Strata Alert: Leaky Condo Issues Prompt Human Rights Complaint

Leaky Condo Issues Prompt Human Rights Complaint

Naomi R. Rozenberg
Phone:  604-685-3911


Strata corporations, take note. If your building is suffering from leaky condo issues, you may be confronted with a human rights complaint, among other court battles.

The Facts

This messy, complex problem is all too familiar to the owners at Strata Plan VAS 2844. Their building requires repairs to address a pervasive water ingress issue, due to premature failure of the exterior wall assembly, a.k.a. the building envelope.

One of the owners, Ms. Kates, filed a complaint with the BC Human Rights Tribunal against the strata corporation. Her suite suffers from water ingress and resulting mould growth. Ms. Kates claims that she suffers from an array of health problems, and has medical evidence linking mould to an exacerbation of those problems. At various points over the years, Ms. Kates brought those issues to the attention of her strata.

In 2016, an environmental company performed mould testing in Ms. Kates’ unit, which revealed “toxigenic moulds” that render her second bedroom unsafe for occupancy. Ms. Kates had the bedroom sealed off.

In the meantime, the owners rejected a plan to finance a $2.4 million building envelope rehabilitation project.

The strata hired a contractor to carry out mould remediation at Ms. Kates’ suite. Her walls were opened up, sprayed for mould, and left open because the source of the water ingress – through the building envelope – had not been addressed.

In summer 2017, the contractor returned to the suite and reported back to the strata that the mould remediation work was complete, based on there being no visible mould. However, Ms. Kates was not satisfied since no air testing was done.

In December 2017, various neighbours contacted Ms. Kates seeking her support in the impending vote on implementing building envelope repairs. That vote was not successful, with Ms. Kates among those owners voting against it. Ms. Kates takes issue with both the remediation of the mould within her unit and the proposed building envelope repair work.

Applications to Dismiss the Complaint

In 2018, the strata applied to dismiss Ms. Kates’ human rights complaint on the basis that:

a)  there is no reasonable prospect that the complaint succeed, and

b)  Ms. Kates has refused a reasonable settlement offer, which remains open, and it would not serve the purposes of the Human Rights Code to proceed with the complaint in the face of that offer.

Ultimately, the Tribunal dismissed the strata’s application. It was not persuaded that the complaint had “no reasonable prospect of success”, or that the strata would be able to establish that it accommodated Ms. Kates to the point of undue hardship in its efforts to remediate the mould.

      A.  Is there no reasonable prospect the complaint would succeed?

In essence, the Tribunal was asked to consider whether Ms. Kates might be able to establish that:

  • she has a physical disability;
  • she experienced an adverse impact in the strata’s provision of a service; and
  • her disability was a factor in the adverse impact.

If Ms. Kates were to establish her case at a hearing, the issue would become whether the strata fulfilled its duty to accommodate her to the point of “undue hardship”.

The strata argued that it has no duty to repair damage to her strata lot property, even if the damage is caused by the common property. In response, Ms. Kates asserted that the strata took responsibility for similar repairs at other units, which undermined the strata’s position.

Ms. Kates also says that she has not been able to use her second bedroom since August 8, 2016, and her walls have been left opened since October 4, 2016. She relates this to the strata’s failure to appropriately address the mould and moisture problems in her unit. Based on those assertions, Ms. Kates may be able to establish at a hearing that her disability was a factor in the adverse impacts that she alleges.

Ultimately, the Tribunal was not convinced that the complaint would fail.

      B.  Had the strata corporation made a reasonable settlement offer such that proceeding would not further the purposes of the Code?

The strata corporation had made a “with prejudice” offer to settle the human rights complaint. The offer was predicated on its assertion that “there are no outstanding issues which require attention”, and went on to offer to settle the complaint on certain terms.

The Tribunal concluded that it was not provided with sufficient evidence to determine whether or not more work was still necessary to address the issue of mould in Ms. Kates’ unit. For that reason, the Tribunal refused to exercise its discretion to dismiss the complaint.

BC Supreme Court Proceedings to Fund Building Envelope Repairs

According to the Tribunal’s reasons, the strata corporation has also filed a proceeding in the Supreme Court of British Columbia, where it is seeking to override the owners opposed to the building envelope repairs in order to proceed with it. That case is also pending.

Lessons for Strata Corporations with Building Enclosure Issues

If your condominium has water ingress issues and there is no immediate plan to repair the building, the strata should seek legal advice on steps it should take to accommodate owners with disabilities, to reduce the chance of human rights complaints and other expensive court proceedings.

Paul lawyers

WHAT WE DO: Lesperance Mendes has been advising and representing strata corporations and owners on construction defect claims and human rights matters since 1997. If your strata corporation is dealing with water ingress issues or a human rights complaint, let us help you solve it. Contact Naomi R. Rozenberg, Associate at 604-685-3911 / or Paul G. Mendes, a partner at 604-685-4894 /


THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on upon without independent legal advice.

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567