The Civil Resolution Tribunal has rejected a $210,848 radiator valve leak claim from two B.C. strata owners.
It’s a case involving mould, asbestos, multiple contractors and delays for various reasons.
However, said tribunal member Kate Campbell said in her Nov. 20 decision, “I find that much of the delay was due to the applicants’ own actions, so even if the water or mould were unhealthy, the strata’s actions did not cause that outcome.”
In the end, Campbell ordered the strata to pay Amy Mitchell and Ian Brett $8,431.46 for the cost of restoring the parts of their unit opened for the leak investigation, plus $428.38 in prejudgment interest.
Mitchell and Brett told the tribunal their unit flooded on Jan. 18, 2022; they said it was from a leak from a radiant heat bleeder valve that is common property, which they said is the strata’s responsibility.
Mitchell and Brett claimed the strata failed to address the leak in a timely manner, and the delay caused further damage to the unit and their possessions.
The pair also claimed the strata’s delays were partly retaliatory, due to Mitchell’s earlier complaint to B.C.’s Human Rights Tribunal and a complaint of racism against a strata council member.
They claimed damages of $210,848.93 for loss of value, damaged possessions, repair costs, alternate accommodation expenses, reimbursement of eight months of strata fees, and reimbursement of home inspection and real estate appraisal costs.
The strata initially said the leak source was part of the unit, and was not common property it was responsible to repair or maintain.
However, the strata later admitted the leak source was common property.
The strata said Mitchell and Brett failed to mitigate the damage, by delaying or refusing access to the unit.
The strata also said Mitchell and Brett are not entitled to their claimed damages, or that the damages should be limited to $4,206.73 minus the strata’s legal costs.
Campbell found the evidence established the strata was not negligent in investigating and repairing the leak. And, she said, the strata could not have done routine inspections or maintenance of piping without removing drywall.
“There is no indication in the evidence before me that the strata ought to have known that the pipe coupler was at risk of failure, or likely to leak,” Campbell said. “I find the strata did not breach any preventative maintenance obligation.”
The tribunal ruled the leak source was difficult to locate, and that the strata took reasonable steps to identify and fix it.
Still, Campbell said evidence showed the leak was first visible on the ceiling of the parking garage below the unit.
The strata said the leak was first reported by a council member Jan. 17, 2022, the day before the incident.
The next day, the strata requested to get into the unit to investigate and Mitchell refused.
Instead, Mitchell replied that the strata’s plumber could inspect the unit three days later on Jan. 21, 2022.
“Based on the email correspondence, I find that this delay was (Mitchell’s and Brett’s) choice,” Campbell said.
The strata said that, on Jan. 21, 2022, Mitchell and Brett did not allow the plumber to enter.
“I accept that no inspection occurred,” Campbell said. “I note that the applicants did not request another inspection time, or arrange for their own plumbing inspection, as the strata offered. So, I find the strata was not responsible for this period of delay.”
On Feb. 8, 2022, Mitchell emailed the strata saying there was an active leak in the wall and under the unit’s wood floor. She requested that the strata send a plumber.
The strata sent a plumber the next day, an invoice showing there was leaked water in the unit’s living room. The plumber removed some wet drywall and flooring to determine the leak source.
The plumber reported the water seemed to be coming from a bedroom heating pipe.
“I was unable to gain any more access due to clutter in bedroom,” the plumber said.
The invoice says the leak was slow and the damage was already done, and the plumber ran out of time, so the repair was scheduled for Feb. 11, 2022.
However, on Feb. 10, 2022, Mitchell emailed the strata to complain about the delay in completing the repair, saying there was mould and it was not safe to live in the unit. She said that issue had to be cleared up before opening any more walls.
The strata manager replied the next day, saying the repair had now been rescheduled to Feb. 15, 2022. The strata manager wrote that the plumber said the mould had been removed, and the area sealed, so it was safe to stay in the unit.
Mitchell found that unacceptable, saying the plumber was not a mould expert and that there was now black mould on the wall. The strata manager scheduled a restoration company to attend to handle that issue.
Mitchell confirmed that company had called and accused the strata of “game playing.”
“This is now a legal issue,” Mitchell wrote. “Strata has demonstrated that they are negligent in failing to address this properly. We will pursue legal.”
The strata said Mitchell and Brett did not allow the restoration company access. Campbell accepted that.
It was on Feb. 16, 2022 that Mitchell texted the strata manager to say they needed their family and property moved to temporary accommodations before anyone could disrupt the asbestos.
The strata manager said that asbestos testing results for the unit that arrived that day showed two per cent asbestos, an amount within WorkSafeBC guidelines.
When another restoration contractor showed up Feb. 28, 2022, Mitchell and Brett refused access to the bedroom wall where the leak was suspected.
Technicians arrived March 7 but were denied access until that afternoon when Brett arrived home from work.
“Circle and our subtrades refuse to take any responsibility for any damages inside the bedroom due to denial of access by the owners upon repeated requests,” one contractor report said.
On March 17, 2022, contractors and a plumber were able to identify and repair the leaking pipe coupler.
Mitchell and Brett denied ever refusing access to the unit but Campbell found they did twice.
Mitchell and Brett said one contractor was colluding with the strata to present false evidence against them.
They told the tribunal they were exposed to mould and water-related health hazards. Campbell rejected that.