Strata Plan LMS, 2011 BCPC 519

Citation: Strata Plan LMS 2446 v. Morrison Date: 20110812 2011 BCPC 0519 File No: 09-26611 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: THE OWNERS STRATA PLAN LMS 2446 CLAIMANT AND: BLAIR MORRISON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H.K. DHILLON

Counsel for the Claimant: Barry Promislow Counsel for the Defendant: Jordan Kinghorn Place of Hearing: Vancouver , B.C. Dates of Hearing: February 17 & June 28, 2011 Date of Judgment: August 12, 2011 Introduction [ 1 ] This case raises the question of whether the bylaws of the Claimant Strata Corporation (“Strata”) require the Strata to show that the Defendant unit owner was negligent, as opposed to being “responsible” for the loss under s. 158 (2) of the Strata Property Act , S.B.C. 1998, c. 43 (the Act ), before the Strata can recover its insurance deductible from the strata lot owner.

If so, has the Strata established negligence on the part of the Defendant? Overview [ 2 ] On May 20, 2008 water from the Defendant Blair Morrison’s unit at 801-1238 Seymour Street in Vancouver escaped and caused damage not only to the Defendant’s unit but to adjacent units as well. [ 3 ] Blair Morrison was not at home when the water escape was noted. He was telephoned by the Strata caretaker and advised of the water leak and he gave permission to the caretaker to enter his suite to investigate. [ 4 ] Mr. Morrison arrived home within the hour and noted that restoration company trucks were already on site.

He found dehumidifiers and related equipment in his unit. He noted the floors were damp. [ 5 ] The total cost of remedial work caused by the water damage was $42,538.31. This figure did not include damage to Blair Morrison’s unit which he repaired himself. The Strata’s insurance paid for remediation costs above $25,000, with the Strata left to bear the deductible of $25,000. [ 6 ] The Strata seeks to recover this amount from Mr. Morrison.

It says that its recovery is premised on section 158(2) of the Strata Property Act which makes an owner who is responsible for loss or damage liable to indemnify the Strata Corporation for that loss. [ 7 ] Mr. Morrison resists payment on the grounds that

section 4.4 of the Strata Bylaws imposes a different and stricter standard for liability than under s. 158(2) of the Act . He contends that before he is liable to indemnify the Strata Corporation, the Strata must prove on a balance of probabilities not merely that he is “responsible” for the water escape but that he was negligent in causing the loss. [ 8 ] He submits that the escape of water alone, without the requisite standard of proof, is not sufficient to establish his negligence. Issues 1 .

Is the owner’s responsibility for the loss without proof of negligence sufficient to allow the Claimant Strata can recover its insurance deductible from the owner? 2 . If the standard is negligence, has it been proven on a balance of probabilities by the Strata?

The Act and the Bylaws Strata Property Ac t Section 158(1) of the Strata Property Act SBC 1981 c. 43 (the “ Act ”) states [underlining added]: 158(1) Subject to the regulations, the payment of an insurance deductible in respect of a claim on the strata corporation’s insurance is a common expense to be contributed to by means of strata fees calculated in accordance with

section 99(2,) or 100(7). 158(2) Subsection (1) does not limit the capacity of the strata corporation to sue an owner in order to recover the deductible portion of an insurance claim if the owner is responsible for the loss or damage that gave rise to the claim . Strata Bylaw 4.4 An owner shall indemnify and save harmless the strata corporation from the expense, maintenance, repair or replacement rendered necessary to the

common property, limited common property, common assets or to any strata lot by the owner’s act, omission, negligence or carelessness or by that of an owner ‘s visitors, occupants, guests, employees, agents, tenants or a member of the owner ‘s family, but only to the extent that such expense is not reimbursed from the proceeds received by operation of any insurance policy.

In such circumstances, and for the purposes of bylaws 4.1, 4.2, 4.3 and 4.4, any insurance deductible paid or payable by the strata corporation shall be considered an expense not covered by the proceeds received by the strata corporation as insurance coverage and will be charged to the owner . [ 9 ] Section 158 (2) of the Act has been interpreted in recent Supreme Court decisions to hold an owner liable for the Strata Corporation’s insurance deductible if the owner is “responsible” for the loss giving rise to the insurance claim by the Strata: The Owners of Strata Plan LMS 2835 v.

Mari 2007 BCSC 740 and Strata Plan KAS 1019 v. Kieran 2007 BCSC 727 . [ 10 ] In Kieran and Mari the Court held that an owner of a strata unit is “responsible for what occurs within their unit” and a strata corporation may look to such an owner to recover the insurance deductible even where the owner’s responsibility for the loss falls short of establishing negligence.

Bylaw 4.4 [ 11 ] In the case at bar, Bylaw 4.4 contains an indemnity clause which requires the owner to indemnify and save harmless the strata corporation from “the owner’s act, omission, negligence or carelessness” if such loss is not covered by the proceeds received by any insurance policy. [ 12 ] The Bylaw expressly states that any insurance deductible paid by the Strata Corporation arising from the owner’s act, omission, negligence or carelessness will be charged to the owner. [ 13 ] Does the Bylaw import a negligence standard which the Strata Corporation must prove before the Defendant is liable to the corporation for the deductible? [ 14 ] In The Owners of Strata Corporation VR 2673 v.

Comissiona [2000] B.C.J. No. 1681 the Court held that s. 158(2) of the Strata Property Act does not create a right in the Strata Corporation to sue an owner. It affirms that s. 158(1) does not limit the corporation’s capacity to sue an owner for payment of the strata deductible. As noted in Comissiona at paragraph 22: “...Whether a strata corporation can maintain such an action must be determined by all of the provisions of the applicable statute and the bylaws, rules and regulations adopted of the strata corporation.” [ 15 ] In Reilly v. Freedom Garden Condominium Association [2001] A.J.

No. 1703 the words “act or omission” as used in the bylaws were held to describe a tort action and were found to be consistent with negligence: see also Park Place Condominium Corporation v. Komarnicki [2010] S.J. No. 399 (Sask. PCJ) [ 16 ] But a contrary view is found in Zafir v. York Region Condominium Corporation No. 632 [2007] O.J. No. 682 (Ont.

SCJ) which held that “act or omission” does not imply a negligence standard whereas “negligence act or omission” does. [ 17 ] I find that the words “owner’s act, omissions, negligence or carelessness” in Bylaw 4.4 are to be read collectively and import a standard of negligence. Whereas s. 158(2) permits a Strata Corporation to sue an owner responsible for a loss which results in payment of an insurance deductible, the Strata’s Bylaw specifies the type of responsibility which attracts liability.

It requires some affirmative act or failure to act sounding in negligence before an owner is liable to indemnify the Strata Corporation for losses not covered by insurance. In my view, it makes sense for a collective of owners to agree that unless an owner is at fault for the loss giving rise to the payment of an insurance deductible by the strata, the deductible should be treated as a common expense.

Theory of the Claimant Strata [ 18 ] The theory of the Claimant is that the Defendant is at fault for the flood because he either misused his toilet by depositing excessive waste, or he failed to pay due regard to the proper functioning of his toilet. Because the Defendant had exclusive control of his strata lot, and the use of his bathroom within it, the overflow of water from his toilet is prima face proof of negligence.

Theory of the Defendant [ 19 ] The theory of the Defendant is that the Claimant has not proven that the Defendant was negligent in his maintenance or operation of the toilet. [ 20 ] The Defendant says that while water emanated from the toilet bowl, it cannot be established on a totality of the evidence that he

caused the flood by his negligent act or omission. [ 21 ] The Defendant contends that it is equally plausible that a clog or obstruction was located in pipes found in the common property and outside the four corners of the Defendant’s strata lot. An obstruction within the common pipes due to a sewer line back up outside the strata lot causing water damage is the responsibility of the Strata Corporation under the Act .

Evidence [ 22 ] I turn to the evidence at trial which consisted of brief viva voce evidence of witnesses and documents marked as exhibits. [ 23 ] It is not disputed that water from Blair Morrison’s unit, number 801, escaped beyond his strata lot and caused damage to common property and other strata lots. Mr. Morrison was not home when the water escape was noted. Nor is it disputed that the deductible which the Strata was required to absorb was $25,000. What is disputed is whether the Claimant Strata has established the Defendant’s liability for the deductible. [ 24 ] Mr.

Julio Monterrosa, Strata caretaker, received a complaint of a water leak from neighbours and was the first to attend to unit 801. He noted that water was escaping from under the unit door and obtained permission to enter to investigate. He was the first to have a look at the leak. [ 25 ] In his testimony Mr. Monterrosa said that on entry he found quite a bit of water on the floor and it had leaked into the hall and to the unit below. In direct examination he said that the water was “coming from a sewer pipe” and he had no way to shut it off.

He then said that water was coming from the tank and overflowing the bowl, but before it could be shut off the toilet needed to be unplugged. He said he did not check the top of the toilet tank and did not check the flapper inside the tank. Mr. Monterrosa did not shut off the water supply valve to the tank and it did not appear to be leaking. [ 26 ] Mr. Monterrossa had a number of immediate tasks to attend to, including calling the restoration company and a plumber and inspecting other units affected by the leak.

He was not in the Defendant’s unit when technicians from the restoration company Edenvale FirstOnSite Restoration or the plumber attended at the unit. [ 27 ] He recalls that the restoration company technicians “unplugged the toilet” but he did not see nor was he told of the cause of the blockage. [ 28 ] FirstOnSite Restoration’s project manager James Peter Saxon arrived after the technicians had started remediation. He did not see what had caused the water to overflow. [ 29 ] Mr. Saxon testified as to his understanding of what had occurred based on what his technicians told him. Mr.

Saxon was briefed by his technicians and he does not recall the specifics of that discussion other than water was seen overflowing the toilet bowl. He knew water was not going down the drain of the toilet bowl which caused the water to escape. [ 30 ] He said that his technicians found the source of the flood to be “water coming over the toilet bowl or not going down the drain of the bowl” in the Morrison unit. None of the technicians was called to testify. [ 31 ] Mr.

Saxon noted in an email sent February 19, 2010 that the cause of the flood was “toilet backup” but he did not specify the cause of that back up. [ 32 ] FirstOnSite sent water samples from unit 801 and other affected areas and units to a lab for testing. The test results showed a very high level of fecal contamination in unit 801 but not the unit below, 701. Mr.

Saxon believed that a blocked toilet caused the water to overflow and that water continued to run over a period of time before it was discovered because of the spread of water to multiple units. [ 33 ] The Strata hired Latham Plumbing which attended at unit 801 the day of the incident. Latham’s invoice for that service call notes that: “w/c at suite #801 was clear when we arrived. Test flushed several times and ran closet auger. Working well.

Needs to replace ballcock, flapper and supply hose”. [ 34 ] The fact that all was “working well” on Latham’s testing coupled with the fact that the inner workings of the tank were not immediately replaced indicates that equipment was not faulty and its replacement was a recommendation for preventative reasons. [ 35 ] Mr. Morrison testified he is age 36 and works in the construction field as a site superintendent. He has lived in the unit a total of 6 years, renting it for a time and purchasing it in 2007. Mr.

Morrison had insurance for his condominium but that insurance did not cover the deductible of $25,000 advanced by the Strata for damage and loss arising from the water escape. He has since obtained a policy to cover the risk of a claim for the Strata insurance deductible. [ 36 ] He testified that he was the sole occupant of the unit in May 2008. He did not have any prior problems with the toilet. He does not specifically recall if he used the toilet that morning. Water was not escaping from the toilet when he left for work.

He says he would not have left the unit if he was aware that water was overflowing from his toilet. [ 37 ] Mr. Morrison said that he had no prior problems with the workings of his toilet. He retained Breen Mechanical to inspect the toilet and its invoice dated May 21, 2008 notes that the toilet including the flapper, flush valve seal and overflow tube were in good working order.

The water supply valve at the base of the toilet leaked when it was turned on and it was repaired. [ 38 ] I find that there is no evidence to suggest that the Defendant’s toilet tank and its workings were in disrepair on the date of the water leak or the Defendant is at fault in not properly maintaining it. I also conclude that the water supply valve was not the source of

the flood otherwise Mr. Monterrosa would have so testified and immediately taken steps to deal with it.

He expressly said the valve was not the source or cause of the leak. [ 39 ] The Claimant says that the court should infer that if the toilet fittings were working properly, then the Defendant misused his toilet on the day in question or failed to monitor its proper operation and this caused the flood. [ 40 ] Put more precisely, the Claimant submits that the Defendant as the admitted sole user of the toilet caused it to become plugged, and failed to ensure the flapper properly closed the water-closet tank after refilling the tank and bowl.

These failures resulted in water flowing from the tank into the bowl which could not clear due to the toilet or line being blocked. [ 41 ] The Defendant states that there are two impediments to the Claimant’s argument on liability. First, the evidence does not show the Defendant misused the toilet. Second, there is no direct evidence that the blockage was due to the Defendant’s misuse. The Defendant says that the Strata had a documented history of not routinely maintaining the sewer pipes which are common property and the responsibility of the Strata.

A blockage in the waste lines and pipes in the common property is more likely the reason the blockage and thus the responsibility of the Strata. [ 42 ] The Defendant points to the Strata minutes to highlight that in the summer of 2008 there was a recurring issue of drainage problems in the building related to blocked drainage vents, and a note of severe back up to kitchen sinks. In November 2009 Latham’s recommended flushing the sewer lines to “relieve pressure on the pipes”, an item that had been tabled to be considered in the next fiscal year.

By March 2010 emergency funding was used to perform vertical and horizontal line cleaning when “multiple units experienced spontaneous back ups”. [ 43 ] Ms. Tracey Williams, licensed strata property manager, testified that her firm took over Strata management duties in June 2008 (after the incident at bar) and she personally came on board in March 2009.

She confirmed that the Strata Minutes July 10, 2008 noted drainage problems but she was not aware if these problems were related to drain blockages. [ 44 ] She said it is prudent practice to flush sewer lines every 2 to 3 years and records showed that this work was overdue. On her recommendation, the Strata hired Lathams to flush vertical and horizontal lines which was deferred. In 2010, the Strata Corporation voted for emergency funding to clean vertical and horizontal lines because multiple units were experiencing spontaneous backups which she understood to mean that people were hearing gurgling in toilets.

She testified that the only overflow of a toilet she knew about was in the Morrison unit, 801. Findings [ 45 ] The first responder was Julio Monterossa, and his evidence is uncontradicted that he saw water overflowing the Defendant’s toilet bowl when he entered the unit to investigate a complaint of water damage. As to the source of the flood, I accept the evidence of Mr. Monterrosa that the water overflowed from the toilet bowl in unit 801. Mr.

Saxon’s evidence of the extent of water damage to the floor of unit 801 is consistent with the physical evidence of water continuing to flow over the bowl of the toilet as related by Mr. Monterrosa. [ 46 ] The disputed issue is what caused this flow of water. The Claimant says the only reasonable inference that can be drawn is that the Defendant misused his toilet.

The Defendant theorizes that an equally plausible inference is that the Defendant used his toilet properly but a sewer line blockage or back up is the source of this flood. [ 47 ] In this case, the fact that the water did not go down the toilet drain indicates there was a blockage. There is no direct evidence where the blockage was located or whether it was in the common pipes of the building or originated within the strata unit lines. [ 48 ] The first responder Julio Monterrosa was able to eliminate the valve as a source of the water leak.

Had it been the valve, it was solely the responsibility of the Defendant to maintain, monitor and repair. [ 49 ] Mr. Monterrosa in direct examination said that the water was coming from a “sewer pipe” or line and later said clear water was overflowing the rim of the toilet bowl. Mr. Monterossa’s first language is not English and he used sewer pipe and toilet bowl interchangeably. The technicians did not testify as to what they observed to be the source or cause of the flood.

The plumber did not testify and there is no evidence as to whether, where or if, in the course of augering the line, he encountered a blockage. [ 50 ] Mr. Saxon, who arrived after the fact, agreed that one possible cause of the flood could be that “black water” or sewer water may have escaped from a drainage line. Water back-up can occur from a blocked sewer line but he discounted the sewer back-up theory because in his experience water from a sewer line looks a lot worse and smells a lot worse than it did in this instance.

He said if it had come from a sewer drain, water would have been extremely dirty and fecal matter would have been everywhere including outside the unit and this was not the case. [ 51 ] Mr. Saxon also noted that the water test results from the unit below 701 would also have shown evidence of fecal count if sewer water was continuing to escape. The lab tests did not show this to be the case. [ 52 ] For the reasons stated by Ms. Saxon, and the observations of clean water noted by Mr. Monterossa, I am satisfied that a sewer back up was not the likely cause of the flood.

This leaves the issue of any other blockage and its location, whether within the unit or in the common area pipes, and its relevance to the claim. [ 53 ] In my view, it is likely there was a blockage preventing the toilet bowl from draining but it is not material where the blockage in the pipes was, whether in the common property or in the strata unit itself. What is material and relevant is whether, regardless of where an obstruction might have been, has it been proved that Mr.

Morrison failed to note the blockage, and hence failed to monitor the proper functioning of his toilet which failures caused or contributed to the loss? [ 54 ] Mr. Morrison says he does not recall if he used the toilet in the morning before he left for work. I infer that he did. He was the

sole occupant of the unit and the only person to have access to his toilet. Water from the tank would not have emptied into the bowl unless the lever has been depressed by human action. I find that on the morning in question the toilet was likely flushed after his use, causing the toilet tank to empty water into the bowl.

The water rose to the rim of the bowl because the waste and water was obstructed from going down the pipes. [ 55 ] I conclude that the water overflowed the bowl because it was obstructed from draining and continued to do so because water from the toilet tank did not shut off properly after the toilet was flushed. [ 56 ] The Defendant says that no expert or other evidence was advanced by the Claimant on the appropriate standard of care or how the Defendant was allegedly negligent. I do not agree.

This case does not call for anything other than a common sense approach in assessing the standard of care of a user of a toilet in a multi-unit building. In my view, it was reasonably foreseeable to a resident in the position of Mr.

Morrison that he needed to ensure that each time after flushing, the waste cleared properly from the bowl and the tank and bowl refilled safely and the water from the tank into the bowl shut off appropriately. [ 57 ] This is a circumstantial case in which the only rational conclusion on all the evidence is that the Defendant failed to meet the appropriate standard of care in the circumstances. [ 58 ] I find that the toilet, toilet drain and toilet water supply valve were within the Defendant’s sole control.

He was in a position to monitor their proper working condition and to ensure on each use that nothing prevented the toilet bowl from emptying and nothing caused it to overflow. He owed a duty to the Strata Corporation and his neighbours to monitor the functioning of his toilet after each flush. [ 59 ] While I accept that Mr. Morrison would not have intentionally left his unit had he known that water was overflowing his toilet, I conclude that he failed to pay attention to whether waste had cleared or whether the water tank had shut off before leaving for work that particular morning.

The amount of time to undertake such monitoring would be consistent with the amount of time it takes to wash one’s hands after using the bathroom. [ 60 ] On a careful consideration of the totality of the evidence, I am satisfied that regardless of the source or location of any blockage, the Defendant failed to ensure that waste cleared the bowl and that the water from the water tank had stopped flowing into the toilet bowl.

Had he been properly vigilant, the problems with the blockage and the water flow would have been readily discovered and flood problems prevented or contained to his unit. [ 61 ] For the foregoing reasons, I am satisfied that the totality of the evidence supports a finding that the Defendant was negligent in the use of his toilet and his negligence caused the flood resulting in loss and expense to the Strata, including the insurance deductible in the amount of $25,000. [ 62 ] Accordingly, there shall be a payment order in favour of the Claimant in the amount of $25,000 plus pre-judgment interest from July 1, 2008 to date.

The Claimant is also entitled to its filing and service fees from the Defendant. _________________________________ The Honourable Judge H.K. Dhillon