Date Issued: September 9, 2021

File: ST-2020-009544

Type: Strata

Civil Resolution Tribunal

Indexed as: McKillop v. The Owners, Strata Plan NW 3330, 2021 BCCRT 978

Between:

BRADLEY MCKILLOP

Applicant

And:

The Owners, Strata Plan NW 3330

Respondent

REASONS FOR DECISION
Tribunal Member:	Sarah Orr

INTRODUCTION

1.      The applicant, Bradley McKillop, co-owns strata lot 6 (SL6) in the respondent strata corporation, The Owners, Strata Plan NW 3330 (strata). Mr. McKillop says an exterior window attached to SL6 has been periodically accumulating water in the window track for many years. He says the window is common property (CP) and the strata has failed in its duty to repair and maintain it. Mr. McKillop wants the strata to repair the window.

2.      The strata agrees it is responsible for repairing and maintaining the window but says it has replaced the window twice and has acted reasonably and in good faith to resolve the problems with the window. It says it has relied on multiple window experts who have consistently confirmed that the window is functioning as designed and does not require repairs.

3.      Mr. McKillop represents himself in this dispute and the strata is represented by a 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). 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.

5.      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.

6.      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.

7.      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.

8.      In his Dispute Notice Mr. McKillop says he claims damages for the strata’s alleged failure to properly repair and maintain the window. However, Mr. McKillop does not request any amount of damages as a remedy, so I decline to address this aspect of Mr. McKillop’s claim in this decision.

ISSUES

9.      The issues in this dispute are:

a.    Is the strata required to repair and maintain Mr. McKillop’s window?

b.    If so, did the strata breach its duty to repair and maintain Mr. McKillop’s window?

EVIDENCE AND ANALYSIS

10.   In a civil claim like this one, as the applicant, Mr. McKillop must prove his claims on a balance of probabilities. This means the CRT must find it is more likely than not that his position is correct.

11.   I have reviewed all the parties’ evidence and submissions but refer only to what I find necessary to explain my decision. For the following reasons, I dismiss Mr. McKillop’s claims.

12.   The strata was created in 1990 under the Condominium Act and continues to exist under the Strata Property Act (SPA). It is a multi-building residential strata complex with 53 strata lots. In 2001 the strata repealed and replaced all previously registered bylaws with a new set of bylaws. Between 2002 and 2008 the strata made various amendments to its bylaws which I find are not relevant to this dispute. In 2009 the strata filed consolidated bylaws with the Land Title Office but did not repeal and replace the previous bylaws. The strata amended the bylaws in 2016, but I find these amendments are not relevant to this dispute. I address the relevant bylaws below.

Is the strata required to repair and maintain Mr. McKillop’s window?

13.   In his initial submissions Mr. McKillop said the window is CP and so it is the strata’s responsibility to repair and maintain it. The strata did not disagree. However, after reviewing the strata plan and bylaws, I asked the parties for additional submissions to clarify the designation of the window and whether the strata is responsible for repairing and maintaining it.

14.   In Mr. McKillop’s additional submissions, he says the 2009 bylaws designate the window as CP, and so the strata is responsible for repairing and maintaining it. In the strata’s additional submissions, it says that although the bylaws do not specify the window’s designation, since the window is on the exterior of the building it is CP, and it is the strata’s responsibility to repair and maintain. The strata says it has always been responsible for maintaining the building’s exterior, including the window, and it already paid to replace the window many years ago. It says the only reason it has not replaced the window again is because several experts have advised that the window functions properly.

15.   I find there is insufficient evidence to determine whether the window is CP or part of SL6. However, I find that regardless of its designation, the window is the strata’s responsibility to remain and maintain. Despite Mr. McKillop’s assertion, I find the bylaws do not, and cannot, designate the window as CP. Only the strata plan and the SPA can determine the designation of part of a strata property. However, it is undisputed that the window is in an exterior wall of SL6 that separates SL6 from CP. Under section 68(1) of the SPA, unless otherwise shown on the strata plan, the boundary of SL6 is midway between the surface of the structural portion of the wall that faces SL6 and the surface of the structural portion of the wall that faces the CP. The parties did not provide evidence about the window’s location within the wall, so I find I cannot determine whether it is within the boundaries of SL6. However, if the window is located outside of the SL6 boundary I find it is CP, and the strata is required to repair and maintain it under section 72(1) of the SPA. Alternatively, if the window is located within the SL6 boundary, I find the strata is required to repair and maintain it under section 72(3) of the SPA as explained below.

16.   Bylaw 2.1 requires an owner to repair and maintain their strata lot, except for repair and maintenance that is the strata’s responsibility under the bylaws. Section 72(3) of the SPA allows a strata to take responsibility for the repair and maintenance of specified portions of a strata lot by bylaw. I find the strata’s bylaws are silent about the strata taking on this responsibility. Bylaw 8 is entitled “Repair and Maintenance of property by Strata Corporation” but I find nothing in it requires the strata to repair and maintain any portion of a strata lot. However, Standard Bylaw 8(d)(iv) under the SPA does require the strata to repair and maintain exterior windows that are part of a strata lot. Section 17.11(3)(a) of the Strata Property Regulation says the Standard Bylaws are deemed to be the bylaws for all strata corporations created under the Condominium Act except to the extent that conflicting bylaws are filed with the LTO. The strata never repealed and replaced the Standard Bylaws. Since the strata’s bylaw 8 is silent about the strata repairing and maintaining portions of strata lots, I find it does not directly conflict with Standard Bylaw 8(d)(iv). So, I find Standard Bylaw 8(d)(iv) also applies, and I find the strata is responsible for repairing and maintaining windows on the exterior of strata lots, including the window at issue in this dispute.

Did the strata breach its duty to repair and maintain Mr. McKillop’s window?

17.   Mr. McKillop says that since the spring of 2015 the strata has failed to properly repair a persistent problem with water accumulation in the window’s track. The strata says it has responded in good faith to Mr. McKillop’s complaints about the window, but multiple experts have determined that the window functions properly.

18.   As explained above, I find section 72 of the SPA and Standard Bylaw 8(d)(iv) requires the strata to repair and maintain the window. It is well-established that the standard a strata corporation must meet in performing this duty is reasonableness. This means the strata is not an insurer, and it does not have to act perfectly when responding to a report of water ingress, or other potential damage. A strata is entitled to decide between different options and it will not have breached its duty by choosing a more cautious or conservative approach or by choosing a “good” solution rather than the “best” solution (see Weir v. Strata Plan NW 17, 2010 BCSC 784 at paragraphs 27-28).

19.   A strata’s repair and maintenance duty also includes the duty to investigate the need for repairs. The duty to investigate is limited to what is reasonable in the circumstances which can include the likelihood of the need for repairs, the cost of further investigation, and the gravity of the harm to be avoided or mitigated by investigating and remedying any problems that are discovered (see Guenther v. Owners, Strata Plan KAS431, 2011 BCSC 119 at para. 40).

20.   For the following reasons, I find Mr. McKillop has not established that the strata acted unreasonably in its approach to repairing and maintaining the window.

21.   The parties disagree about whether Mr. McKillop complained about water ingress through the original window in SL6. However, it is undisputed that the strata’s November 2013 building envelope report prepared by Dubas Engineering Inc. determined there was a significant moisture problem on the left side of the window. The strata says that based on this report it hired a contractor to remove and repair the siding around the window, at which time the contractor determined the tar paper behind the window had not been installed properly, nor had the window been properly sealed. It is undisputed that the strata paid to replace the window in the spring or summer of 2014. It is also undisputed that the first replacement window was defective, and it was replaced in the spring of 2015 with the current window at no additional cost to the strata or Mr. McKillop.

22.   The current window has 4 weep holes as well as cut outs in the upper window track that were not in the original window. Mr. McKillop says the cut outs allow rainwater that gets into the upper window track through the sliding part of the window to drip down into the lower window track. He says water accumulates in the window tracks and does not drain out of the 4 weep holes. Since the current window was installed in 2015, Mr. McKillop has used cloths in the window tracks to soak up excess water. He says that during heavy rainfall he has repeatedly wrung out the cloths to prevent water from overflowing out of the window tracks. He says he does not feel comfortable leaving his home during the rainy season as he worries water will overflow from the window tracks and damage SL6.

23.   After the current window was installed in 2015, Mr. McKillop first complained to the strata of water accumulation in the window tracks in March and April 2015. In December 2015 the strata hired building envelope and structural consultants BC Building Science Ltd. (BCBS) to inspect the window and provide a report. While approximately 8 months had passed since Mr. McKillop’s first complaints about water accumulation in the newly replaced window, the evidence indicates that Mr. McKillop did not experience the water accumulation issue during the dry summer months. While I find the strata could have acted more quickly in response to Mr. McKillop’s complaints in the spring of 2015, since the issue does not appear to have been urgent, I find the strata’s delay in taking any action until December 2015 was reasonable.

24.   On December 23, 2015, Andrew Creighton of BCBS visually inspected Mr. McKillop’s window in his presence. At the same time, they also inspected a similarly placed window in an adjacent strata lot with the same window assembly and exposure. On March 2, 2016, BCBS sent its March 1, 2016 report to the strata (BCBS report). It stated that Andrew Creighton was a member of the Applied Science Technologists and Technicians of British Columbia, and that he was a Principal and Project Manager at BCBS. I find the BCBS report meets the requirements under CRT rule 8.3 and I accept it as expert opinion evidence.

25.   The BCBS report noted a small amount of water in the window track during the inspection and noted similar water retention in the window track in an adjacent strata lot. The report concluded that the window was, “performing acceptably” and met all industry standards and code requirements. The report stated, “We see no indication of a safety or health hazard that would warrant any further work to this window or surrounding finishes – interior or exterior.”

26.   The BCBS report said that despite the window meeting all Building Code requirements, because of its design, in certain conditions “small amounts of water leakage through the window frame may occur.” The report stated, “this water is then intended to be collected in the track where it is to be drained out at the weeps. Though aggravating to some owners this is a normal part of the window operation and meets all standards in place at the time of construction.” The report said replacing the gaskets with thicker gaskets may reduce the water accumulation, but it did not recommend taking this action.

27.   The BCBS report noted that Mr. McKillop had caulked one of the bottom weep holes to prevent water from entering from the exterior. The report stated that weep holes are intended to drain any condensation that may collect in the windows, and that blocking them could cause issues by blocking drainage, but the risk of that occurring in this case appeared “low to nil.” The report said the sealant Mr. McKillop had installed in the lower weep hole should be monitored and might need to be removed if water got trapped in the window. However, the report said if the sealant is “avoiding the aggravation of having water enter in through the weeps then its application may be warranted despite the risks – given the low and negligible nature of these risks.”

28.   On March 7, 2016, the strata forwarded the BCBS report to Mr. McKillop. On the same date Mr. McKillop responded with several concerns about the report. He said the window’s design allows water in through the weep holes but does not allow water to drain out. He asked why the BCBS report did not address the reason the water does not drain out of the weep holes. In a March 9, 2016 email to the strata Andrew Creighton said, “the amount of water observed was very minimal” at the time of the inspection. They said the window has weep holes to allow water to drain out, and the holes may sometimes have the reverse effect of allowing water to enter in. He said this was “simply part of the window design” and could not be changed without upgrading the window, and even if the window was replaced and upgraded, the same basic operation mechanism and risks would exist.

29.   Mr. McKillop continued to express his disagreement with the BCBS report in March 2016, but the strata said it relied on the report in taking no further action on the window. In his submissions, Mr. McKillop says the strata failed to follow the BCBS report recommendation to replace the gaskets with new, thicker gaskets. However, I find the report did not recommend that replacing the gaskets was required, it simply suggested it could relieve some of the “aggravation” of normal and expected water accumulation. As explained in Weir cited above, a strata is not required to choose the “best” option and is entitled to take a more cautious approach as long as it is reasonable. In the circumstances, and particularly since Mr. McKillop provided no other expert evidence from that time to counter the findings of the BCBS report, I find it was reasonable for the strata to rely on the BCBS report and take no action on the window.

30.   On November 27, 2016, Mr. McKillop notified the strata about new water accumulation in the window track. He said that within a 24-hour period he soaked up more than 5 cups of water from the window. He said he had to wring out the cloths in the top and bottom window tracks every 2 hours. The next day, Mr. McKillop told the strata that he had filled the remaining 2 open weep holes with silicon sealant and was waiting to determine if it was effective.

31.   On February 23, 2017, the property manager notified Mr. McKillop that the strata council had decided at its most recent meeting to have Andrew Creighton from BCBS return to conduct a leak investigation of the window. The property manager said Andrew Creighton would contact Mr. McKillop in the coming weeks to arrange for the investigation. There is no indication that Andrew Creighton ever contacted Mr. McKillop about the proposed investigation. Minutes from the May 18, 2017 strata council meeting state that BCBS suggested conducting a hose test on the window in dry weather as an alternative to a leak investigation in rainy weather. The hose test would involve spraying water from the outside of the window to simulate rainy conditions and would be conducted in the summer.

32.   Evidently BCBS did not conduct any tests on the window in the summer of 2017. On September 25, 2017, the strata notified Mr. McKillop by letter that BCBS had determined that the windows and all components were operating as designed and that there was no fault with the window or its operation. There is no indication that BCBS investigated the window after its December 2015 visual inspection. There is also no indication that the strata ever explained to Mr. McKillop why it did not follow through with BCBS’ suggestion to conduct a hose test on the window in the summer of 2017. In its submissions the strata says it determined that the hose test would be too expensive because it would cost the equivalent of replacing the window, though it did not provide evidence of the cost of the test.

33.   However, after Mr. McKillop’s complaint of water accumulation in late November 2016, there is no evidence he experienced the same issue again until January 2020. Mr. McKillop says that during this time, the sealed weep holes in combination with the felt installed in the sliding window temporarily resolved the water accumulation issue. It is unclear who installed the felt in the sliding window. While the evidence about the necessity or cost of the hose test is unclear, since Mr. McKillop did not experience any issue with the window for more than 3 years, I find it was reasonable for the strata to take no further action at that time. I say this because the BCBS report said some water accumulation could occur during extreme weather, and that it was simply part of the window design, which met all code requirements. I find that one incident in more than 3 years falls within the type of water accumulation contemplated by the BCBS report.

34.   In early January 2020, Mr. McKillop notified the strata that there was more water accumulation in the window track. On February 7, 2020, 2 strata council members visually inspected the window. On February 19, 2020, the strata hired Extreme Glass whose window technician inspected the window in the presence of a council member. The name and qualifications of the window technician are not in evidence. Mr. McKillop says Extreme Glass only conducted a visual inspection of the window, and the strata does not dispute this. On February 20, 2020, the strata received a $714 quote from Extreme Glass to remove all glass, clean off all old foam sealant and replace it with butyl tape, add more drain holes, and caulk as needed. The quote states, “to make the owner happy,” and the strata says Extreme Glass was merely offering a “peace-keeping solution.” On February 21, 2020, Extreme Glass clarified that there was nothing wrong with the window’s function but “improvements can be made to try and calm down the situation.” I find the strata reasonably responded to Mr. McKillop’s January 2020 complaints by hiring a glass technician to inspect the window within 6 weeks of receiving the complaint.

35.   On March 27, 2020, the strata sent Mr. McKillop a letter setting out the actions it had taken on the window since 2014. The letter stated that the Extreme Glass window technician who inspected the window in February 2020 determined it was functioning correctly but recommended some improvements. The strata attached a revised quote from Extreme Glass dated March 20, 2020 which suggested adding more drain holes and caulking as needed for $357. The strata said it would pay for these improvements if Mr. McKillop agreed to sign a letter acknowledging that the strata would take no further action on the window. The strata said it could not justify spending more money on the window without some assurance that it would resolve the issue. The strata did not explain in the letter or in its submissions the difference between the February 20, 2020 Extreme Glass quote for $714 and the revised March 20, 2020 quote for $357.

36.   On July 27, 2020, Mr. McKillop responded to the strata’s March 27, 2020 letter citing an opinion from the executive director of the Condominium Home Owners Association of BC that it was not reasonable for a strata to make an owner responsible for the strata’s maintenance and repair duties.

37.   On October 15, 2020, the strata told Mr. McKillop in an email that there were 3 options with respect to the window. The first option was to do nothing, as the strata felt it had made reasonable efforts to repair the window and no further action was required. The second option was for the strata to pay for the minor upgrades in the March 20, 2020 Extreme Glass quote in exchange for Mr. McKillop taking responsibility for any future window issues. The third option was to wait for the strata’s building envelope report the following year, and if any issues were identified with the window the strata would address them then.

38.   I agree with Mr. McKillop that if the strata had paid for window improvements in exchange for having Mr. McKillop take over its responsibility for repairing and maintaining the window, this would have been a breach of the strata’s repair and maintenance duties under section 72 of the SPA. However, Mr. McKillop did not accept the strata’s offer. Instead, Mr. McKillop requested a council hearing, which was held on November 25, 2020. On November 30, 2020, the strata provided Mr. McKillop with its response and notified him by letter that it would request that his window be inspected during its building envelope assessment by an engineer, which was planned for 2021.

39.   In the circumstances, I find it was reasonable for the strata to rely on the conclusion of Extreme Glass in February 2020 that there was nothing wrong with the window’s function and to take no action at that time. This is because Extreme Glass’ finding is consistent with that of the BCBS report. The BCBS report contemplated water accumulation in the window tracks, especially during extreme weather, and said this was part of the window’s design and normal function. After Mr. McKillop’s report of water accumulation in early January 2020, there is no evidence the issue recurred until December 2020. Again, I find this January 2020 water accumulation event is consistent with the BCBS report’s description of the window functioning as designed. The evidence shows that both Extreme Glass quotes were for optional improvements to the window, and so I find it was reasonable for the strata to take the more conservative approach of doing nothing at that time.   

40.   On December 7, 2020, Mr. McKillop notified the strata of new water accumulation in the window track. He said if he had not been at home to drain the water it would have overflowed and caused water damage to his strata lot. Mr. McKillop submitted a December 8, 2020 email from “Kat” at SilverLine Exterior Solutions (SilverLine) stating that, “As per Chuck Walton Sales Rep SilverLine Exterior Solutions findings” the window was “installed improperly with no drain holes.” They said it looked as though whoever installed the window tried to drill in drain holes but cut and drilled improperly on site which allowed water inflow. They said the slider had the wrong seal reinstalled with a ½ inch hole allowing water inflow. They recommended replacing the entire window and correcting envelope issues and interior water damage, as well as possibly replacing insulation. They said there was a possible mould issue in the wall that should be investigated and repaired.

41.   I find the SilverLine email does not meet the requirements for expert evidence under CRT rule 8.3 because it does not include the author’s qualifications and training. Even if I did accept the email as expert evidence, I find it is not persuasive because there is no indication that Chuck Walton or any other SilverLine representative inspected the window in person.

42.   Mr. McKillop also submitted a quote from SilverLine which was strictly to replace the window with a vinyl frame and did not include the other repairs recommended in their December 8, 2020 email. There is no indication that Mr. McKillop sent the SilverLine email or quote to the strata before starting this CRT dispute in late December 2020, or at all.

43.   On January 1, 2021, Mr. McKillop told the strata that over the previous 3 days, 8.5 litres of rainwater had leaked through the window, which he had to drain to prevent damage to his strata lot. He said he contacted his neighbours in 4 other units, and only 1 of them reported a bit of water in their lower window well. He did not provide any direct evidence from these neighbours. Mr. McKillop submitted a log of the rainwater collected from his window between December 29, 2020 and February 21, 2021 which appears to be more than the smaller amounts accumulated over relatively short periods of time during previous rainy seasons.

44.   The evidence shows that in March 2021 the strata was coordinating with Mr. McKillop to arrange for an engineer to assess his window as part of its building envelope inspection. It is unclear from the evidence if or when that assessment occurred, or what the results were.

45.   On balance, I find Mr. McKillop has not established that the strata acted unreasonably in its approach to repairing and maintaining the window. While the strata has not acted perfectly, I find it has always responded to Mr. McKillop’s complaints about the window, and it has reasonably relied on expert reports and inspections in guiding its decisions. In response to Mr. McKillop’s most recent complaints in late 2020 and early 2021, which appear to be more significant than in previous years, the evidence shows the strata was coordinating an engineering assessment of the window in March 2021. There is no evidence Mr. McKillop provided the SilverLine email to the strata before it submitted it as evidence in this CRT dispute, so it is not clear that the strata had that information available to it when it decided to pursue the engineering assessment.

46.   Even if I had found that the strata breached its duty to repair and maintain the window, Mr. McKillop’s requested remedy is vague. He wants the strata to repair the window but he does not specify what repairs are required. On the evidence before me, it is unclear what, if any, repairs would be appropriate at this time. I also find it would be inappropriate to interfere with the strata’s most recent engineering assessment, the results of which are not before me.

47.   For all of these reasons, I dismiss Mr. McKillop’s claims.

CRT FEES AND EXPENSES

48.   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 Mr. McKillop was unsuccessful, I find he is not entitled to reimbursement of his CRT fees. The strata did not pay any CRT fees. Neither party claimed any dispute-related expenses.

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

ORDERS

50.   I dismiss Mr. McKillop’s claims and this dispute.