Devji v Fast Track Real Estate Inc, 2016 ABQB 508

Court of Queen’s Bench of Alberta Citation: Devji v Fast Track Real Estate Inc, 2016 ABQB 508 Date: 20160913 Docket: 1303 03590 Registry: Edmonton Between: Kurbanali Devji, Rashida Devji and Hafis Devji Plaintiffs - and - Fast Track Real Estate Inc and David Quaschnick Defendants _______________________________________________________ Reasons for Judgment of L.A. Smart , Master in Chambers _______________________________________________________ Introduction [ 1 ] The Plaintiff Kurbanali Devji (Kurbanali) purchased a residential Property located in Edmonton in July, 2011 for $825,000.

The Defendants are the listing broker and listing agent, respectively. The MLS listing created to market the Property stated that it was 2510.16 sq ft. It is alleged that the square footage was actually 2132.35 sq ft, a difference of 377.81 sq ft. [ 2 ] The Property was listed for sale by Kurbanali in the fall of 2011 and again in May 2012. The listing realtor in May 2012 is said to have measured the property and made the determination of the alleged smaller square footage. The Property ultimately sold for $774,000 in February 2013.

The Plaintiffs attribute the $51,000 reduction in the purchase price to the reduced square footage and seek damages for that amount. [ 3 ] The Plaintiff Rashida Devji is the wife of Kurbanali which appears to be the only connection she may have to the subject property. The Plaintiff Hafis Devji (Hafis) is Kurbanali’s son and is alleged to have been the true beneficial owner of the Property. Kurbanali is said to have been the buyer for purposes of mortgage financing. He was the sole registered owner throughout.

Hafis was involved exclusively in the acquisition of the Property and Kurbanali relied entirely upon Hafis when entering into the purchase contract. Following closing Hafis occupied the Property with his family until sold in February 2013.

[4] The Plaintiffs apply for

Summary Judgment and the Defendants for

Summary Dismissal of the claim. Discussion [5] Although there is considerable evidence casting doubt on the reasonableness of the purported reliance upon the allegednegligent misrepresentation, I will assume for purposes of this decision that all of the necessary elements are present. [6] For the

Summary Judgment application, the Plaintiffs rely on Hafis’ affidavit that states that he was told by the May 2012listing realtor that the square footage was 2132.35 sq ft. Hafis does not know how the Property was measured or the methodology thatwas used. This evidence is hearsay and inadmissible on this application to establish that the Property is in fact smaller than set out in theMLS listing. Furthermore, there is no evidence put before the court to show that the cause for the reduced sale price was the alleged“reduction” in size.

It is simply known that the purchase price was $51,000 higher than when it was sold 18 or 19 months later. If thisis the best evidence the Plaintiffs can put forward as I am to assume to be the case then its application is simply not made out. [7] For purposes of the

Summary Dismissal I observe that the Defendants have not established there was no error ormisrepresentation regarding the square footage of the house. Regardless, I will assume that the allegation with respect to the lesser squarefootage is correct.

Article 6.4 of the purchase contract provides as follows: 6.4 The Seller and the Buyer each acknowledge that, except as otherwise described in this Contract, there are no other warranties,representations or collateral agreements made by or with the other party, the Seller’s brokerage and the Buyer’s brokerage about theProperty, any neighbouring lands, and this transaction, including any warranty, representation or collateral agreement relating to thesize/measurements of the Land and Buildings or the existence or non-existence of nay environmental condition or problem. [8] Master Funduk considered this provision in Anchor Fence v Polaris Realty Corp. ((1994) (AB KB), 22 Alta.

L.R. (3rd) 311) and in Bright v Tangquay ( (AB KB), 1995 CarswellAlta 339) as did Justice Kenny in Belzil vBaine (2001 ABQB 890). It was concluded in each of the decisions that realtors may rely on

Article 6.4 of the purchase contract as acomplete defence to the claim. Further, it was held that the provision encompasses any unwritten representations. In my view, MasterFunduk and Justice Kenny correctly state the law in that regard. In reaching that conclusion, I am mindful of the decision of Justice Erbin Power v Goodram (2012 ABQB 50). However, her decision is readily distinguishable based on the facts of that case notably thespecific and direct advice to the realtor with respect to the size of the half duplex being purchased and the choice to deliberately ignorethe information rather than explore it.

Furthermore, despite the warning there was also a failure to review a registered Party WallAgreement that would have clearly identified the issue. [9] Although unnecessary given the foregoing conclusion, I am of view the decision of Justice Laycraft (as he then was) inAinsley v Hicke Real Estate Ltd (1975 CarswellAlta 249) also supports my decision. In that case, and here, the purchase price under thecontract was not based on a price per square foot making the size of the property irrelevant.

There is no ambiguity in the contract whichwould permit parole evidence to be admitted to the effect that this was a factor for the purchaser when making decision to purchase theProperty. In addition, there is notably no evidence nor allegation that square footage of the property was a factor which had been broughtto the attention of the Vendors or their agents at the time of the purchase. [10] Conclusion In accordance with Hyrniak v Mauldin, 2014 SCC 7, I have a record before me sufficiently complete to allow for a fair and justdetermination on the merits and there are no material facts in dispute.

Accordingly, the application for

Summary Judgment is dismissedand the application for

Summary Dismissal granted. The Defendants shall have one set of party-party costs. Heard on the 26th day of July, 2016. Dated at the City of Edmonton, Alberta this 13th day of September, 2016. L.A. Smart M.C.C.Q.B.A. Appearances: Brent Mielke Emery Jamieson LLP for the Plaintiffs, Kurbanali Devji, Rashida Devji and Hafis Devji

Joe Spelliscy Duncan Craig LLP for the Defendants, Fast Track Real Estate Inc and David Quaschnick