Strata Plan BCS, 2014 BCPC 416

Citation: Strata Plan BCS 1721 v. Xu and Hua Date: 20140305 2014 BCPC 416 File No: 12-40498 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: THE OWNERS, STRATA PLAN BCS 1721 CLAIMANTS AND: YING DONG XU AND TIEN HUA DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Counsel for the Claimant: P. Dougan Appearing on their own behalf: Y. Xu, T. Hua Place of Hearing: Vancouver , B.C. Dates of Hearing: January 22, February 5, 2014

Date of Judgment: March 5, 2014 [1] This claim is for damages arising from a water leak, which description is disputed by the Defendants, that occurred on June 20,2011 at about 9:30 p.m. in a unit owned by them at #220 – 5380 Oben Street, Vancouver, B.C. Another strata owner noticed water inthe garbage area in the parking level. As well, there was damage in Unit 117, which was on the floor below the Defendants’ unit andsufficiently adjacent to Unit 220 for the damage to be attributed as originating from Unit 220. [2] The Defendants, Ying Dong Xu (“Ms. Xu”) and Tien Hua (“Mr. Hua”) appeared on their own behalf.

Philip Dougan(“Mr. Dougan”) appeared as counsel for the Strata Plan. [3] The essence of the defence is that the damages arising from the water leak could not have occurred because the volume ofwater which leaked, according to the Defendants, Dong Xu (“Ms. Xu”) and Tien Hua (“Mr. Hua”), was about 45 millilitres. [4] The Defendant’s unit was rented to Victor Guevera (“Mr. Guevera”). Mr. Guevera called A1 Drainage Plumbing and HeatingLtd. (“A1”) and also notified the caretaker for the building, Irina Pancenko (“Ms. Pancenko”). [5] Sally Liang (“Ms.

Liang”), the Strata Council president and another owner, arrived at Unit 220 at about 10:15 p.m. The watersupply to the washing machine was shut off as that was the cause of the leak. [6] A1 arrived at about 10:45 p.m. A1 did not find a malfunction in the water supply lines to the washing machine, but concludedthat water had escaped from the washing machine while it was being operated. [7] Phoenix Restorations Ltd. (“Phoenix”) was contracted by the Strata Corporation to remediate the damage and dry out the unitsand the garbage room.

Phoenix submitted an invoice for $3,807.09. [8] The Claimants say that the owners, Ms. Xu and Mr. Hua, arrived at about 11:45 p.m., after much of the water had been cleanedup and after the water supply had been shut off. [9] The reports from A1 and Phoenix were included in the Defendants’ Trial Statement. [10] According to the evidence in the Claimants’ Trial Statement, the only leak on June 20, 2011 occurred in Unit 220. [11] Ms. Liang confirmed the facts explained by Mr. Dougan in the

summary in the Claimants’ Trial Statement. She observed aconstant leak which she described as similar to a tap running. Ms. Liang said there were puddles of water in the washing machine area,the bedroom was soaking wet, and that the tenant used towels to soak up the water, but the tenant did not have sufficient towels to dry upall of the water. [12] Ms. Liang also said that she inspected Unit 117 and observed water dripping in the closet, and that the wall and baseboards inthe bedroom were wet and had been damaged by the water. [13] The Defendants alleged during Ms.

Liang’s cross-examination that the Strata Corporation conspired with Phoenix, and that only45 millilitres of water leaked. [14] Also, the Defendants emphasized during cross-examination of Ms. Liang, or at least implied that the cause of the damage wasfrom another water source in the building. Ms. Liang denied those and similar assertions put to her by Ms. Xu and relied upon theevidence in the Claimants’ Trial Statement as being accurate. [15] There was an issue about the date the emergency report was written at the Strata office. Although it refers to June 21st, it should have been June 20th.

The report was written as June 20th because Ms. Liang said that these events were continuing and she losttrack of time. I accept her evidence and place no importance upon the date of the report. [16] The Claimants say there is a statutory entitlement for the strata corporation to seek recovery of the insurance deductible from aunit owner pursuant to

section 158 of the Strata Property Act, which reads as follows: Insurance Deductible 158

(1) Subject to the regulations, the payment of an insurance deductible in respect of a claim on the strata corporation’s insurance is acommon expense to be contributed to by means of strata fees calculated in accordance with section 99(2) or 100(1). (2) Subsection (1) does not limit the capacity of the strata corporation to sue an owner in order to recover the deductible portion of aninsurance claim if the owner is responsible for the loss or damage that gave rise to the claim.

(3) Despite any other

section of this Act or the regulations, strata corporation approval is not required for a special levy or for anexpenditure from the contingency reserve fund to cover an insurance deductible required to be paid by the strata corporation to repair orreplace damaged property, unless the strata corporation has decided not to repair or replace under

section 159. [17] The Claimants relied upon the decision of Mr. Justice Burnyeat of the Supreme Court of British Columbia dated May 30, 2007in Mari v. Strata Plan LMS 2385, 2007 BCSC 740 . At paragraph 11, the Court says as follows: [11] The rationale set out in Stevens, supra, is mirrored in the British Columbia legislation. It would be unfair to impose liability onall owners for what would ordinarily be insured by an owner of a particular unit if that owner owned the unit as a single family dwelling. The forced sharing of deductible deprives all owners as a group of imposing discipline on a particular owner and also allows the Strata

Corporation to sue an owner to recover the deductible portion in order that all of the owners do no have to bear that cost. That rationale is reflected on the decision of Judge Yee and I can not find that Judge Yee made an error in principle or that his decision was clearly wrong in that regard. In fact, I find His Honour correct in arriving at the decision he did. [ 18 ] Ms. Xu testified on January 22, 2014 and Mr. Hua at the continuation on February 5, 2014. [ 19 ] Ms.

Xu challenged the entirety of the Claimants’ Trial Statement based upon her analysis of what occurred, even though she arrived at Unit 220 after Ms. Liang began the “repairs” by shutting off the water supply, cleaning up water that had leaked, and inspecting Unit 220, Unit 117, and the garbage room. [ 20 ] There is no evidence to corroborate Ms. Xu’s version of the events. Ms. Xu said there was no flood in Unit 220, a total of 45 millilitres of water was the entirety of the leak, there was only one load of laundry that had been running, and that she was present at 9:12 p.m. Ms.

Xu disputes the necessity of the repairs, alleged that a photograph of the damaged area in the Claimants’ Trial Statement was fabricated, and attributed the leak to an envelope water leak in January 2012, some six months later. As well, Ms. Xu said that Ms. Liang was untruthful, that she and Phoenix had conspired to fabricate the damage claimed against the Defendants. [ 21 ] Mr. Hua organized his testimony based upon the Trial Statements that had been filed on behalf of the Defendants and the Claimants. Although he referred to notes rather than only relying upon his memory, I allowed his testimony. [ 22 ] Mr.

Hua’s evidence is very similar to that of the evidence given by his wife. He disputed the extent of the flood and said the amount of water that flowed from the washer was no more than 45 millilitres. When Mr. Dougan suggested that 45 millilitres was roughly equivalent to ¼ cup of water, Mr. Hua was steadfast in his resolve and maintained that the leak from the washing machine was no more than 45 millilitres. [ 23 ] Mr. Hua disputed there was any damage in Unit 117. As well, he emphasized that requiring A1 to attend or Phoenix to remediate the water damage was unnecessary. [ 24 ] As noted in the

summary of the Defendants’ evidence, they allege that the Strata Council overreacted, exercised lack of judgment, and engaged in a conspiracy so that Phoenix could benefit from the remediation contract. [ 25 ] Mr. Dougan’s cross-examination of Mr. Hua was telling. Mr. Dougan made reference to document #4 of the Claimant’s Amended Trial Statement, which was the statement of the tenants.

It is clear from their statement and from the oral testimony before me that there was a significant leak that flowed from the washing machine. [ 26 ] I am satisfied that the representatives of the strata council acted in good faith and made a decision which was appropriate under all of the circumstances. [ 27 ] Overall, after reviewing the Trial Statements of the parties, and reviewing the evidence of Ms. Liang and the Defendants, where the evidence of the Claimants and Defendants differs with respect to the water leak, I prefer the Claimants’ evidence.

It is time consistent and corroborated by the tenants and the actions of A1.

Summary [ 28 ] I conclude that the Defendants are responsible for the insurance deductible pursuant to

section 158 of the Strata Property Act . [ 29 ] Accordingly, there will be judgment in favour of the Claimants, as follows: Repayment of insurance deductible: $5,000.00 Filing Fees: $156.00 Service fees: $30.00 Total: $5,186.00 [ 30 ] Also, the Claimants are entitled to pre-judgment interest from June 20, 2011 to the March 3, 2014. __________________________ Lawrence A. Kahn