02/06/2022 – Jurisdiction British Columbia
Part 78 published on 01/06/2022
Strata lot owner liable for strata corporation’s deductible in relation to damage due to toilet overflow
The toilet in one of the strata lots (which was occupied by the owner’s tenant) overflowed, causing damage to the strata lot and to the strata lot below. The water damage was covered by the strata corporation’s insurance, but subject to a $15,000 deductible. The strata corporation claimed that the owner of the strata lot in which the toilet overflowed was responsible to pay the deductible. The owner asserted that he was not responsible to pay the deductible because the blockage which caused the overflow occurred in the common property, and therefore fell within the corporation’s responsibility.
The Tribunal held that the owner was responsible to pay the corporation’s deductible because the damage resulted from the negligence of the owner’s tenant. The Tribunal said:
…though the blockage occurred in common property, I find that Brian Smith’s tenant breached the standard of care by failing to ensure that the toilet drained properly after they flushed… I find that the tenant could have readily discovered the toilet was not draining properly and could have stopped the overflow if they had exercised due care. By failing to do so, I find Brian Smith’s tenant negligently caused the water damage, even though the blockage occurred outside the strata lot.
In terms of the standard of care, the Tribunal noted that the applicable by-law of the strata corporation stated that “an owner must reimburse expenses and insurance deductibles relating to maintenance, repair, additional insurance, or replacement, rendered necessary to common property or strata lots caused by the “act, omission, negligence or carelessness” of the owners or their tenants to the extent that such expense is not reimbursed from insurance proceeds”. The Tribunal said:
I find that bylaw 5.4.a’s use of the phrase “act, omission, negligence or carelessness” clearly means an owner must be negligent in order for the strata to recover an insurance deductible under the bylaw, as was found in Morrison and Nacht. I find that the strata, by adopting bylaw 5.4.a clearly intended to set out the more stringent standard of negligence, rather than the standard of responsibility contained in SPA section 158(2).
Again, the Tribunal held that the owner’s tenant had been negligent in this case, and the owner was therefore responsible to pay the corporation’s deductible.The Owners, Strata Plan VR1183 v Smith – Civil Resolution Tribunal B.C.