Date Issued: June 9, 2023
File: ST-2022-005729
Type: Strata
Civil Resolution Tribunal
Indexed as: Zoetica Wildlife Research Services Inc. v. The Owners, Strata Plan LMS2749, 2023 BCCRT 486
Between:
ZOETICA WILDLIFE RESEARCH SERVICES INC.
Applicant
And:
The Owners, Strata Plan LMS2749
Respondent
REASONS FOR DECISION |
|
Tribunal Member: |
Leah Volkers |
INTRODUCTION
1. This dispute is about a water leak. The applicant, Zoetica Wildlife Research Services Inc. (Zoetica), owns a strata lot (SL2) in the respondent strata corporation, The Owners, Strata Plan LMS2749 (strata).
2. Zoetica says water is leaking into SL2 from the roof and balconies above. Zoetica says it has repeatedly notified the strata of leaks for years, but the strata has only done some limited and ineffective repairs. Zoetica says the leaks remain and the damage worsens every winter. Zoetica asks for an order that the strata immediately fix the leaks. Although Zoetica initially attributed a $10,000 value to this requested order, in submissions Zoetica says it is not claiming any monetary remedy and only wants an order for the strata to fix the leaks.
3. The strata does not dispute there are leaks that require repair, but says this dispute is premature. In its Dispute Response, the strata said it had obtained an engineering inspection of the building and further general meetings were required to approve the repair work and raise funds to complete the repairs. The strata now says the repairs have been approved and are scheduled to begin in early June 2023.
4. Zoetica is represented by a person I infer is its principal, HB. 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.
Additional evidence and submissions
9. In submissions, the strata said it was preparing for a February 2023 special general meeting (SGM) for the owners to vote to approve a permanent repair. February 2023 had passed when this dispute came before me for adjudication. As I find the repair’s approval directly relevant to the issues in this dispute, and bearing in mind the ongoing relationship between the parties, I asked the strata to provide the SGM minutes. I also asked both parties to provide submissions about what transpired at the SGM, and what impact it has on Zoetica’s claim. I will address this evidence further below.
ISSUES
10. The issues in this dispute are:
a. Did the strata meet its duty to repair the leaks?
b. What remedies are appropriate, if any?
EVIDENCE AND ANALYSIS
11. In a civil proceeding such as this one, as the applicant Zoetica must prove its claims on a balance of probabilities (meaning more likely than not). I have reviewed all the parties’ submissions and evidence, but I only refer to what I find relevant to provide context for my decision.
12. The strata was created in 1997 and consists of 14 strata lots in one 4-floor building. SL2 is a commercial strata lot located on the first floor. Photographs of the building exterior show that a large balcony (or rooftop patio) is located directly above a corner of SL2. There are also 2 smaller balconies located 2 and 3-storeys above SL2, respectively. All the balconies on the strata plan are shown as being part of other strata lots.
13. The applicable bylaws are the Strata Property Act (SPA) Standard Bylaws and some further bylaw amendments filed in the Land Title Office. None of the amendments are relevant to this dispute.
Did the strata meet its duty to repair the leak?
14. As noted, Zoetica says the strata has failed to repair leaks originating from the roof and balconies above SL2. The strata does not dispute that it is responsible to repair and maintain the roof and balconies, and I find that it is.
15. Generally, under SPA section 72(1), a strata corporation is responsible to repair and maintain common property, which I find includes most of the strata’s building exterior, apart from the strata lot balconies. Individual strata lot owners are usually responsible for repairing and maintaining their strata lots. However, SPA section 72(3) says that a strata corporation may take responsibility for the repair and maintenance of specified portions of a strata lot in a bylaw. In this dispute, Standard Bylaw 8(d) applies. It says that a strata corporation must repair and maintain certain parts of a strata lot, including the exterior of a building and balconies, among other things. So, I find the strata is also responsible to repair and maintain the balconies under bylaw 8(d).
16. The courts have said that the standard of care for a strata corporation’s repair and maintenance obligations is reasonableness, and not perfection. This means the strata must act reasonably in meeting these obligations. See Weir v. Strata Plan NW 17, 2010 BCSC 784, John Campbell Law Corp. v. Strata Plan 1350, 2001 BCSC 1342, and Wright v. Strata Plan #205 (Owners), 1998 CanLII 5823 (BC CA).
17. The evidence shows Zoetica first advised the strata of a leak in January 2017. Zoetica complained of worsening leaks in 2020, 2021, and then again in June 2022. Zoetica provided the strata with photographs between 2017 and 2022 that show a visible crack in a concrete ceiling with some staining, as well as what appears to be water staining on portions of drop ceiling panels in the corner of one room in SL2. Other photographs show some sort of black substance applied to the concrete ceiling crack, with water visibly seeping through.
18. The strata does not dispute that there is water leaking into SL2 from the roof and balconies above. However, the strata says it has taken reasonable steps to address the leak. It says it hired a roofer and a plumbing company to investigate the reported leaks, and the pipe drains were replaced and sealed in December 2021. Prior to that, the strata says it hired a contractor to make injections into the concrete patio above SL2 to address the water ingress while the strata council reviewed further options. The strata says the recommendations from its contractors included removing and replacing the deck above SL2, which the strata says was done in July 2022.
19. Zoetica did not specifically dispute these attempted repairs. However, Zoetica says the repairs attempted were minor patch repairs and the strata only made “meagre attempts to employ window dressing, cheap or free efforts to appear to be addressing the issue without employing actions or trades that would incur costs”. I note the strata did not provide documentary evidence that shows the steps it took between 2017 and 2021 to address the leaks, including any evidence from its contractors to show any investigations it undertook, recommendations or quotes it received, or details of the attempted repair efforts.
20. In late July 2022, the strata held a hearing at Zoetica’s request. Zoetica asked the strata take concrete steps to fix the leaks and formalize its plan in writing. It is undisputed that Zoetica also informed the strata that it intended to pursue a CRT claim if the strata did not do so. On August 2, 2022, the strata wrote to Zoetica and advised that at the upcoming August 8, 2022 AGM it would propose a special levy to raise funds in order to hire an engineer to investigate the leaks and provide a report. It is undisputed that at the AGM, the strata manager told the owners that Zoetica intended to proceed with a CRT dispute. The owners unanimously passed a resolution to fund the cost of obtaining the engineering report with a special levy.
21. In early August 2022, the strata retained RDH Building Science Inc. (RDH) to investigate the leaks into SL2. It is unclear when Zoetica first became aware that the strata had formally retained RDH. Zoetica submitted its application for dispute resolution on August 15, 2022.
22. RDH attended to investigate the leaks on September 16, 2022 and provided an October 20, 2022 report. In the report, RDH identified a 3rd floor balcony and concrete block wall interface as the source of water ingress into SL2. RDH made 4 repair recommendations, including renewal of the exiting membrane and guardrails at the 3rd floor balcony above SL2 (2 storeys above), various concrete block wall repairs, and further review and detailing of the drain connections on the 2nd floor balcony above SL2.
23. Zoetica says there are 2 leak locations in SL2 and the approved repairs only address 1 of those, which is also the less consistent leak site. However, the RDH report identified both leak sites inside SL2, and did not say that 1 of the 2 leak sites in SL2 was from a different source. Zoetica did not provide other evidence that shows the second leak site is from a different source. So, I find this allegation unproven.
24. As noted above, I asked the strata provide minutes from the SGM it says it was planning to hold in February 2023 to approve the repairs. The strata provided meeting minutes from a March 7, 2023 SGM. At the SGM, the owners unanimously passed a resolution authorizing the strata to repair the 3rd floor balcony and concrete block wall as per the RDH report to stop the leak in SL2, and to fund the repairs with a $45,000 special levy. The strata says this shows the strata has approved the necessary repairs to remedy the issue according to RDH’s report. It says the repair work was set to start on June 5, 2023.
25. It is undisputed that the leaks are ongoing and has not been successfully repaired. Zoetica first reported the leaks into SL2 around 2017, and they remain unresolved. Although I accept the strata took some limited steps to investigate and repair the leaks, I find the evidence does not show the strata took reasonable steps to investigate and repair the leak in a timely manner before the commencement of this dispute in August 2022. I agree that since the commencement of this dispute, the strata has taken appropriate steps to approve further repairs. However, based on the limited evidence before me of the strata’s past efforts to investigate the leaks, I find the strata likely would not have done so if Zoetica had not filed this dispute. Given all the above, I find the strata has failed to reasonably repair the leaks. For the same reasons, I find it was not premature for Zoetica to bring this dispute.
What remedies are appropriate?
26. As noted, the only order Zoetica seeks is an order that the strata immediately repair the leaks. Although the owners approved the repairs at the SGM, given the length of time since the leaks were first reported, I find it appropriate to make an order requiring the strata to complete the recommended repairs in the RDH report within 6 months of this decision.
27. In submissions, Zoetica asked for an additional order that the strata also obtain a Building Enclosure Condition Assessment (BECA), followed by remedial actions to prevent further degradation of the building. Zoetica argues that a BECA is necessary because RDH’s report focused on SL2 only. Zoetica says much of the building was not investigated for ingress issues, and a full BECA will likely identify other areas of water ingress due to insufficient repair and maintenance of the building envelope. Zoetica did not include this requested remedy in its application for dispute resolution, so I find it is not properly before me and I have not addressed it in this dispute.
28. Further, there is no requirement in the SPA for the strata to obtain a BECA as part of its ongoing repair and maintenance obligations. In Lum v. Strata Plan VR519 (Owners of), 2001 BCSC 493 at paragraph 12, the court said it should only interfere with or override a strata’s democratic governance when absolutely necessary. I also note the SGM minutes indicate the strata plans to propose obtaining an updated deprecation report at the 2023 AGM, and a BECA would be redundant with a depreciation report. I find that ordering the strata to obtain a BECA without first providing the strata with the opportunity to consider how to approach its ongoing duty to repair and maintain would unnecessarily interfere with the strata’s democratic governance. So, even if this remedy was properly before me, I would decline to order the strata to obtain a BECA.
CRT fees and expenses
29. 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. As Zoetica was successful in this dispute, I find it is entitled to reimbursement of $225 in paid CRT fees. Neither party claimed dispute-related expenses.
30. The strata must comply with SPA section 189.4, which includes not charging dispute-related expenses against Zoetica.
ORDERS
31. Within 6 months of the date of this order, I order the strata to complete the 4 recommended repairs listed in the table on page 12 of the RDH report.
32. Within 30 days of the date of this order, I order the strata to reimburse Zoetica $225 in CRT fees.
33. Zoetica is also entitled to postjudgment interest under the Court Order Interest Act, as applicable.
34. 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.
|
Leah Volkers, Tribunal Member |