Date Issued: January 10, 2023

File: ST-2022-003284

Type: Strata

Civil Resolution Tribunal

Indexed as: Soti v. The Owners, Strata Plan VR 643, 2023 BCCRT 22

Between:

VILMOS SOTI

Applicant

And:

The Owners, Strata Plan VR 643

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This dispute is about sewage backups in a strata lot. The applicant, Vilmos Soti, owns strata lot 9 (SL9) in the respondent strata corporation, The Owners, Strata Plan VR 643 (strata).

2.      Mr. Soti says he has experienced sporadic sewage backups in SL9 for 20 years. He says the strata has failed to address the underlying issue with the common property drain pipe, with the result that the backups have become more frequent. Mr. Soti seeks $50,000 in “punitive fines” against the strata. I find he seeks damages for the loss of enjoyment of his strata lot resulting from the strata’s alleged breach of its duty to repair and maintain common property under the Strata Property Act (SPA) and the strata’s bylaws.

3.      The strata says it has acted reasonably in repairing and maintaining the common property drain pipe in question, including by having the drain regularly unblocked by a plumber. The strata denies that Mr. Soti has experienced $50,000 in damage. The strata also says that Mr. Soti caused or contributed to some of the issues with the pipe and that some aspects of his claim are barred by the Limitation Act. The strata asks that I dismiss Mr. Soti’s claim.

4.      Mr. Soti represents himself. A strata council member represents the strata.

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. Based on the evidence and submissions provided, I am satisfied that I can fairly decide this dispute without an oral hearing.

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 the parties and witnesses questions of 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 the strata negligently failed to repair and maintain the common property drain pipe, and if so, what remedy is appropriate?

BACKGROUND AND EVIDENCE

10.   As the applicant in this civil proceeding, Mr. Soti must prove his claims on a balance of probabilities, meaning more likely than not. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

11.   The strata was created in 1979 and includes 22 townhouse-style strata lots in 4 buildings. Mr. Soti’s SL9 is in a building of 4 side-by-side strata lots of 3 levels each, including a basement. The wastewater pipes of those 4 strata lots drain into a main drain pipe running beneath them (pipe). The strata does not dispute that the pipe is common property, or that the strata has a duty to maintain and repair the pipe under SPA section 72 and the strata’s bylaws.

12.   Mr. Soti purchased SL9 in November 2000. It is undisputed that the first sewer backup happened in September 2001. According to the 2003 annual general meeting minutes, that backup damaged strata lots 8, 9 and 10, causing the strata to make an insurance claim.

13.   The parties agree that there was another backup in 2004, but they did not provide details. Between 2004 and 2008 it is not clear how many, if any, backups occurred.

14.   On August 12, 2008, the strata hired a plumber, Keith Plumbing & Heating Co. Ltd. (KPH), to perform a camera inspection of the pipe to, in the strata’s words, identify the source of the sewage backup. Based on this, I find that at least one backup occurred between 2004 and 2008 because otherwise the strata would have had no reason hire a plumber to inspect the pipe in 2008. KPH’s invoice noted a "reverse grade” in the pipe “causing debris to build up from 50 to 60 feet from [SL9].” KPH noted that the area could not be excavated and repaired because it was under another strata lot. KPH recommended flushing annually or more frequently if backups recurred. It is not clear if annual flushing happened before May 2009 when, according a KPH invoice, a flood in SL9 occurred and KPH cleared a blockage in the pipe. Another KPH invoice indicates another SL9 backup happened in November 2009.

15.   The strata’s records confirm that KPH flushed the pipe at least annually and sometimes 2 or 3 times per year between 2010 and 2015. KPH performed a camera inspection in June 2013 and found that after clearing a blockage, grease buildup remained in the “backgrade area” of the pipe.

16.   Despite the semi-regular flushing, at some point in 2015 there was another backup into SL9. The parties say this backup happened in January although the KPH invoices suggest it happened in June. I find nothing turns on this detail. Mr. Soti describes the 2015 backup as devastating. I accept his unchallenged evidence that the raw human waste and toilet paper was 5cm thick on his basement floor and took days to clean up.

17.   In June 2015, Mr. Soti presented to strata council to discuss the problem and possible solutions. According to the June 9, 2015 council meeting minutes, council decided to increase the frequency of KPH’s pipe flushing to 4 times a year, and to “review the entire situation” with its plumber as soon as possible. There is no evidence that this review happened.

18.   Around that time, Mr. Soti explained to the strata council that he had developed a system to keep water moving through the pipe and prevent clogs. This system involved running a garden hose in a sink for hours each day, and a monthly high-volume flush from various buckets and containers. According to the October 26, 2015 council meeting minutes, the council decided that notwithstanding the Soti family’s “admirable efforts,” KPH should continue to service the pipe.

19.   Mr. Soti does not challenge the strata’s submission that KPH, or its successor company, Modern Niagara Building Services (MNBS), flushed the pipe 3-4 times annually from 2017 to present, so I accept that this happened. Mr. Soti says there was a “relative lull” in backups until they returned in 2020.

20.   Mr. Soti says the backups returned in March 2020, and the strata did not specifically dispute this, so I accept it. MNBS continued to attend SL9 upon request to unclog the pipe. The strata did not submit invoices for this period but its ledger for MNBS shows that backups occurred in SL9 in December 2020, May 2021, November 2021, and February 2022. There are other clogs or backups mentioned on the ledger where the affected strata lot is not indicated. From Mr. Soti’s evidence, he was also able to clear some of the clogs by himself without the need for a plumber. The strata acknowledges Mr. Soti experienced “several” backups in this period. I therefore accept Mr. Soti’s evidence that SL9 experienced 8-10 backups from March 2020 to May 2022 when he started this CRT dispute.

21.   In November 2020, MNBS performed a more thorough inspection of the pipe. According to a statement from strata council president KS, MNBS reported standing water in 3 different locations indicating the pipe was sagging, and said that sections of the pipe would likely need to be replaced to prevent backups.

22.   On December 17, 2020, the strata council met and noted they were waiting for MNBS to provide a report on the potential replacement of the sewage pipe. MNBS never provided that report.

23.   KS said that in May 2021, the strata asked MNBS to provide options for repairing the pipe. This is not recorded in any strata council meeting minutes before me. The June 2021 council meeting minutes say that council decided, on MNBS’s recommendation, to inspect the pipes with a camera. The September 2021 minutes document that council decided to delay that inspection for budgetary reasons. The inspection occurred in November 2021.

24.   Despite inspecting the pipe in November, MNBS again failed to provide a written report with recommendations to repair the pipe, according to KS. The December 14, 2021, council meeting minutes document that council was still waiting for MNBS’s report on the “status of the sewage pipes” and would determine how to follow up when it received the report.

25.   The strata says that in January 2022, it decided that it could no longer rely on MNBS to provide an investigation report and would instead hire an engineer. This decision is not documented in any strata council meeting minutes before me until the May 2, 2022 meeting. In June 2022, the strata contracted with Horizon Engineering Inc. (Horizon) to investigate the pipe and provide recommendations on a permanent solution to the sewage backup issues. Horizon attended in August 2022.

26.   A draft copy of Horizon’s report, dated September 26, 2022, is in evidence. The report noted that settlement had caused the pipe to back-grade in areas, compromising the pipe’s function, resulting in a significant risk of sewage backing up and flooding basements, as has occurred. Horizon provided 2 options to address the issue. One option involved replacing the pipe by cutting through the basement slab of several strata lots. The other involved designing a new sanitary collection system, possibly with a pumped sump. Horizon did not estimate of the cost of these repairs, but both options appear to involve significant costs. The report indicated that further surveying may help determine which option is economically favourable. The strata says it intends to meet to discuss these options.

ANALYSIS

Did the strata breach its duty to repair and maintain the common property pipe?

27.   The parties do not dispute the applicable law. To succeed in his claim, Mr. Soti must show that the strata failed to comply with its obligations to repair and maintain common property and that this failure caused him harm. It is well established that to fulfill its obligation to repair and maintain common property, the strata must only act reasonably. In Weir v. The Owners, Strata Plan NW 17, 2010 BCSC 784, the court noted that strata corporations must work within a budget that the owners can afford. Strata corporations are often called upon to choose between “good, better or best” solutions. If a strata corporation chooses a good solution over a perfect solution, it will not necessarily be considered unreasonable even if the repair later turns out to be ineffective.

28.   Put another way, in Slosar v. The Owners, Strata Plan KAS 2846, 2021 BCSC 1174, the court said that the reasonableness of a strata corporation’s repair decisions must be assessed based on what the strata corporation knew when it made the decision, not with the benefit of hindsight. The court also noted that strata corporations are governed by strata councils, which are made up of volunteer owners who are not expected to have expertise in building maintenance or repair. It is therefore expected that a strata council will hire experts to give advice, make recommendations, and undertake repairs. If those professionals give bad advice or perform substandard work, the strata will not be liable for their negligence as long as it acted reasonably in the circumstances.

29.   Mr. Soti argues that the strata should have effected a permanent solution sooner. He argues that it is unreasonable for a sewage backup problem to persist for 20 years. However, as noted in Slosar, each of the strata’s repair and maintenance decisions along the way must be evaluated based on the information that the strata had at the time.

30.   The evidence shows only 2 confirmed backups before 2008, approximately 4 years apart. I do not find the strata’s failure to undertake an investigation for 2 backups in 8 years amounted to negligence.

31.   When KPH recommended annual flushing in 2008, the strata had this done, and it seemed to address the backups. When a significant backup occurred in 2015, KPH recommended more frequent flushing, and the strata had this done. The increased flushing appeared to work again, for a time. While Mr. Soti argues that it was his own efforts in running the hose daily and flushing large volumes of water that kept the pipes clean, I find that this is something beyond ordinary knowledge that would require expert evidence to prove. There is no such evidence here. Regardless, it appeared the approach was working because there were few or no backups from 2015 until 2020.

32.   From 2008 to 2020, the strata relied on KPH’s advice, and it was entitled to do so. Repairing or replacing the pipe may have been a better solution, but it was undisputedly a far more expensive option, and the flushing strategy worked. At various times Mr. Soti provided the strata with contact information for plumbing companies who may do “trenchless repairs” or other solutions. However, there is no evidence about what such repairs involve or whether they can work in these particular circumstances, so I find Mr. Soti has not proven that the strata’s approach was unreasonable. Mr. Soti also offered to be responsible for inspecting and augering the pipe and other pipes in the strata complex if the strata would purchase the necessary equipment. However, the strata cannot be faulted for deciding to leave this task to professional plumbers. Mr. Soti concedes he is not a plumber. I find the strata’s decisions before 2020 were reasonable, and the strata fulfilled its duty to repair and maintain the pipe.

33.   However, after 2020, I find the strata did not act reasonably. In particular, I find the following facts show the strata’s approach to the pipe maintenance was not reasonable.

a.    MNBS advised the strata in November 2020 that sections of the pipe would need to be replaced to solve the backup problem. In other words, repeated flushing was no longer a viable approach. Despite this, the strata took no action until May 2021 when it asked MNBS for options to repair the pipe. There were at least 2 backups in the intervening period.

b.    For reasons the strata does not explain, MNBS did not provide options to repair the pipe in June 2021, and instead allegedly recommended inspecting the pipes with a camera. There are 2 issues here. First, the strata did not provide any documentation from MNBS to confirm that it made this recommendation, so I find it unproven that MNBS recommended another inspection. Second, even if MNBS recommended another inspection, I find reasonableness in the circumstances demanded more of the strata. The strata had already decided in May 2021 to repair the pipe and address the underlying issue. Further, the strata was aware that the pipe had a problematic uphill slope since at least 2008 when KPH reported this on an invoice. KPH had also previously used cameras to inspect the pipe in 2013. And the strata had acknowledged in a June 2, 2015 email to the Soti family that it was considering a permanent solution that involved digging beneath foundations. So, the strata knew what had to be done should repeated pipe flushing cease to prevent backups, as it did in 2020. It is not clear why another camera inspection was necessary, or what additional information the strata was seeking. On the evidence before me, it was not appropriate for the strata to choose to delay remedying the underlying problem on the basis of its contractor’s alleged suggestion to inspect the pipe again. If MNBS was unable to provide pipe repair recommendations, the strata should have immediately sought out the services of another contractor, as it eventually did with Horizon.

c.    When MNBS inspected the pipe in November 2021 and again failed to provide the expected pipe repair recommendations, it was not reasonable for the strata to wait until May 2022 to hire another contractor. That was a delay of 6 months from MNBS’s most recent inspection, 18 months from deciding to repair or replace the pipe, and 2 years from MNBS’s recommendation to replace the pipe. Mr. Soti continued to experience backups throughout this 2-year period.

34.   In summary, I find it was unreasonable for the strata to wait 2 years to take any concrete steps to fix the pipe given MNBS had already recommended replacing the pipe and given the increased frequency of backups. I therefore find that since November 2020, the strata has been in breach of its repair and maintenance obligations by failing to fix the pipe.

35.   The strata raised in its Dispute Response that Mr. Soti had caused or contributed to the issues he complains of through his actions, including altering plumbing fixtures in his strata lot. However, the strata did not provide any additional argument or evidence to support this allegation, so I find it unproven.

36.   The strata also alleged that some or all aspects of Mr. Soti’s claim were out of time under the Limitation Act. However, the strata did not provide any additional argument on this point, and I find it unproven. The strata’s obligation to repair and maintain common property is ongoing, and in any event I found the strata only breached its repair and maintenance obligations since November 2020, so Mr. Soti’s claim is within the 2-year limitation period.

What remedy is appropriate?

37.   Mr. Soti requests $50,000 in “punitive fines for whatever is reasonable for 20+ years of sewage backup suffering.” The CRT cannot impose fines, and I agree with the strata that this is not a case where punitive damages are appropriate. Punitive damages are an exceptional remedy to deter reprehensible conduct that offends ordinary standards of decency. The strata’s conduct did not rise to that level here.

38.   However, as noted above, I find Mr. Soti seeks damages to compensate for the loss of enjoyment of his strata lot as a result of the strata’s negligence. Mr. Soti says during a backup, water collects first in a shower base. Mr. Soti works from home and has water alarms so he has been able to respond quickly to the backups, mitigating his damages. He is sometimes able to clear the backup by using a toilet pump while his spouse asks the neighbours to stop using water. Other times, the strata’s contracted plumber attends and spends an hour or more in Mr. Soti’s home flushing the pipe. Sometimes the backups happen late in the evening or early in the morning. I accept that all of this is inconvenient to Mr. Soti. I accept that the issue “continuously gnaws” on Mr. Soti’s nerves, and that he is anxious about what awaits him when his family is away from home. There is also the serious potential health hazard of handling human waste, which I find does not need expert evidence to prove.

39.   I accept that Mr. Soti devoted a lot of time to what he considered preventative maintenance, routinely flushing large volumes of water down the pipe. However, there is no evidence that this was recommended by a professional plumber, and no expert evidence that these efforts prevented backups. So, I have not considered the time and inconvenience to Mr. Soti related to these efforts in my award of damages.

40.   I also accept that Mr. Soti has purchased pumps, hoses, vacuum tubes, valves and water alarms over the years and never asked the strata for compensation. However, he does not make any specific claim or provide receipts or invoices, so I do not award anything for those expenses.

41.   There are several CRT decisions where a strata resident received damages for the loss of enjoyment of their strata lot. For example, in Buschau v. The Owners, Strata Plan LMS 1816 et al, 2018 BCCRT 413, the owner experienced daily wastewater backups in her kitchen sink and was unable to use her dishwasher. The CRT awarded $6,000 in damages for the strata corporation’s failure to take steps toward a permanent repair of the drain problems for approximately 4 years. I find the backups Mr. Soti experienced in his shower were less frequent than the daily kitchen sink backups in Buschau, and the strata did not permit them to go on as long, which suggests a lower award of damages. However, the wastewater Mr. Soti dealt with was effluent, which is more offensive and hazardous than kitchen wastewater. On balance, I find that $3,000 is appropriate compensation for Mr. Soti’s loss of enjoyment of SL9.

42.   Mr. Soti did not explicitly request an order that the strata fix the pipe, although such a request is arguably implicit in his submissions. The strata says it would be premature for the CRT to order the strata to repair the pipe in any particular way. In the circumstances here, I agree. The Horizon report and proposes 2 ways to address the backup issue, and suggests further study may be required to determine the most appropriate course of action. The report is also in draft form and may still be subject to change. For these reasons, and because Mr. Soti did not explicitly request an order to fix the pipe, I will not order the strata to do so. However, the strata’s repair and maintenance obligations are ongoing. Nothing in this decision prevents Mr. Soti from bringing another claim seeking an order to repair or replace the pipe.

CRT FEES, EXPENSES AND INTEREST

43.   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. Mr. Soti was the successful party, so I order the strata to reimburse him $225 for CRT fees he paid. The strata did not pay CRT fees and neither party claimed any dispute-related expenses.

44.   The Court Order Interest Act (COIA) applies to the CRT. However, Mr. Soti says he does not wish to claim interest, so I do not award any.

45.   The strata must comply with SPA section 189.4, which includes not charging dispute-related expenses against Mr. Soti.

ORDERS

46.   I order the strata, within 30 days of the date of this order, to pay Mr. Soti a total of $3,225.00 broken down as $3,000.00 in damages and $225.00 in CRT fees.

47.   Mr. Soti is entitled to post-judgment interest, as applicable.

48.   Under CRTA section 57, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under CRTA section 58, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.