Legal

January 6, 2025 Published by British Columbia Chapter - By Matthew S. Both, Sean Bailey

Reasonableness in an Unreasonable World: Strata Corporation’s and Extreme Weather

From CCI BC Strata Connection Magazine, Volume 03, Fall/Winter 2024

There is much discussion today about the effects of shifting weather patterns. An important aspect of this discussion is the possible effects of erratic and destructive weather patterns on property. Snap freezing, fires, and floods have become a reality of the world we live in. Such events have, and will continue to directly impact strata corporations and their respective councils, property owners, and property managers. For our purposes, it raises the following legal question: what is the scope of a strata corporation’s responsibility for maintaining and repairing damage to strata property in the case of such events? With that in mind, this article will provide a general overview of a strata corporation’s legal duty to repair and maintain, while providing guidance with respect to navigating the issues that might arise during weather-related emergencies and avoiding the potential risk and associated liability.

It Starts With The Strata Property Act

The starting point in assessing a strata corporation’s duty to repair and maintain strata property is, unsurprisingly, the Strata Property Act, SBC 1998 c 43 (the “SPA”), and in particular, sections 3 and 72 thereof. That section provides that unless otherwise modified by bylaw, strata corporations are responsible for common property, and owners are responsible for their own respective units. Generally, when the repair or maintenance issue is clearly on either common property or within a strata lot, allocating responsibility is uncontroversial.

In some cases, a strata corporation may be on the hook for damage to a strata lot. Generally, it will depend on the nature of the cause of the damage. For instance, if an owner’s unit is damaged by a strata corporation’s failure to repair or maintain common property, then the strata corporation will generally be liable for such damage. For example, In Wright v Strata Plan #205 (Owners), 1996 CanLii 2460 (BC SC), the court found that water leaking from common property into an owner’s unit was the strata corporation’s responsibility. In Hill v The Owners Strata Plan KAS 510, 2016 BCSC 1753, a strata corporation was responsible for repairing a crack in the foundation of an owner’s unit despite it being localized on the owner’s property. In Oldaker v The Owners Strata Plan VR 1008, 2007 BCSC 669, it was held that repair of an issue in the building envelope that surrounded an owner’s property was the strata corporation’s responsibility. Notwithstanding, as is often the case with law, there exists nuance.

The Key is to Act Reasonably

Once it is established that a strata corporation has a duty to repair a portion of property, how is that duty to be measured? In other words, how do we know if a strata corporation has followed through with its duty to repair and maintain? The short answer to this is: if a strata corporation has acted reasonably, then it has probably met its duty.

It is interesting to note that the case law also speaks of “negligence” as a source of strata liability, yet rarely frames a strata corporation’s liability for damages in terms of the usual elements required to establish a negligent tort. Instead, the discussion invariably revolves around the duty to act reasonably. But what does reasonableness mean? An often-quoted maxim in the case law is that a strata corporation is “not an insurer.” (See Taychuk v The Owners, Strata Plan LMS 744, 2002 BCSC 1638 and Wright v Strata Plan #205 (Owners), 1996 CanLii 2460 (BC SC). However, this is a potentially slippery concept which could mean different things to different people depending on their own viewpoints, interests, and personal circumstances. As with many legal concepts, reasonableness is one which lacks an objective, black and white definition. As such, it is necessarily a framework and a starting point, the substance of which is filled in by the courts.

Case law has recognized that a strata corporation is entitled to deference when assessing its duty to act reasonably. For example, In Sterloff v Strata Corp of Strata Plan No VR 2613,(1994) 38 RPR (2d) 102, it was recognized that a strata corporation has a considerable degree of discretion when it comes to making repairs within the purview of its responsibility, and that courts should not routinely interfere with the strata corporation’s exercise of this discretion. 

Provided that a strata corporation attempts to make reasonable efforts to effect repairs, courts will generally find that it has complied with its duty. In Wright v Strata Plan #205 (Owners), 1996 CanLii 2460 (BC SC), the court held that a strata corporation that had hired a contractor to rectify a water issue on common property had acted reasonably despite the failure of the contractor to solve the issue.

Good, Better, Best and the Greatest Good for the Greatest Number of Owners

In circumstances where a strata corporation has a number of options provided by multiple experts, courts will provide it with some latitude in implementing a solution. In Weir v the Owners, Strata Plan NW 17, 2010 BCSC 784, the court held that a strata corporation had acted reasonably in preferring their own expert report in favour of the expert report of a group of owners, even though the owners disagreed with the solution the strata corporation had landed on. In coming to its decision, the court noted that a strata corporation must work within a budget that the owners can afford. This entitles the strata corporation to choose between “good, better, and best” solutions, and in carrying out its duty, a strata corporation must act in the best interests of all the owners and endeavour to achieve the “greatest good for the greatest number” of owners. 

Get a System in Place

In some circumstances, a strata corporation will meet its duty to reasonably repair and maintain by having a system in place. In Basic v. Strata Plan LMS 0304, 2011 BCCA 231 (CanLII), a case dealing with damage arising from a flood caused by leaking pipes, the court found that the strata corporation had acted reasonably in attempting to prevent, and respond to, the flood in question by having a regular system of nightly inspection and then acting quickly when the problem became apparent. 

General Deference, But There are Limits

In Hirji v Strata Plan VR 44, 2015 BCSC 2043, it was held that in assessing reasonableness, the strata corporation’s actions must be determined by the circumstances at the time, and that reasonableness is not perfection and should not be considered through the lens of hindsight.  

When assessing the reasonableness of a strata corporation’s response to a repair issue, courts have also recognized that strata councils are ultimately volunteer bodies and that courts should take consideration of this. For example, in Mitchell v The Owners, Strata Plan KAS 1202, 2015 BCSC 2153, it was held that because the members of a council are volunteers, courts should understand that mistakes and missteps will necessarily occur. Therefore, where a strata corporation has retained a professional to perform its maintenance and repair obligations and reasonably follows that professional’s advice, it will have generally fulfilled its statutory duty, regardless of whether the professional was ultimately correct (see also Lecler v The Owners, Strata Plan LMS 614, 2012 BCSC 74; Joshi v the Owners, Strata Plan NW 1833, 2019 BCCRT 39). 

This proposition was expressed and elaborated upon by the Supreme Court of British Columbia (the “SCBC”) in Slosar v the Owners, Strata Plan KAS 2846, 2021 BCSC 1174, a case where owners brought an action against a strata corporation for failure to repair the fascia of the building’s common property. The dispute was originally before the Civil Resolution Tribunal (the “CRT”). The tribunal member dismissed the case on the basis that the strata corporation had acted reasonably by promptly implementing repairs. On judicial review, the SCBC agreed with the reasoning of the tribunal member, noting that the strata corporation had been aware of, and responding to, the common property issue from 2013 to 2016. The court further found that the strata corporation “hired two qualified consultants in 2013 and followed their recommendations within reason, albeit perhaps not the [owner’s] ‘Johnny-come-lately’ liking.”

Once the full extent of the issue was known in the fall of 2018, the strata corporation began the remediation and repairs. On that basis, the SCBC found that the strata corporation had acted reasonably. 

Despite such cases, the general deference to the decision of strata corporations is not unlimited. For instance, in Oldaker v The Owners Strata Plan VR 1008, 2007 BCSC 669, the court found that the strata corporation had not responded reasonably to an issue with the building envelope surrounding an owner’s unit. The court cited the strata corporation’s long delay in dealing with the problem, its knowledge about issues in the building for years prior to taking action, and its failure to act on the issue until an administrator had been appointed. 

In Browne v Strata Plan 582, 2007 BCSC 206, a group of owners brought a petition seeking to force a strata corporation to make certain building envelope repairs. The owners had experienced water ingress problems since at least 2002, and at a special general meeting, the owners voted in favour of a repairs expenditure of $30,000. Eventually, the strata corporation hired an engineering firm to assess the condition of the building envelope. The firm indicated the cost of various solutions and broke them down into those that were required immediately, in the “medium-term,” and in the “long term.” However, the strata corporation was unable to achieve the requisite ¾ vote approving the expenditure. In finding that the strata corporation had not acted reasonably, the court indicated that a strata corporation’s duty to repair is present even if the approved ¾ vote is not achieved. 

In another case, Hill v The Owners Strata Plan KAS 510, 2016 BCSC 1753, a structural defect to the strata building that surrounded an owner’s unit was the subject of a complaint to the strata corporation. The court held that the strata corporation had acted unreasonably in addressing the issue by improperly denying responsibility, waiting four years to act on the repairs, and only after legal action was threatened, and attempting to take shortcuts and solve the problem with a “cheap fix,” which even its engineer rejected. 

Case Study: Reasonableness and Planning in Practice

So how do these principles apply to circumstances in which damage is caused by some force of nature or extreme weather event? In a recent decision of the CRT, Yoon v The Owners, Strata Plan VR 2001, 2023 BCCRT 100, this very question arose. 

In that case, the applicant, Bori Yoon (“Yoon”), was the owner of a strata lot that comprised part of the strata corporation. On September 20, 2018, a flood was caused by an underground water valve crushed by large roots growing around it. The water valve was part of a common property irrigation pipe. As a result of it being crushed, the valve failed, and excess water ran down a slope and pooled outside Ms. Yoon’s unit and subsequently entered into her living room. According to Ms. Yoon, the water ingress caused upwards of $12,256.91 in damage to her unit. She claimed that the strata corporation was negligent in its failure to properly maintain the common property irrigation pipe or, alternatively, in its failure to maintain the building’s waterproofing membrane.

The strata corporation had a bylaw requiring it to repair and maintain common assets and common property. However, there was no bylaw that required it to maintain or repair individual strata lots; in fact, the bylaws indicated that owners were responsible for repairs to their respective units. The question then arose as to whether the strata corporation was negligent or had acted unreasonably in either its maintenance of the common property irrigation pipe, or in its alleged failure to maintain the waterproofing membrane.

With respect to the common property irrigation pipe, the CRT found that the strata corporation had acted reasonably in the circumstances for several reasons. First, the tribunal member found that the strata corporation had hired a sprinkler maintenance service provider to review the system at least twice annually, which included annual backflow preventer testing. Second, the tribunal member noted that the strata corporation had no reason to suspect that the valve was at risk of failing as it had never done so before. 

The tribunal member also rejected Ms. Yoon’s suggestion that the strata corporation had failed to maintain the root growth as she provided no evidence that a reasonable system of inspection would have prevented it. Third, the tribunal member held that even if the service provider had acted negligently and placed the valve manifold in a location where root growth was likely, the strata corporation was not vicariously liable for its contractor’s negligence. 

With respect to the waterproofing membrane allegation, the CRT similarly found that the strata corporation had acted reasonably, favouring the strata corporation’s expert evidence over Ms. Yoon’s. The CRT noted that the evidence indicated that the strata corporation was not required to modify the sprinkler components because there were no prior flooding incidents, the flood itself was the result of an irrigation rupture, and the irrigation system had since been capped off. The tribunal member rejected Ms. Yoon’s claims of negligence because her engineering report had not provided any evidence that there was a defect in the waterproofing membrane. Finally, the tribunal member noted that the report did not indicate that the strata corporation ought to have taken any other action prior to the leak. 

In Conclusion

Sections 3 and 72 of the SPA are the starting point for a strata corporation’s duty to repair and maintain property. The SPA and jurisprudence are clear that unless modified by bylaw, a strata corporation is responsible for common property, and damage to an owner’s unit that results from its failure to maintain that property. 

The overarching paradigm of a strata corporation’s duty to repair and maintain is reasonableness. The jurisprudence suggests that courts will provide strata corporations with substantial latitude with respect to repair and maintenance, and will generally avoid second-guessing a strata corporation’s reasonable decisions, including its reliance on qualified professionals. 

In the absence of taking no action whatsoever, engaging in serious delay, or effecting blatantly unreasonable solutions, courts will generally give deference to strata corporations and their councils, including by allowing them the choice among “good, better and best” solutions. However, there are limits to the courts’ deference. If a strata corporation does nothing to fix an issue, denies its responsibility, ignores professional opinions, or purports to implement unsafe or unworkable solutions, the courts (or the CRT) will intervene.  

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Mathew S. Both
Partner, Bleay Both Uppal LLP

Sean Bailey
Associate, Bleay Both Uppal LLP