Amended Decision Issued: November 23, 2023
Original Date Issued: November 20, 2023
Files: ST-2022-001534
Type: Strata

Civil Resolution Tribunal

Indexed as: Mitchell v. The Owners, Strata Plan VR284, 2023 BCCRT 1000

Between:

Amy Mitchell and Ian Brett

ApplicantS

And:

The Owners, Strata Plan VR284

Respondent

AMENDED REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.      This dispute is about leak damage in a strata lot.

2.      The applicants, Amy Mitchell and Ian Brett, own strata lot 2 (SL2) in the respondent strata corporation, The Owners, Strata Plan VR284 (strata).

3.      The applicants are self-represented in this dispute. The strata is represented by a lawyer, Alison Hopkins. There is a related dispute, ST-2022-005644. I have addressed the claims in that dispute in a separate decision, since the parties are not identical.

4.      In this dispute, the applicants say that SL2 was flooded around January 18, 2022. They say the leak was caused by a radiant heat bleeder valve that is common property, and is therefore the strata’s responsibility to repair and maintain. They say the strata failed to address the leak in a timely manner, and the delay caused additional damage to SL2 and their possessions. The applicants say the strata’s delays were partly retaliatory, due to Ms. Mitchell’s prior Human Rights Tribunal (HRT) complaint and complaint of racism against a strata council member.

5.      As remedy, the applicants claim damages totalling $210,848.93 for loss of value to SL2, damaged possessions, repair costs, alternate accommodation expenses, reimbursement of 8 months of strata fees, and reimbursement of home inspection and real estate appraisal costs.

6.      The strata initially said the leak source was part of SL2, and was not common property the strata was responsible to repair or maintain. However, as discussed in my reasons below, the strata now admits the leak source was common property. However, the strata says the applicants failed to mitigate the damage, by delaying or refusing access to parts of SL2. The strata also says the applicants are not entitled to their claimed damages, or that the damages should be limited to $4,206.73, minus the strata’s legal costs.

JURISDICTION AND PROCEDURE

7.      The CRT has jurisdiction over strata property claims under Civil Resolution Tribunal Act (CRTA) section 121. The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly.

8.      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. The parties have not requested an oral hearing. Both sides to this dispute question the truthfulness of the other. However, no party requested an oral hearing, or any cross examination. Also, in Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required even where credibility is at issue. Bearing in mind the CRT’s mandate that includes proportionality and speedy dispute resolution, I find it is appropriate to decide this dispute through documentary evidence and written submissions.

9.      The CRT may accept as evidence information that it considers relevant, necessary, and appropriate, even if the information would not be admissible in court.

Anonymization Request

10.   Ms. Mitchell requested anonymization of the published version of this decision. She argues that a professional colleague has received threats unrelated to this dispute, and could be tracked if her strata’s location is published. She also says it would not be safe for her or others if her name was published, due to her work. The strata objected to the anonymization request, citing the need for transparency and the open court principle. The strata also says the applicants have not proved any specific threat.

11.   I place significant weight on the open court principle, as discussed in Lipton v. The Owners, Strata Plan VIS 4673, 2022 BCCRT 1010. Also, there is a prior published CRT decision that includes the parties’ names. I have no authority to retroactively anonymize that decision. Given this, I find there would be no purpose achieved by anonymizing this decision, as the contested information has already been published. So, I deny Ms. Mitchell’s anonymization request.

ISSUES

12.   The issues in this dispute are:

a.    Was the strata negligent in addressing the leak?

b.    Did the strata act significantly unfairly in relation to the leak?

c.    Is the strata liable for damages, and if so, how much?

BACKGROUND

13.   In a civil claim like this one, the applicants must prove their claims on a balance of probabilities (meaning “more likely than not”). I have reviewed all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

14.   The strata was created in 1975. It consists of 17 residential strata lots in a 3-story building.

15.   The strata filed a complete set of bylaws in the Land Title Office in 2002, plus various bylaw amendments after that. The bylaw amendments are not relevant to this dispute. I discuss the relevant bylaws in my reasons below.

16.   The evidence shows that on January 18, 2022, the strata emailed the applicants about a leak in the parking garage directly below SL2. The attached photos showed water stains on the garage ceiling. The strata said the leak might be coming from SL2, and requested access for investigation.

17.   After extensive correspondence and some investigation, which I discuss in detail below, strata contractors identified and repaired the leak source in SL2 on March 17, 2022. The parties agree that the water leak damaged SL2, but they disagree about the extent of the damage, and the extent of the strata’s repair responsibilities. That is the subject of my reasons below.

REASONS AND ANALYSIS

18.   The applicants say the strata did not address the leak in a reasonable, timely way, which resulted in significant water damage to SL2. The applicants request the following damages:

•         $2,919.45 for repairs to SL2, including removal of contaminated drywall and doors,

•         $7,200.00 for replacement of door and heaters,

•         $16,600.94 for alternate accommodation costs,

•         $26,114.29 for asbestos damage to a camera, furniture, and linens,

•         $8,014.25 for reimbursement of strata fees, plus home inspection and appraisal costs, and

•         $150,000.00 for loss of value to SL2.

19.   The strata agrees that the leak occurred, and caused some damage. A report from the strata’s contractor, Circle Restoration (Circle), states that the leak source was a 90 degree coupler on the bleeder valve for a hot water baseboard heater in SL2. This is not disputed, so I accept it.

20.   As noted above, the strata now agrees that the leaking coupler was common property, and therefore the strata’s responsibility to repair and maintain. However, the strata says some of the claimed damages are unproven, or are not the strata’s responsibility. The strata also says the applicants failed to mitigate the damage by allowing contractors full access to SL2.

Strata Repair Responsibilities

21.   The strata’s duty to repair and maintain common property is set out in Strata Property Act (SPA) section 72, and strata bylaw 9. Section 72 and bylaw 9 say the strata corporation must repair and maintain all common property. There is an exception for some limited common property, which is not relevant to this dispute.

22.   Bylaw 2 says an owner must repair and maintain their strata lot, except for repair and maintenance that is the strata’s responsibility under the bylaws. Bylaw 9(d) says the strata’s responsibility to repair and maintain strata lots is restricted to building structure, building exteriors, and specific items such as chimneys, stairs, balconies, exterior doors, windows, skylights, and fences.

23.   Numerous BC Supreme Court decisions have said a strata corporation is not an insurer, and is only liable to pay for repairs to a strata lot where it has been negligent: see Kayne v. LMS 2374, 2013 BCSC 51; John Campbell Law Corporation v. Owners, Strata Plan 1350, 2001 BCSC 1342; Basic v. Strata Plan LMS 0304, 2011 BCCA 231; Wright v. The Owners, Strata Plan #205, 1996 CanLII 2460 (BC SC). This is the case even where the strata lot damage was caused by a common property failure: see Wawanesa Mutual Ins. Co. v. Keiran, 2007 BCSC 727. The only exception is where there is a bylaw making the strata responsible for strata lot repairs, which I find does not exist here except to the extent mentioned above.

24.   To prove negligence, the applicants must establish that the strata owed them a duty of care, that the strata breached the standard of care, that the owner sustained damage, and that the damage was caused by the strata’s breach: see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.

25.   In this case, the strata agrees it was obligated to repair the leaking pipe coupler in SL2, which it admits is common property.

26.   The standard of care a strata corporation must meet in performing its duty to repair and maintain common property under SPA section 72 is reasonableness: see Wright and Weir v. Strata Plan NW 17, 2010 BCSC 784 at paragraphs 23 to 32. The standard is not perfection. So, a strata corporation will not be found negligent unless it has been unreasonable in its approach to repairing and maintaining common property. This means that even if a strata corporation’s contractors fail to carry out work effectively, the strata is not responsible, and cannot be found negligent: see Wright at paragraph 30. The strata says it met this standard of care, and was not negligent.

Was the strata negligent in addressing the leak?

27.   For the following reasons, I find the evidence before me does not[i] establish that the strata was negligent in investigating and repairing the leak.

28.   First, the photos and other evidence before me shows that the leaking pipe coupler was entirely encased within an interior wall inside SL2. The strata could not have done routine inspections or maintenance on that area of piping without removing drywall inside SL2. There is no indication in the evidence before me that the strata ought to have known that the pipe coupler was at risk of failure, or likely to leak. So, I find the strata did not breach any preventative maintenance obligation.

29.   Second, I find that the evidence shows that the leak source was difficult to locate, and that the strata took reasonable steps to identify and fix the leak.

30.   The evidence shows that the leak was first visible on the ceiling of the parking garage, below SL2. The strata says the leak was first reported by council member CM on January 17, 2022. Since there is no contrary evidence, I accept this as accurate.

31.   The strata emailed the applicants the next day, on Tuesday January 18, 2022. The strata manager attached photos of the garage leak, and said that based on its position, it might be coming from SL2. The strata requested that the applicants agree to a time when the strata’s plumber could access SL2 to investigate the leak source. The strata also offered the applicants the option of having their own plumber do the inspection.

32.   Ms. Mitchell replied by email, stating that there was no sign of a leak coming from or affecting SL2. She wrote that the leak in the garage did not line up with the inside of SL2, and suggested that the leak source was above SL2. Ms. Mitchell did not agree to an immediate inspection. Rather, she replied that the strata’s plumber could inspect SL2 3 days later, on Friday January 21, 2022. Based on the email correspondence, I find that this delay was the applicants’ choice.

33.   The strata says that on January 21, 2022, the applicants did not allow the plumber to enter. The strata bases this assertion on the statement of a neighbour, RC, who says she overheard the plumber speaking to Mr. Brett. I place limited weight on RC’s statement, since it is hearsay, and since there is no statement from the plumber or plumbing company to confirm it. However, since there is no evidence that Trinity inspected SL2, such as a report or invoice, I accept that no inspection occurred. I note that the applicants did not request another inspection time, or arrange for their own plumbing inspection, as the strata offered. So, I find the strata was not responsible for this period of delay.

34.   The evidence indicates that the applicants did not contact the strata further about the leak until February 8, 2022. On that date, Ms. Mitchell emailed the strata stating that there was an active leak in the wall and under the wood floor in SL2. Ms. Mitchell requested that the strata send a plumber.

35.   The strata sent a plumber, Will Clark Plumbing, on February 9, 2022. Will Clark Plumbing’s invoice says there was leaked water in SL2’s living room. The invoice says the plumber removed some wet drywall and flooring to determine the leak source. The plumber wrote that the water seemed to be coming from the heating pipe in SL2’s bedroom, but “I was unable to gain any more access due to clutter in bedroom”. The invoice says the leak was slow and the damage was already done, and the plumber ran out of time, so the repair was scheduled for Friday (February 11, 2022).

36.   On February 10, 2022, Ms. Mitchell emailed the strata to complain about the delay in completing the repair. She said there was mold, and it was not safe to live in SL2. She wrote that this must be addressed before any more walls were opened up.

37.   The strata manager replied on February 11, 2022, stating that the repair had now been rescheduled to Tuesday February 15, 2022. The strata manager wrote that the plumber said the mold had been removed, and the area sealed, so it was safe to stay in SL2. Ms. Mitchell replied to this email, stating that the delay was unacceptable, the plumber was not a mold expert, and that there was black mold on the wall. The strata manager replied on the same day, stating that mold was a serious issue, so the strata would send another contractor, CJB Restoration (CJB), to evaluate the situation. The strata manager said that CJB had Ms. Mitchell’s phone number and would schedule an appointment that day.

38.   In her reply email, Ms. Mitchell confirmed that CJB had called on February 11. However, Ms. Mitchell said that hiring CJB was “game playing” since the strata only hired CJB to “debunk that the mold is an issue”. Ms. Mitchell wrote, “...this is now a legal issue. Strata has demonstrated that they are negligent in failing to address this properly. We will pursue legal.”

39.   The strata says the applicants did not permit CJB to access SL2. Based on the evidence before me, particularly Ms. Mitchell’s February 11, 2022 email described in the previous paragraph, I accept that the applicants did not permit CJB to access SL2.

40.   On February 16, 2022, Ms. Mitchell sent a text message to the strata manager, stating that they needed their family and property moved to temporary accommodations before anyone could disrupt the asbestos in SL2 further. The text states, “Arrange that first and then you can come in and do your test.”

41.   After that, there was some correspondence between the strata and the applicants’ home insurer (TD). In a February 22, 2022 email to TD, the strata manager said that asbestos testing results had come in that day, showing 2% asbestos in the sample from SL2. The strata manager wrote that since this met WorkSafeBC guidelines as an asbestos-containing material, the strata had contacted CJB to confirm the next steps in investigating the leak source.

42.   On February 24, 2022, the strata manager emailed Mr. Brett, stating that the strata was waiting for an estimate from CJB, and the strata expected the work to start the following week. On February 25, 2022, the strata manager emailed Mr. Brett stating that the strata had decided to hire Circle instead, due to “a variety of factors (availability, estimated cost).”

43.   The evidence shows that Ace Environmental (Ace), a Circle subcontractor, attended SL2 on February 28, 2022. According to Circle’s report, Ace took drywall samples and moisture-tested the walls to narrow down the leak location. According to Circle’s report, the applicants were present while Ace was in SL2, and refused Ace permission to access the bedroom behind the living room wall where the leak source was suspected. The Circle Report also states as follows:

 

Ace found a buried drywall corner bead in the living room wall directly beside the suspected location of the leaking pipe.

This indicated that the wall was renovated at some point in the past and may be related to the leak – but further investigation was required to confirm if it was related.

Ace told the owners that the containment wall for the demo would restrict a fire escape route in the unit and that the owners would need to leave for the afternoon to complete the work.

The owners did not want to leave the unit. As a result, the demo and abatement was not able to be completed.

44.   The Circle Report states that the applicants initially refused access to the bedroom when Circle and Ace technicians attended SL2 on March 7, 2022, but that the applicants did allow access later in the afternoon, after Ms. Mitchell returned from work. Circle’s Report states, “Circle and our subtrades refuse to take any responsibility for any damages inside the bedroom due to denial of access by the owners upon repeated requests.”

45.   Circle’s report states that Circle, Ace, and a plumbing contractor attended SL2 again on March 17, 2022, and were able to identify and repair the leaking pipe coupler.

46.   The applicants deny ever refusing strata contractors access to SL2. However, having weighed the evidence before me, I find it supports the conclusion that the applicants did refuse strata contractors access to SL2 on February 28 and March 7.

47.   In making this finding, I place significant weight on Circle’s report, and on the May 5, 2023 affidavit of Justin Bonney, Circle’s project manager. The affidavit states that Justin Bonney was present at SL2 on February 28 and March 7, 2022, and witnessed the events firsthand. I infer that Justin Bonney also wrote Circle’s report.

48.   The applicants say that Justin Bonney is not neutral in this dispute, and is colluding with the strata to present false evidence against them. I find there is no evidence before me supporting this allegation. The fact that Justin Bonney works for a company hired by the strata does not support the conclusion that Justin Bonney, or Circle, would deliberately present false evidence. Rather, I find Circle’s Report is detailed, and consistent with Justin Bonney’s subsequent affidavit.

49.   I also find that Justin Bonney is an expert witness, as contemplated by the CRT’s rules. They are a certified red seal carpenter with over 10 years experience in construction. Having reviewed their evidence, I find it is neutral and does not advocate for any party, as required under CRT rule 8.3(7).

50.   For these reasons, I am persuaded by Justin Bonney’s affidavit and Circle’s report, and place significant weight on them.

51.   The applicants provided audio and video clips of contractors working in SL2, which they say show that they did not have any conflicts with the contractors, and did not refuse any access. However, each clip is only a few minutes long, and the evidence shows that the contractors were there for long periods of time. So, I find the clips are too short to establish that that the applicants granted full access to SL2, including the bedroom.

52.   Also, the strata manager emailed Mr. Brett on March 1, 2022, stating that the leak source had not yet been identified. The strata manager further wrote as follows:

The next step, as has been the case all along, is for the strata corporation to gain access to allow the strata corporation’s contractors to open the wall to repair whatever is causing the water leak. The whole point of the exercise yesterday was to allow Circle Restoration to investigate and identify the source of the leak. I understand that access to facilitate this was not permitted and therefore, the wall was not opened up yesterday. If this is not correct please advise and please confirm when access can be provided.

53.   Based on the evidence before me, the applicants did not reply to this email. They did not set up a time for contractors to access SL2. Rather, they emailed the entire strata ownership on March 9 and March 11, 2022, to complain about the strata’s actions. In the March 9, 2022 email, the applicants wrote, “If the Strata wants to do exploratory surgery in our bedroom walls which has asbestos and mold in it, then strata need to make suitable living arrangements for our family”. I find this statement, and the fact that the applicants did not reply to the March 1, 2022 email from the strata manager, establish that the applicants refused strata contractors access to parts of SL2.

54.   As noted above, Circle and its plumbing subcontractor finally identified and repaired the leaking pipe coupler on March 17, 2022. Justin Bonney’s affidavit says the actual plumbing repair took less than an hour.

55.   As noted above, I accept Justin Bonney as an expert witness in construction, and I place significant weight on their evidence.

56.   The applicants also provided a June 20, 2022 report from Duxbury & Associates Building Inspection and Consulting Ltd. (Duxbury). The report was written by Glenn Duxbury, who is experienced in construction and property management, and is a certified home inspector. For the following reasons, I do not accept Glenn Duxbury’s report as expert evidence.

57.   CRT rule 8.3(7) says that the role of an expert witness in a CRT proceeding is to assist the tribunal and not to advocate for any side or party in a dispute. I find that Mr. Duxbury’s report is not neutral, and instead is advocacy on behalf of the applicants. I also find that most of Mr. Duxbury’s opinion is about the scope and nature of the strata’s legal responsibilities, which is outside his expertise in construction and building inspection. For example, Mr. Duxbury provided several paragraphs summarizing the repair responsibilities of strata corporations and strata lot owners. He also interpreted strata bylaws about access to strata lots.

58.   The crux of Mr. Duxbury’s opinion is about whether the strata’s response to the leak repair and investigation was reasonable, based on its statutory duties. This is clearly outside Mr. Duxbury’s expertise as a home inspector. Also, this opinion violates the “ultimate issue rule”, which is a rule of evidence stating that an expert witness must not offer an opinion on the issue before the adjudicator to decide (in this case, whether the strata’s repair response was negligent).

59.   Finally, Mr. Duxbury formed his opinions about the alleged repair delays only by interviewing the applicants and reviewing documents the applicants provided. I do not accept the version of facts summarized in Mr. Duxbury’s report, and so I place no weight on the opinions he draws from those facts.

60.   Rather, I find that the evidence before me, including Justin Bonney’s affidavit and report, establish that the strata was not negligent, and responded to the leak in a timely manner. The day after receiving the initial report of water in the parking garage, the strata offered to send a plumber to inspect SL2, or have the applicants’ plumber do so. The applicants did not act on this offer until almost 3 weeks later, when they reported seeing water in SL2 on February 8, 2022. The strata acted on that report promptly, by sending Will Clark Plumbing the following day. Will Clark Plumbing’s invoice says the plumber identified the leak source as likely coming from the bedroom, but the plumber wrote that they could not access the bedroom due to clutter. I find no reason why Will Clark Plumbing’s invoice would be inaccurate or false, so I accept this evidence. So, any delay up to that point was not the strata’s responsibility.

61.   When Will Smith Plumbing could not return to SL2 on February 11, 2022 as scheduled, I find the email correspondence shows that the strata responded promptly to Ms. Mitchell’s concern about delay and mold by hiring a different contractor, CJB. The emails show that CJB contacted Ms. Mitchell on the same day, as promised, but as noted above, I find that the applicants refused to permit CJB to access SL2, instead accusing the strata of “game playing”. Based on this email correspondence, I find the strata acted reasonably by hiring a different contractor that could attend more quickly.

62.   The evidence shows there were some delays due to the need for asbestos testing. I find these delays are not the strata’s responsibility, and were reasonable in the circumstances. In particular, I note that in her February 16, 2022 text, Ms. Mitchell refused to permit further asbestos testing until her family and belongings were moved out of SL2.

63.   After the strata received the asbestos testing results on February 22, 2022, the strata requested contractor estimates. The emails and Justin Bonney’s affidavit show that the strata hired Circle by February 25, 2022, and Circle and Ace attended SL2 on February 28, 2022. I find this was a prompt response in the circumstances.

64.   As discussed above, some further delays occurred, in large part because the applicants refused to permit the contractors to access parts of SL2. Justin Bonney’s affidavit says that if Circle and its subcontractors had been granted access to the bedroom on February 28, 2022, when they first attended SL2, the leak source would likely have been found that day or the following day, and the damage to SL2 would have been significantly less. Justin Bonney says that by March 17, 2022, it appeared that the water had made its way down the hall and reach the kitchen, causing further damage. As noted above, I am persuaded by Justin Bonney’s opinion, and place significant weight on it.

65.   For all these reasons, I conclude that the strata acted reasonably in meeting its duty to address the water leak, and was therefore not negligent.

Significant Unfairness

66.   As noted previously, the applicants say the strata did not address the leak in a reasonable and timely way, partially as retaliation for Ms. Mitchell’s prior HRT complaint and a racism complaint she made against a council member. Essentially, the applicants say the strata’s response to the leak was significantly unfair.

67.   CRTA section 123(2) says the CRT may make orders remedying a strata corporation’s significantly unfair acts or decisions. The BC Supreme Court has the same authority under section 164 of the SPA, and the same legal test applies. In Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, the BC Court of Appeal established a reasonable expectations test, restated in The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164 at paragraph 28 as follows:

a.    What is or was the expectation of the affected owner or tenant?

b.    Was that expectation objectively reasonable?

c.    If so, was that expectation violated by an action that was significantly unfair?

68.   In Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, the court confirmed that significantly unfair actions or decisions are those that are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust, or inequitable.

69.   As explained above, under SPA section 72 the strata is responsible to repair and maintain common property. So, I find the applicants had an objectively reasonable expectation that the strata would investigate and repair the leak in a timely way. However, for the reasons explained above, I find the strata did not act significantly unfairly. Rather, I find the strata’s response to the leak was reasonable in the circumstances, and met the strata’s duties under the SPA and bylaws. Given this, I find the applicants’ allegation of retaliation is unproven.

70.   The applicants argue that they were exposed to mold and water-related health hazards. However, I find they have not provided any objective evidence, such as medical reports, showing health consequences. Also, I find the applicants have not established that there were unhealthy levels of mold in SL2. They provided a February 22, 2022 Certificate of Mold Analysis, showing that mold spores were present on a sample taken from an interior wall in SL2. However, there is nothing in the report that says how much mold was present, and whether the amount or type was dangerous to health. I find the mere existence of mold does not establish significant unfairness by the strata.

71.   As explained above, I find that much of the delay was due to the applicants’ own actions, so even if the water or mold were unhealthy, the strata’s actions did not cause that outcome.

72.   Finally, the applicants argue that the strata interfered with their personal insurer, such as by sending a defamatory letter, and caused them to lose coverage. I find this is unproven. There is nothing in the evidence before me establishing that the applicants’ insurer has denied all coverage for the leak incident. Rather, it appears that TD paid for at least some temporary accommodations. Also, a February 12, 2023 email from TD’s lawyer says the applicants were “offered a monetary settlement”. For these reasons, I find that unfair actions by the strata did not cause the applicants to lose insurance coverage.

73.   In conclusion, I find the strata did not act significantly unfairly in its response to the leak.

Damages

74.   As explained above, a strata corporation is generally not responsible for repairs to the interior of a strata lot unless it has been negligent. Since I have found the strata was not negligent, I find the strata is not responsible for most of the applicants’ claimed repairs.

75.   However, previous CRT cases have found that strata corporations are responsible for the cost of repairing investigation and access holes it creates to perform common property repairs. For example, in Lorenz v. Strata Plan NW 2001, 2017 BCCRT 65, a common property shower diverter failed, and the strata’s contractor cut open the applicant’s bathroom wall to investigate and repair it. The CRT Vice Chair ordered the strata to return the owner’s bathroom to paint-ready condition. Similarly, in Thompson v. The Owners, Strata Plan LMS 2349, 2018 BCCRT 759, the strata’s contractor cut holes in the applicant’s strata lot ceiling to inspect and repair a leaking common property pipe. The CRT member found that the strata intentionally caused the ceiling damage in order to carry out its duty to repair and maintain common property. So, the member ordered the strata to repair the damage at its own expense.

76.   Based on these previous cases, which are not binding but which I find persuasive, I find the strata had a duty to return the walls it opened up to a “paint-ready condition”. I note that this does not include restoring the floors, since there is no indication in the evidence before me that the strata removed flooring for the purpose of investigating the leak.

77.   In its CRT submissions, the strata admits it is responsible to restore the opened walls to paint-ready condition. It does not appear that the strata has done so, although the evidence shows that the strata received a payment of $8,431.46 from its insurer to cover a scope of work provided by Circle on April 25, 2022. The scope primarily includes replacing insulation and vapour barrier removed from the walls, patching drywall, reinstalling cover plates, and some painting.

78.   The evidence indicates that the strata and Circle did not perform the work set out in the scope, as the applicants said the scope was too narrow, and Circle’s report says Circle was unwilling to do the work due to “difficulties in dealing with the owners”.

79.   The strata says the applicants should only receive $3,350.00 in damages, based on invoices provided in evidence. However, since the strata received full payment for the scope of work and did not perform it, I find it is reasonable to order the strata to pay the owners $8,431.46 for the cost of restoring the parts of SL2 opened for leak investigation. I do not order the strata to perform or arrange any further repairs related to the 2022 leak.

80.   The applicants are entitled to interest on this amount under the Court Order Interest Act (COIA). I find this is payable from the date the strata received the insurance payment, on April 29, 2022. This equals $428.38.

81.   The applicants provided a photo of old drywall, insulation, and other construction debris piled on an outside deck. They say the items are still there, and request $2,919.45 for their removal. The strata did not specifically respond to that claim, so I accept that the items were removed as part of the leak investigation. So, I order the strata to remove the items shown in the photo, if not already done (applicant exhibit 17). I order no reimbursement, since no estimate or receipts were provided.

Doors and Heaters

82.   The applicants request $7,200.00 for replacement of doors and heaters in SL2. Beyond restoring investigation holes to a paint-ready condition, the strata is not responsible for interior strata lot repairs unless it was negligent. So, I find the strata is not responsible to replace interior doors.

83.   As for the heaters, the applicants say the strata’s contractors threw out parts, such as covers, that the heaters are corroded, and the heat has been intermittent since the leak. The applicants provided photos of the heaters, which show some corrosion and bent fins. The applicants also provided a December 23, 2022 email from Western Ishcab Home Improvements (Ishcab), stating that Ishcab recommended replacing all of the baseboard heaters. The email said the baseboards become fragile and a leak hazard over time, and that built up scape and out of shape fins significantly reduce heat delivery. Ishcab provided an estimate of $6,300.00 to replace an unspecified number of heaters.

84.   I am not persuaded by Ishcab’s email, since it is unclear whether Ishcab actually examined the heaters in SL2. For these reasons, I find the applicants have not proven that the strata must replace the heaters in SL2. Since the heaters appear to be common property, the strata would be responsible to inspect and repair the heaters if they are not working in the future.

85.   I dismiss the applicants’ claim to replace doors and heaters.

Accommodation Costs

86.   The applicants request $16,600.94 for alternate accommodation costs. Since the strata was not negligent, and is not an insurer (see Wright), I find the strata is not responsible for accommodation costs. Also, I would not order payment for separate accommodations for the applicants’ adult sons, as claimed, since they are not parties to this dispute. I dismiss the applicants’ claim for accommodation costs.

Damaged Personal Items

87.   The applicants claim $26,114.94 for damage to a camera, furniture, and linens. I dismiss this claim because the strata was not negligent, and is therefore not responsible for the contents of SL2.

88.   Also, I find this claim is unproven. The applicants did not provide evidence showing the original value of the claimed items, and did not prove that they were destroyed or required repair.

89.   The applicants provided no specific evidence about the furniture and linens. As for the camera, the applicants provided an invoice for a new camera and accessories, totalling $21,066.07, but did not provide evidence such as an estimate or repair invoice showing that the camera was damaged. They also provided no evidence about why it could not be cleaned or repaired. Finally, I note that in a recorded phone conversation with the strata’s contractor about the repairs, where the applicants discussed the hole in the wall over the bed that they say caused the camera damage, the applicants did not mention the camera. I find it likely that if the contractor had damaged a $21,000.00 camera by getting asbestos debris on it, as the applicants allege, they likely would have mentioned it during this call.

90.   Finally, even if these items were damaged by exposure to asbestos dust, the strata is not responsible for its contractors’ negligence: see Wright at paragraph 30.

91.   For these reasons, I dismiss the applicants’ claim for reimbursement for damages furniture, linens, and a camera.

Loss of Value to SL2

92.   The applicants claim $150,000.00 for loss of value to SL2.

93.   Again, because the strata was not negligent, I find it is not responsible for any loss of value to SL2. Also, since the applicants have not sold SL2, I find that any potential loss of value has not been realized. Rather, as explained above, the applicants are responsible to repair SL2, except for repairs to investigation holes. If the applicants choose not to repair SL2 before selling it, the strata is not liable for any resulting loss in sale value.

94.   So, I dismiss the applicants’ claim for loss of value to SL2.

Strata Fees, Inspection Fee, Appraisal Fee

95.   The applicants claim $8,014.25 for reimbursement of strata fees, Mr. Duxbury’s home inspection fee, and the cost of a real estate appraisal.

96.   I find the applicants are not entitled to reimbursement of strata fees. in Stewart v. The Owners, Strata Plan KAS 2601, 2020 BCSC 809 at paragraph 106, the BC Supreme Court confirmed that payment of strata fees is mandatory for all strata owners under the SPA and cannot be waived or withheld in protest of strata actions. So, the applicants are not entitled to their claimed strata fee refund, even if the strata was negligent in fixing the leaks (which I find it was not).

97.   Mr. Duxbury charged $2,047.50 for his report. As explained above, I placed no weight on that report, since I found it was not neutral, was primarily about matters outside Mr. Duxbury’s expertise, and was based on an incomplete knowledge of the underlying facts. For these reasons, I found the report unhelpful in this dispute. Also, CRT rule 9.5 says the CRT will usually order an unsuccessful party to pay a successful party’s reasonable dispute-related expenses. I find the applicants were largely unsuccessful in this dispute, since I have only awarded a small portion of their claimed damages. So, I do not order reimbursement of Mr. Duxbury’s report.

98.   I also do not order reimbursement of the $540.75 real estate appraisal fee. As explained above, I found the applicants are not entitled to any damages for loss of value to SL2. Since that claim did not succeed, I find the appraisal fee is not a reasonable dispute-related expense.

99.   So, I dismiss the applicants’ claim for reimbursement of strata fees, home inspection fees, and appraisal fees.

CRT FEES AND EXPENSES

100.      As noted above, I find the applicants were largely unsuccessful in this dispute, so I do not order reimbursement of CRT fees. I have already addressed the applicants’ claims for dispute-related expenses.

101.      The strata requests an order that the applicants pay costs in this dispute, due to their alleged conduct. Costs are set out in the BC Supreme Court Civil Rules, which do not apply to the CRT. However, the CRT has an analogous power to order legal fees under the CRT Rules: see The Owners, Strata Plan VR 42 v. Learmonth, 2023 BCCRT 400.

102.      In Garcia v. Crestbrook Forest Industries Ltd., [1994] B.C.J. No. 2486 (BCCA), the BC Court of Appeal said that special costs should be ordered against a party when their conduct in the litigation was reprehensible, in the sense of deserving of rebuke or blame.

103.      The strata says the applicants conduct in this dispute includes presenting false evidence. While I have largely not found in the applicants’ favour in this dispute, I find their evidence is not clearly false.

104.      The strata relies on an affidavit from AM, which says that Ms. Mitchell threatened him in an attached email. However, the strata did not include the attachment, so I find this allegation unproven.

105.      The strata also says Ms. Mitchell attempted to manipulate former council member AC with threats of HRT complaints. The emails show that this alleged conduct occurred before the applicants filed this CRT dispute. So, I find it is not dispute-related conduct, and is therefore not a justification for a costs order. Similarly, the strata says Ms. Mitchell emailed CM threatening a defamation claim. Having read that email, I find it is not related to any CRT dispute.

106.      Finally, the strata cites 2 April 21, 2023 voicemails to the strata’s lawyer, in which Ms. Mitchell allegedly said the lawyer should “take the hint” that it would not be safe to use Ms. Mitchell’s name in the proceeding. The strata says this is threatening. However, in the context of Ms. Mitchell’s submissions about anonymization, it may also mean that using the name would not be safe for Ms. Mitchell. I find it unproven that this message is a threat.

107.      For these reasons, I dismiss the strata’s claim for reimbursement of legal fees.

108.      The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to the applicants.

ORDERS

109.      I order that within 30 days of this decision:

a.    The strata must pay the applicants $8,431.46 for the cost of restoring the parts of SL2 opened for leak investigation, plus $428.38 in prejudgement interest, for a total of $8,859.84.

b.    The strata must remove the items shown in applicant exhibit 17, if it has not already done so.

110.      I dismiss the parties’ remaining claims.

111.      The applicants are entitled to postjudgment interest under the COIA.

112.      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.