Date Issued: May 28, 2025

File: ST-2023-005102

Type: Strata

Civil Resolution Tribunal

Indexed as: Cummings v. The Owners, Strata Plan LMS 2211, 2025 BCCRT 702

Between:

DAVID JOHN CUMMINGS

Applicant

And:

The Owners, Strata Plan LMS 2211

Respondent

INTRODUCTION

1.      David John Cummings co-owns a strata lot in The Owners, Strata Plan LMS 2211. There was a leak in Mr. Cummings’s strata lot that damaged common property and multiple strata lots. He says the strata imposed $20,060.08 in chargebacks for the resulting repair costs. Mr. Cummings says the strata’s bylaws do not permit a chargeback in this scenario. He asks for an order that the strata remove the chargebacks from his strata lot account. He is self-represented.

2.      The strata maintains that the repair costs are Mr. Cummings’s responsibility because the leak originated in his strata lot. A 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). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

4.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I have considered the potential benefits of an oral hearing. Here, I am properly able to assess and weigh the documentary evidence and submissions before me. So, the CRT’s mandate to provide proportional and speedy dispute resolution outweighs any potential benefit of an oral hearing. I therefore decided to hear this dispute through written submissions.

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

6.      Under section 123 of the CRTA and the CRT rules, in resolving this dispute the tribunal 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

7.      The issue in this dispute is whether the chargebacks are valid.

BACKGROUND

8.      In a civil claim such as this, Mr. Cummings as the applicant must prove his claims on a balance of probabilities. This means 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.

9.      The strata consists of 238 residential strata lots in two buildings, one high-rise and one low-rise. Mr. Cummings owns strata lot 14, which is on the second floor of the high-rise tower.

EVIDENCE AND ANALYSIS

10.   The important facts are undisputed. The leak at issue occurred on December 13, 2022. A restoration contractor attended. In a December 14, 2023 report, the restoration contractor confirmed that the leak came from a toilet supply line. The moisture damaged Mr. Cummings’s strata lot, two other strata lots, and common property.

11.   The strata manager wrote to Mr. Cummings on February 27, 2023. The letter informed Mr. Cummings that the strata had charged him $18,647.83 in emergency repairs and $309.75 for an emergency plumber. The letter said the charge was “pending your response in accordance with section 135 of the Strata Property Act.” The strata’s rationale for the chargeback was that the component that failed was part of Mr. Cummings’s strata lot. The letter did not say anything about the strata’s bylaws.

12.   The strata imposed two additional chargebacks with otherwise identical letters. The first, on April 5, 2023, was for a $561.75 plumbing invoice. The second, on April 27, 2023, was for a $1,102.50 painting invoice. These four chargebacks total $20,621.83 because Mr. Cummings’s claim does not include the $561.75 plumbing invoice. I return to this discrepancy below.

13.   There were two relevant bylaws in force at the time of the leak. Bylaw 4.2 said a resident must not cause damage, other than reasonable wear and tear, to common property, common assets, or the parts of a strata lot the strata must insure under SPA section 149. Bylaw 45 required an owner to indemnify the strata for any maintenance, repair, or replacement cost rendered necessary by the owner’s act, omission, negligence or carelessness, to the extent the cost is not covered by the strata’s insurance. Bylaw 45 has since been changed but I find that has no bearing on my interpretation of the bylaws in force when the leak occurred.

14.   The CRT has consistently found that there are three ways a strata can hold an owner responsible for repairs following a leak from their strata lot. The relevant one to this dispute is that the strata may charge repair costs to an owner if authorized by a bylaw or the Strata Property Act (SPA).[1]

15.   Mr. Cummings’s primary argument is that bylaw 45 required proof of negligence, and he was not negligent. The strata does not argue that he was, and I agree there is no evidence to establish liability on that basis. So, Mr. Cummings is not liable for the chargebacks under bylaw 45.

16.   However, that does not end the matter. If an owner breaches a bylaw, SPA section 133 allows the strata to do whatever work is necessary to remedy the breach and require the breaching owner to pay the costs of that work. This can include repair costs following a leak. To validly impose liability in this way, the strata must follow the mandatory process for bylaw enforcement set out in SPA section 135. This is a separate way for a strata to impose a valid chargeback from an indemnity bylaw like the strata’s bylaw 45.

17.   As noted, bylaw 4.2 prohibits residents from causing damage to common property or parts of strata lots the strata must insure. Did Mr. Cummings “cause” the damage even though he was not negligent? I find that he did. I agree with previous CRT decisions that an owner can “cause” damage without being negligent or careless if the source of the damage was the owner’s responsibility.[2] The toilet was undisputedly Mr. Cummings’s responsibility, so I find that he caused the damage that resulted from the leak even without any wrongdoing.

18.   The next question is compliance with SPA section 135. This provision says that before the strata can require an owner to pay the costs of remedying a bylaw contravention, it must give that owner written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if requested.

19.   The strata manager’s letters from the first half of 2023 did not comply with SPA section 135. The letters did not identify the bylaw Mr. Cummings breached and did not provide him an opportunity to respond before imposing the chargeback.

20.   However, on December 5, 2023, the strata’s lawyer wrote to Mr. Cummings. The lawyer said that the strata was “suspending” the previous chargebacks in order to provide Mr. Cummings with his procedural rights under section 135. The lawyer alleged that Mr. Cummings breached several bylaws, including bylaw 4.2. The lawyer said that Mr. Cummings could respond in writing or request a strata council hearing within 14 days. The lawyer said that the council would then make a fresh decision, which could include charging the repair costs under SPA section 133.

21.   The BC Supreme Court has said that a strata corporation that initially does not comply with SPA section 135 can cure a procedural flaw by reversing fines it imposed and starting over.[3] I find the same reasoning applies to imposing costs under SPA section 133. While the term “suspending” may not have been the perfect word choice, reading the strata’s lawyer’s letter as a whole, I find that it restarted the SPA 135 process.

22.   I find that the lawyer’s letter complied with SPA section 135. It identified the bylaws Mr. Cummings allegedly breached, including bylaw 4.2, outlined the particulars of the complaint, gave Mr. Cummings a reasonable opportunity to respond, and warned him of the consequences if the strata determined he had breached the bylaws as alleged. Mr. Cummings did request a strata council hearing, which the strata held on January 14, 2024. In a January 30, 2024, the strata confirmed its previous decision. I therefore find that the chargebacks are valid.

23.   As noted, Mr. Cummings’s claim was about $20,060.08, which does not include a plumbing invoice. In reply submissions, Mr. Cummings says that the strata included that invoice in error. He says that he hired the plumber directly for some renovation work, and paid the plumber directly for it. Since Mr. Cummings’s claim does not include this invoice, I make no finding about it.

24.   The strata did not file a counterclaim for payment. So, I cannot make an order that Mr. Cummings pay the other three chargebacks that total $20,060.08. Even though I do not make an order, I find that Mr. Cummings must pay these three chargebacks. I dismiss Mr. Cummings’s claim that the chargebacks be removed from his strata lot account.

TRIBUNAL FEES AND EXPENSES

25.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Mr. Cummings was unsuccessful, so I dismiss his claim for CRT fees. The strata did not claim any dispute-related expenses or pay any CRT fees.

26.   The strata must comply with the provisions in section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Cummings.

DECISION AND ORDERS

27.   I dismiss Mr. Cummings’s claims.