence and submissions in support of their respective positions. While I have considered all of this information, I will refer to only what I find to be relevant and necessary to provide context to my decision.

11.   The applicants and respondent own residential strata lots in the same strata corporation. The applicants’ strata lot 204 is also known as suite 1905, and the strata plan shows that it is two floors below the respondent’s strata lot 220, which is also known as suite 2105. The applicants live in their strata lot and, at the time the events that gave rise to this dispute occurred, the respondent’s strata lot was occupied by a tenant.

12.   On September 24, 2019, the applicants say they noticed some raised areas and water stains on the hardwood floors in their kitchen. They were not sure where the water had come from, and made a claim with their insurance company.

13.   The applicants say that on that same day, a restoration company hired by the strata corporation was in the building to deal with a leak from a floor above them. When the restoration company inspected their suite, its workers located water damage elsewhere in the kitchen and in other areas of the strata lot.

14.   After an investigation, the restoration company recommended repairs including the removal and replacement of the upgraded hardwood flooring that had been installed in the applicants’ strata lot. These repairs required the applicants to move out of their strata lot for about two months. With assistance from the insurance company, the applicants arranged for temporary accommodation and moved their belongings to storage. The applicants paid for the $9,506.86 cost of the temporary accommodation and received reimbursement of $4,506.86 from their insurance company. The remaining $5,000 represented their deductible. According to the evidence provided by the applicants, their insurance company spent $37,113.25 on repairs and the cost of the applicants’ temporary accommodations.

15.   A September 30, 2019 letter from the property manager advised the applicants that the leak was believed to have come from the washing machine in suite 2105 and that the strata corporation was not making a claim on its insurance policy. After a hearing with the strata council on December 2, 2020, the strata advised the applicants that the repairs to their strata lot were “an owner responsibility”.

16.   The applicants say that the strata corporation and restoration company have confirmed that the water damage in their strata lot was caused by a “spill/leak” from the respondent’s strata lot. Although they say that they had additional expenses related to the damage to their strata lot, the applicants are not seeking any damages other than reimbursement for the $5,000 insurance deductible that they paid as a result of the damage to their home.

17.   The respondent says there was nothing wrong with the washing machine in his strata lot, and that both the strata and the applicants have made assumptions about the source of the problem. According to the respondent, if water came from his washing machine, it would have been dirty enough to stain the applicant’s floors and would not have been able to travel to the applicants’ strata lot quickly enough to create visible damage by September 24. The respondent suggests that the applicants exaggerated the amount of damage to their strata lot and says that they are “taking advantage of the situation” to “gain things”.

18.   The respondent says that there have been previous flooding problems in the building due to rain and that the strata corporation is “totally responsible”. However, the respondent did not provide evidence about previous floods or bring a third-party claim against the strata corporation.

Was there a water leak from the respondent’s strata lot?

19.   An October 31, 2019 report from the restoration contractor hired by the strata corporation shows that there was water damage to suites 1904, 1905, 2005, 2104 and 2105. An undated All Perils Claims report from the applicants’ insurance adjuster states that water entered the applicants’ strata lot from above and travelled through the wall behind the fridge, causing damage to the upgraded flooring and other areas.

20.   There appears to be no dispute that water damaged the applicants’ strata lot. The source of that water is at issue, with the parties taking opposing positions about whether it came from the respondent’s strata lot.

21.   The restoration contractor’s October 31, 2019 report identifies the source of the water damage as “Washing Machine – Unit 2105”. The evidence includes the contractor’s invoice with handwritten notations indicating that the strata corporation charged back the cost of the contractor’s emergency services to the respondent’s strata lot account on the basis of a “washing machine leak”.

22.   The strata corporation’s decision appears to have been based on an interaction between its building manager and a tenant of suite 2105. According to a February 9, 2021 statement from the building manager, a tenant of suite 2105 approached him to report that the washing machine was leaking water and he could not shut it off. The manager went to suite 2105, and noted that the carpet outside the suite entrance was wet. When the tenant opened the door, the manager says he saw water on the floor outside the washing machine and in the bathroom and kitchen area. The manager and the tenant moved the washing machine, shut off the water valves, and mopped the water off the floor. The manager did not call a plumber as the water flow had stopped.

23.   The respondent questions how, if the water was mopped up, it could have travelled to the applicants’ strata lot. He provided evidence, including video footage of the machine mid-cycle, that he says shows that there was no problem with his washing machine. A September 25, 2019 report from Caspian Mechanical Ltd. stated that, at the time of inspection, there was no leakage from the connections, drain line, or the washing machine itself. An October 15, 2019 report from Fast Appliance Repair Ltd. stated that no leaks were detected on testing and there were no signs of a recent leak or overflow incident. Finally, an October 21, 2019 report from a home inspector showed no sign of an “appliance/plumbing leak” in the laundry area and no signs of moisture in the wall or floor.

24.   Although the authors of these reports documented the current washing machine function and the state of the strata lot, they did not comment on whether they could have determined that a leak occurred several weeks earlier. Further, these reports do not corroborate the respondent’s assertion that, if there had been a leak from his washing machine, it would have taken at least a week for any associated damage to develop on the applicants’ floors.

25.   The applicants had a plumber inspect their kitchen on September 26, 2019 while trying to determine the source of the water problem. According to an October 1, 2019 report from G. Rossi Plumbing, the plumber checked the dishwasher and plumbing around the kitchen sink and “all [was] dry and in good working order”. The plumber stated that he could “not find any source of leaking or a cause of damage to the floor”.

26.   I acknowledge the respondent’s submission that the building concierge told him that the water was shut off around the time of the leak to accommodate plumbing work. However, a February 24, 2021 email from the strata’s property manager confirms that there was “[n]o pipe work or exterior work done at the time of the leak or before or after”.

27.   The parties made submissions about the amount of rainfall in the area around the time of the leak. However, no matter how much it may have rained, the evidence before me does not support the conclusion that water entered the building through a defect or any repair work being done to the exterior.

28.   I acknowledge the respondent’s concern about inconsistent dates in the evidence, and confirm that documents in evidence show dates of both September 21 and 23, 2019. In its correspondence, the strata corporation identified September 21 as the date of the leak while the restoration contractor reported September 23 as the date of the claim. I find that these are references to different events and are not discrepancies or suggestive of multiple leak events.

29.   Although the respondent’s evidence shows that his washing machine was functioning at the time of assessment, I find that this does not establish that there was not a problem with the machine while it was being used by the tenant. I find the building manager’s report of his interaction with the tenant and his observation of leaking water from the washing machine inside the respondent’s strata lot to be persuasive. I find it significant that there is no statement from the tenant or other occupant of the strata lot that offers a different view of the events surrounding the reported washing machine leak.

30.   The evidence shows that there was a water leak from the respondent’s washing machine shortly before water damage was noted in surrounding strata lots. The evidence does not establish that there was another likely source of the water leak. Based on the available evidence, I find that it is more likely than not that the source of the leak was the washing machine in the respondent’s strata lot.

Is the respondent responsible for the applicants’ insurance deductible?

31.   The SPA does not address responsibility to repair damage from water leaks as between strata lot owners. However, the owners have adopted bylaws to address this issue.

32.   The relevant bylaws were filed at the Land Title Office in 2010 and amended in 2011. Bylaw 35 addresses insurance matters, both between owners and the strata corporation and between strata owners. According to bylaw 35.2(a), an owner is strictly liable to other residents for “any damage” to a strata lot as a result of specified items located in their strata lot, including washing machines. I find that this includes water leaking from a washing machine.

33.   In creating the strata corporation’s bylaws, the owners specifically chose wording that did not require an owner to be negligent in order to be responsible for damage under bylaw 35.2. Instead, they chose wording that requires strict liability, which means that no fault is required. Therefore, it does not matter whether the respondent maintained his washing machine or what caused the water to leak from it. My finding that it was the source of the water leak means that the respondent is liable for “any damage” to the applicants’ strata lot under bylaw 35.2. The key question is whether “any damage” includes the applicants’ claimed insurance deductible.

34.   Black’s Law Dictionary, 6^th edition, at page 389 defines damage as “loss, injury, or deterioration, caused by the negligence, design, or accident of one person to another, in respect of the latter’s person or property”. Damage is distinguished from damages, which are defined as “compensation in money for a loss or damage”.

35.   Bylaw 35.2 assigns liability to owners for damage to other residents’ strata lots, but is silent about damages. Further, although bylaws 35.1 and 35.4 state that an insurance deductible is an expense that an owner must reimburse to the strata corporation, bylaw 35.2 does not include wording about other residents’ insurance deductibles or expenses.

36.   Based on its wording, I find that bylaw 35.2 creates liability only for damage to the strata lot and not for other forms of damages. The water damage to the flooring and other areas of the strata lot falls within the scope of damage to a strata lot contemplated by bylaw 35.2. However, although related to the water damage, I find that the claim for reimbursement of the insurance deductible is a claim for damages, which is not contemplated by bylaw 35.2.

37.   My finding is consistent with the non-binding decision in Ruan v. The Owners, Strata Plan BCS 1964, 2019 BCCRT 128, in which a CRT Vice Chair found that a strata corporation bylaw that said owners were responsible for any damage caused by waterbeds, appliances or fixtures within their strata lots did not apply to insurance deductibles.

38.   Under bylaw 35.2, I find that the respondent is not responsible for the applicants’ insurance deductible. So, I dismiss the applicants’ claim for reimbursement. As noted above, I do not have jurisdiction in this dispute over a tort claim in negligence, and make no finding about the respondent’s possible liability in this context.

CRT FEES AND EXPENSES

39.   Under section 49 of the CRTA, and the CRT rules, the CRT generally will order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. As the applicants were not successful, I dismiss their claim for reimbursement of CRT fees. The successful respondent did not pay any CRT fees or claim any dispute-related expenses, so I make no order in favour of the respondent.

 

ORDER

40.   I dismiss the applicants’ claims and this dispute.