Strata corporation and strata-lot owner ordered to split the cost of replacing flood-damaged hardwood floor
December 8, 2017
BY Kevin Zakreski
In an appeal of an unreported provincial-court decision, the BC Supreme Court has ordered that it would be “just” for a strata corporation to be “held liable for 55% of the costs charged by the contractor for demolition and replacement of the hardwood flooring in the appellant’s unit, less a deduction of 15% representing betterment given the appellant’s concession during its submissions to me that the new hardwood floor was thicker and better than the one that was installed in 2003.” The basis for this order was “an implied term” found in the strata corporation’s bylaws “pursuant to which the respondent accessed the appellant’s unit and commenced the remediation work that it would be responsible for any damage caused to the appellant’s unit as part of that work.”
636894 B.C. Ltd v The Owners, Strata Plan LMS 2995, 2017 BCSC 2230, concerned “a flood that occurred on November 12, 2015 when, during a heavy rainstorm, a large exterior planter on the respondent’s common property overflowed and water entered the appellant’s adjacent strata unit causing damage.” The strata corporation “took immediate steps to retain a contractor to access the appellant’s unit, assess the extent of the water damage, and initiate remediation.”
While the strata corporation “was of the view that only a portion of the hardwood flooring had been affected by the flooding and needed to be removed, the appellant insisted that all of the flooring had to be replaced so that it would match.” In the end, “the appellant entered into an agreement with the respondent’s remediation contractor, Platinum Pro-Claim, to complete the removal and replacement of 100% of the hardwood flooring in the unit,” and the appellant and the strata corporation “agreed to proceed with the repair work and determine the issue of liability at a later date.”
At trial, the appellant’s claim was dismissed, with the court deciding:
- The respondent was not negligent in its repair and maintenance of the planter and had acted reasonably in carrying out its duties in respect thereof;
- The appellant was not entitled to replacement of the entire floor in its strata unit.
On appeal, the appellant asserted “that it was the respondent’s responsibility to repair and maintain the planter’s drainage system and that it must pay all costs flowing naturally and necessarily not only from a breach of that responsibility but also from any damage caused during the undertaking of the repairs.”
The supreme court found that the small-claims court had made no “palpable or overriding error” in its conclusions on negligence. The court also held that “[t]he appellant has failed to demonstrate that the learned trial judge erred in his dismissal” of the portion of the claim based on trespass. But, as the court noted, “that is not the end of the inquiry.”
Citing section 13 (1) of the Small Claims Act, the court said that it had the authority to “make any additional order that it considers just.” The court considered it just that the parties split the cost of replacing the floor for the following reasons:
Although it was the appellant who ultimately contracted with Platinum Pro-Claim Restoration to demolish and replace 100% of the flooring, it was clearly the respondent who contracted with and instructed the contractor to remove that flooring necessary to determine the extent of the water damage to common property. I can see no basis in law upon which the appellant can be liable for the costs associated with that work. In my view, it is an implied term of the respondent’s Bylaws 7 and 8 pursuant to which the respondent accessed the appellant’s unit and commenced the remediation work that it would be responsible for any damage caused to the appellant’s unit as part of that work.
In my view, an order that could have been made by the learned trial judge on the basis of the evidence that was before him and an order that I consider to be just, is that the respondent be held liable for 55% of the costs charged by the contractor for demolition and replacement of the hardwood flooring in the appellant’s unit, less a deduction of 15% representing betterment given the appellant’s concession during its submissions to me that the new hardwood floor was thicker and better than the one that was installed in 2003.
(Although the court didn’t quote these bylaws, it did describe them in the following terms: “Bylaw 7, which provides that the respondent has the right to enter any strata unit without notice to inspect, repair or maintain common property or any portions of a strata lot that the respondent has the responsibility to repair or maintain and Bylaw 8, which stipulates that the respondent must repair and maintain common property.” Sections 7 and 8 of the standard bylaws cover similar topics, but the court didn’t say whether the bylaws considered in this case were identical to, similar to, or a departure from the standard bylaws.)
Finally, the court briefly touched on insurance:
The respondent points out that the appellant and all other owners of strata units are required by the bylaws to purchase and maintain insurance coverage for fortuities falling within the respondent’s deductible of $25,000. As a result of what appears to be inadvertence, the appellant failed to put such coverage in place.
While the appellant’s failure to do so may have been a breach of the bylaw, the respondent has made no claim in that regard. Moreover, even if such a claim had been made, there is no way in which the Court could determine the extent to which coverage would have been afforded.
In the result, the appeal was “allowed to the following extent: The appellant is entitled to judgment against the respondent in respect of 55% of the costs of demolition and replacement of the hardwood flooring less 15% betterment” and the appellant was “entitled to 55% of its costs of this appeal and of the trial below.”
