Strata Plan NW87 v. Ajvazi, 2018 BCPC 343

Citation: Strata Plan NW87 v. Ajvazi 2018 BCPC 343 Date: 20181227 File No: 27302 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: STRATA PLAN NW87 CLAIMANT AND: JASAR AJVAZI (AKA RICHARD GIBSON) DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Counsel for the Claimant: Elaine McCormick Counsel for the Defendant: Jasar Ajvazi (aka Richard Gibson) Place of Hearing: Richmond , B.C. Dates of Hearing: October 4 and 5, November 15, December 10, 2018

Date of Judgment: December 27, 2018 [ 1 ] The Claimant Strata Corporation seeks damages against the Defendant Jasar Ajvazi (who wishes to go by his alias Richard Gibson) in the amount of $18,717.66 it alleges were caused by the Defendant when water leaked from his unit – unit 218 - into the common areas of the Claimant’s property during 2 incidents. The first incident took place on November 6, 2015 and the second incident took place on January 7 and 8, 2016.

There was also an incident involving a minor leakage of water into the lobby area which occurred in December 2015 but no damages are sought by the Claimant in respect of this incident. I have heard evidence over 4 days of trial from Ms. Laurie Evans, the property manager, from Mr. Edmond Wong, the owner of unit 318 which is immediately above the Defendant’s unit, from Mr. Jose Ortiz, the resident caretaker, from Mr. Steve Johe, the plumber who attended the property on behalf of PJB Mechanical during the incident of January 7 and 8, 2016 and from Mr.

Jaspreet Sekhon who was PJB Mechanical’s foreman during the incidents in question. The Defendant testified on his own behalf. The November 6, 2015 Incident [ 2 ] The Claimant’s members are the owners of apartment units in two adjacent buildings situate at 6560 and 6660 Buswell Street, Richmond, B.C. The Defendant is the owner of unit 218 – 6560 Buswell Street.

His unit is located directly above the lobby and stairwell area on the ground floor of 6560 Buswell Street. [ 3 ] The Defendant has admitted liability regarding the November 6, 2015 incident and has withdrawn his counterclaim, which also relates to that incident. The Defendant does not dispute his responsibility to compensate the Claimant with respect to the insurance deductible relating to the November 6, 2015 incident amounting to $5,000.00. [ 4 ] With respect to the November 6, 2015 incident, the Defendant disputes only that part of the damages relating to the $200.00 paid by the Claimant to its caretaker Mr.

Ortiz, and the invoice from PJB Mechanical who had sent a plumber to attend to that incident, in the amount of $536.96. [ 5 ] Mr. Ortiz testified that he was employed by the Claimant as a caretaker at a monthly salary of $3700 per month. The bill he rendered for $200 related to time he spent with the fire department between about 10:30pm and 1:00am on November 6, 2015 after the fire alarm in the building sounded. He testified that he was informed by the fire department that some of the leaking water had migrated to a heat detector and had damaged it, causing the fire alarm to go off. Mr.

Ortiz characterized the bill as being a charge for “extra time” or overtime. [ 6 ] The property manager, Laurie Evans, testified that she wasn’t sure how many hours Mr. Ortiz was billing for but that the Claimant paid the invoice because she trusted that Mr. Ortiz would charge an appropriate amount. [ 7 ] In his testimony regarding this invoice, Mr. Ortiz stated that he was employed by the Claimant at a monthly salary of $3700. He testified that his invoice for “extra time” was not based on an hourly rate but was, in his words, “just what I thought I should charge”. [ 8 ] A bill of $200 is in excess of what Mr.

Ortiz’s hourly rate would amount to, based on his estimate of the 2.5 hours he spent with the fire department, even at time and half or even double time. Mr. Ortiz’s contract of employment was never provided to the Court. No verbal or written agreement to pay overtime was presented. There is no evidence of any legal obligation on the part of the Claimant to pay Mr. Ortiz’s invoice of $200. Accordingly, this category of damages is denied. [ 9 ] With respect to the plumber’s invoice of $536.96 for attending on November 6, 2015, the Defendant argues that the amount is too high.

The Defendant submitted that the plumber had charged for 3 hours and should have charged for only 1 hour. [ 10 ] Mr. Sekhon had been a foreman for PJB Mechanical at the time of both of the incidents in question. He has now left PJB Mechanical and is operating his own plumbing company. The plumbing contract for the Claimant’s building has been switched from PJB to Mr. Sekhon’s new company. Mr. Sekhon testified on behalf of the Claimant. According to Mr. Sekhon’s evidence, the plumber he had sent reported that a water supply pipe under the kitchen sink had been snapped off at the joint, causing water to escape.

That plumber repaired the problem, installing new piping and new valves. [ 11 ] The Defendant describes himself as a “handyman”. He testified that he does not hold any licenses or other certifications for plumbing. The Defendant did not challenge the amount of time spent by PJB Mechanical’s plumber attending to the November 6, 2015 incident during cross-examination of Mr. Sekhon.

The Defendant has not provided any evidence from any plumber or other expert as to how much time was appropriate for the plumber to have spent at the Claimant’s property, repairing the problem with the broken pipe in the Defendant’s unit, on November 6, 2015. [ 12 ] I find, on a balance of probabilities, that PJB’s invoice for work done relating to the November 6, 2015 incident is justified. The Claimant is entitled to the full amount of PJB’s invoice for the November 6, 2015 incident in the amount of $536.96.

The December 22, 2016 Incident [ 13 ] On December 22, 2016, residents noticed that water was dripping into the lobby and stairwell on the ground floor. This was a minor incident with no damage resulting. [ 14 ] Mr. Sekhon testified that he attended at the Defendant’s unit on one occasion when water was leaking into the lobby area of the building. Although he did not give the date of this attendance, I find that it must have been the occasion of the minor leak in December 2015. It is clear from Mr.

Sekhon’s evidence that he did not attend at the building to attend to the incident of November 6, 2015 or the one on January 7 and 8, 2016. Although no damages are sought by the Claimant with respect to the incident in December 2015, I find

the evidence regarding this incident to be relevant to the later incident of January 7 and 8, 2016. [ 15 ] Mr. Sekhon testified that when he went to unit 218 with Mr. Ortiz, he saw that the unit had no toilet, no bathroom sink and no kitchen. He testified that the bathroom floor had no tiles, that the tub had no tiles and that there were only a few pieces of drywall with open seams around the tub. [ 16 ] In his initial testimony about the December 2015 incident, Mr. Ortiz did not mention that Mr. Sekhon had attended with him.

He also did not mention that there was no toilet in the bathroom when he attended unit 218 in December 2015. However, Mr. Ortiz did testify, regarding the December 2015 incident, that there was grout missing from many places in the wall and floor. That testimony would suggest to me that there must have been tiles on the wall and floor, which would be inconsistent with the evidence of Mr. Sekhon. [ 17 ] The Defendant testified that he never removed the toilet in his bathroom. [ 18 ] Mr. Ortiz was recalled on the last day of trial to testify in rebuttal to the evidence that had been provided by the Defendant.

When Mr. Ortiz was asked again about the incident in December he testified that while he did remember that incident, he was not able to say whether he had entered the Defendant’s unit on that occasion. That, of course, was inconsistent with his previous testimony. The January 7 and 8, 2016 Incident [ 19 ] There was another incident of water leaking into the common areas of the Claimant’s building on January 7, 2016. Mr. Ortiz testified that he received a report of water leaking into the lobby and, after calling the plumbers at PJB Mechanical, went to unit 218 to try to find the source of the leaking water.

According to Mr. Ortiz, when he entered unit 218 he saw that there was no toilet in the bathroom. Mr. Ortiz testified that the plumber, Mr. Steve Johe returned the next morning with a camera and identified a blockage in the pipes below unit 218. Mr. Johe accessed and opened the blocked pipe from the lobby below and found a piece of concrete that had been blocking the flow of water and causing the leak. He also found other smaller pieces of concrete and a brass bolt. Mr. Ortiz testified that Mr.

Johe gave him the piece of concrete and the bolt and he brought both items to Court and identified them during his testimony. [ 20 ] According to Mr. Ortiz, Mr. Johe told him that the concrete came from the bathtub renovations in unit 218. According to Mr. Ortiz, the toilet had to be removed before the tub could be moved and that the concrete could have been broken off when the tub was removed. Mr. Ortiz testified that he could see that the concrete below the tub was all broken. [ 21 ] Mr. Johe, a former employee of PJB Mechanical testified for the Claimant.

He was the plumber who attended the incident of January 7 and 8, 2016. Mr. Johe testified that he may have been a foreman with PJB at the time. [ 22 ] According to Mr. Johe’s evidence, he believed that there was a toilet in the bathroom when he first entered the unit on January 7, 2016. The first entry for January 7, 2015 on its January 27, 2016 invoice is consistent with that evidence and reads as follows: Went to job to investigate leak for strata. Found water dripping into Entry. Went to unit 218. Unit is undergoing major renos. Found the toilet to be leaking. Offered the owner to do repair but was told no.

So, left the job site. Turned off the water supply and told owner to vacuum out water from the toilet. The toilet was leaking from the base I suspect the wax seal. [ 23 ] Both Mr. Johe’s evidence and the above entry are inconsistent with Mr. Ortiz’s evidence that there was no toilet in the bathroom when he entered unit 218 on January 7, 2016. Mr.

Johe’s evidence on this issue is consistent with that of the Defendant who testified that the water was seeping out from under his toilet. [ 24 ] The next entry on the January 27, 2016 invoice – relating to an “after hours” attendance at the property - states that the toilet had been removed. Mr. Johe testified that he could not recall whether he had removed the toilet or not, and was unsure about the accuracy of this entry. This invoice had been prepared by clerical staff at PJB Mechanical, not by Mr. Johe. [ 25 ] Mr.

Johe had no explanation as to why the concrete found to be blocking the pipes was found at a location approximately 4.5 feet from the Defendant’s toilet hole. He simply stated that this was “hard to explain”. [ 26 ] Claimant’s counsel put to Mr. Johe, a paragraph from a chronology of events that had been prepared by Dinna McDonald of PJB Mechanical for the property manager, Ms. Evans – presumably for use in this litigation - which read as follows: SJ is positive that there was no way this concrete came from any suite other than 218 as the concrete block was in his branch piping.

This means that the portion of piping that the concrete was found in only serves 218. [ 27 ] The initials “SJ” are a reference to Mr. Johe. However, Mr. Johe could not recall ever having made such a statement. He testified that this entry did not look like what he would have written down and added, “plus it had to be tied into 318 also”. Mr. Johe testified that the concrete was found in a portion of horizontal pipe that serviced both 218 and 318. [ 28 ] Mr. Johe, during his evidence, did not corroborate Mr. Ortiz’s evidence that he (Mr. Johe) had told Mr.

Ortiz that the concrete found in the piping had come from the bathtub renovations in unit 218. He did not give such an opinion during his evidence. Mr. Ortiz’s evidence on this point is clearly hearsay which this Court has the discretion to admit where it is found to be probative and reliable. However, Mr. Ortiz’s evidence on this point cannot be found to be reliable where Mr. Johe, the person being quoted, testifies and does not adopt or agree with it. [ 29 ] Mr. Johe did not corroborate Mr. Ortiz’s evidence that there was broken concrete in the Defendant’s bathroom under the tub. [ 30 ] Mr.

Sekhon testified that the bolt found in the piping by Mr. Johe looked to him to have been manufactured within the past 10 years. He noted that the bolt was not discolored which it would have been had it been in the piping for a number of years. Mr. Sekhon provided an opinion that the blockage could not have come from unit 318 as PJB Mechanical staff had attended at unit 318 to attend to a heating issue and had found no plumbing issues there. Mr. Sekhon further stated that the toilet in unit 318 was very old and could not

have passed such a large piece of concrete. However, Mr. Sekhon had earlier given an opinion that the concrete found by Mr. Johe on January 8, 2016 was too large to have been flushed down a toilet in any event and could only have entered the piping through the toilet hole if the toilet were removed. [ 31 ] I find Mr. Sekhon’s evidence regarding the brass bolt to be unhelpful. There is no evidence that the brass bolt and the concrete entered the pipes at the same time. The evidence of Mr.

Johe would indicate that it was the concrete and not the brass bolt that had caused the blockage and leaking of water into the Claimant’s common areas on January 7 and 8, 2016. [ 32 ] The Defendant insisted in his testimony that he had not removed the toilet in the bathroom. He testified that during the January 7 and 8, 2016 incident he had noticed water leaking out from the base of his toilet, which would be consistent with the January 27, 2016 invoice and with Mr. Johe’s evidence.

Issue [ 33 ] The Defendant having accepted liability for the first water leakage incident in November 2015 and having withdrawn his counterclaim, the only issue is whether he is liable for the water leakage that occurred on January 7 and 8, 2016. [ 34 ] I am satisfied from the evidence of Mr. Johe that the water leakage that occurred on January 7 and 8, 2016 was caused by a piece of concrete blocking the pipe responsible for draining the showers and toilets of both unit 318 and the Defendant’s unit 218.

The concrete was removed by cutting the horizontal pipe above the lobby ceiling which is below the Defendant’s unit.

I conclude from this evidence that the source of the leaking water on January 7 and 8, 2016 was actually from water backing up from the blockage of pipes in the Claimant’s common property. [ 35 ] The issue is therefore whether or not the Claimant has proven on a balance of probabilities that the concrete found to be causing the blockage and resulting leakage of water into the common areas of the Claimant’s property came from the Defendant’s property, or whether that concrete was caused to have moved to the location where it was found through the negligence of the Defendant. [ 36 ] There were submissions regarding the Assumption of Liability Agreement and the issue of whether or not the Defendant signed that agreement and was bound by it.

However, in my view, the first issue to be decided is whether or not the Defendant is responsible for causing a piece of concrete to block the bathroom drain pipes servicing units 218 and 318 on January 7 and 8, 2016. If he was responsible for that blockage of the pipes, then the Assumption of Liability Agreement could provide another cause of action for the Claimant.

However, if he is not found to be responsible for the blockage and leaking of water on January 7 and 8, 2016, then there would be no damages resulting from his breach of the Assumption of Liability Agreement even if I were to find that the Defendant was bound by it. Analysis [ 37 ] I am satisfied on the evidence of Mr. Sekhon that the piece of concrete found to be blocking the pipes on January 7 and 8, 2016 could not have been flushed down any toilet. He testified that this piece of concrete was too large to be flushed and would have become stuck in the toilet during a flush. [ 38 ] Mr.

Sekhon testified that when he went to the Defendant’s unit on December 22, 2016, he saw that there was no toilet in the bathroom. This evidence was not corroborated by Mr. Ortiz. Mr. Ortiz’s testimony that there was no toilet in the Defendant’s bathroom was from his evidence regarding the incident of January 7 and 8, 2016. Mr. Ortiz, in my view, provided no reliable evidence regarding the December 2015 incident. Mr. Ortiz testified that when he entered the Defendant’s unit on January 7, 2016 he found the toilet had been moved.

However that evidence was contradicted by the first entry in PJB Mechanical’s January 8, 2016 invoice, and by the testimony of Mr. Steve Johe, the plumber from PJB who attended to that incident. [ 39 ] Of the 3 incidents of water leakage, Mr. Sekhon only attended the one on December 22, 2016. The evidence would indicate that this was not a significant incident. It was described as a minor leak and no damages have been sought regarding this incident. There is no evidence of Mr. Sekhon having kept any log or made any notes from which he could refresh his memory.

His testimony was given almost 2 years after the event. I am somewhat skeptical that Mr. Sekhon would have a clear recollection of the details of the condition of the Defendant’s apartment when attending for such a minor event. [ 40 ] The Defendant has testified that he never removed his toilet. He denies that the concrete found to be blocking the pipes on January 7 and 8, 2016 had come from his apartment. [ 41 ] Mr.

Johe testified for the Claimant but did not provide the opinion that the concrete blocking pipes and causing a leakage of water into the common areas of the Claimant’s property on January 7 and 8, 2016 had come from the Defendant’s property. He denied ever having provided such an opinion and declined to do so when invited to do so by Claimant’s Counsel. [ 42 ] I find Mr. Ortiz’s evidence to be problematical. On the last day of trial, when he was recalled for rebuttal evidence, he testified that when he attended the Defendant’s unit on November 6, 2015 he saw that the Defendant had removed a load bearing wall. Mr.

Ortiz went on to say that the removal of the wall had caused parts of the roof to sink and fill with water during the rainy season. However, in cross-examination, Mr. Ortiz admitted that the wall he said had been removed still had studs and that only the drywall had been removed. Clearly the Defendant had not removed a load-bearing wall. Mr Ortiz’s evidence that the wall had been removed was false and misleading. I find that there were many internal and external inconstancies in Mr. Ortiz’s evidence. I find that Mr. Ortiz embellished his evidence and testified as an advocate for the Claimant.

Conclusion [ 43 ] There is no evidence that Mr. Sekhon’s expertise was superior to that of Mr. Johe. Mr. Johe was the only plumber from PJB Mechanical who attended to the January 7 and 8, 2016 incident. Mr. Johe was the only one of the Claimant’s witnesses who was not obtaining any benefit from the Claimant, having left PJB Mechanical and moved to Vancouver Island. Mr. Johe was the only truly

independent witness who testified at this trial and I find his evidence to be more objective and reliable. [ 44 ] I am not prepared to prefer Mr. Sekhon’s opinion over that of Mr. Johe. I am not prepared to prefer Mr. Sekhon’s evidence regarding whether the toilet in unit 218 had been removed on December 22, 2015, over that of the Defendant. I have no confidence in the evidence of Mr. Ortiz.

Where his evidence is inconsistent with that of other witnesses I prefer the evidence of the other witnesses. [ 45 ] I find that the Claimant has failed to establish, on a balance of probabilities that the Defendant was responsible for the blockage of water that occurred in the pipes draining the bathrooms of units 218 and 318 on January 7 and 8, 2016.

Therefore I will not award any damages for the claim relating to this incident. [ 46 ] I will award the Claimant damages in the amount of $5,536.96, being: [ 47 ] $5,000 for the insurance deductible relating to the November 6, 2015 incident. [ 48 ] $536.96 for PJB Mechanical’s invoice relating to the November 6, 2015 incident. [ 49 ] I will not award any costs, given that the Defendant has succeeded in his defense of the claim relating to the January 7 and 8, 2016 incident. ________________________________ Provincial Court of British Columbia The Honorable Judge P. Chen