Date Issued: September 20, 2021

File: ST-2020-009859

Type: Strata

Civil Resolution Tribunal

Indexed as: Shih v. The Owners, Strata Plan LMS 3987, 2021 BCCRT 1015

Between:

RICK SHIH   

Applicant

And:

The Owners, Strata Plan LMS 3987

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell, Vice Chair

INTRODUCTION

1.      This dispute is about water damage in a strata corporation.

2.      The applicant, Rick Shih, owns strata lot 25 (SL25) in the respondent strata corporation, The Owners, Strata Plan LMS 3987 (strata).

3.      The applicant says the strata failed to flush the strata building’s main plumbing stack, which caused 3 separate waste water backup incidents through SL25’s kitchen sink. The applicant requests reimbursement of $6,533.98 in plumbing expenses and flooring repair costs, and an order that the strata hire a plumber to flush the plumbing stack on a regular basis.

4.      The strata denies the applicant’s claims. It says it is not responsible to pay any of the applicant’s plumbing or flooring replacement costs because it was not negligent, it had the plumbing stack flushed in August 2019 and February 2021, and the applicant has not proven SL25’s flooring was damaged by sink overflows.

5.      The applicant is self-represented in this dispute. The strata is represented by a strata council member.

6.      For the reasons set out below, I deny the applicant’s claims and dismiss this dispute.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

New Remedies

11.   The applicant’s initial submission to the CRT requests the following additional remedies that were not specifically included in the dispute application:

•         The strata must replace the back flow preventer assemblies as recommended in the 2014 depreciation report.

•         The strata must install a back flow guard in each second floor strata lot.

•         The strata must thoroughly investigate the origin of the “back up issues”.

•         The strata must perform annual hydro flushes of the horizonal sewer lines.

12.   The hydro flush issue was raised in the dispute application, so I find that is properly before me to decide in this dispute. However, I find it would be unfair to the strata, and not consistent with the CRT’s mandate, to consider the 3 new claimed remedies at this stage of the dispute process. These remedies were not raised until after the parties had finished participation in the CRT’s mandatory facilitation phase, and after the strata already provided its evidence in this dispute. It was open to the applicant to request an amendment to the Dispute Notice to add these new remedies earlier, but the applicant did not do so. I therefore do not consider these additional remedies in this decision.

13.   Similarly, in a separate document provided in evidence, the applicant requested reimbursement of $1,225 in lost rent which the applicant says resulted from the first overflow incident. I decline to address this claim, as it was not set out in the Dispute Notice. I also note that I would not have allowed the claim in any event, as the applicant provided no evidence to support the amount claimed, such as a rental agreement or receipts, and no evidence from the tenant about why they left.

ISSUE

14.   The issues in this dispute are:

a.    Must the strata reimburse the applicant for carpet replacement?

b.    Must the strata reimburse the applicant for plumbing repair?

c.    Should the CRT order the strata to flush the plumbing stack on a regular basis?

BACKGROUND

15.   In a civil claim like this one, the applicant must prove their claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

16.   The strata was created in September 1999. It consists of 40 strata lots and some common property in a 4 storey-building, with 2 basement parking levels.

17.   The strata repealed and replaced its bylaws by filing new bylaws with the Land Title Office in May 2006. I find these are the strata’s bylaws, along with some subsequent amendments that are not relevant to this dispute.

REASONS AND ANALYSIS

18.   As noted above, in this dispute the applicant claims reimbursement for flooring replacement and plumbing repairs within SL25.

19.   The applicant says there were 3 separate incidents where the kitchen sink in SL25 backed up, in April 2019, May 2019, and December 7, 2020. The strata admits to the second 2 incidents, but disputes that the first incident occurred or that it damaged the SL25 flooring. I return to this later.

20.   The applicant argues that these sink overflows in SL25 occurred because of a clog or clogs in the main plumbing stack. The parties agree the plumbing stack is common property. Under Strata Property Act (SPA) section 72, the strata has a duty to repair and maintain common property. There is nothing in the SPA or this strata’s bylaws that make it responsible to repair or maintain any part of a strata lot.

21.   Numerous decisions from the BC Supreme Court have found that a strata corporation is not an insurer, and is only liable to pay for repairs to a strata lot where it has been negligent: see Kayne v. LMS 2374, 2013 BCSC 51; John Campbell Law Corporation v. Owners, Strata Plan 1350, 2001 BCSC 1342; Basic v. Strata Plan LMS 0304, 2011 BCCA 231. The only exception is where there is a bylaw making the strata responsible for strata lot repairs, which I have found does not exist here.

22.   As explained below, I find the evidence before me does not establish that the strata was negligent in repairing and maintaining its sewage pipes or plumbing stack. I therefore find the strata is not liable for the applicant’s claimed damages for carpet replacement or plumbing repairs.

23.   However, even if I had found the strata had not met its SPA section 72 duty to repair and maintain the plumbing stack, I would not order it to reimburse the applicant for carpet replacement because I find the applicant, who bears the burden of proof, has not proven that a sink overflow or other plumbing incident damaged SL25’s flooring.

Flooring Damage

24.   The strata says there is no conclusive evidence about when about the alleged April 2019 sink overflow occurred. I agree. The only evidence before me about the alleged April 2019 overflow are the applicant’s statements, and a written statement dated May 17, 2021, from the applicant’s handyman, HM.

25.   Some of the applicant’s submissions say it occurred on April 13-14, and another submission says it happened on April 15. HM’s written statement simply says the overflow was in April 2019, and does not give a date. There is no work order, invoice, or tenant’s statement confirming the incident date. There is no email or text to the strata reporting the leak. There is also no proof of when the new laminate flooring was ordered, or why. While none of this is determinative on its own, based on the lack of evidence, I find the applicant has not proven his claim that an overflow causing significant carpet damage occurred in April 2019.

26.   The applicant says HM determined at the time of the first overflow in mid-April 2019 that it was not caused by a clog in SL25’s plumbing, which means it was caused by a clog in the common property plumbing stack. However, I find that neither HM’s invoice for flooring work or his May 17, 2021 written statement say that. There is nothing in HM’s flooring repair invoice indicating the flooring was replaced due to a leak, overflow, or that HM did any water damage remediation, such as placing fans or heaters. Instead, HM noted on the invoice that he did not remove the baseboards before replacing the flooring, which while again is not determinative, does not suggest significant water damage.

27.   I place significant weight on the fact that HM’s May 17, 2021 statement does not contain any opinion about what caused the sink overflow in April 2019, and does not identify any problem with the plumbing stack. Rather, HM said that sometime in April 2019, the applicant called him about a sink backup and overflow. HM says when he arrived, the water in the sink was receding, and he determined there was no clog in the plumbing under the sink. He says he then confirmed with the applicant that he should begin removing the carpets. Thus, I find HM’s statement does not identify or confirm any issue with the plumbing stack.

28.   HM’s invoice shows that he replaced the SL25 flooring on April 25, 2019, at a cost of $6,191.68. The applicant says he informed the strata about the first overflow in the third week of April 2019, which is roughly the same time the floor replacement was completed. I find that replacing the flooring on April 25 is inconsistent with the applicant’s assertion that he and HM knew the overflow was caused by the plumbing stack, since it would be unreasonable to pay $6,191.68 to replace the flooring before finding out whether and when the strata planned to fix the plumbing stack which allegedly ruined the old carpet.

29.   The strata denies receiving any complaint or communication from the applicant or HM about an overflow in April 2019. There is no document in evidence confirming that the applicant emailed the strata about any overflow or leak until May 9, 2019. I find it more likely that this email referred to the second alleged incident on May 8, 2019, rather than any prior incident in April 2019. There are plumbers’ invoices confirming the May 8, 2019 and December 7, 2020 overflows, so I accept they occurred. However, these occurred after the flooring was already replaced.

30.   The applicant’s May 9, 2019 email to the strata says, “My tenant had a plumbing issue, which was blocking the drainage from my unit”. I find that, combined with the other evidence summarized above, the wording of this email does not support the conclusion that there were 2 separate overflow incidents before May 9, 2019.

31.   The applicant and HM say the carpet had to be replaced because it was stained and smelled. However, there is no indication in the evidence that the applicant attempted to have the carpets cleaned. Also, I find the single photo in evidence does not show any carpet damage, particularly given that the strata says, and the applicant does not dispute, that the existing carpets were 21 years old. The applicant also admits that the kitchen and hallway tiles were replaced to match the new laminate flooring installed in the main living area. I find this is not related to any overflow, so would not be reimbursable as part of a damages claim.

32.   For these reasons, I find the applicant has not met the burden of proving that the SL25 flooring was damaged due to a problem with the plumbing stack, or any common property piping. I therefore dismiss the claim for flooring replacement.

33.   I deny all of the applicants’ claimed remedies, and this dispute, because I find the evidence before me does not establish that the strata was negligent in repairing and maintaining the plumbing stack.

34.   The standard a strata corporation must meet in performing its duty to repair and maintain common property under SPA section 72 is reasonableness: see Wright v. The Owners, Strata Plan #205, 1996 CanLII 2460 (BC SC) and Weir v. Strata Plan NW 17, 2010 BCSC 784. The standard is not one of perfection. So, a strata will not be found negligent unless it has been unreasonable in its approach to repairing and maintaining common property.

35.    As stated in Weir at paragraphs 23 to 32, when performing its duty to repair and maintain common property, a strata corporation must act reasonably in the circumstances. The starting point for the analysis should be deference to the decision made by the strata council as approved by the owners. In carrying out its duty, the strata must act in the best interests of all the owners and endeavour to achieve the greatest good for the greatest number. That involves implementing necessary repairs within a budget that the owners as a whole can afford and balancing competing needs and priorities.

36.   In John Campbell, the BC Supreme Court considered a case where a common property sewer pipe became blocked by a tree root and caused sewage to flood the plaintiff’s strata lot. The court concluded the strata corporation was not liable for the damages. The judge reasoned that although the strata corporation had not routinely inspected the sewer pipes for blockage, it acted reasonably in the circumstances because the blockage could not have been anticipated. The court reasoned as follows in paragraph 18:

I conclude that if a strata corporation such as the defendant has taken all reasonable steps to inspect and maintain its common facilities, consistent with the practice of other such associations generally, they should not be held liable for damages arising as a result of any strict statutory liability nor should they be put in the position of acting as an insurer by default.

37.   In John Campbell, the court relied on the earlier decision in Wright, which says that a strata corporation’s duty to repair is limited, and the strata corporation only has a duty to make repairs that are reasonable in the circumstances.

38.   Thus, the question before me is whether the strata unreasonably failed to perform plumbing maintenance or repairs. I find it did not.

39.   An invoice in evidence shows that Kits Plumbing and Heating Ltd. (Kits) attended SL25 on May 8, 2019, to clear a blocked kitchen sink. The invoice says Kits augered the drain, found the plumbing within the cabinetry clear, and found large amounts of old grease in the pipe 8-12 feet inside the wall. Kits said it then reconnected the components, and tested the line, finding no issues or leaks.

40.   Kits charged $342.30, and the applicant claims reimbursement of this amount.

41.   Based on Kits’ invoice, I accept that Kits found and cleared a clog in the common property drain on May 9, 2019. However, I find the applicant has not proven that the strata was negligent in repairing and maintaining the drain. In making this finding, I place significant weight on 4 pieces of evidence:

•         Elafon Mechanical Ltd. (Elafon) invoice, March 4, 2019

•         Elafon invoice, March 13, 2019

•         April 22, 2021 email from Elafon service manager BB

•         Elafon invoice, December 31, 2020

42.   I do not accept any of the evidence from Elafon as expert evidence under CRT rule 8.3, as there is no information before me about the writers’ qualifications. However, As the mechanical contractor servicing the strata building, I place substantial weight on Elafon’s evidence as a record of what clogs occurred, what caused them, and whether further work was recommended.

March 4, 2019 Elafon Invoice

43.   A March 4, 2019 invoice from the mechanical contractor Elafon shows that on February 27, 2019, before any sink overflows occurred in SL25, the strata called Elafon to clear a kitchen sink blockage in another strata lot on the same floor. The invoice says that on February 28, Elafon cleared out the drain line for 40 feet, eventually removed a blockage, finding a “rubber band and lots of hair, grease and sludge”. Elafon reported that its technician then ran water continuously for 35 minutes, and found excellent drainage with no leaks. The technician wrote, “All appears good at this time”. The invoice also says that Elafon highly recommended hydro flushing and yearly maintenance, as well as a camera inspection.

44.   I find that this Elafon report establishes that the strata took reasonable steps to clear the drains at that time, and that Elafon did not recommend any urgent work in order to prevent future overflows. Also, an August 9, 2019 invoice confirms the strata hired Elafon to hydroflush all the horizontal plumbing lines on August 7, 2019. Given that the March 4, 2019 invoice did not suggest immediate action, I find that flushing the lines in August 2019 was reasonable. In making this finding, I rely in part on Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74. In Leclerc, the court considered whether the strata responded reasonably to various drainage problems. The court wrote at paragraph 61 that although the strata could have hastened its investigations somewhat, there was no evidence of deliberate foot-dragging. The court said the strata council only had to act reasonably (not perfectly) with fair regard to the interests of all concerned.

March 13, 2019 Elafon Invoice

45.   Another Elafon invoice dated March 13, 2019 shows that on March 7, 2019, Elafon attended a strata lot on the same floor as SL25 and found a blockage about 20 feet down the drain line. The invoice says Elafon flushed the line multiple times, up to 75 feet, then tested the line and found the drainage “now excellent”.

46.   I find that this invoice shows that Elafon attended the strata less than 2 months before the overflow incidents claimed by the applicant, and did not identify any ongoing problem with the plumbing, or suggest any additional work. Rather, Elafon’s technician wrote, “All appears good at this time.” I find this does not support the conclusion that the strata was negligent in repairing and maintaining the common property sewage pipes.

47.   The evidence before me does not confirm whether all of Elafon’s previous drain clearing work was for the same plumbing stack as the one used by SL25. However, I find it shows that the strata generally attended to drainage issues in a prompt and reasonable manner, based on advice from its contractor. As I discuss below, I also find the evidence provided by the applicant does not prove that the strata failed to reasonably maintain any of the plumbing stacks.

April 22, 2021 Email from BB

48.   On April 22, 2021, Elafon service manager BB emailed the strata council president. BB wrote that the horizontal sewage lines were hydroflushed in 2019 and 2021, and all drains were successfully cleaned. BB said the building had been proactively cleaning the drains every 2 years.

49.   The evidence before me does not indicate when or if the sewage lines were hydroflushed before August 2019. However, I find there is no evidence before me confirming that hydroflushing would necessarily have prevented the sink overflows in SL25. In making this finding, I place some weight on BB’s email, which says that drain cleaning can never be guaranteed, as a line could be fully cleaned and then someone “in the riser” throws down large amounts of vegetables, coffee grounds, eggs shells, or grease in the garburator, or flushes wipes in the toilet, some of which could combine and cause a new blockage. BB said the strata was performing preventative maintenance of its sewer system, and that living in a multi-family dwelling can be challenging because blockages can happen at any time, and “are only preventable by what residents put down the sinks and toilets”.

50.   Thus, even if the sewer lines had been hydroflushed before August 2019, there is no evidence that this would have prevented backups in April or May 2019. I find this conclusion is particularly supported by Elafon’s December 31, 2020 invoice.

December 31, 2020 Invoice

51.   The invoice documents that Elafon’s technician was called to SL25 on December 9, 2020, as the occupant was experiencing a “similar issue with the plumbing related to the sink that it previously had”, as the kitchen sink backed up when the dishwasher was in use, causing a flood. The technician identified that the problem was in the plumbing stack, so augered and hydroflushed the line multiple times past 60 to 70 feet, and pulled out “baby/lysol wipes”. The technician then tested the lines and SL25 plumbing and noted, “all good”.

52.   I find Elafon’s December 31, 2020 invoice establishes that the December 2020 sink overflow incident in SL25 was due to wipes blocking the common property stack. While there is no dispute that the overflow was caused by a problem with the common property plumbing, I find this evidence does not establish that the strata was negligent. Rather, as explained in BB’s April 22, 2021 email, even sewer lines that are properly maintained and regularly hydroflushed can be quickly blocked by items such as wipes.

53.   The applicant argues that the strata building has an ongoing problem with drain clogs in the main plumbing stack. The applicant “suspects” the plumbing stack blockages are near the commercial strata lot used as a restaurant, due to a possible “catch point” in the pipes, or excessive grease put into the sink.

54.   I place no weight on the applicant’s opinion about what caused the sink overflows, as there is no indication in the evidence that the applicant has expertise in plumbing or a related trade. There is also no evidence before me establishing a drainage problem related to or near the restaurant or other commercial strata lots.

55.   The applicant provided May 18, 2021 letter from the general manager of Hillcrest Plumbing and Heating, who I will refer to as Hillcrest. Hillcrest says that in his opinion, a 4-storey building with commercial and residential units requires annual plumbing maintenance, “i.e. hydro flushing and vigilant inspection of the lines” to ensure that backups do not occur. Hillcrest says he would consider it negligent not to conduct yearly maintenance. Hillcrest wrote it was not surprising that SL25 had 3 backups from 2019 to 2021 if preventative maintenance had not been done during these years or before.

56.   Hillcrest did not provide his credentials, so I do not know if he is a certified plumber or technician, but he says that over the years he and his team have worked on hundreds of apartment buildings and come across “almost every type of plumbing situation possible”. Based on this information, which I find is uncontradicted, I accept that Hillcrest has expertise in plumbing that qualifies him to give an expert opinion in this dispute. However, I am unpersuaded by Hillcrest’s opinion in this dispute as there is no indication that he visited the strata building, viewed building schematics, or assessed maintenance records. Therefore, Hillcrest was unaware of what maintenance had been done or not done. I find his opinion about negligence is speculative, and not based on the facts. For example, it appears that Hillcrest did not know that the horizontal lines were hydroflushed in August 2019, before the December 2020 overflow incident occurred, or that the cause of the December 2020 backup in SL25 was undissolved wipes, rather than an accumulation such as grease.

57.   For these reasons, I place no weight on Hillcrest’s opinion.

58.   I also find the evidence before me does not confirm the applicant’s assertion that all or most of the plumbing issues in the strata are due to clogged common property drains. Rather, the documents show that some of the overflows are due to faulty sink strainers or other problems not related to the common property drain pipes. The applicant also says that leaks and problems with the common property water supply lines are related to the drain clogs. I find there is no evidence before me confirming that assertion, and no explanation of how leaking fresh water could block drains.

59.   The applicant says that all or most plumbing clog incidents in the strata’s records that were not charged back to a strata lot account are necessarily due to problems with the common property plumbing stack, otherwise the strata would have charged the repair costs to an owner. I do not agree. I find that speculative, and conclude there is insufficient evidence before me to make that inference.

60.   For all of these reasons, I conclude that the evidence before me does not establish that the strata was negligent in repairing or maintaining its common property drains. I also note that the strata already has a contract with Elafon for ongoing drain maintenance. So, I dismiss the applicant’s claim for damages, and the claim for an order that the strata hire a plumber to flush the plumbing stack on a regular basis.

CRT FEES AND EXPENSES

61.   Under CRTA section 49 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. I therefore deny the applicant’s claims for reimbursement of $225 in CRT fees and $91 for obtaining documents from the strata.

62.   The strata is the successful party. It paid no CRT fees and claims no dispute-related expenses. I therefore do not award them to any party.

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

ORDER

64.   I dismiss the applicant’s claims and this dispute.