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B.C. TRIBUNAL rejects RETROACTIVE deductible download after non-blameworthy WATER damage 2020/11/03 15:56  
Not legal advice as usual.

A British Columbia strata corporation purported in 2019 to download unto the respondent unit owner, the master insurance policy $ 5 thousand deductible for what its own expert investigator reported as lacking negligence nor blameworthiness. ( Some deductibles in B.C. are anecdotally reported to have reached $ 750,000 )

In January 2019 the respondent unit owner’s unit had been the source of a washer leak that damaged two lower floor units.

The investigator’s technical report however could find no evidence that any act or omission by the upperfloor owner, had been the cause of the flooding.

If and whatever such report might have also speculated as to causality or contribution - not cited by the C.R.T. Civil Resolution Tribunal - a blameworthy act or omission by the respondent owner is ruled NOT a cause.

The adjudication is also silent as to whether liens or other collection threats occurred, but the strata corporation subsequently decided to :

1 Amend its insurance deductible by-lawing provisions to now make the master policy deductible downloadable without blameworthiness. Downloading would become like a form of STRICT or absolute liability, derived automatically from “whence came the water ? “ That’s : merely “by bare source” rather than negligent acts nor omissions as construable under the prior by-law in force at the date of the water damage; and

2 APPLY to CRT to RETROACTIVELY force the source unit’s owners to suck up the deductible under the later by-law . That's what got passed months later.

BUT here the self-represented respondents beat that attempt.

Side issues here besides mere evidence :

1- Did the replacement by-law contain some sort of a transitional clause or attempt retroactive application ? BUT not even discussed. Free-standing would at least raise some real issues including need for consumer certainty .

2 - Letting condo or strata bylaws “convert” or “extend” deductible liability, literally appears to row against trends away from strict or absolute liability except where dramatic environmental damage has been clearly legislated.

Creating STRICT LIABILITY BY-LAWS has some irony when water damage wars are underway.(It's not just rural drainage warfare for simple folks out here in the boondocks.)

Water damage was central to a still-controversial 19th century English & Welsh legal decision that culminated with what some argued appeared to be creating STRICT or ABSOLUTE CIVIL LIABILITY for damages if ALLOWING or failing to prevent AN ESCAPE of something otherwise lawful. Something like water. An alternative to 'nuisancing' adjacent land.

It might be seen in the evolving context of some far earlier decisions that imposed strict liability for some sort of ESCAPE regardless of any proven carelessness : the mere intermediate spread of fire already raging. Or think for example an angry 2000 pound bull escapes & creates havoc. OR critters leap fences and eat neighbour’s crops. . . . Anyway . . .

The 1868 House of Lords decision Rylands v Fletcher 3 LR HL 330 issued July 17 1868 famously awarded damage to a mine owner merely in the general vicinity of the defendant.

The claimant’s mines had been quickly flooded by the defendant millowner’s new reservoir once filled by rainwater. During the reservoir’s construction amidst an area dotted with centuries of mining there had been a failure to adequately seal off some subterranean mine shafts, through which the new reservoir’s WATER ESCAPED and flooded the claimant’s mines.

Although modern environmentalists might have looked at such JUDICIAL / NON-LEGISLATED remedy for such as pollution or underground fracking, the approach has critics. It ignores forseeability.

Is there a parallel to deductible downloads without negligence ? How far should strata or condo corporations go - with their frequent skillset limits or attitudes - in trying to grasp what their by-laws lawfully empower ? Or fail to lawfully empower ?

How many other source unit owners or their insurers have faced such demands ?

Whatever, unit owners prudently need to purchase adequate deductible download insurance with deductibles escalating far beyond the mere $ 5 thousand at stake here.

AND here self-represented owners beat the claim but S.R.L. is usually extra risky stuff . . .

The Owners, Strata Plan EPS2532 v. Komala, 2020 BCCRT 1204 issued Oct 26/20
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