Date Issued: October 25, 2021

File: ST-2021-000088

Type: Strata

Civil Resolution Tribunal

Indexed as: Section 1 of The Owners, Strata Plan BCS 3422 v. Mohsin,

2021 BCCRT 1127

Between:

SECTION 1 OF THE OWNERS, STRATA PLAN BCS 3422

Applicant

And:

FARHAT MOHSIN

Respondent

INTRODUCTION

1.      The respondent, Farhat Mohsin, owns strata lot 95 (unit 216) in a strata corporation called The Owners, Strata Plan BCS 3422 (strata). The applicant, Section 1 of The Owners, Strata Plan BCS 3422 (section), is a section in the strata. The strata itself is not a party to this dispute.

2.      The section says water escaped from a sink in unit 216 and damaged a strata lot below. The section seeks to recover $2,990.49 for emergency response and investigation costs from Ms. Mohsin. The section is represented by a section executive member.

3.      Ms. Mohsin says the $2,990.49 chargeback on her strata lot account is not authorized and should be removed. Ms. Mohsin is represented by a family member.

4.      For the reasons that follow, I dismiss the section’s claim.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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.

ISSUE

9.      The issue in this dispute is whether Ms. Mohsin must reimburse the section for the $2,990.49 emergency response invoice.

BACKGROUND & EVIDENCE

10.   As the applicant in this civil dispute, the section must prove its claim on a balance of probabilities, meaning more likely than not. While I have read all the evidence and submissions, I only refer to what is necessary to explain my decision.

11.   The strata was created in 2009 and includes 245 strata lots in multiple buildings. The strata’s bylaws are the standard bylaws in the Strata Property Act (SPA), subject to amendments filed with the Land Title Office.

12.   In 2011, the strata amended its bylaws to create separate sections. Section 1 is referred to as the apartment section. The section filed its own bylaws in 2012, then rescinded them and replaced them with new bylaws in 2013 (section bylaws).

13.   I turn now to the water leak incident. According to a preliminary report from Epic Restoration (Epic), it responded to an emergency call from the strata’s caretaker on April 5, 2020. Epic could not confirm the leak’s source but installed drying equipment. The technician returned on April 6 and opened affected ceilings and walls, presumably in the strata lot below, although this is unstated. Epic still could not confirm the leak’s source. Later that day, the leak became active again and Epic attended again on an emergency basis. None of this is disputed.

14.   Epic’s preliminary report stated that it then determined the cause of loss to be a faulty kitchen faucet in unit 216. Ms. Mohsin says the cause is unproven, without providing any details. I accept Epic’s professional conclusion that the leak originated in unit 216 because Epic’s report is detailed and includes several photos documenting the source of the leak. Nothing turns on this given my ultimate conclusion.

15.   Epic’s report identified and documented water damage to unit 116’s living room ceiling and walls. Elsewhere in its correspondence Epic referred to unit 115, but it seems only 1 lower unit was damaged. The section’s brief submissions do not clarify the correct unit number, but I find nothing turns on this.

16.   On April 8, 2020, Epic invoiced the strata $2,990.49. The section does not explain why it was responsible for this invoice to the strata. There is no evidence confirming whether the section or the strata paid it. Given I ultimately dismiss section’s claim, I find nothing turns on this.

17.   Based on the description of services in the April 8 invoice, I am satisfied the invoice was for the emergency response, including cutting open the lower unit’s walls and ceiling and investigating the source of the leak in unit 216.

18.   On May 25, 2020, Epic invoiced the strata $3,900.88 for repair and restoration of the lower unit. The section, properly in my view, does not seek to recover the cost of repairs for the lower unit from Ms. Mohsin. It only seeks to recover the $2,990.49 in emergency response and investigation costs.

ANALYSIS

19.   In Ward v. Strata Plan VIS #6115, 2011 BCCA 512, the Court of Appeal found that a strata corporation must have a bylaw to charge legal fees to an owner because legal fees are not “lienable” under section 116 of the SPA. Many CRT decisions have extended this principle to repair and emergency investigation costs because, like legal fees, there is nothing in the SPA that authorizes a strata corporation to charge them to an owner. Without authority from the SPA, a strata corporation must either have a bylaw authorizing it to charge repair costs to an owner, or have the owner’s agreement (see, for example, Huang v. The Owners, Strata Plan EPS1910, 2019 BCCRT 1072). I agree with this reasoning. I find it applies equally to sections within a strata corporation, given SPA section 194(2), which says that for a matter that relates solely to the section, the section is a corporation and has the same powers and duties as the strata corporation.

20.   The section’s brief submissions are consistent with the above reasoning. The section says, “as per strata bylaws, if the loss is initiated from a strata lot that affects other strata lots or common property, the originating unit is responsible for the amount upto the deductible of strata corporation’s insurance” (reproduced as written). The section does not say which bylaw makes an owner responsible for emergency response costs below the insurance deductible.

21.   Division 1, bylaw 2 of the section bylaws says an owner must repair and maintain their strata lot, except for repair and maintenance that is the responsibility of the section. This is consistent with the strata’s standard bylaw 2.

22.   Division 2, bylaw 8(1) and 8(2) relate to insurance deductibles. There is no suggestion the section or the strata made an insurance claim for this water leak, so I find those bylaws do not apply.

23.   Division 2, bylaw 8(3) says the section may recover from a responsible owner the costs to repair any physical damage to the “common property, limited common property or those portions of a strata lot which the section is required to repair”. The section does not allege that there was any damage to common property or limited common property. The evidence indicates the damage was limited to the lower strata lot, and possibly unit 216.

24.   Was the section required to repair the lower strata lot? Elsewhere in bylaw 8 (in a part confusingly also labelled bylaw 8(1)), it says the section is required to repair a strata lot, but that that duty is restricted to the structure or exterior of a building, things attached to the exterior of a building, doors and windows, and fences and railings. This is consistent with standard bylaw 8 that applies to the strata. There is no suggestion that the exterior or structure of the building, or any other listed structures were threatened by the water leak. So, I find bylaw 8(3) does not authorize the section to charge for emergency response costs.

25.   Division 2, bylaw 8(4) says a responsible owner is obligated to pay another owner the costs to repair any damage to their strata lot. There is no claim from the owner of unit 116 and no evidence the owner of unit 116 incurred any costs, so I find this bylaw does not apply.

26.   Applying the reasoning in Ward to this dispute, I find that there is no bylaw authorizing the section to charge the emergency response and investigation costs to Ms. Mohsin. This is not a case like Sorokin v. The Owners, Strata Plan NW578, 2020 BCCRT 971, where the strata corporation’s bylaws required an owner to indemnify the strata for any expense if the source of the damage was that owner’s strata lot.

27.   There is also no evidence that the section discussed the emergency repair costs with Ms. Mohsin or that she agreed to pay them. As a result, I find the section was not entitled to charge the $2,990.49 emergency response invoice to Ms. Mohsin’s strata lot account. For these reasons, I dismiss the section’s claim.

CRT FEES AND EXPENSES

28.   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. The section was unsuccessful so I dismiss its claim for reimbursement of CRT fees. Neither party claimed any dispute-related expenses.

29.   The section must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. Mohsin.

ORDERS

30.   I dismiss the section’s claims and this dispute.