Reville v. Tsai and Chen Date:, 2015 BCPC 455

Citation: Reville v. Tsai and Chen Date: 20150202 2015 BCPC 455 File No: 14-49170 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: JOHN REVILLE CLAIMANT AND: WEN CHEN TSAI AND YI FEN CHEN DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: J. Reville Counsel for the Defendant: J. MacDonald

Place of Hearing: Vancouver , B.C. Date of Hearing: January 14, 2015 Date of Judgment: February 2, 2015 [ 1 ] This case concerns damages as a result of water alleged to be leaking from the Defendant’s unit at #803 – 850 Burrard Street, Vancouver, BC (“#803”) into the Claimant’s unit, #703 – 850 Burrard Street, Vancouver, BC (“#703”). [ 2 ] Ms. MacDonald told me that one of her witnesses was the other owner of #803, Ms. Yi Fen Chen. The parties agreed that Ms. Chen should be added as a Defendant. [ 3 ] #803 is owned by the Defendants, Wen Chen Tsai and Yi Fen Chen.

At all times, #803 was rented. [ 4 ] In September 2013, #703 had water damage from an exterior source. Mr. Reville thought that one of the possible causes was the unit immediately above his, namely #803. [ 5 ] Immediately, the Claimant went to #803. The Claimant’s Trial Statement (Statement of Facts #1) indicates that it took several minutes before the male renter answered the door and permitted the Claimant to enter #803. As well, the male renter said that the bathroom floor was dry. There was a sponge mop propped up against the toilet.

The Claimant says that the male renter said that his sister (the female renter) had cleaned the suite that morning. [ 6 ] The Claimant reported the incident to the caretaker of 850 Burrard Street. [ 7 ] The Claimant was away from sometime in December 2013 until January 7, 2014. Upon his return, he noticed that some paint had peeled away from the wall above his bed and believed that it was associated with the September 2013 incident. [ 8 ] Two days later, there was further water flow in the same area. The Claimant went to #803.

The same timing occurred as in September 2013, that is, the renters took approximately 5 minutes to answer the door, indicated that the bathroom door was dry, and again, a mop was propped up against the toilet. [ 9 ] The next day, the Claimant informed the strata property manager about the damage. An arrangement was made for Milani Plumbing (“Milani”) to determine the cause of the water damage. Milani concluded that there were no leaks in the adjoining suites.

However, it took approximately 3 weeks before Milani could gain access to #803. [ 10 ] The water damage reoccurred 3 times while Milani was trying to gain access to #803. Each time the Claimant went to discuss the water leak with the renters in #803, there was a delay to answer the door. [ 11 ] Milani carried out a water test on or about March 5, 2014. A quarter pail of water was poured on the bathroom floor in #803. The water tracked across the floor and approximately five minutes later, water streamed down the Claimant’s bedroom wall.

Milani provided an opinion that the most likely cause of the water damage in #703 was from water overflow from the shower in #803. [ 12 ] In mid-March, another leak occurred. On that occasion, the Claimant went to #803. The female renter was present and told the Claimant that the floor was dry. On this occasion, there was a wet towel on the bathroom floor rather than a sponge mop at the toilet. [ 13 ] What became apparent during oral testimony, and as set out in paragraph 4 of the Claimant’s Trial Statement, is that the renters were showering without using a shower curtain.

However, as I understood the evidence of the Defendants’ real estate agent, Allan Huang, who was responsible for renting #803, the female renter may not have used the shower, but rather, washed herself outside of the shower, ie. on the bathroom floor. [ 14 ] The Defendant witnesses testified that the water leaks could not have been from #803, because at certain specific times, the renters were not present. The Defendants have no personal knowledge of these circumstances, but rely upon the information provided to them by Mr. Huang. [ 15 ] Mr.

Huang testified that one of the renters contacted him to advise that they would be away, which turned out to be during a time that the leaks occurred in January 2014. [ 16 ] Ms.

MacDonald had a copy of one of the tenants’ passports which indicated that one of the renters was away until after January 15, 2014. [ 17 ] As well, there was a leak in August 2014, which led to the strata corporation reversing, to use my terminology, charges that had been assessed to Defendants, because at that time, the tenants of #803 were away. [ 18 ] The Minutes of the strata council held in September 10, 2014 say, as follows: GUEST BUSINESS The owner of Unit #803 had requested permission in advance to attend the Council Meeting.

The owner attended with her son to discuss several repair expenses charged back against her unit account for work related to ongoing water ingress problems in Unit #703. Since January 2014, there has been regular work in Unit #703 and inspections of all units above and adjacent/above Unit #703 to attempt to determine the intermittent source or sources off water entering from a unit or units above. Extensive testing and inspections of all units above (Units #801, #803, #901, #903, #1001, #1002, and #1003) have indicated that

although water may have entered Unit #703 from Unit #803, there are strong indications that this may not have been the only source of water and the water, possibly from a malfunctioning washing machine, had also entered into unit #703 at a time when it was established that Unit #803 was vacant. Without conclusive evidence that Unit #803 was the sole source of this water, Council agreed that no costs related to these incidents could fairly be attributed to unit #803. Council directed the Strata Manager to reverse three invoices charged back to Unit #803.

Suite #703 has since had extensive areas of walls opened up, thoroughly tested for humidity and mould spores, declared clear and dry, and the walls have been resealed and painted. All owners are reminded that a water leak in their suite can easily find its way into another suite. Hoses connecting dishwashers and washing machines are particularly vulnerable to failure and should be replaced every few years. When a water leak can be traced to its source, the owner of the suite with the leak may be held responsible for any consequential damage. Please ensure that your own insurance policy covers this type of mishap.

Credibility [ 19 ] I was impressed with the evidence of the Claimant. He was forthright. His evidence was timely, that is, all of the sequential events made sense, and on each of the occasions when a leak occurred, he tried immediately to ascertain its cause. [ 20 ] The evidence on behalf of the Defendants does not stand up to such scrutiny. [ 21 ] Ms. Chen was not present when the leaks occurred. Likewise, Mr.

Huang was not present. [ 22 ] I accept the Claimant’s version of what occurred, the timing of when he went to #803 on his own initiative, and the evidence about a telephone call made on the male renter’s cellular phone to Mr. Huang to that of Mr. Huang’s recollection. Mr. Huang’s evidence was that certain events took place two months from the timing that the Claimant said that one of the incidents occurred. [ 23 ] I am satisfied from the answers Mr.

Huang gave under cross-examination, particularly, when they are in conflict with the Claimant’s evidence, that I prefer the Claimant’s evidence. [ 24 ] Also, I prefer the Claimant’s evidence, as it is consistent with the investigation carried out by Milani regarding the cause of the water leak and, in particular, the conclusion of Milani after carrying out the water test was not challenged by the Defendants. [ 25 ] There are anomalies in the evidence regarding whether or not the renters were living in #803 at the time some of the leaks occurred as opposed to being away.

However, on the balance of probabilities, I have concluded that the Claimant has proved that the cause of the water damage to #703 was from the activities of the tenants in #803. Damages [ 26 ] Mr. Reville claims the following: - Mould Assessment Report Feb. 24, 2014 $420 - Repair to damages flooring-started April 9 finished mid May 23 2014 $315 - Relocation to Sheraton Wall Centre April 14 – 24, 2014 per physicians advice $1,225 - Filing Fees $100 - Service Fees $20 Total: $2,080 [ 27 ] It is obvious that there may be mould arising from water damage.

However, to obtain a report to establish that one way or the other does not seem to be necessary. [ 28 ] Mr. Reville moved to the Sheraton Wall Centre from April 14 to April 24, 2014 on the advice of his physician. He had a pre-existing breathing condition, which was exacerbated as a result of the leaks. [ 29 ] Ms.

MacDonald challenged the reasonableness of those expenses. 805 Burrard is approximately at the intersection of Burrard and Robson Street, which is approximately 2½ blocks from the Sheraton Wall Centre. [ 30 ] Under the circumstances, it was a reasonable choice for accommodation that the Defendant needed. Thereafter, he obtained less expensive monthly rental for which he is seeking no recovery. [ 31 ] The remaining claim concerns repairs to his unit. As noted in his Notice of Claim, those repairs commenced April 9, 2014 and finished on or about May 23, 2014. Ms. MacDonald did not challenge those expenses.

Conclusion [ 32 ] I order that the style of cause be amended to add Yi Fen Chen, as a Defendant.

[ 33 ] I allow the following damages: (

a) Mould Assessment Report Feb. 24, 2014 NIL (

b) Repairs $315 (

c) Sheraton Wall Centre Expense April 14 – 24, 2014 $1,225 (

d) Filing Fees $100 (

e) Service Fees $20 Total: $1,660 [ 34 ] The Claimant is also entitled to pre-judgment interest from October 1, 2013 to January 28, 2015. Lawrence A. Kahn Adjudicator