29/08/2019 – Jurisdiction Alberta
Part 67 published on 01/09/2019
Appeal allowed. Owner responsible for corporation’s deductible in relation to water damage
The furnace in the owner’s unit malfunctioned. As a result, pipes froze and water escaped, causing damage to four units.
The water shut-off valve had been concealed behind kitchen cupboards that were installed by a previous owner of the unit. As a result, there was a delay of some 45 minutes to remove the cupboards and locate the shut-off valve (to stop the water flow). This delay substantially increased the resulting damage.
The water damage was covered by the condominium corporation’s insurance, subject to a $10,000 deductible. The condominium corporation claimed that the owner was liable for the deductible under the terms of the corporation’s by-laws. The owner denied any liability, saying that the furnace malfunction was unexpected and that she was also not responsible for the concealed shut-off valve. The Master agreed with the owner and dismissed the claim. The condominium corporation appealed.
The Appeal Court held that the owner was liable for the deductible under the terms of the corporation’s by-laws. The Court said:
- According to the by-laws, the owners were responsible for any deductible loss resulting from an act or omission of the owner or a tenant or occupant of the owner’s unit.
- An “act or omission” does not necessarily require negligence, but rather is a question of responsibility to be determined based upon all of the circumstances, including the governing documents of the condominium. In this case, the damage resulted from the owner’s acts or omissions.
- As the owner of the property she should have known where the water shut-off valve was located and should have ensured it could be easily accessed in the event of an emergency, including the breakage or bursting of any pipe or plumbing fixture in her unit. She is required by virtue of By-law 2(iii)(a) to maintain her unit. Further and more specifically, By-law 44(f) requires Breakwell to take appropriate steps to ensure all plumbing systems are in working order and that they are maintained where necessary. The shut-off value is part of the plumbing system in her unit. She was further required under the Codeto ensure that the water-shut off valve was readily accessible for use and maintenance.
The concealment of the shut-off valve falls on Breakwell as the owner of the unit at the time that the damage occurred. She failed to properly maintain the plumbing system and to ensure that the shut-off valve was readily accessible. Her failure to do so contributed to the water damage that was caused to her own unit and to the other units in the building.