Paul et al. v.. Riding & Strata Plan NW 612 Date:, 2013 BCPC 292

Citation: Paul et al. v.. Riding & Strata Plan NW 612 Date: 20130820 2013 BCPC 0292 File No: C11976 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TRACEY PAUL & BRANDON KRYHUL CLAIMANT AND: LORNE RIDING & THE OWNERS, STRATA PLAN NW 612 DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE JANZEN Appearing for the Claimants: T. Paul Counsel for the Defendants: W. Shkwarok Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 20, 2013

Date of Judgment: August 20, 2013 [ 1 ] THE COURT: This claim is for damages brought by two owners of a suite, Tracey Paul and Brandon Kryhul, against The Owners, Strata Plan NW 612 (I will refer to them as "the Strata" from now on in) the Strata Corporation of the building in which the suite was located, and Lorne Riding, the Property Manager employed by the Strata. [ 2 ] The claimants allege that the defendants owed them a duty of care to ensure that the common property of the suite was properly maintained and repaired.

They allege that the defendants failed to deal with a water ingress problem in a timely way leading to mould and other water damage to their suite. When the damage in their suite was reported to them, the defendants refused to pay for the cost of the repairs although nine or ten owners in similar circumstances had their repairs done at the expense of the Strata. [ 3 ] The claimants are claiming reimbursement of the cost of those repairs and the expense of renting other premises for two months. [ 4 ] Ms. Paul and Mr.

Kryhul together purchased Suite 101, a two-bedroom unit in a Strata building at 12170 222nd Avenue in Maple Ridge called "Wildwood Terrace". The plan was for Mr. Kryhul and Ms. Paul's son and Mr. Kryhul's friend, Shane, to reside in the suite together. They employed a real estate agent to assist them with the selection and purchase of the suite. [ 5 ] Prior to purchasing the unit, they inspected it with their agent.

The inspection was limited to some degree by the fact that the elderly sellers were not only resident in the suite at the time but were actually physically in the suite's bedrooms at the time of the inspection. [ 6 ] The claimants noticed a smell in the suite but attributed it to the fact that the sellers had cats, were elderly and unwell, and the fact that the suite was very cluttered. [ 7 ] They arranged for a professional home inspection and reviewed the inspector's report prior to purchasing the unit.

While the inspector raised a few issues, he did not identify the existence of extensive mould in the suite that is the subject matter of this claim. [ 8 ] The sale completed on July 27th, 2009. Subsequently, the claimants took possession. Ms. Paul and two friends who were witnesses for the claimant attended at the vacant suite, likely in early August, for the purpose of scrubbing it down thoroughly in preparation for Mr. Kryhul and Shane to move in. [ 9 ] Ms. Goulet testified that she discovered mould on the smaller bedroom window (called Shane's bedroom below). She and Ms.

Paul looked around and found more of a substance she believed to be mould on some of the baseboards. [ 10 ] Ms. Paul asked the Manager of the building to join them. He attended at the suite. Ms. Paul asked him about the presence of mould. He indicated that there had been a flood in the building. Ms. Paul indicated that she had checked the Strata Minutes and there had been no mention of a flood. The Manager stated that the flood had occurred more than two years earlier. Ms. Paul asked how the problem could be fixed and who was responsible for it.

The Manager indicated that as the suite owner she was responsible for it. [ 11 ] They discontinued cleaning as Ms. Paul needed to get someone in to assess what she was dealing with. [ 12 ] Ms. McKittrick testified that she attended the vacant suite with Ms. Paul and Ms. Goulet to assist with cleaning it shortly after the claimants took possession of it. [ 13 ] Ms. Goulet noticed black mould in the window of Shane's bedroom and a search of the premises led to the discovery of more mould on the baseboards of several rooms and in a closet.

In the bathroom some of the linoleum was lifting and there was a "ton" of black mould under the linoleum. [ 14 ] Ms. Paul called the building manager who attended. They showed him the mould. He said there had been a flood about five years ago but that it had been repaired. The interior of the suite was not his responsibility, only the exterior, and they had fixed the exterior. [ 15 ] The claimants also called Brian Halley, an Environmental Health Officer with the Fraser Health Authority. The claimants sought to qualify him as an expert witness.

He had a four-year university degree from Ryerson in Environmental Health and had worked as an Environmental Health Officer, Food Inspector and a Building Inspector.

Additional to his degree in which mould was covered in several courses, he had taken a number of shorter courses over the years including a two-week course that focussed on mould. [ 16 ] When cross-examined about his qualifications, he conceded that he did not have a graduate degree but pointed out that he had more than 20 years of experience and that during that time he had encountered mould on many occasions and was able to identify it by its appearance and smell. He also knew the environment in which it thrived. [ 17 ] I accepted Mr.

Halley as an expert who was qualified to give the opinion that the substance in the claimants' suite was black mould. [ 18 ] On August 13th, 2009, Mr. Halley inspected the suite with Ms. Paul and her mother-in-law. Mr. Halley worked with Ms. Paul's mother-in-law who was a nurse and who asked him to attend at the suite. He took several photos that were tendered in evidence and that he described to the Court. He also wrote a one-page, undated report of his findings to Ms.

Paul. [ 19 ] He prepared a one-page letter dated August 17th, 2009 addressed to whom it may concern and not on Fraser Health letterhead that reported that he had observed "Mould on the walls, floors, and behind the Gyproc on the two-by-four studs and floor plates of the walls" and that "it is my opinion that this excessive amount of mould growth is indicative of moisture problems in this unit as a result of a

previous flooding episode which was not properly remediated". He stated further that "it is not possible to determine safe or unsafe levels of exposure to mould" and that "a certified mould remediation contractor should be consulted as to the best way to remove the mould and restore the living unit to a safe condition". [ 20 ] He testified that he observed the black substance in a number of areas in the suite. From its appearance and smell he was confident that it was mould although he did not collect any samples and did not send them out to a lab for testing.

He testified that mould and water generally went hand-in-hand and opined, based on the location of some water stains on the floor of the living room/dining room, that the water had entered the suite through the patio door. He observed no other potential sources for the mould. [ 21 ] In cross-examination, Mr. Halley indicated that he provided a report to the Health Authority and to the homeowner who contacted him with a concern. He did not provide a copy of his report to the Strata Council. [ 22 ] This was his first condominium inspection. He had done approximately 25 house inspections.

He indicated that black mould was toxic and that exposure to any level of black mould was "not good" from a health perspective. He indicated that a small amount of mould could be removed by scrubbing it with a 10 percent bleach solution and by ensuring aeration after the scrub. He did not think that this solution would work in this case as the level of bleach required to clean so much mould would create its own health concerns for a period of time that he was unable to identify. He described the amount of mould as the worst he had ever seen.

He indicated that he was not an expert in mould remediation but that he would expect that the entry of any water into the suite would need to be stopped and damaged carpets and Gyproc would need to be removed and replaced. The suite would need to be kept dry with sufficient air circulation to avoid the mould returning. [ 23 ] The claimants' next witness was to have been Paul Narcisco who the claimants attempted to qualify as an expert. Defence counsel agreed to seek instructions and he advised that the defendants were acknowledging that the black substance in the claimants' suite was mould. As a result, Mr.

Narcisco did not testify. No evidence was presented and no argument was made by either party about the types or toxicity of the mould. [ 24 ] Ms. Paul's husband, Dr. Darren Paul, testified that Shane had a disability and that no member of his family, including Shane, had done any work in the suite. [ 25 ] The claimant Brandon Kryhul testified that he had known Ms. Paul since he was ten years old through his friendship with Shane. He suggested to Ms. Paul that they buy an apartment in which Shane and Mr. Kryhul could reside.

They had a limited budget and were looking for a place with two bedrooms that did not need any extensive renovations. Upon finding Suite 101, a real estate agent walked the claimants through it although their opportunity to inspect it closely was limited by the presence of the sellers in the house. They hired an inspector prior to agreeing to purchase the unit. The inspection report made no mention of mould. They decided to buy the unit together. [ 26 ] Mr. Kryhul attended at the suite with Ms. Paul after they had purchased it. Ms. Paul pointed out the mould that she had found at the visit with her friends.

They looked around more carefully. They took mirrors off the perimeter wall in the common property hallway side of the dining room to expose more mould. They cut a hole in the wall to discover that the mould was all through the drywall and the insulation to the wall that separates the suite from the common property hallway. He also observed mould on the kitchen backsplash, in the bathroom, and along the baseboards in all of the rooms. The more carpet they pulled up, the more it became clear that they would have to take it all up. [ 27 ] They hired contractors to work on the suite. Ms.

Paul selected and directed the contractors but both claimants paid for them. Mr. Kryhul had to borrow money from several sources to pay his share of the renovations. Both young men had to find accommodation elsewhere for several months as the work progressed. They ended up replacing all of the carpets, the plumbing fixtures in the bathroom, the kitchen sink and the kitchen and bathroom cupboards. Mr. Kryhul had very limited interaction with the Strata and its Manager, Mr. Riding. [ 28 ] On cross-examination Mr.

Kryhul acknowledged that there was a smell in the suite but that he assumed it came from the sellers' animals. When they toured it before the purchase they observed no mould. He was asked whether the claimants considered a less expensive option to remediate the mould in the suite. Mr. Kryhul testified that he would have to be insane not to consider a less expensive option. [ 29 ] Ms. Paul also testified. After she and Mr. Kryhul decided to seek a suite suitable for Mr. Kryhul and Shane, they set a budget of $150,000.

Suite 101 seemed suitable in that it was over 1,100 square feet with two bedrooms and a convenient Maple Ridge location. They bought it for about $142,000. Ms. Paul furnished it. [ 30 ] She noticed a smell when she toured it but thought it was the owners' cats. The inspection report raised no alarm bells. After purchasing it she attended at the suite with Ms. Goulet and Ms. McKittrick. They observed some mould in a few places. She phoned the manager of the building, Lorne Riding. He attended at the suite and she showed him the mould. She asked him whether there had been a flood.

He confirmed that there had been and that she should have read the Strata Minutes. She indicated that Suite 101 was not mentioned in the Minutes. Mr. Riding told her that it was not his problem in any event as anything inside the suite was her responsibility. [ 31 ] She engaged Mr. Halley to do an inspection. He provided her with the opinion that the black substance was mould and advised that once the mould was found inside the walls, bleach was no longer an effective solution and that the property should be fixed before the young men moved into the suite.

The opinion was set out in a one-page letter that was not on Fraser Health letterhead. [ 32 ] Mr. Riding asked for a copy of the report. As she did not have a report, she did not provide Mr. Riding with a copy of anything in writing. She testified that she showed him a copy of the one-page letter that was placed in evidence but he insisted on receiving a full report. [ 33 ] They continued to argue about whether there was mould in the suite and Mr. Riding stuck to his position that anything within

the suite was the suite owner's responsibility. She invited him to come and look at the suite while she was there and while the work was being done, but Mr. Riding refused to attend. [ 34 ] In November 2009 she emailed a letter to Council member Fred Armstrong, asking to meet with him. He never returned her call. [ 35 ] A more thorough investigation revealed that the presence of mould was very extensive. It was under mirrors, under the carpets, along the baseboards, in the back of the kitchen cupboards and behind the bathroom fixtures. She took advice and had a wallboard contractor open up the walls.

The mould was on the wallboard, the plywood and the insulation in the walls. They cut holes in each wall to inspect the progress of the mould and determined that it had spread to all of the interior walls and to the common wall between the suite and the common property hallway. [ 36 ] After drawing the mould to Mr. Riding's attention as the Manager for the Strata owners, Ms. Paul spoke to her buyer's agent, Andy Wallace, who indicated that he would follow-up on her behalf to figure out what could be done.

He wrote a letter on her behalf in which, among other things, he indicated that the mould was discovered when Ms. Paul was tearing up lino and carpet in order to do renovations. [ 37 ] Ms. Paul testified that at the time she complained to her agent, her purpose in pulling up the flooring was to determine the extent of the mould. She indicated later in her testimony that she had intended to replace the flooring due to the pets. [ 38 ] The sellers' agent, Don Pearce, wrote an email letter to Mr.

Riding dated August 13th, 2009 indicating that he was informed by the new owners and their agent that there was substantial damage to the suite as a likely result of water damage to the suite approximately five years earlier. The sellers' agent stated the opinion that: If this is from a previous water ingress, it would appear to be a Strata issue that should be dealt with as quickly as possible for the new purchaser. They are unable to move in due to allergies and the partial completion of the flooring installation.

Please advise when you can have someone evaluate on behalf of the Strata on what the process should be. [ 39 ] Mr. Riding responded to the sellers' agent, Mr. Pearce, with copies to three members of the Strata Council on August 15th, 2009, indicating that repairs effected in 2005 had been signed off by the engineers in charge of repairs to stop the water ingress and indicating that any new mould must have occurred after the company signed off. He agreed to have a look and if replacement drywall on outer walls was required to have them replaced up 18 inches from the floor. [ 40 ] Ms. Paul received a copy of Mr.

Wallace's letter but she was not copied on nor did she see Mr. Pearce's email. She also did not see or receive a copy of Mr. Riding's emailed response. [ 41 ] Subsequent to the meeting in the suite, Ms. Paul testified that she attempted to raise the issue of the mould in the suite and who was responsible for it with Mr. Riding on a large number of occasions by telephone and email. She invited Mr. Riding to attend the suite in her presence but he did not take her up on the offer. [ 42 ] In September 2009, the claimants decided that they needed to figure out the source of the mould. They hired Mr.

Williams, a building inspector, to examine the suite and what he could see of surrounding property to make that determination. [ 43 ] Ms. Paul testified that Mr. Williams advised her that the problem was that the floor of the ground floor suite was too low in relation to the patio and there was insufficient drainage and so surface water pooled and infiltrated her suite. Mr. Williams emphasized the importance of removing all of the mould. [ 44 ] On or about September 26th, 2009, Mr. Riding gained access to the suite as one of the contractors let him in.

He wrote an email to several Strata Council members indicating that when he toured the suite he saw no mould, only a couple of old water stains. [ 45 ] By the latter part of September 2009, the relationship between Ms. Paul and Mr. Riding had become very strained and continued that way until the time of the trial. Ms. Paul was offended that Mr. Riding had entered her suite in her absence, without notice as required by the bylaws and without her permission. A dispute developed over whether the bylaws required Ms. Paul to sign a renovation agreement. Ms. Paul saw the requirement as an example of Mr.

Riding treating her unfairly. She signed a modified form of it after obtaining legal advice that she was not required to sign it at all as her renovations did not affect common property in any way. At the trial, the parties disputed the final form of the renovation agreement and the date on which it was signed. [ 46 ] The agreement is irrelevant to this dispute except that it is further evidence of the mistrustful and acrimonious relationship that quickly developed between Ms. Paul and Mr. Riding.

The acrimony continued over other issues as they arose between the owners of Suite 101 and the Property Manager who was representing the Strata. [ 47 ] Ms. Paul testified that she told Mr. Riding that the mould on the wall that backed against the common property hallway went through the drywall and the insulation and was on the common property wall. She showed him a photo of it on her iPhone. He indicated that he did not have time to fix every little thing. She also offered to show it to him at the time. He declined the offer. [ 48 ] Ms. Paul entered a number of photos she had taken into evidence.

She employed a series of contractors who felt sorry for her and gave her very good rates. She tore out walls, drywalled and painted them, replaced all of the floors with laminate or linoleum, replaced the tub, toilet, and sink in the bathroom and the sink in the kitchen, replaced the bathroom cupboards and kitchen cupboards as mould was also found in the cupboards. [ 49 ] In support of their claim for damages, Ms. Paul submitted receipts for all of the items purchased for the suite from a number of suppliers.

She also provided a series of consecutively numbered blank (in the sense that the receipts were not identified as being related

to any particular business) receipts. She testified that the contractors who provided services to the suite signed the receipts in exchange for cash payments. [ 50 ] During much of 2010, Ms. Paul attempted on several occasions to arrange the opportunity to meet with Strata Council members by requesting a meeting with individual members of Council. In December 2010, Ms. Paul and Mr. Kryhul were provided with the opportunity to meet with Strata Council at an in camera meeting attended by Mr. Riding and Council members Belko, McEwen, Barclay, Berago and possibly Armstrong. [ 51 ] Ms.

Paul took an envelope with photos, copies of the email correspondence between her and Mr. Riding and between Ms. Paul's insurance company and Mr. Riding respecting another issue in contention between Mr. Riding and Ms. Paul where, again, Ms. Paul felt that her legitimate requests were being arbitrarily ignored by Mr. Riding. [ 52 ] Ms. Paul described it as a heated meeting. Both Mr. Riding and Ms. Paul became upset. Mr. Riding left the meeting before its conclusion. Those left at the meeting accompanied Ms.

Paul to her suite where they viewed the recent damage to her suite resulting from a break in that was one of the items she had raised at the meeting. [ 53 ] Strata Council member Mr. Belko indicated that he wished to meet with her to view all of the photos and discuss the mould related repairs in greater depth. [ 54 ] Ms. Paul spoke to Mr. Belko on the phone and in person. There was also email correspondence between them. Mr. Belko indicated that Mr. Riding had been very upset by the meeting and resigned from his position as a result. Strata Council was going to talk him into staying in the position.

He had to rethink the decision he had made about the break in repairs and the other commitments he had made at the meeting in the suite. The window was repaired using an exact replacement window that Mr. Riding had found. [ 55 ] In the ultimate email in the string, Mr. Belko indicated that there were several sides to the story between Mr. Riding and Ms. Paul, but that Mr.

Riding had been building manager for some time and in the Strata's opinion had done a very good job. [ 56 ] The closing paragraph to his email dated November 16th, 2010 at 3:23 p.m. read: I am still waiting for those mould pictures you said you would send to me. Mould is a great concern and I do want to investigate. However, aside from the pictures there have been no reports of mould in this building that I am aware of. Your pictures are the best we have to go on. Please send them in so that we can assess the situation further. [ 57 ] Ms. Paul testified that it was never her intention to renovate the suite.

She had only intended to replace the flooring because of the cats. Once the mould was discovered, she had no choice but to remove all of the mould and replace what had been removed, whether Gyproc, plywood, baseboards, or insulation. She understood that two other suites had had this problem and that the Strata Council would have investigated the extent of the problem and made the necessary repairs including to the affected suites. [ 58 ] In cross-examination, Ms. Paul was asked why she had not sued the contractor who did the remediation work. Ms.

Paul indicated that until she had started her lawsuit, she did not know that work had been done or who had done it. She had no relationship with the contractor. [If the defendants thought that the contractor had failed to do a proper job they could have third partied the contractor.] [ 59 ] She indicated that she reviewed the two years of Strata Minutes that were provided to her looking for her suite and any major problems.

She now knew from the contract for repairs to stop the ingress of water into the ground floor suite made in 2004 and provided to her for the first time by the defendants on the first day of the trial, that work had been done on the problem in 2004-2005 which meant that the Strata was well aware of the water ingress problem. However, she did not know about it at the time she purchased her suite. [ 60 ] She also became aware that Suites 111 and 114 had water ingress issues and she believed that Suite 111 still had not been repaired. [ 61 ] Ms. Paul was cross-examined about the cost of the repairs.

She indicated that she went out for quotes and initial estimates were in the range of $20,000 to $25,000. That was more than they could afford. She was advised that once the mould was there it would continue to breed and Mr. Halley had advised her that the mould was a health hazard. Her contractors told her that Mr. Riding came down to the suite on many occasions. [ 62 ] The work started in September 2009 and was concluded in December.

The contractors were responsible for replacing walls and insulation, plumbing work including replacing the tub, sink, and toilet in the bathroom, the kitchen sink and the washer and dryer, ripping out and replacing flooring, electrical work, and painting. [ 63 ] Ms. Paul asked why she had not sued the sellers of the suite. She indicated she thought it was unlikely they knew about the water ingress creating mould in their suite. She pointed out that one of the sellers was now dead and the other resided in an assisted living facility.

She stated that when the pre-purchase inspection was done they were both so unwell that they continued to be resident in the suite and that had negatively affected how searching the inspection could be. Furniture blocked the view of the window sills. The suite was cluttered with furniture and stuff on the walls. In any event, it is a visual inspection only; you are not allowed to tear the place apart. It was reported that remedial work had been done to the outside of the suite and that water pipes had been done. She observed no mould and thought that the smell came from the cats. [ 64 ] Ms.

Paul testified that she had no contracts from any of her contractors. She described them as doing side jobs for cash. [ 65 ] She was asked whether her main contractor who did the walls, Mr. Daley, had told her that total remediation was not necessary. She denied that he had said that. She was asked whether she tried to claim the renovations under her insurance contract. Ms. Paul

testified that her real estate agent had told her that it was a pre-existing condition that would not be covered under insurance. [ 66 ] She was asked why it took her two months to engage Mr. Williams. She indicated that she was trying to get assistance from the Strata but that by September it was clear that she was on her own. [ 67 ] She was asked why she had never presented the Williams report or the Fraser Health report to Mr. Riding or to the Strata Council. She answered that the Williams September 29th, 2009 report was included in the material that she took to the Council meeting in December 2010. Mr.

Belko asked her to email her photos but she did not know how to scan them. [ 68 ] Mr. Norman Williams prepared a short report that was admitted into evidence. He prepared a further report in the summer of 2013 that was also entered as an exhibit in these proceedings. The two reports were treated as an expert opinion and Mr. Williams was produced for cross-examination at the request of the defendants. [ 69 ] Norman Williams was cross-examined first on his expertise. He indicated that he had never testified in court before. He had worked for 18 years as a home inspector but was now retired.

He was a member of a number of professional organizations. Mr. Williams was qualified as an expert. [ 70 ] Mr. Williams described that when he inspected the suite on September 29th, 2009 there was mould, water damage, and staining everywhere. Because walls were opened up, there was greater opportunity to observe. He prepared the first report on [ 71 ] the same day as his inspection. He was then asked to clarify several points in his second report. [ 72 ] He recalled the inspection although it had been done almost four years earlier because he was "astonished" by what he saw.

He later clarified that he was astonished by the magnitude of the mould problem. He indicated that usually an outside wall has a strip of concrete up from the floor and then the siding. In this case, the patio was elevated above the level of the suite floor and the wooden wall was set right onto the floor. He observed that steps had been taken to remediate this problem. New concrete blocks had been laid against the outside wall. There needed to be grates and a gutter to allow the water to drain away. He also observed that new plywood had replaced some of the stucco and that the moisture barrier had been replaced.

However, the Gyproc and insulation had not been replaced and so mould was inevitable. He testified that once mould was found in one spot, the Strata should have tested the whole building. [ 73 ] There was definitely a fault with the building but once it was picked up, it should have been repaired including where it had spread across the room to inside walls. The worst mould was on the perimeter walls of the living room and one of the bedrooms. He had no right to walk around the rest of the building and so his opportunity to observe beyond the suite was limited.

He expressed concern that when the remediating blocks were put in an open gutter and grill should also have been installed. [ 74 ] Lorne Riding was the first witness for the defendants. As of August 2009 he was the Property Manager at Wildwood Terrace. He had owned and lived in the building since 2000. He had never been employed as a Property Manager before. He had managed and then owned a retail clothing store. He described the Strata Council as his boss but indicated that they worked together. He retired from the position in 2012. [ 75 ] He described the work that was done to the entire building in 2004-2005.

He was President of the Strata Council at that time and he signed the contract with the contractor who did the work. They took up the cement patios and put a water barrier membrane in all around the perimeter of the building on the outside and around the U-shaped internal courtyard. The work was done by EPS Westcoast Construction. An engineer from another company had oversight over the work. The work was completed as of March 18th, 2005. [ 76 ] The work came about because the courtyard had a long history of water ingress issues. Several patches had been done by handymen and novices.

Strata Council called in an engineering firm but they came up with a "ridiculous" figure to fix it. The head of EPS told Council what was wrong and how his company could fix it. There was a meeting with the Strata and a special assessment. EPS recommended the engineering firm that would provide oversight to EPS. [ 77 ] Mr. Riding testified that there are approximately 77 units in the building and 27 are on the ground floor. The building was constructed in 1974. [ 78 ] Mr. Riding denied being invited and attending Suite 101 on August 13th, 2009.

The first he heard of a potential mould issue was when he received the email from Don Pearce. He offered to take a look at the suite in response to Mr. Pearce's email, but never heard anything further. He did not contact the owners of Suite 101 directly after receiving and responding to the email. [ 79 ] Mr. Riding testified that most of the suites with problems had been on the inside courtyard, although not all of them. He indicated that the repairs to Suite 111 had taken three years as they had a serious problem and the owners were in the middle of divorce proceedings.

They had watermarks on the floor when the carpet was pulled back and mould on the bathroom inside wall from leaking taps, or so the plumber had said. Strata Council ended up taking responsibility for all the repairs including the bathroom because the owners left. [ 80 ] All of the Strata Council discussions about the repairs were conducted in camera to ensure the privacy of those owners. [ 81 ] Ms. Paul contacted Mr. Riding to indicate that she had mould, probably between the end of August and September 15th, 2009. She said she had a report from Fraser Health and photos.

The first time he recalled being in the suite was in early September. Ms. Paul's husband and a plumber were there. They reported a leak in the hot water tank. [ 82 ] He next attended the suite on September 17th because he heard work being done. A contractor was in the suite. He looked around the unit. The contractor claimed that he had had enough and that the job was costing him a lot of time and her a lot of money. [ 83 ] Mr. Riding lined up an engineer but he never got permission to go in the suite. He understood that she was looking after the repairs and not planning to claim from the Strata.

The first time he saw the one-page letter from Mr. Halley was at the settlement

conference. [ 84 ] He visited her contractor because he did not know the scope of the renos and they were supposed to get consent to put in flooring or to do any electrical or plumbing work from Strata Council. When asked where in the bylaws it is stated that this was required, he clarified that getting permission for plumbing and electrical work was an accepted practice. [ 85 ] He was asked why the owners of some units had their repairs covered by the strata.

He indicated that happened because in those cases they were "normal conversations with normal people". [ 86 ] If there was water ingress into the suite he would go into the suite with the owner or someone else. If necessary, as determined by him, Gyproc and flooring would be replaced. In 2004-2005 after the external work was done, he testified that nine or ten suites were renovated at the Strata's expense. [ 87 ] In cross-examination, he testified that the Strata had become aware of problems because owners had contacted them.

He was asked whether, after nine or ten owners had contacted them, they had decided to investigate further. He said that they asked owners to let them know if they were having any problems with water ingress. He asked some owners directly. He was asked about the owners of Suite 101. He indicated that the owners assured him there was no problem. [ 88 ] He was asked why there was no documentation in the Minutes and how owners would know about the potential problem in their suites. He said that the Strata did the work and looked after their responsibilities.

He testified that the minute Strata found out about a problem they rectified it immediately. When he became Property Manager, he went into the suites, determined the scope of the work to be done, and retained the contractors. [ 89 ] He had no recollection of being in the suite with Ms. Paul and the two friends who testified to that effect. He did not recall talking to Ms. Paul when she called from Toronto or from Edmonton. He did not recall Ms. Paul telling him she was calling him from Vancouver Hospital because her sister was undergoing chemotherapy.

He recalled being in the suite with a contractor for a short time in September and noticing black marks on the pipes and that the toilet was missing. He was not there long because he was not supposed to be in there at all. [ 90 ] He testified that the original quote to properly fix the water ingress problem would have cost $50,000 per suite. Then EPS came up with the best price. Water ingress had been a problem for years before the 2004-2005 fix, probably back to 1980. Previous Councils had decided on Band-Aid solutions that made it worse.

Anew Council came in who wanted to address the problem properly. [ 91 ] Mr. Riding was President at the time and he signed the contract. They were happy with the work that EPS did. Structural rot repairs were expressly not part of the contract although they did replace some of the rot under patio doors. [ 92 ] Mr. Riding denied saying that there was no mould in her suite. He testified that he did not know one way or the other. He was referred to a September 26th, 2009 email to Council members in which he wrote: I have to thank you all for letting me have the lead sometimes.

I was just on a tour through #101 as the contractor let me in. He has ripped out about half the Gyproc off the walls. I wanted to go in because I saw some of the walls on the patio and could not see any widespread mould that she told me about. There is two small spots of old water stains inside, not mould. [ 93 ] He conceded in cross-examination that Strata relied on him to investigate and provide advice. He clarified that he became Property Manager only after he was no longer President of the Strata. [ 94 ] Mark Belko was the only other witness for the defendants.

He has been an owner of a second floor unit since 2009. He is currently the President of the Strata. He went on Strata Council in 2010. The first time he met Ms. Paul was at the December 2010 Council meeting. It was also the first time he had knowledge of the mould issue. Mr. Riding had been dealing with Ms. Paul. [ 95 ] At the meeting, Ms. Paul was very angry about how the Strata had dealt with a recent break in and her renovation to remove mould. She expressed concern that the mould could be spreading throughout the building and that could cause a devaluation of their building. She was not happy with Mr.

Riding. She brought a stack of emails between them that she reviewed. Mr. Belko did not see any physical photos. He saw photos on her iPhone and asked her to email him those photos. She never sent them to him. He did not see the photos or the reports from Mr. Williams or Mr. Halley until the pre-trial conference. [ 96 ] After the meeting, they went to Ms. Paul's suite to review the damage from the break in and discuss the window. She discussed the mould and described it as severe. He wanted to see what it had been like. He was asked whether he had made any promises to Mr. Paul after the meeting.

He paused for a very long time before answering that he could not recall. I asked him whether anyone had told him that the building had had a water ingress problem. He said not at that time. He could not recall when he first heard about it, but it would have been sometime after they had been served with the notice of claim. [ 97 ] On cross-examination, he indicated that Mr. Riding decided what came to Council. He had never been told that Suite 101 was complaining about mould. He had never been informed that nine or ten suites had repairs done related to water ingress at Strata expense.

He confirmed that he could not recall Ms. Paul having photos with her at the December meeting. He did not recall making a commitment to investigate the mould situation. He recalled advising Ms. Paul that if she wanted another meeting with Strata Council, she would need to follow the proper protocol set out in the bylaws. [ 98 ] Much of the evidence set out above is not in dispute. It is clear from Mr.

Williams' evidence and the work that was completed for the Strata at its expense in 2004-2005 that the subject building was poorly designed and/or constructed and that as early as the 1980s water ingress into the ground floor suites, particularly in the courtyard, was an ongoing problem.

[ 99 ] It is also clear from the evidence of Mr. Riding that for a very long time Strata had ignored the problem or engaged in a series of grossly inadequate Band-Aid and handyman solutions. [ 100 ] It is also clear from the evidence of Mr. Riding that as of 2004-2005 when he was the President of Strata Council that Strata was well aware of the damage that could be done and had been done to ground floor suites as a result of the failure of previous Strata Councils to take proper action to remediate a problem that originated with the common property.

He testified that the Strata had paid for remediation work resulting from water ingress damage to nine or ten suites. He testified that Strata considered that remediation work to be part of Strata's responsibilities. I agree with him. [ 101 ] Mr. Williams opined that once a fundamental problem was detected, the ground floor suites should have been systematically investigated for water damage.

The Strata did not investigate the extent of water damage already done to ground floor suites, nor did it communicate its concerns about potential water damage to ground floor suite owners so that the owners could take steps to investigate. Instead, the Strata left it up to Mr. Riding to decide to whom he should raise the potential problem or left it up to owners to come forward with complaints. [ 102 ] The reason Mr.

Riding gave for treating the owners of Suite 101 differently from other owners who complained of water damage was that the remediation work arose as a result of "normal conversations with normal people". At the time of the purchase of the suite, the Strata was in the process of completing remediation work in two of the suites. It was not clear whether the two suites were part of the nine or ten or additional to the nine or ten suites. [ 103 ] There is a dispute as to whether Mr. Riding attended Suite 101 on August 13th, 2009. Three witnesses testified under oath that he did, including two who were friends of Ms.

Paul but who otherwise have no interest in these proceedings. Although I found Mr. Riding to be an honest and forthright witness, I have concluded that he has forgotten his visit to the suite at that time and I have preferred the evidence of the three witnesses who testified that some mould was brought to his attention at that time. [ 104 ] Even if I accept his evidence on that point, the concern about mould resulting from water ingress to Suite 101 was brought to his attention by Mr.

Pearce's email of August 13th, 2009. [ 105 ] Damage to a ground floor suite from water ingress was not a new problem in the context of Mr. Riding's role and responsibilities with the Strata as President and then Property Manager. While a new Property Manager or a new member of Council might have responded differently, I would have expected someone with Mr. Riding's intimate knowledge of the history and extent of the water ingress problem to have taken the complaint seriously and advised the current Council of what had been done for many other owners in the past. [ 106 ] I would also have expected Mr.

Riding on behalf of the Strata to directly advise the new owners of the history of the problem, the work that had done to remediate the problem, the fact that Strata had taken responsibility for the suite remediation in some circumstances and the usual process followed by the Strata to determine the extent of its responsibility, if any, for the remediation. If that had been done we would probably not be here today. [ 107 ] As only Mr. Belko testified on behalf of the Strata Council and he was not on Council in 2009, it is not clear whether Mr.

Riding was advising Council and they were following his lead, or whether they were directing him to take the position that damage done to the suite as a result of water ingress from the common property was not the responsibility of the Strata. From a legal perspective, it does not matter as Mr. Riding was acting throughout within the scope of his authority as Property Manager employed by the Strata Council, and when Ms. Paul attempted to engage directly with Council members they referred her back to Mr. Riding. [ 108 ] It is also clear that the acrimonious relationship that quickly developed between Mr.

Riding and Ms. Paul exacerbated the situation and from what I can see from their correspondence, they both contributed to that situation. [ 109 ] Mr. Riding initially stonewalled Ms. Paul by expressing scepticism about the possibility of mould, its extensiveness, and its potential negative health effects. He also maintained the position up to the trial itself that remediation of the unit itself was always the responsibility of the owner while fully aware that a large number of units had been remediated at Strata expense. [ 110 ] Ms. Paul refused to respond positively to Mr.

Riding's reasonable requests to provide him with copies of the reports she had received from Mr. Halley and Mr. Williams. She also exaggerated to some degree the opinion of Mr. Halley when she quoted him as saying the unit was "Uninhabitable". [ 111 ] I blame Mr. Riding more than Ms. Paul for the fact that Mr. Riding never toured the suite in her presence to view the mould that was seen and described in testimony by not only Ms. Paul and Mr. Kryhul but by Mr. Halley and Mr. Williams. In any event, their evidence was clear, compelling and uncontradicted that the mould was extensive. [ 112 ] Mr.

Williams' evidence that the mould was likely the result of water ingress from the outside patio wall and door was supported by the evidence of Mr. Riding that this was the problem that earlier required remediation but that it had come too late for some suites that were already damaged. [ 113 ] I have concluded that one of those suites belonged to the claimants and that, like the other affected ground floor suites, the Strata was responsible for remediating Suite 101. [ 114 ] Section 72(1) of the Strata Property Act, S.B.C. 1998, c. 43 reads: 72

(1) Subject to subsection (2), the strata corporation must repair and maintain common property and common assets. [ 115 ] The evidence of Mr. Riding and Mr. Williams supports that the Strata failed to repair and maintain the common property, the

exterior walls and patios until 2004-2005. That failure led to water ingress into a large number of ground floor suites and water damage including the spread of mould through a large number of suites including Suite 101. [ 116 ] In failing to remedy the problem in a timely manner and in failing to investigate all ground floor suites at the time of the remediation of the common property, the Strata breached its statutory duty and its common law duty of care to owners. I rely on the analysis in the case of Fudge v.

Strata Plan NW 2636 , 2012 BCPC 409 a decision of my brother Judge Woods in that regard. [ 117 ] I find that it was reasonably foreseeable at the time of the common property remediation that water damage to the interior ground floor suites, including Suite 101, was a likely consequence of the earlier failure to repair the common property. By paying for the repair of many other water damaged suites, the Strata rightly in my view acknowledged that responsibility. [ 118 ] The claimants' claim against the Strata succeeds. [ 119 ] The claim against Mr. Riding as a named defendant is dismissed.

I am satisfied that at all times Mr. Riding was acting as an employee of the Strata and that any duty owed to the claimants was owed by the Strata, not Mr. Riding personally. [ 120 ] I do not accept the claim in its entirety. The evidence established that the claimants intended to replace the flooring in the suite.

I do not allow any of the costs associated with the flooring including all flooring materials and the flooring contractor's labour cost of $5,000. [ 121 ] I also reject the claim for the cost of accommodation elsewhere as it is unsupported by receipts. [ 122 ] There is no evidence to support the fuel station charges for gasoline or the expense of a new dishwasher. [ 123 ] I accept the balance of the remediation expenses claimed.

However, the principle of betterment must be applied as the claimants replaced old and undoubtedly worn cupboards and fixtures with brand new replacements and walls and baseboards with new and freshly painted walls and baseboards. [ 124 ] No evidence was led by either party as to the age, quality, or state of the materials that were replaced. The obligation for leading that evidence was on the defendants.

However, it must be acknowledged that the replacements were brand new and will undoubtedly not require replacement for far into the future, a benefit to the claimants that should not be the sole responsibility of the defendant Strata. In the absence of evidence, I am deducting 10 percent from the balance of the replacement costs as attributable to betterment. I rely on the Fudge case supra, and the case of Evin v. Harder , [2012] S.J.

No. 349 , a decision of the Saskatchewan Provincial Court. [ 125 ] The claimants are also awarded their filing fees, service fees, reasonable charges pursuant to Rule 20-2 of the Small Claims Rules and pre-judgment interest under the Court Order Interest Act , R.S.B.C. 1996, c. 79. [ 126 ] In the event that the parties cannot agree on the amounts described above, I will remain seized and either party may apply for a hearing before me to finalize the amount of the judgment. (ORAL REASONS FOR JUDGMENT CONCLUDED)