Court Dismisses Strata’s Application to Have Owner’s Flood Damage Claim Tossed Out

Kowarsky v. The Owners Strata Plan LMS 5782013 BCSC 223

This case addresses when a limitation period begins to run, an issue that keeps litigation lawyers up and night and is often misunderstood by lay people. The plaintiffs were strata lot owners and the defendants were a strata corporation, a property management company and a power washing contractor hired by the strata. The plaintiffs left for vacation on May 10, 2008. On May 15, while the owners were away, water escaped from the contractor’s equipment and entered the owners’ strata lot.

A neighbor called the owners and told them about the water ingress on May 15. The neighbor asked the owners for permission to enter their apartment to mop up the water using towels. This gave the owners the mistaken impression that the water ingress was minor. Unknown to the owners was that the water ingress was significant enough for the strata to call in a restoration company to dry out the apartment. When the owners returned from vacation on May 17, 2008, they discovered that the damage to the flooring in their unit was significant and that the flooring would have to be replaced.

The owners sued on May 18, 2010, seeking damages of $63,000.00 which included restoration costs, living out expenses, parking and “pet cleaning”.

The defendants applied to the court to have the lawsuit dismissed because it was filed more than two years after the flood. They argued that the 2 year limitation period started running on the day of the flood and that by filing the lawsuit on May 18, 2010, the plaintiffs filed the lawsuit two days too late (you don’t count the first day).

The owners argued that the limitation period did not start running until May 17, 2008, when they returned from vacation and learned how bad the damage was. They filed their lawsuit “Indiana Jones Style” just before the limitation period crashed down on their claim.

The Court agreed with the plaintiffs and relied on the postponement provisions of the Limitation Act to conclude that although the plaintiffs knew of the flood on May 15, 2008, they did not know about the full extent of the damage until May 17, 2008. Until that time they believed the flood was minor and was resolved by using towels to mop up the water. Accordingly, the start of the limitation period was postponed to May 18, 2008.

The case is headed to trial. Had the plaintiffs been wrong, their claim would have been dismissed because once a limitation period expires; the plaintiff’s cause of action is extinguished.

This case is timely because as we have previously reported on our Strata Alerts page, the current Limitation Act will be replaced on June 1, 2013. Under the new Act, the plaintiff must sue within two years of the “discovery” of a claim. For most claims, this means a significantly shorter limitation period. The new Act, however, incorporates much of the law around “postponement” that applied under the old Act. A claim is “discovered” under the new Act when the claimant knows that injury, loss or damage has occurred as a result of the defendant’s actions and that a court proceeding would be an appropriate way to address that damage.

Although there are detailed and complex transition rules under the new Act, this important legislative change means that owners and strata corporations must undertake a careful review of the limitation periods that apply to their potential claims. With limited exceptions, claimants can no longer take a “wait and see” approach to lawsuits and potential plaintiffs should not bank on the start of a limitation period being postponed.

WHAT WE DO: Lesperance Mendes is about the law governing Land Buildings and People. We advise owners, strata corporations and property managers on a wide range of subjects ranging from contaminated soil (Land) construction disputes (Buildings) and strata governance (People). To find out more about our practice, contact any of our lawyers.

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
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