Canadian Underwriter

Did negligence cause mice ingress and water leaks?

February 6, 2023   by Philip Porado

Mouse infiltration damages water lines

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A British Columbia condo owner failed to show a strata corporation breached its duty to repair and maintain the irrigation system or the building’s waterproofing membrane.

In Yoon v. The Owners, Strata Plan, the applicant, Bori Yoon, claimed the strata negligently failed to address root growth that damaged an irrigation pipe, as well as mice damage to the building’s waterproofing membrane, which allowed water to enter her unit.

Yoon claimed $12,256.91 for flooring damage, additional living expenses and other losses, and asked the strata be ordered to repair the building’s waterproofing membrane, wrote tribunal member Micah Carmody in a Feb. 3 decision for the Civil Resolution Tribunal (CRT), which has jurisdiction over strata property claims in B.C.

He noted the evidence showed the water leak happened Sept. 20, 2018 and the strata brought in Barclay Restorations on an emergency basis. Carmody added it is undisputed the September 2018 water leak damaged the living room flooring in Yoon’s unit.

Yoon had replaced the engineered flooring throughout her unit because, she said, the existing flooring was no longer being produced, at a cost of $7,160.14. Plus, she claimed $793 for tools, trim and painting, and $967 for additional living expenses.

Carmody found none of Yoon’s claimed repairs fell within the strata’s obligation to repair and maintain a strata under the relevant law because they didn’t involve doors or the building’s structure or exterior.

“The strata undisputedly paid $5,563.83 for emergency repairs and did not charge any repair costs to Ms. Yoon. The strata says it did not file an insurance claim although its deductible was $5,000,” he wrote in the decision. “Emails show that the strata started an insurance claim, which may have covered some of Ms. Yoon’s additional living expenses and replacing her damaged floors, but the strata withdrew the claim around October 2020. Ms. Yoon does not ask for an order that the strata reopen its insurance claim, so I have not considered the insurance issue further.”

Regarding her claim the strata neglected its duty to address rodent entry into the building, emails since 2017 did show Yoon had complained about mice entering the unit or its walls.

“However, the difficulty for Ms. Yoon is that she has not provided any evidence linking rodent ingress and water ingress or damage to the waterproofing membrane,” Carmody wrote. “I find that whether rodents damaged the waterproofing membrane and whether such damage can and did permit water ingress is beyond common knowledge and requires expert evidence to prove. There is no such expert evidence here.”

Carmody noted strata corporations are not insurers and, in the absence of a bylaw stating otherwise, are only liable to pay for repairs to a strata lot, and other damages, where it has been negligent or breached its statutory duty to repair and maintain common property.

Further, he cited a 2010 B.C. Supreme Court case, Weir v. The Owners, Strata Plan, which noted strata corporations must work within a budget the owners can afford.

“Strata corporations are often called upon to choose between ‘good, better or best’ solutions,” said Carmody. “If a strata corporation chooses a good solution over a perfect solution, it will not necessarily be considered unreasonable even if the repair later turns out to be ineffective.”

He said Yoon had not established the strata breached its duty to repair and maintain the irrigation system or the building’s waterproofing membrane.

“I find the strata not responsible for repairing damage to Ms. Yoon’s strata lot, and I dismiss her claim for damages. I also dismiss her claim for an order that the strata repair and maintain the building’s waterproofing near her strata lot, because I find the strata is doing this,” Carmody wrote.


Feature image by Glazkova