Date Issued: February 3, 2023

File: ST-2020-005371

Type: Strata

Civil Resolution Tribunal

Indexed as: Yoon v. The Owners, Strata Plan VR 2001, 2023 BCCRT 100

Between:

BORI YOON

Applicant

And:

The Owners, Strata Plan VR 2001

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      The applicant, Bori Yoon, owns strata lot 17 (SL17) in the respondent strata corporation, The Owners, Strata Plan VR 2001 (strata). In September 2018, SL17 flooded after tree roots damaged a nearby common property irrigation pipe. Ms. Yoon says the strata negligently failed to address the root growth as well as mice holes in the building’s waterproofing membrane, which she says allowed the water to enter SL17. Ms. Yoon claims $12,256.91 for flooring damage, additional living expenses and other losses. She also seeks an order that the strata repair the building’s waterproofing membrane. Ms. Yoon represents herself.

2.      The strata says it paid over $5,500 in emergency restoration and repair costs in SL17 but says it is not responsible for Ms. Yoon’s upgraded floors or other expenses. The strata says it reasonably carried out its duties to repair and maintain common property. A strata council member represents the strata.

JURISDICTION AND PROCEDURE

3.      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.

4.      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.

5.      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.

6.      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.

Procedural history

7.      The CRT issued a Dispute Notice on July 20, 2020. As described above, Ms. Yoon’s first claim was for damages, and her second claim was for an order requiring the strata to make repairs. On September 18, 2020, after receiving no Dispute Response from the strata, the CRT issued a default decision against the strata, granting both Ms. Yoon’s requested remedies.

8.      On December 21, 2020, the CRT cancelled the default order in response to the strata’s cancellation request. On February 25, 2021, the parties agreed that Ms. Yoon would withdraw her second claim and the strata would have the relevant part of the building envelope inspected and repaired if the inspection recommended repairs.

9.      On June 9, 2021, the BC Supreme Court set aside the CRT’s December 21, 2020 cancellation decision and remitted it back to the CRT for a new decision (see Yoon v. British Columbia (Civil Resolution Tribunal), 2021 BCSC 1111). In a February 25, 2022 decision, the CRT again cancelled the September 18, 2020 default decision.

10.   Ms. Yoon then asked the CRT for permission to pursue her second claim (along with her first claim), saying that the strata did not comply with the parties’ agreement. In a preliminary decision, another CRT member found that Ms. Yoon was permitted to pursue her second claim. The CRT member also decided that the parties’ settlement agreement and related discussions were confidential and should not be disclosed to me unless both parties agreed, but the inspection report by BC Building Science (BCBS) was not confidential and could be submitted as evidence. I agree with the CRT member’s reasoning in that decision and I have considered both claims in this dispute along with the BCBS report.

Late evidence

11.   The strata submitted a witness statement 1 day after the deadline for evidence submission. Ms. Yoon was given an opportunity to update her submissions in response to the late evidence, so I find there is no prejudice to Ms. Yoon. Given the CRT’s mandate that includes speed and flexibility, I admit the late evidence and discuss it where relevant below.

Alleged position change

12.   In her final reply submissions, Ms. Yoon says the strata’s submissions reflect an impermissible change from the position it stated in the Dispute Response.

13.   For her first claim, which is about liability for water damage, Ms. Yoon says the strata effectively admitted it was negligent, and its disagreement was solely that whatever compensation Ms. Yoon was given should take into account the amount the strata had already paid toward repairs. For her second claim, which is about an order that the strata repair and maintain the building’s membrane, Ms. Yoon says the strata agreed the claim description was accurate, and agreed with the requested resolution of an order to repair and maintain the building envelope.

14.   I do not agree that the strata’s initial response in this dispute prevents it from disputing the claims. First, the 2 claims arise from the same cause of action, namely the strata’s alleged breach of its duty to repair and maintain the irrigation pipe and building envelope. The strata indicated in the Dispute Response that it disagreed that it was negligent, and said the water leak was an unforeseen issue it could not have predicted. I do not interpret the strata’s reference to emergency repair expenses it paid as an admission of liability for the damage.

15.   Although the strata’s indication that it agreed with the requested order to repair and maintain the building’s membrane was somewhat confusing, the strata made clear in its submissions that this was an error and it did not agree with the claim or requested resolution. Given the strata consistently tried to cancel the default decision and then opposed adding claim 2 to this dispute, I find Ms. Yoon was aware of the strata’s position long before the strata’s submissions. I find there is little prejudice to Ms. Yoon in allowing the strata to argue its position in this dispute. In contrast, the strata would be prejudiced if I refused to allow it to raise any arguments or defences against the claim it clearly opposed because of an error in the Dispute Response. So, I have considered all the strata’s submissions and evidence.

ISSUES

16.   The issues in this dispute are:

a.    Did the strata breach its repair and maintenance obligations?

b.    If so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

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

18.   The strata plan shows SL17 on the “second floor” above an underground parking area, making it a ground floor strata lot. SL17 shares a party wall with common property locker space, accessible through the lobby and main entrance. A common property exterior wall runs east-west on the south face of SL17 and the locker space. SL17 has a sliding glass patio door on that wall, leading to a limited common property patio lined with pavers. Raised common property landscaping also runs from the exterior wall to the sidewalk and is irrigated with sprinklers.

19.   The water leak happened on September 20, 2018. Barclay Restorations (Barclay) responded on an emergency basis. According to Barclay’s report, there was water damage to the electrical room, the underground parkade, and SL17’s living room. It is unclear if the “electrical room” is what is shown on the strata plan as “lockers”, but nothing turns on this.

20.   According to an invoice from University Sprinklers, an underground valve manifold was crushed by large roots growing around it. When the valve failed, the excess water ran down a slope and pooled outside SL17’s living room before entering it.

21.   The strata says the irrigation pipe responsible for the water leak has since been removed and capped. Ms. Yoon disputes this. She says the valve still exists, unmoved, and still feeds into the landscaping near SL17. The University Sprinklers invoice indicates the valve manifold was rebuilt and moved to a location further away from the roots. I find the invoice is the best evidence of what happened. I find the leaking pipe may have been capped but there is still irrigation in the area.

22.   The strata’s bylaw 11 says the strata must repair and maintain common assets and common property. The strata must also repair and maintain certain parts of limited common property and strata lots, including the structure and exterior of a building, doors and patios. It is undisputed that the building’s exterior includes its waterproofing membrane. Bylaw 2 says an owner must otherwise repair and maintain their own strata lot and limited common property.

23.   It is undisputed that the September 2018 water leak damaged SL17’s living room flooring. Ms. Yoon says it also damaged her bedroom flooring, although this is not noted in Barclay’s report or scope of repair work, which only mention damage in the “living room/kitchen.” Given my ultimate conclusion that the strata is not liable for repair costs, nothing turns on this. Ms. Yoon replaced the engineered flooring throughout SL17 as she says the existing flooring was no longer in production. The cost was $7,160.14. She claims another $793.03 for tools, trim and painting, and $967.42 for additional living expenses. I find that none of Ms. Yoon’s claimed strata lot repairs fall within the strata’s obligation to repair and maintain a strata lot under bylaw 11 as they do not involve doors or the building’s structure or exterior.

24.   The strata undisputedly paid $5,563.83 for emergency repairs and did not charge any repair costs to Ms. Yoon. The strata says it did not file an insurance claim although its deductible was $5,000. Emails show that the strata started an insurance claim, which may have covered some of Ms. Yoon’s additional living expenses and replacing her damaged floors, but the strata withdrew the claim around October 2020. Ms. Yoon does not ask for an order that the strata reopen its insurance claim, so I have not considered the insurance issue further. The dispute, as Ms. Yoon has framed it, is not about the strata’s duty to insure property, but rather the strata’s duty to repair and maintain property.

Did the strata breach its duty to repair and maintain the irrigation system and the building’s waterproofing membrane?

25.   The parties do not dispute the applicable law. A strata corporation is not an insurer. Absent a bylaw that says otherwise, which does not exist here, a strata corporation is only liable to pay for repairs to a strata lot, and other damages, where it has been negligent or breached its statutory duty to repair and maintain common property (see, for example, Kayne v. LMS 2374, 2013 BCSC 51, and Basic v. Strata Plan LMS 0304, 2011 BCCA 231). It is well established that to fulfill its obligation to repair and maintain common property, a strata corporation 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.

26.   In Slosar v. The Owners, Strata Plan KAS 2846, 2021 BCSC 1174, 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 corporation will not be liable for their negligence as long as it acted reasonably in the circumstances.

27.   Ms. Yoon says the strata was negligent in 2 ways. First, she says the strata failed to repair and maintain “the landscape’s root growth” which crushed the irrigation valve. Second, she says the strata failed to repair and maintain the building’s waterproofing membrane despite her “notices” of mice entry. She says the mice entrances coincide with the point of water ingress. I consider these allegations in turn.

Irrigation and root growth

28.   As noted, it is undisputed that the strata is required to repair and maintain the common property irrigation pipe that leaked and caused water damage in SL17. The strata says the leak was an unforeseen event that the strata could not have anticipated. For the following reasons, I agree and I find the strata acted reasonably.

29.   First, maintenance records show that University Sprinkler serviced the irrigation system at least twice annually, at start-up and shut-down. That service included annual backflow preventer testing. Ms. Yoon does not provide evidence, expert or otherwise, that reasonableness required more frequent or rigorous inspection and testing. So, I find the strata’s approach to irrigation system maintenance was reasonable.

30.   Second, it is undisputed that the irrigation system had never leaked before, so I find the strata had no reason to suspect the valve manifold was at risk of failing. Ms. Yoon alleges that the strata failed to maintain the “landscape’s root growth.” However, she did not provide evidence about how root growth can be controlled, or whether a reasonable strata would have a root maintenance system in place.

31.   Third, even assuming that University Sprinkler or another contractor negligently placed the valve manifold in a location where root growth was likely, which is not proven on the evidence before me, the strata is not responsible for its contractors’ negligence, as long as the strata acted reasonably (see Slosar). Ms. Yoon has not shown that the strata acted unreasonably in any way with respect to the irrigation system and hiring University Sprinkler to maintain it.

32.   Ms. Yoon specifically alleges that the strata negligently allowed water to flow toward the building for 7.25 hours and should have contacted the local municipality. She raises this argument for the first time in her final reply submissions so the strata did not have the opportunity to squarely address it. However, she does not explain why the local municipality should have been contacted or whether the municipality could have stopped the leak sooner. I also accept based on former council member DS’s unchallenged witness statement that upon seeing the water leak, DS promptly reported it to the strata manager’s emergency line. Emails indicate that the strata manager called University Sprinkler that morning. So, I find the strata’s actions once informed of the leak were reasonable. Although the water was not shut off until 2:15 pm, I find the strata was not responsible for University Sprinkler’s delay.

Waterproofing membrane and mice ingress

33.   As noted, it is undisputed that the strata is required to repair and maintain the building’s waterproofing membrane. The strata undisputedly carried out a renewal of its membrane in 2005 and 2006. The strata says there have been no reports of membrane deficiencies since then.

34.   At the strata’s request after the leak, BCBS prepared a March 24, 2021 report on the exterior conditions outside SL17. The report was authored by Andrew Creighton, an applied science technologist or technician. I accept their evidence as expert evidence under the CRT’s rules. BCBS reviewed the report from Barclay from the water leak event and inspected the building’s exterior to assess whether there was an imminent or obvious risk of another flood.

35.   BCBS concluded that the water built up and entered the unit below the original sliding door. BCBS found the existing patio floor, planters, building waterproofing and drainage components were reasonably designed and installed in 2005 or 2006. BCBS concluded that there was no need to modify these components because a) there were no flooding incidents in 12 years before September 2018, b) the flood was caused by an irrigation rupture rather than rain, and c) the component of the irrigation system that leaked had since been capped off. Further modifying the patio, planters, membrane and drainage components, BCBS said, would not likely change the risk of a flood.

36.   Ms. Yoon retained Busque Engineering Ltd. (BEL) to provide a similar visual inspection of the area around her patio. BEL’s report was authored by Michael Lemm, Professional Engineer. I accept their evidence as expert evidence under the CRT’s rules.

37.   BEL did not dispute any of BCBS’s findings or conclusions but said it was “possible” there was a defect in the waterproofing membrane below the original door or along the exterior wall. I find this falls short of establishing a likely defect in the waterproofing membrane. BEL acknowledged that the September 2018 flood happened because of extreme loading that happened when the sprinkler system ruptured. Even if the membrane were defective, Ms. Yoon has not explained how the strata should have been aware of a defect before the September 2018 flood.

38.   BEL said “a reasonable and prudent course of action” immediately after the leak would have been to investigate the condition of the membrane, including by conducting water testing. However, BEL did not describe any actions the strata ought to have taken before the leak. In all, I find BEL’s report does not establish that the strata unreasonably failed to prevent the flood.

39.   As to whether further investigation and testing is necessary, given the BCBS report said modifications were not necessary, I find that decision is best left to the strata council who can evaluate these recommendations, and whose role includes weighing competing priorities in the budget. The applicant has not established that CRT intervention is necessary.

40.   Ms. Yoon argues that the strata has neglected its duty to address rodent ingress, and suggests this contributed to the September 2018 water ingress. Emails show that Ms. Yoon has complained about mice entering SL17 or its walls since 2017. However, the difficulty for Ms. Yoon is that she has not provided any evidence linking rodent ingress and water ingress or damage to the waterproofing membrane. I find that whether rodents damaged the waterproofing membrane and whether such damage can and did permit water ingress is beyond common knowledge and requires expert evidence to prove. There is no such expert evidence here.

41.   I acknowledge that BEL’s report said an electrical box has a “large open hole” below it that “may allow passage of rodents into the building” and should be sealed off. It is not clear where this electrical box is located, and there is no suggestion that water penetrated the building through this electrical box.

42.   Ms. Yoon retained Westside Pest Control (WPC) to inspect the building for rodent entry points. However, WPC found no clear entry point along the foundation of SL17. This is consistent with the findings of the strata’s contractors, City Pest Control Ltd. and Orkin Canada, who inspected but did not find any potential points of mice ingress in 2020 and 2021 following the flood. On balance, I find it unproven that there were rodent entry points where the September 2018 flood occurred, and unproven that water entered through those points.

43.   In summary, I find Ms. Yoon has not established that the strata breached its duty to repair and maintain the irrigation system or the building’s waterproofing membrane. It follows that I find the strata not responsible for repairing damage to Ms. Yoon’s strata lot, and I dismiss her claim for damages. I also dismiss her claim for an order that the strata repair and maintain the building’s waterproofing near her strata lot, because I find the strata is doing this. As well, the strata’s bylaws and SPA section 72 already require the strata to do this, so such an order would serve no purpose.

CRT FEES AND EXPENSES

44.   Based on CRTA section 49 and the CRT rules, as Ms. Yoon was unsuccessful, I find she is not entitled to reimbursement of CRT fees or dispute-related expenses, including her expert reports. The strata did not pay any CRT fees or claim any expenses.

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

ORDER

46.   I dismiss Ms. Yoon’s claims and this dispute.