Strata-lot owner held responsible to pay strata corporation’s insurance deductible in leaky-toilet case
August 18, 2016
BY Kevin Zakreski
In a case decided late last month, the Provincial Court of British Columbia (Small Claims) has held a strata-lot owner responsible to pay the strata corporation’s insurance deductible. The case is the latest example of how courts are handling the legal issues that arise when strata-property law and insurance law intersect.
Strata Plan VR360 v Jauhar, 2016 BCPC 238, involved water damage apparently resulting from an overflowing toilet. The claimant was the strata corporation; the defendant was the owner of a strata lot on the third floor.
The claimant called evidence from plumber who had attended at the site. He testified that a “foot” was “lodged inside” the toilet:
The “foot” for clarity is a bumper which attaches to the underside of the toilet seat and rests on the top rim of the bowl. It was approximately 2 inches long by ½ inch wide and ¼ of an inch in depth. The inside of the toilet trap is not finished and is rough in texture and as a result objects can get stuck on imperfections.
The “foot” caused a blockage, which resulted in “water flowing from the 3rd floor down into the parking garage.”
The defendant argued he wasn’t responsible for the blockage, alleging
bad faith and bias on behalf of the Strata Council and some of its members. He also suggests the flooding was coming from underneath his toilet as a result of a backup in the sewer outlet pipe or that the flooding was from another plumbing failure in the main pipes for which the Strata is wholly responsible. Alternatively, they say the blockage found in the toilet was caused by the plumber working around the toilet.
The court rejected the defendant’s arguments, finding them “not supported by any evidence and . . . purely speculative.” The court accepted the claimant’s evidence.
In applying the law to the facts, the court briefly reviewed the precedents that have developed in this area of the law. It observed that:
The Strata does not need to establish negligence on behalf of the owner. They need only establish responsibility: (see Mari v. [Strata Plan] LMS 2835, 2007 BCSC 740 (CanLII) at paras. [11]-12.) It is trite that the toilet in the defendant’s suite from which the water escaped is part of their strata lot and for which they are responsible.
The Strata is entitled to chargeback for insurance deductibles paid for claims for which an owner is responsible: see [Wawanesa Mutual Ins Co] v. Keiran, 2007 BCSC 727 (CanLII) and [Strata Corporation LMS 2723] v. Morrison, 2012 BCPC 300 (CanLII). They are also entitled to be paid for expenses incurred with respect to matters for which an owner is responsible.
The court found that the claimant was “entitled to recover their $10,000.00 deductible in full from Mr. Jauhar. I also find they are entitled to recover the invoice in the amount of $1,008.34 for the plumber to attend and resolve the flooding issue.”
And the court went even further, adopting the following comments from Strata Plan LMS53259 v Sze Han[g] Holding Inc, 2015 BCCA 42[4]:
self-represented litigants have no license to employ accusations of dishonesty as a feature of their rhetoric unless such accusations are firmly grounded in the evidence, are relevant to the proceedings, and are responsibly made. By “responsibly” I mean measured, careful, and faithful to the evidence. Self-represented litigants must understand that the court is not a free fire zone where anything can be said regardless of the harm to other and their reputations. . . .
The court concluded that, in this case, it was “appropriate to impose a penalty against the defendant in this matter under Rule 20 (5) in the amount of $1,325.00 being 10% of the total judgment.”
