A strata apartment owner is entitled to collect a deductible from the owner of the unit above his own, following a toilet overflow that caused substantial damages to his apartment, British Columbia’s Civil Resolution Tribunal (CRT) has determined.
In Meier v. Dietz, John Meier lives below Rositta Dietz in a strata building. Dietz’s toilet overflowed, causing over $80,000 in damage and forcing Meier to relocate for more than five months. Meier’s insurance covered the damage, minus a $1,000 deductible.
Meier claimed the deductible from Dietz, as well as Solus Trust Company Ltd., Dietz’s attorney under a power of attorney. Meier also asked that Dietz be required to pay his deductible if a similar occurrence happened in the future.
CRT vice chair Eric Regehr noted there was no direct evidence from Dietz in this dispute.
“Often, when a party fails to provide clearly relevant evidence, the CRT will draw an adverse inference,” meaning CRT will assume evidence was not provided because it would not be helpful.
No party disputed the facts of the complaint: On Aug. 23, 2021, there was a substantial blackwater leak that originated in Dietz’s bathroom and caused extensive damage in Meier’s strata lot. And, Regehr noted, it’s well established the “upstairs neighbour in a multi-unit strata building owes their downstairs neighbour a duty of care.”
However, Regehr noted there was “no factual or legal basis for Mr. Meier to make a claim against [Dietz’s attorney] Solus,” and dismissed that specific claim.
So, the only question before the CRT was whether Dietz negligently caused the leak and is liable for the deductible.
Dietz argued there was no conclusive evidence of negligence. Civil claims in B.C. require an applicant (Meier in this case) to “prove their claim on a balance of probabilities.”
The strata hired Westech Plumbing and Heating to clear the blockage. The company’s invoice said the plumber dismantled the drainage pipes for Dietz’s toilet, which were accessed through Meier’s bathroom ceiling, and cleared out “excessive amounts of paper and wipes.”
Further, the plumber said the leak’s “main cause was lost down the pipe,” which Regehr interpreted to mean some portion of the blockage cleared on its own and was no longer visible.
“I find that the evidence clearly establishes that the source of the blackwater leak was Ms. Dietz’s toilet. I agree with Ms. Dietz that the evidence about what blocked the drainpipe is not entirely conclusive because the blockage had partially cleared. In other words, it may not have been the paper and wipes the plumber observed,” Regehr wrote.
“Still, I find that the evidence establishes that the toilet likely overflowed after Ms. Dietz flushed it, based on the location and description of the partial blockage and lack of any obvious alternative cause. Given the toilet overflowed enough to cause extensive damage to Mr. Meier’s strata lot, I find that Ms. Dietz likely did not monitor the toilet after flushing. I therefore find that her conduct fell below the applicable standard of care, and that she is liable for Mr. Meier’s deductible.”
The CRT ordered Dietz to pay Meier $1,169.88 to cover $1,000 in damages, $44.89 in pre-judgment interest, and $125 in CRT fees.
Beyond the damages awarded, Meier had claimed $104.31 for a water sensor to detect future leaks, and $45 for the cost of ‘expert evidence.’ Regehr dismissed those claims.
Meier also asked for an order that Dietz be automatically liable for his deductible, now $2,500, in the event of a future leak. “I decline to make an order about a hypothetical event. Ms. Dietz’s liability for a future leak will depend on whether she was negligent, as it was here,” Regehr said.
Feature image by iStock.com/Marvin Samuel Tolentino Pineda