Latrace v Warkentin Building Movers Virden Inc, 2021 ABQB 297

Court of Queen’s Bench of Alberta Citation: Latrace v Warkentin Building Movers Virden Inc, 2021 ABQB 297 Date: 20210416 Docket: 1703 09064 and 1703 04023 Registry: Edmonton Between: Warkentin Building Movers Virden Inc. operating as Warken Building Movers Plaintiffs - and - Dean Latrace and Darlene Latrace Defendants AND Between: Dean Latrace and Darlene Latrace Plaintiffs (Applicants) - and - Warkentin Building Movers Virden Inc. operating as Warken Building Movers Defendant (Respondent)

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] This is a statutory

interpretation case. This issue is whether a certain house-moving transaction is subject to the Consumer Protection Act ( CPA ).

That turns on whether the clients’ intended use of the moved house (initially, to rent it to tenants) make this a business, not a consumer, transaction and thus outside the scope of the CPA . [ 2 ] The context is a consolidated proceeding in which the clients are seeking damages for damage to a moved residential building, with the mover denying responsibility for any such damage and seeking payment for its services. [ 3 ] The parties agreed that a decision on this issue – CPA applies, or not – would be helpful in defining the bounds of that consolidated proceeding. [ 4 ] I find that the clients’ initial intended use of the house (rental to tenants) is not relevant to the CPA -application issue.

Instead, the test is whether house-moving services are “offered or provided primarily for personal, family or household purposes”, all aside from how the house was actually intended to be used (rented to tenants in, lived in by the clients, left vacant, or otherwise). I find that residential house moving is a service so offered or provided. [ 5 ] In any case, I find that residential-house moving falls within one of the extended

definitions of “services (“alteration … of any residential dwelling”). [ 6 ] Accordingly, I find that the CPA applies to the house-moving transaction here. B. Law [ 7 ] Here are the key excerpts from the Consumer Protection Act : 1(1) In this Act, (b) “consumer” means, subject to the regulations under subsection (2) and except in

section 108.1 (c), an individual who (

i) receives or has the right to receive goods or services from a supplier as a result of a purchase, lease, gift, contest or other arrangement, but does not include an individual who intends to sell the goods after receiving them, (ii) has a legal obligation to compensate a supplier for goods that have been or are to be supplied to another individual and the other individual does not intend to sell the goods after receiving them, or (iii) has a legal obligation to compensate a supplier for services that have been or are to be supplied to another individual (c) “consumer transaction” means, subject to the regulations under subsection (2), (

i) the supply of goods or services by a supplier to a consumer as a result of a purchase, lease, gift, contest or other arrangement, or (ii) an agreement between a supplier and a consumer, as a result of a purchase, lease, gift, contest or other arrangement, in which the supplier is to supply goods or services to the consumer or to another consumer specified in the agreement; (e) “goods”, except in

Part 12, means, subject to the regulations under subsection (2) , (

i) any personal property that is used or ordinarily used primarily for personal, family or household purposes, (ii) a voucher, or (iii) a new residential dwelling whether or not the dwelling is affixed to land; (k) “ services ” means, subject to the regulations under subsection (2), any service offered or provided primarily for personal, family or household purposes , including (

i) a service offered or provided that involves the addition to or maintenance, repair or alteration of goods or any residential dwelling ,

(ii) a membership in any club or organization if the club or organization is a business formed to make a profit for its owners, (iii) the right to use property under a time share contract, and (iv) any credit agreement[.] (l) “ supplier ” means, subject to the regulations under subsection (2), a person who, in the course of the person’s business , (

i) provides goods or services to consumers, (ii) manufactures, assembles or produces goods (iii) promotes the use or purchase of goods or services, or (iv) receives or is entitled to receive money or other consideration as a result of the provision of goods or services to consumers, and includes any salesperson, employee, representative or agent of the person;

(1.1) The Minister may, for the purposes of this Act or any part of this Act and for the purposes of the regulations, make regulations defining any word or term used but not defined in this Act or in the part of this Act.

(2) Without limiting the generality of subsection (1.1), the Minister may make regulations that restrict or broaden the

definitions of consumer, consumer transaction, goods, services and supplier, and the restricting or broadening of the

definitions may apply to one or more provisions of this Act and to one or more provisions of the regulations under this Act. [Neither party pointed to any regulation changing the scope of the any of the key

definitions here .] [ 8 ] I reproduce the key elements of the pivotal “ services ” definition: (k) “ services ” means … any service offered or provided primarily for personal, family or household purposes , including (

i) a service offered or provided that involves the addition to or maintenance, repair or alteration of … any residential dwelling …. C. Positions [ 9 ] The house mover argues that, because the evidence shows that the clients intended to rent the house, once moved, to tenants (at least initially), they had a business purpose i.e. not any “personal, family or household purpose” here. It also argues that the “residential dwelling” element has no application to house moving. [ 10 ] The clients acknowledge their rental intention but point to their ultimate intention to live in the house themselves, on retirement.

They also argue that, in any case, the “services” definition focuses not on their particular intentions but on the inherent nature of the service i.e. whether the service is offered or provided primarily for the identified purposes and that house moving is such an activity. [ 11 ] They also argue that, in any case, house moving is captured by the “residential dwelling” element of the “services” definition. D.

Analysis “Offered or provided primarily for personal, family or household purposes” [ 12 ] The clients are right, for these reasons: • the “service” definition does not bear or turn on the client’s intended or actual use of or purpose for the service . Instead, the focus is upstream: is the service “ offered or provided primarily ”, to the marketplace, for one or more of the identified purposes?

If so, it falls into the “services” definition; • nothing in the “services” definition requires or even suggests that how the house is actually used or who ends up living in it makes any difference; • the “goods” definition features a similar focus on typical use i.e. not the purchaser’s actual use, stating (in part): “any personal property that is used or ordinarily used primarily for personal, family or household purposes”; • the CPA ’s application (or not) should presumably be discernible when the parties are making their contract (if not earlier) or at least by the time they arrive at a contract, not be a “hanging question”, depending on how the given purchaser uses the acquired good or service. (“Does the CPA apply to our contract?

We don’t know, until we see how the goods are used”?). Such uncertainty should be avoided; • the “services” definition could have referred to “any service offered or provided for the personal, family or household purposes of the purchaser ”, which would have required an examination of the purchaser’s actual purpose(

s) and self-use by that person. For a similar approach, see the Ontario Consumer Protection Act, 2002 , which features open-ended

definitions of “goods” and “services”:

“goods” means any type of property; [and] “services” means anything other than goods, including any service, right, entitlement or benefit. It then narrows the statutory reach in the definition of “consumer”, the core element of “consumer transaction” (“any act or instance ofconducting business or other dealings with a consumer, including a consumer agreement”), which in turn is the beachhead of the entirestatute (per ss 2(1): “… this Act applies in respect of all consumer transactions …”).

Here is the narrowing definition of “consumer”: … means an individual acting for personal, family or household purposes and does not include a person who is acting for businesspurposes. • instead of the same or similar “actual use by purchaser” focus, the Alberta CPA definition instead is built on typical use (“offeredor provided primarily”). Effectively, the “services” definition means “the kind of service offered or provided primarily …” i.e. thegeneric nature of the service, in its primary manifestation in the marketplace, not how a given purchaser uses the service.

Viewed fromthe other end of the telescope: how is the service primarily used by customers? For “personal, family or household purposes”? If so,the CPA will apply (assuming all other definitional hurdles are cleared); • Professor Tamara Buckwold explained the “typical use” approach well, in discussing Saskatchewan’s Consumer Protection Act(circa 1999). Its “goods” definition referred to personal property “ordinarily used for personal, family or household purposes”; the“services” definition was similar (“services ordinarily provided for personal, family or household purposes”).

Professor Buckwoldwrote: … the [CPA] applies to transactions involving an individual acquiring … goods or services of the kind prescribed [i.e. ordinarily used orprovided for the identified purposes].

The application of the CPA is thus not determined by the actual use to which the goods orservices will be put by the individual in question, or to the character of that individual, but rather by the character of the goods orservices. [Statutory Regulation of Unfair Business Practices in Saskatchewan: Possibilities and Pitfalls, (1999) 62 Saskatchewan LawReview 45 at 49] • a similar issue arose in Wood v Connell Motors Ltd, (1991) (NB KB), 113 NBR (2d) 427: Counsel for Connell Motors submits that the Act applies only to sales of "consumer products" and the cube van is not a "consumerproduct".

Thus he says there is no warranty. Against that background the key legal question is whether the cube van falls within the definition in the Act: "'consumer product'means any tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes."[paras 9 and 10] Jean J. found that the issue was not how the particular purchaser used or intended to use the product; it was (as per the statute) how sucha product is “commonly used” and whether that is for “personal, family or household purposes”, relying on the following and article: In Greene v. D.R.

Sutherland (1982), (NB QB), 40 N.B.R.(2d) 27; 105 A.P.R. 27, Mr. Justice W.L.M. Creaghan ofthis court observed: "The Act states that the test to be applied in determining whether the Act applies, that is, whether the

article is in law a consumerproduct, is not the use intended to be made by the buyer, but is the

article itself the kind of product that is commonly used for personal,family or household purposes." Similarly, in an

article Consumer Products in New Brunswick (1983), 32 U.N.B.L.J. 123, Professor Ivan F. Ivankovich noted at pages130 and 131: "The test for a consumer product adopted by the Act is not the use of the specific product purchased, but, rather, the common use for thatkind of product. Under this test, a product may fall within the Act if it is commonly used for personal, family or household purposesnotwithstanding that the aggrieved buyer is purchasing for a commercial purpose." I agree with Mr. Justice Creaghan and Professor Ivankovich. Thus the fact Mr.

Wood purchased the cube van for a commercial purposeonly and not for personal, family or household purposes is not relevant. The correct test or question is whether such a cube van issomething that is commonly used for personal, family or household purposes. [paras 11-13] [emphasis added] [In the end, Jean J.concluded that the type of cargo van in question was not commonly used for such purposes (paras 14-20)] • the question then becomes: how to tell if a service is offered or provided primarily for personal, family or household purposes?

Here I note: o the core distinction is between “personal, family or household purposes” (hereafter shortened to “personal purposes”) and otherpurposes i.e. essentially between services used in the domestic realm (i.e. within the context of a given group of people living together),versus in the “external realm” e.g. the interactions of one or more of that group with the “outer world”, whether commercial or otherwisein nature (hereafter described as “business purposes”); o the CPA does not provide a mechanism for measuring “primarily” e.g. by providing particular factors or how to weigh them ingauging whether a given service is used mostly “internally” or “externally” i.e. for personal, versus, business purposes; o the mover’s theory here is that, because the customers intended (at least initially) to rent the moved house to tenants (i.e. to assistthem not in their “internal affairs” but with “external dealings”), the “personal” factor is not satisfied; o but (as discussed above) the focus is on how such services are “primarily” used i.e. by customers in general;

o in some cases it will be obvious that the service is primarily used for personal purposes e.g. hiring a dogwalker, or an aide to assist with personal care, or a tutor to help children with schoolwork. In others it will obvious that the service is primarily used for business purposes e.g. hiring someone to cap a blown-out gas well, teach a board of directors about source deduction and GST remittance responsibilities, or perform shut-down work at a chemical plant; o in other cases, the court may be able to infer , from one or more clues, the typical (personal versus business) use.

In Bodnar v The Cash Store Inc , 2006 BCCA 260 , the BC Court of Appeal used loan size as the proxy : The restriction of consumer transactions by definition under the [ Business Practices and Consumer Protection Act ] to transactions “for purposes that are primarily personal, family or household ” should be capable of application by general inference from the small size of the loans without involving individual inquiry . [para 14] [emphasis added] o in this case, the focus is on the service of moving houses or other residential dwellings, and the immediate question is whether that service is primarily offered for personal, versus business, purposes.

Viewed the other way, does the typical client of a house mover intend to use the house for personal, or business, purposes? o for context, I take judicial notice, drawing on Statistics Canada information, that the vast majority of single-detached houses are owned, not rented . Per data on “Ownership rate by period of construction for various structure types, Canada, 2011”, in the decade 2001-2011, the ownership rate for such dwelling was 93.6 per cent . In preceding four decades, the comparable figures ranged between 90.5 and 93.9 per cent . For “1960 or before”, the figure was 89.1 per cent.

This compares to 2001-2011 ownership rates for row houses, apartments (five or more stories), and apartments (fewer than five stories) of 81.1, 55.2, and 48.2 per cent; o I infer that the same ownership percentage ( nine out of ten single-detached houses owned, not rented ) applies to all such homes, whether in place since construction or moved to a new location i.e. that the vast majority of people contracting to move a house are planning to occupy it themselves, not rent it out . (I am also proceeding on the assumption that, residence-wise, only single-detached homes are moved i.e. not apartments blocks, apartment towers, etc.); o I find that, as the party with obviously better access to data on this aspect, the house mover had the onus of showing that, despite the at-first-glance-reasonable assumption that people moving a house are doing so for themselves, in line with the vast majority of “unmoved” houses (i.e. owning and occupying it themselves ), that is not the typical purpose. (Per Celanese Canada Inc. v.

Murray Demolition Corp. , 2006 SCC 36 : “… Placing the onus on Celanese accords with the usual practice that the party best equipped to discharge a burden is generally required to do so . … [para 49] [emphasis added].) Who better than a house mover to answer the “primary purpose” question, when the focus is the primary purpose for which the service is “ offered or provided” ?

It is the “ service offeror ”, the “ service provider .” But the mover here provided no evidence on this score, whether referring to the house-moving industry nationally, provincially or regionally, or even its own experience e.g. percentage of houses moved for clients who intend to live in them (personal purpose), versus clients who intend to use them otherwise e.g. renting them (business purpose); o with the mover here obviously possessing information on this score, or at least better information that the clients, I draw an adverse inference , from the absence of “primary purpose” evidence from the mover , against it.

If the typical purpose for the physical relocation of a house is that the clients will be renting it or using it other than to live in themselves , it would have been easy enough for the mover to provide such evidence; • the clients here gave evidence that they eventually wished to live in the moved home themselves. Considerable time has been devoted in this litigation to exploring the existence of that intention, who knew what about that possible intention, how long the clients intended to rent before occupying the house themselves, and associated questions.

Because (as discussed) the CPA focuses on typical, not actual, purposes, I do not need to resolve these factual issues .

My point here is that the CPA scheme would be unworkable if the statute’s application (or not) depended on a given user’s “primary purpose” e.g. “We are planning to rent the house for five years, and then (ideally) live in it for twenty-five years after that.” People may have uncertain plans about how they intend to use a moved house (“we might live in it ourselves, or we might rent it out”), or they may have a plan that sheds no initial light on their eventual use (“we are just planning to move it and, in a few years, decide what to do with it”), or they may change their plans, perhaps even between making the house-move contract and the move happening.

Recall that the “services” definition starts with “ offered or provided primarily for personal … purposes.” Upstream of the parties making their contract, negotiating it, or even meeting each other, the CPA ’s application (or not) can be determined, by the kind of service and the typical purpose (personal or business) for that service ; • the mover’s website shows that it handles all kinds of structures including houses, cabins, modular homes, hay sheds, gas-station canopies, a historic train station, steel buildings, quonsets, barns, and industrial buildings.

Some of these are obviously moved for business purposes. Can it be that some of the mover’s services (moving homes, cabins, and modular homes) are caught by the CPA (as “primarily for personal, family or household purposes”) and others (for business purposes) are not? The answer is yes, as seen in TELUS Communications Inc. v.

Wellman , 2019 SCC 19 , where the Supreme Court found that one stream of TELUS’s business (phone services for personal consumers) was subject to the Ontario Consumer Protection Act and its override of a phone contract’s arbitration clause, while another stream (business users) was not so sheltered (bound by the arbitration clause): While distinguishing between consumers and non-consumers may be a difficult exercise in certain cases, that difficulty does not, in my view, bear on the proper

interpretation of s. 7(5) [of the Ontario Arbitration Act, 1991 ]. The challenge identified by my colleagues is a product of two factors: (1) the requirement under the Class Proceedings Act that any person seeking to join a class action must pass through an objective class definition; and (2) the legislature’s decision to accord enhanced protections only to “consumers”, which it chose to define in a particular way under the Consumer Protection Act — namely, as “an individual acting for personal, family or household purposes” but not including “a person who is acting for business purposes” ( s. 1 ).

While sorting between consumers and non-consumers may be “cumbersome” in certain cases, this inconvenience does not permit the court to recast the legislation as it sees fit in order to avoid such difficulties. Instead, the courts must work within the framework established by the legislature , including at the class certification stage. [para 87] [emphasis added]; and

• the mover argued that, the more regulated an activity (such as property development), the more likely it is that the activity isbusiness, and not personal, in nature. I do not see that as bearing on the characterization exercise here.

Whether the client’s end use wasrental, rental followed by self-use, or self-use from the start, the legislative and regulatory matrix governing the movement of the houseto their property and re-attachment as a fixture would be the same. [13] For these reasons, I find that, as a “service offered or provided primarily for personal, family or household purposes”, housemoving falls within the CPA’s definition of “services.” “Alteration of any residential dwelling” [14] Alternatively, I find that house moving falls within one of the extended

definitions of “services” i.e. “a service offered orprovided that involves the addition to or maintenance, repair or alteration of … any residential dwelling.” [15] That additional definition is a stem connected to the initial definition by the phrase “including.” Per the Supreme Court ofCanada in National Bank of Greece (Canada) v Katsikonouris, (SCC), [1990] 2 SCR 1029 (at 1041), that extends thecore definition: … in this instance, the very language used to introduce the list of omissions and misrepresentations confirms that it would be erroneousto view them as exhaustive.

In the English version of the clause, the term "including" precedes the list of examples of omissions andmisrepresentations, while the term "notamment" is used in the French text. I note that the Concise Oxford Dictionary (7th ed. 1982)defines "include" as "comprise or embrace (thing etc.) as part of a whole", while the Petit Robert 1 (1987) says of "notamment" that it"sert le plus souvent à attirer l'attention sur un ou plusieurs objets particuliers faisant

partie d'un ensemble précédemment désigné ousous-entendu".

This meaning finds confirmation in legal lexicons as well: the entries under "include" and "including" in Stroud'sJudicial Dictionary (5th ed. 1986) to take but one example, again make it clear that these words are terms of extension, designedto enlarge the meaning of preceding words, and, not, to limit them. [emphasis added] [See also Nova, An Alberta Corporation v Amoco Canada Petroleum Company Ltd, (SCC), [1981] 2 SCR 437 at460-461 and College of the North Atlantic v McBreairty, 2020 NLCA 19 at paras 62-67]. [16] Thus, the “alteration of … any residential dwelling” element extends the core definition of services. [17] We are obviously dealing with a residential dwelling here.

The only issue is whether moving a house is an “alteration” of it. [18] The answer is yes. Severing a house from its foundation or other substructure and other “points of attachment” (e.g. utilityconnections) plainly “alters” it. Moving the house to a new location also “alters” it, in a fundamental way: it ends up in a new location,attached to a new, or different, foundation or other substructure, and to new utility connections. [19] Here I rely in part on the wide berth of the dictionary

definitions of “alter” and “alteration”: Oxford English Dictionary (on-line edition) alter [in part]: To make (a person or thing) otherwise or different in some respect; to modify, to change the appearance of. … Tobecome different in some respect, to change. alteration [in part]: The action or process of altering or being altered; an instance of this. … A change in the character or appearanceof a person or thing; an altered condition.

New Oxford American Dictionary (Third Edition – 2010) alter [in part]: … make structural changes to (a building) … Oxford English Dictionary (Second Edition -- 1989) alter [in part]: To make (a thing) otherwise or different in some respect; to make some change in character, shape, condition,position, quantity, value, etc. without changing the thing itself for another; to modify, to change the appearance of. The New Shorter Oxford English Dictionary (1993) alter [in part]: make otherwise or different in some respect; change in characteristics, position, etc.; modify.

Canadian Oxford Dictionary (1998) alter [in part]: make or become different; change. Encarta World English Dictionary (1999) alter [in part]: to make changes to something … or be changed or become different alteration [in part]: a change, modification, or adjustment made to something; … difference in something resulting from change; …the process of changing something or of being changed. Dictionary.com (on-line) alter [in part]: to make different in some particular, as in size, style, course, or the like; modify. … to change; become different or

modified. alteration [in part]: a change; modification or adjustment. Overall interpretive approach to the CPA [20] While I believe it is clear that house moving falls into the “services” (core and extended) definition, I note the followingbinding approach to interpreting the Consumer Protection Act, buttressing these conclusions: ... it is incumbent on the courts to give effect to the legislative choice.

In assessing statutory purpose, mindful that the Fair TradingAct [precursor to the Consumer Protection Act] is all about consumer protection, its terms should be interpreted generously in favour ofconsumers: Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129 and ACS Public Sector Solutions Inc. v. Courthouse Technologies Ltd., 2005 BCCA 605, 48 B.C.L.R. (4th) 328 (B.C.C.A.). [Young v National Money Mart Company, 2013ABCA 264 at para 19; SCC leave denied (SCC)] [emphasis added] E.

Conclusion [21] With the “services” definition satisfied (two ways), and no debate over the clear satisfaction of the “consumer”, “supplier”,and “consumer transaction”

definitions, I find that the Consumer Protection Act applies to this house-moving transaction. [22] While the clients requested further orders, the sole question teed up by this application was whether the CPA applied here. Idecline to make any additional orders at this stage. [23] As for costs, the clients asked for costs and included submissions about why, despite their self-represented status, they shouldreceive costs.

They did not ask for any particular amount or scale of costs [24] The mover did not address costs in its submissions. [25] Each party is free to make further submissions on costs (two-page maximum for the submissions; two-page maximum for anycase-law excerpts), to be submitted by April 30, 2021. F. Closing note [26] In setting the terms of this application, I overlooked imposing page limits for the briefs. The mover’s main brief was 67 pages,with 2 large binders containing 83 attachments, plus a separate binder of key pleadings.

The clients responded in kind: 57-page brief,with a large binder of attachments (48 in all). [27] The mover then submitted a 50-page rebuttal brief, with dozens more attachments; the clients answered with a further 27pages and a few more cases. [28] These materials were well-prepared and responsive to the issues; I do not fault the parties for seeing an open road and doingtheir best to maximize their arguments along it. [29] The moral of the story, for me: always remember page limits.

Even the most complicated, multi-pronged arguments can bedistilled, and not every additional case adds material value: see OZ Merchandising Inc v Canadian Professional Soccer League Inc.,2020 ONCA 532 (request to file 125-page factum denied; 30-page rule prevailed). Heard by way of written submissions received November 10th and December 10th, 2020 and March 22nd, 2021 Dated at Edmonton, Alberta this 16th day of April, 2021. M. J. Lema J.C.Q.B.A. Appearances:

Alexander Witt Parlee McLaw LLP for the Defendants (Applicants) Dean LaTrace and Darlene LaTrace Self-Represented Litigant Plaintiffs (Respondents)