Strata corporations are required under s.149 of the Strata Property Act (SPA) to place insurance for the whole building, including the strata lots themselves. When a claim is made under the policy there is a deductible to be paid. Payment of that deductible is governed by Section 158 of the SPA. Subsection (1) provides that the deductible is a common expense to be contributed to by all owners on the basis of unit entitlement. Subsection (3) allows the deductible to be paid from the Contingency Reserve Fund or for the imposition of a levy on the owners; both without a 3/4 vote.
Typically the deductible is paid by the strata corporation as contemplated in s.158(1). However, in Louie v. Strata Plan VR-1323 2015 BCSC 1832 the court held that where the damage was caused by the owner and was confined only to that owner’s strata lot, the strata corporation was under no obligation to pay the deductible and then collect it from the owner. The owner was obliged to pay it directly.
The most common issue faced with respect to deductibles is who is ultimately responsible for it. In other words, when can an individual owner be made to pay the entirety of it? Section 158(2), reproduced below, addresses that issue:
“Subsection (1) does not limit the capacity of the strata corporation to sue an owner in order to recover the deductible portion of an insurance claim if the owner is responsible for the loss or damage that gave raise to the claim.”
The application and meaning of Section 158(2) was first considered by the court in Strata Corp. VR 2673 v. Comissiona (2000), 80 B.C.L.R. (3d) 350 (BCSC). The court in that case held that there is nothing which prevents a strata corporation from suing the person who caused the damage in order to recover the deductible. Section158(2) does not create a right to sue an owner for deductible paid by them. Rather, all that subsection does is not restrict the strata corporation’s ability to do so.
Unfortunately, the decision in Comissiona did not address what was the standard by which an owner becomes liable to pay the deductible. Section 158(2) uses the word “responsible” instead of language such as “liable”, “negligent” or any other word which is similar in nature. What does “responsible” mean? What does the strata corporation have to prove in order to make an owner reimburse it for the deductible?
That question was eventually answered by the British Columbia Supreme Court in the cases of Strata Plan KA1019 v. Keiran 2007 BCSC 727 and Strata Plan LMS 2835 v. Mari 2007 BCSC 740. Both cases were appeals from decisions of the Provincial Court (Small Claims Division) wherein the court, in essence, held that where the cause of the damage which gave rise to claim originated in a strata lot, the owner(s) of that lot were responsible for payment of the deductible. On appeal the Supreme Court agreed with the decision reached by the Provincial Court in Kieran that “because the damage occurred within the unit and not to common property, this is a situation where the homeowner had the duty to repair and maintain and is therefore ‘responsible for the loss regardless of the absence of fault or negligence on their part.” It concluded that “being responsible is not the same as being negligent” and that “owners of a strata unit are “responsible” for what occurs within their unit. Since the Legislature used the term “responsible” rather than “liable” or “negligent”, it obviously meant for a different standard to apply. The stricter standard therefore was to apply.
In Mari the claim also involved water damage, this time from a faulty water level sensor in the washer located in the Maris’ unit. The trial judge in the Provincial Court determined that the Maris were responsible to pay the deductible because they “were clearly the people who allowed or ‘caused’ the washer to be used.” On appeal the Supreme Court upheld the decision stating:
“I am satisfied that the legislation is clear and that no finding of negligence is required. The Legislature used the term “responsible for” in s.158(2) rather than terms such as “legally liable, liable, negligent.” The choice of the term “responsible” provides the owners with the opportunity to allocate to a particular owner the cost of an insurance deductible in cases where an owner was thought to be responsible for a loss… The owner will be responsible for the deductible notwithstanding that the owner was not negligent. Section 158(s) simply allows the Strata Corporation to set the same standard for the payment of a deductible as would exist in a single family residence.”
In Mari the court also determined that there was a policy rationale behind making an individual owner pay as opposed to sharing it amongst all the owners. That rationale is one of the “disciplining effect of a deductible”. In other words, if an owner is made to pay the full deductible (or knows that he or she will have to) it will cause them to be more cautious.
In both instances the court made it clear that a strict liability standard will be applied: If the cause of the damage arises from inside the strata then the owner is liable for the deductible.
Although a strata corporation can rely on s.158(2) to recover the deductible, many enact bylaws that allocate the responsibility for payment of a deductible to an owner. Such a bylaw is not necessary to collect the deductible - The Owners, Strata Plan VIS 6634 v. Brown, 2017 BCCRT 86. S.158(2) can stand on its own as a basis for the claim.
However, strata corporations which do so enact bylaws of that nature must take care in how they word them. Where the bylaws establish a different standard from that of s.158(2), that different standard will be deemed to apply – Strata Plan LMS2446 v. Morrison 2011 BCPC 519; Crichton v. The Owners, Strata Plan KAS431 2017 BCCRT 33; The Owners, Strata Plan VR194 v. MacKinnon 2017 BCCRT 46; Clark v. The Owners, Strata Plan LMS 3938 2017 BCCRT 62; The Owners, Strata Plan BCS 1589 v. Nacht et al, 2017 BCCRT 88.
A different standard can be established through using words which convey a meaning other than that given to “responsible”; for example terms such as “negligence” or “omission”. A reference to “negligence” requires the establishment of a specific standard that the reasonably prudent strata lot owner must meet and the ability to prove they failed to meet it. For example, in Morrison the court held that the failure to remain in the bathroom until a toilet was done flushing amounted to negligence. Conversely, in Clark the fact that the owner knew their washer was aging but did not replace it was not considered negligence on their part. In cases where the bylaw sets a standard different from the “responsible” standard, strata corporations will need to gather sufficient evidence as to cause of the loss.
These same principles apply even if the cost to repair the damage is below the deductible - Crichton v. The Owners, Strata Plan KAS431 2017 BCCRT 33. However, where that is the case there is no obligation on part of the strata corporation to repair a strata lot; only the common property.
Determining liability for a deductible can be difficult and complicated. Legal advice is often sought to help sort through the myriad issues which arise.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com.
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