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WOODPECKER DAMAGE claim beaten by B.C. strata - WATSON v Owners Strata Plan NES 2242 2020/12/25 16:48  
Not legal advice as usual. ( alerted by Georgia Straight article )

A self-represented strata owner has failed to persuade B.C.’s CRT Civil Resolution Tribunal either :

1 - exactly how long his strata corporation took to halt a woodpecker nesting invasion through the common element building envelope; nor

2 - that the strata corp.’s remediations fell short of its statutory duty ( to perform ) as insufficient & untimely.

Allowing LOTS of deference to the strata’s discretion, the adjudication pointedly links to an oft-cited S.C.C. Supreme Court of Canada decision Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 which rejected a negligence claim by an Ontario plaintiff claiming serious long term mental damage after allegedly finding dead flies in the defendant’s bottled water. It’s a biggy by way of some landmark English & Welsh decisions : Donoghue v. Stevenson, [1932] AC 562, 48 TLR 494 , Anns v. Merton London Borough Council, [1978] AC 728, [1977] 2 WLR 1024, [1977] 2 WWR 1024, 5 BLR 1, [1977] 2 All ER 492, 4 ILR 21, and Wagon Mounds # 1 and # 2.

Woodpecker Onslaught - Facts :

B.C.’s CRT Civil Resolution Tribunal has rejected a $ 65 K claim by a self-represented Kimberly B.C. strata owner Mark Watson against his strata corp for allegedly under-responding to an eccentric & prolonged attack on his unit’s exterior by nest-building woodpecker(s).

His claim included more than $ 41 K for disrupted short term rental income, the legality of which was not treated at issue. ( Is this a parallel to the rejected claim of long term mental injury in Mustapha v Culligan above ? )

The strata corp defended its responses NOT like insurers - guaranteeing results - but rather timely & prudent measures especially given the legal status of the invading bird(s).

Designated an endangered species the stubborn nest-making woodpecker(s) perforated the common element building envelope repeatedly. Then - it is claimed - built nests & reached the outer side of the unit's drywall !

It allegedly even spread avian mites into claimant Watson’s unit, requiring evacuations & disrupting income over a one year period closely defined by the adjudicator contrary to plaintiff Watson’s claimed timeframe ( eg Watson’s photos were cited as not date-stamped )

As a threatened or endangered species the invading ( “Northern Flicker” ) woodpecker group could not dare be peremptorily shot nor publicly poisoned etc by the strata corp. nor its pest-control contractors.

It’s safe to say that in 2019-20 one doesn’t dare get publicly caught quietly rendering 'ultimate solutions' of the sort that many Lanark County private homeowners around here might not wait long to do.

SO : treated correctly by the adjudicator not as insurers/ guarantors but 'reasonable efforts' responders the strata corp response gets lots of deference including for a year of repairs, fumigations & ultimate species-friendly measures ( exterior netting & birdhouses ).

Bottom line : cross claims are rejected and the plaintiff owner must himself suck up repairs to his unit boundary. The degree of difficulty when attempting such claims - even in a tribunal - arguably requires well-presented precision. At the very least looks like an uphill battle without lots of credible expert testimony, especially where the damage source attracts shelter as an endangered species . . .

Watson v. Owners, Strata Plan NES 2242, 2020 BCCRT 1404 issued Dec 10/20

alerted by Dec 17/20 The Georgia Straight “Woodpecker problem : B.C. strata owner fails to prove $65,000 claim for bird damage on property” by Carlito Pablo bird-damage-on-property

foot note : a Commenter at the Georgia Straight article praises a brand of so-called 'cement board' or 'fiber cement siding' as deterring critters. Very pricey. This last summer for the first time in 20 years an unknown critter test-sampled a square foot of mine. Might have been a baby squirrel rather than all the giant Pileated woodpeckers around here . . .
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