Date Issued: April 28, 2022

File: ST-2021-005021

Type: Strata

Civil Resolution Tribunal

Indexed as: Willox v. The Owners, Strata Plan NW 2490, 2022 BCCRT 495

Between:

KRISTINA WILLOX

Applicant

And:

The Owners, Strata Plan NW 2490

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This strata property dispute is about who is responsible for the cost to replace pipes.

2.      The applicant, Kristina Willox, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan NW 2490 (strata). Ms. Willox says that a pipe in her wall caused a leak, and when it was being repaired, she discovered all the pipes needed to be replaced. Ms. Willox says the strata is responsible for the repair and maintenance of the pipes, so the strata should have to pay for their replacement. Ms. Willox claims $4,088 for the pipe replacement cost.

3.      The strata says that Ms. Willox is responsible for the pipes that were replaced because they do not service any other strata lots, and they are not common property. The strata also says that other owners have had to replace the pipes in their strata lots at their own expense. I infer it is the strata’s position that this dispute should be dismissed.

4.      Ms. Willox is self-represented. The strata is represented by a strata council member.

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.

9.      I note that in her submissions, Ms. Willox asks for an order that the strata “learn all the strata rules” and be audited to find out how the strata fees are being spent. These issues were not raised in the Dispute Notice, so I find they are not properly before me to decide, and I will not address them in these reasons.

10.   CRT documents incorrectly show the name of the respondent as The Owners, Strata Plan, NWS 2490. Based on section 2 of the SPA, the correct legal name of the strata is The Owners, Strata Plan NW 2490. Given the parties operated on the basis that the correct name of the strata was used in their documents and submissions, I have exercised my discretion under section 61 to direct the use of the strata’s correct legal name in these proceedings. Accordingly, I have amended the strata’s name above.

ISSUE

11.   The issue in this dispute is whether the strata must pay to replace the pipes in Ms. Willox’s strata lot walls.

EVIDENCE AND ANALYSIS

12.   As the applicant in these civil proceedings, Ms. Willox must prove her claims on a balance of probabilities, meaning “more likely than not”. I have read all the submissions and evidence provided by the parties, but I refer only to information I find is required to provide context for my decision.

13.   The strata was created in 1986 under the Condominium Act and continues to exist under the Strata Property Act (SPA). It consists of 11 townhouse style strata lots in 2 separate buildings. Ms. Willox lives in strata lot 4 (SL4), which is at the end of “Building A”, so it is adjacent only to strata lot 3 (SL3).

14.   The strata repealed its previous bylaws and filed a complete new set of bylaws at the Land Title Office on December 4, 2001. I find these are the relevant strata bylaws. While the strata later filed 2 bylaw amendments, I find the amendments are not relevant to this dispute.

15.   There is very little evidence before me about the background of Ms. Willox’s pipe problems. It is undisputed that Ms. Willox experienced a water leak in her strata lot, and that the plumber she hired to fix the leak discovered she had “Poly B” pipes, which I infer are a type of pipe that is generally no longer used and should be replaced. The strata says 8 of the other strata lot owners have already replaced their “Poly B” pipes.

16.   Ms. Willox also says her plumber found an unspecified number of nails had been nailed through the walls and were penetrating the pipes, which the strata does not dispute. The relevance of the nails in the pipes is not explained and is unclear. In any event, it is undisputed that the pipes ultimately had to be replaced.

17.   Ms. Willox says the pipes are the strata’s responsibility and that it should have to pay the cost of replacing them. In contrast, the strata argues that the pipes are not its responsibility under the bylaws and the SPA.

18.   Section 72(1) of the SPA requires the strata to repair and maintain common property. The relevant part of SPA section 1(1) defines common property to include pipes:

a.    if the pipes are located within a floor, wall, or ceiling that forms a boundary between 2 strata lots or between a strata lot and the common property, or

b.    if the pipes are wholly or partially within a strata lot and are capable of being used in connection with the enjoyment of another strata lot or the common property.

19.   Section 2(b) of the strata’s bylaws says (in part) that the strata must maintain, repair and renew all pipes that are capable of being used in connection with the enjoyment of more than one strata lot or the common property. As this bylaw does not address pipes located within strata lot walls, ceilings, or floors that form a boundary between 2 strata lots or between a strata lot and common property, it could be read to mean the strata is not responsible for such pipes. However, under section 121 of the SPA, a bylaw is unenforceable to the extent that it conflicts with the SPA. So, I find the bylaws cannot be read to exclude the strata’s responsibility for common property pipes, as defined in the SPA.

20.   Based on SPA section 72, I find for the strata to be responsible for the pipes, Ms. Willox must prove they are common property. For the following reasons, I find she has failed to do so.

21.   Ms. Willox did not explain why she believes the strata is responsible for replacing the pipes, other than because she pays strata fees. She says the replaced pipes were in the walls of her dining room and bathroom, though she did not say specifically where those walls were located within her strata lot. The photographs she provided show pipes were also replaced in her ceiling. Importantly, Ms. Willox provided no evidence that any pipes were in the wall that is the boundary between SL4 and SL3 or in an exterior wall, or that the pipes were used for common property or any strata lots other than SL4. I note that the parties were specifically told to ensure their evidence and submissions addressed the location of the pipes.

22.   The strata provided a January 23, 2022 statement from Glen Sauve, a licensed plumber who replaced all the pipes in SL3 and 2 strata lots in the strata’s other building, in 2019. He stated that all of the pipes he replaced ran through the ceilings and floors. He also specifically stated that none of the pipes he replaced were contained in common walls between 2 strata lots.

23.   Based on Mr. Sauve’s statement, I find the pipes he replaced in the strata lots he worked in were not common property, as they were not located in walls between 2 strata lots or in exterior walls. There is also no evidence that the pipes were used by more than one strata lot or in connection with common property. Given none of SL3’s pipes were located in the common wall with SL4, I find it is very unlikely that any of the pipes replaced in Ms. Willox’s strata lot were in the common wall with SL3. I also find it is unlikely the layout of the pipes in SL4 would be significantly different than in other strata lots.

24.   As noted, Ms. Willox bears the burden of proving the replaced pipes are common property. Yet, she did not provide any statement from her plumber about the location of the pipes they replaced. On balance, I find the pipes Ms. Willox replaced were all part of SL4 and were not common property. Therefore, I find Ms. Willox has not established that the strata is responsible for the pipes’ replacement cost, as claimed.

25.   I note that even if the pipes were common property, generally owners cannot unilaterally decide to repair common property and expect reimbursement. This is because such actions would prevent the strata from being able to prioritize repair and maintenance for the benefit of all owners and within a budget. See for example the following non-binding but persuasive CRT decisions: The Owners, Strata Plan NW 1017 v. Ahern et al, 2019 BCCRT 617, Ciesek v. The Owners, Strata Plan VIS 4542, 2019 BCCRT 312 at paragraphs 38 to 42 and Zhang v. The Owners, Strata Plan 375, 2019 BCCRT 1146 at paragraphs 24 to 31. On the limited evidence before me, I am not satisfied that replacing all the pipes was an “emergency”, such that Ms. Willox could not have sought the strata’s authorization for the repairs in advance.

26.   I also note that Ms. Willox did not provide any evidence in support of the claimed $4,088, such as an invoice or a receipt. So, even if Ms. Willox had proven the pipes were the strata’s responsibility, I find she did not prove her damages.

27.   For all of the above reasons, I dismiss Ms. Willox’s claims.

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. Given that Ms. Willox was unsuccessful, I find she is not entitled to reimbursement of CRT fees. The strata did not pay any fees and neither party claimed any dispute-related expenses, so I make no order.

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

ORDER

30.   I dismiss Ms. Willox’s claims and this dispute.