MacDonald v. Go Green Environmental, 2022 BCPC 131

Citation: MacDonald v. Go Green Environmental 2022 BCPC 131 Date: 20220622 File No: C7578 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: JOHN MACDONALD AND KIRSTIE OVERHILL CLAIMANTS AND: GO GREEN ENVIRONMENTAL CONSULTING INC. AND ERLING KJERSIDE DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Appearing on their own behalf: J. MacDonald & K. Overhill Appearing for the Defendants: E. Kjerside Place of Hearing: Campbell River, B.C. Dates of Hearing: October 20, 21 and 22, 2021 Date of Judgment: June 22, 2022 Introduction:

[ 1 ] The claimants bring this proceeding to recover damages for expenses they say they incurred as a result of the defendants’ failure to provide what they expected and contracted for: a properly operating, and legal, Type 3 wastewater system on their residential property. [ 2 ] The defendants say that what was provided, was what the claimants requested, and contracted for. [ 3 ] This case took place over three days of trial. I heard evidence from Dr. MacDonald, Dr. Overhill and Mr. Kjerside. I also heard evidence from Mr.

May, an expert in wastewater systems, who was called as part of the claimants’ case. [ 4 ] Written submissions were received from the parties on November 17, 2021, January 7, 2022 and January 20, 2022. These are my reasons for judgment. The Evidence: [ 5 ] The claimants purchased land on Cortes Island to enjoy a quiet retreat in their retirement years. The land originally contained a very rough cabin in which they lived while Mr. McDonald built their future home from timber on their land. The only access to the property is by boat and it is built on a bluff overlooking the ocean.

They lived for several years in their home in a manner that was environmentally conscious. Their water was from a large cistern they built on the property and there was a rudimentary system for disposing of grey water. They used a compostable toilet for many years, using the residue to fertilize their fruit trees. [ 6 ] Dr. Kirstie Overhill is a medical doctor and decided that she and her husband, Dr. John MacDonald needed, and she wanted, a flushing toilet system for health reasons as well as to improve the value of their home and property if they decided to sell it. So when in approximately March 2017 Dr.

MacDonald met Mr. Kjerside at a conference and learned that his company, Go Green Environmental Consulting Inc. (Go Green), provided eco-friendly waste water systems, Dr. MacDonald was interested. He picked up brochures and received additional information from Mr. Kjerside over the ensuing days. [ 7 ] One of the many brochures provided by Mr. Kjerside described the three different types of wastewater systems. Type 1 systems are a very basic septic tank and only separate solids from liquids before being dispersed into the soil.

Type 2 systems, in addition to the septic tank, have a separate tank or chamber in which air is introduced. The Type 2 system is an aerobic system which can be “activated sludge” also called “suspended growth” and the second is called “attached growth”. Both types utilize micro-organisms to break down the waste but the second uses a fixed “media” which allows the micro-organisms to form in colonies and remain alive for long periods of time. [ 8 ] Type 3 systems, as described in the brochure, turn household waste into a clear and virtually odourless effluent.

This uses the same fixed media as in the Type 2 system and are described as being able to “achieve a much higher quality and reliability of treatment through greater control of the treatment process”. [ 9 ] As will become important later on, and as stated in the brochure, a Type 3 system “requires the services of a Professional Engineer for regulatory approval”. [ 10 ] The brochure given to Dr. MacDonald by Mr.

Kjerside, and which I have just described, describes that these systems as “custom packaged wastewater treatment plants” and are products of Premier Plastics Inc. and Go Green Wastewater Ltd. (now Go Green Environmental Consulting Inc.). The brochure describes that the “SuperClear Type 3 Custom Packaged Wastewater Treatment Plant is the result of a three way cooperation between Premier Plastics Inc. (the manufacturer), Go Green (custom wastewater treatment systems) and Professional Engineering firms experienced in small and large scale sewage treatment plants”. [ 11 ] Dr.

MacDonald is a scientist in the field of Geomatics, the study of spatial modelling of the earth and its resources. His doctorate was in remote sensing and geographic spatial information systems. As he described in lay terms, it is using satellite technology to examine a variety of earth’s systems including, for example, water. Dr. Overhill is a medical doctor and provides care to patients in remote locations. Although well educated, neither Dr. Overhill nor Dr. MacDonald knew anything about sewage/wastewater systems. Dr. MacDonald read the information sent to him by Mr.

Kjerside which included specifications and diagrams. Dr. MacDonald and Dr. Overhill discussed the options and decided that the Type 3 system was the one that best suited them. [ 12 ] On March 6, 2017, Mr. Kjerside sent a one page letter to Dr. MacDonald outlining the specifications of the system they were interested in as well as additional information. It referenced “Go Green Ref # 17-1007”. The subject indicated “Budget Proposal”. Although not signed, the signature line indicated it was from Erling Kjerside, President, Go-Green and there is no dispute that this letter was sent by Mr. Kjerside.

The information provided is important in understanding the surrounding circumstances and the context within which the parties entered into a contract. The relevant portions of the letter state (underlining added): Your specifications: Waste water from 3-4 persons house to Type 3 Go Green Wastewater Treatment System authorized by Professional Engineer.

Percolation test to be completed and system is subject to installation of low flow toilets, flow restrictor device for shower heads and spring taps. [ 13 ] The letter goes on to describe the system in more detail (underlining added): Each tank is shipped with built in “media” which facilitates the chemical reasons needed to process the waste water. When the intended method of dispersal is an infiltration system to an on-site dispersal field, a soil percolation test is required .

From this test the size and location of the dispersal field can be established. [ 14 ] The letter went on to indicate that the price quote is firm and binding on Go-Green for 30 days from the date of the letter. In addition to this letter, another document was provided at the same time to Dr. MacDonald which set out specific details of the system, special instructions and the price. Dr. Overhill’s name was handwritten at the top of the document beside Dr. MacDonald’s name. That additional document was also dated March 6, 2017 and is the price quote referenced in the letter of the same date.

The document described the job as GO GREEN Ref # 17-1009 and “Budget proposal” (Budget Proposal).

[ 15 ] The first paragraph of the document sets out the following description (highlighting and underlining added): Type 3: With the Type 3 GO-GREEN Wastewater System a Professional Engineer will sign the Filing to the Health Authority . The Health Authority will not review; conduct initial site investigation or final inspection of the System. This Type 3 system has a capacity of 300 I/G with effluent quality of less than 10 mg/L of total suspended solids (TSS).

Median fecal coli form (sic) density of less than 400 colony forming units (cfu) per 100 ml. [emphasis added] [ 16 ] The budget proposal described the project in this manner: PROJECT: GO-GREEN 300 Treatment Component SC 3-400 Type 3 Septic/Fermentation SC3-400 Type 3 Aeration SC3-400 Type 3 Clarifier $20,400.00 [ 17 ] The budget proposal also contained the following provisions: INCLUDED IN SYSTEM ARE: Complete GO-GREEN 300 Component Type 3 with standard material assembled 1 Aeration compressor model GG 60 HP 110V. (with hand written notation initialed by Mr.

Kjerside indicating 12V) Alarm float and indoor display unit Air intake connection and vent connection from treatment tank 3 x 400 I/G Polyethylene Septic/Fermentation, Aeration & Clarifier tank 80’ Infiltrator , 22” wide Qiuck4 Standard Equalizer 36 Flout Dosing System 3” complete with bulkhead [emphasis added] SPECIAL INSTRUCTIONS & OTHER INFORMATION: Approvals/permits from Health Authorities are the responsibility of the owner . All products to be picked up at: 8328 River Way, Delta, B.C.

Payment Schedule: 50% on order confirmation ( not refundable ) 50% balance due before delivery date Incidental (incl travel/meal/hourly wage and/or accommodation) expenses/excavation/installation and/or delivery charges if executed by GO GREEN Wastewater LTD will be billed once work is completed and are not included in this quote.

Budget price as quoted without taxes (5% GHST) $20,400.00 Component. $ 1,020.00 $21,420.00 NOT INCLUDED IN SYSTEM ARE: Electrical power supply to effluent pump-out wiring and alarm Excavation/Installation/Delivery/Maintenance Solar panels or other electric batteries for solar electric OPTIONAL EQUIPMENT: Riser w/lid 18’ round 6” high per riser. ($125.00 each) Guarantees for GO-GREEN components are 2 years when installed to our specification and operated normally.

Guarantees for designs, materials, workmanship, and pumps are understood to be those of the manufacturer or producer of the material quoted upon herein. [emphasis added] [ 18 ] The claimants wished to proceed and arrangements were made for Mr. Kjerside to visit Mr. MacDonald’s property on May 20,

2017 to do a site assessment. The decision was made that the system, which is comprised of polyethylene tanks, could be placed underneath the house. This was the only option because of the rocky terrain. Dr. MacDonald testified that Mr. Kjerside did not perform a percolation test. Mr. Kjerside agreed that he did not perform this test. Dr. MacDonald stated that he was concerned because he understood that the 80’ infiltrator was an 80’ drain field and he thought that Mr. Kjerside should be digging test holes.

He understood that this was part of the drain system where the final wastewater would go to before it was dispersed into the ground. [ 19 ] At the bottom of the budget proposal were the words: ORDER ACCEPTED and Authorized Signature. It was dated and signed by Dr. MacDonald on May 20, 2017, the day the site visit took place. At the top of the document, there is a handwritten notation “Kirstin (sic) Overhill”. Dr. Overhill did not sign this document but it was both explicit and implicit in the evidence that Dr. Overhill was also a party to the formation of the agreement.

The contract was thus legally formed, and became binding, with the acceptance of Mr. Kjerside’s offer by Dr. MacDonald and the latter’s agreement to pay $21,420.00 in consideration of Go-Green providing a Type 3 Go- Green wastewater system in accordance with the specifications set out therein (the Contract). [ 20 ] Mr. Kjerside agreed that at the top of this document, in his handwriting, is the following handwritten notation: 4:20 Oct 28/17 – TO PROCEDE! (sic). [ 21 ] Shortly before the system was delivered, Mr. Kjerside gave Dr.

MacDonald a second document which, at first glance, appeared to be identical to the Contract signed by Dr. MacDonald on May 20, 2017. However, much later and on closer inspection, it became apparent two changes were made by Mr. Kjerside to the document. First, the description of the aerator compressor was changed to a “model GG 60 12 V” instead of “110 v”.

Secondly, and most significantly, reference to the 80’ Infiltrator, 22” wide Quick4 Standard Equalizer 36 was removed and, instead, the following was inserted: Piping for exsisting (sic) effluent tank. [ 22 ] The 80’ Infiltrator is a dispersal system through which the treated effluent is dispersed into the soil. This was never installed by Mr. Kjerside. I will have more to say about this later in these Reasons for Judgment.

The 80’ Infiltrator is what would commonly be called the “dispersal field” and is the means by which the waste water, including sewage, is dispersed. [ 23 ] The GO GREEN Ref# remained the same (17-1009) but it indicated “50% Payment Request” instead of “Budget proposal” indicated on the contract signed by Dr. MacDonald on May 20, 2017. It also added, underneath the amount of the contract, the words “50% payment Request and $10,710.00. Like the Contract, the words ORDER ACCEPTED and Authorized Signature were at the bottom. It was signed by Dr. MacDonald and dated January 10, 2018. [ 24 ] Dr.

MacDonald testified that when Mr. Kjerside gave him this document, he asked why he needed to sign another one. According to Dr. MacDonald, Mr. Kjerside told him it was to

schedule the delivery. Dr. MacDonald did not read the document. Dr. Overhill was present when the document was signed by her husband and her evidence is that he did not read it thoroughly and just signed it. They both testified that neither one of them was aware, nor were they made aware, that an important change in the document had been made by Mr. Kjerside. Mr. Kjerside agreed that he did not point out these changes to Dr.

MacDonald, in particular, the removal of the “80’ Infiltrator” and insertion of “Piping for exsisting (sic) effluent tank.” [ 25 ] Two days after this document was signed, on January 12, 2018, Mr. Kjerside along with two other people he hired to assist him, travelled to Cortes Island to deliver the system. They stayed three nights. [ 26 ] Dr. MacDonald described what unfolded. Dr. MacDonald testified that as they were unloading, he asked Mr. Kjerside which of the tanks contained the media because he wanted to be extra careful with it. Mr. Kjerside told Dr. MacDonald that media is not used any longer. Dr.

MacDonald asked about the filter, and Mr. Kjerside told him that filters were not used any longer. Mr. Kjerside confirmed this in his evidence. [ 27 ] The four men carried the three tanks up to the house. The three tanks that had been depicted in the earlier diagrams as sitting beside one another. However, once the tanks were onsite, it was apparent that they would not fit. Dr. MacDonald says that Mr. Kjerside never took measurements of the space underneath the house. Mr. Kjerside says that he told Dr. MacDonald to clear the land under the house and add sand so there would be enough room. This is disputed by Dr.

MacDonald. In any event, the tanks were installed by Mr. Kjerside and his two workers in a different configuration from the diagrams provided by Mr. Kjerside to Dr. MacDonald. [ 28 ] It became apparent to Mr. Kjerside, during the installation, that the system used for grey water from the shower, laundry and kitchen into a pipe beneath the house, was lower than the Go Green system. Mr. Kjerside concluded that a “Lift Station with a pump” had to be installed under the kitchen to allow water to be pumped into the newly installed Go Green wastewater system.

This was completed after the initial installation of the system. [ 29 ] Dr. MacDonald’s evidence is that he had discussions with Mr. Kjerside about the dispersal field. Prior to the purchase of the Go Green system, there was no sewage from the house, only grey water from the shower, laundry and kitchen. The grey water was dispersed through a pipe under the kitchen and flowed into an old white water tank. The grey water in this tank then flowed into another pipe which flowed through a barrel that was half buried in the ground and contained sand to filter the water.

The barrel had no bottom, and the sand-filtered grey water simply dispersed into the soil. The barrel had been removed prior to Mr. Kjerside’s arrival with the new system. In Dr. MacDonald’s words, it was removed because it was not going to be used any longer – it was redundant. [ 30 ] Mr. Kjerside did not arrive with the 80’ infiltrator. Of course at that time, Dr. MacDonald’s evidence is that he was not aware that this had been removed from the specifications of what was to be included in their system and he was expecting a proper dispersal field. [ 31 ] According to Dr. MacDonald, Mr.

Kjerside told him to use the old white water tank that had previously been used for grey water and which dispersed grey water through a pipe that was place on top of the ground and down the slope of the bluff. Mr. Kjerside told Dr. MacDonald to fill it with sand to allow a connection to the new Go Green system so the effluent from the new system could flow through the old water tank, through the sand, and be dispersed through the old pipe. Mr. Kjerside’s evidence is that Dr.

MacDonald told him that he no longer wanted the 80’ dispersal system which was why he removed that item from the document dated December 3, 2017 and

signed January 10, 2018 by Dr. MacDonald. [ 32 ] Several days after the initial installation, an employee who worked with Mr. Kjerside delivered pipes with holes drilled in to them. The pipe was placed in the white water tank to aid in the dispersal of the wastewater now coming from the new system. It is important to keep in mind that instead of just grey water, there was now sewage being discharged into the water tank. [ 33 ] Dr. MacDonald expected Mr. Kjerside to return to complete the dispersal field – the 80’ Infiltrator. However, once Mr.

Kjerside left the property on January 14, 2018, he never returned. [ 34 ] Dr. MacDonald soldiered on. He understood that the condition in the Contract that approvals/permits from Health Authorities were the responsibility of the owner meant he would do the leg work which would mean taking documents from the engineer to the health authority and filing them. Dr. MacDonald went to Vancouver Island Health Authority (VIHA), the health authority responsible for providing permits for wastewater/sewage systems.

VIHA gave him printed forms that had to be completed and he was told that they had to be completed by an authorized person – not a homeowner. He filled in what he could such as the legal description of the land, etc. and mailed it to Mr. Kjerside. He called Mr. Kjerside and told him what VIHA had relayed to him. According to Dr. MacDonald, Mr. Kjerside told him that “we do this all the time”. He expected that Mr. Kjerside would complete and submit the required document to VIHA. He made some attempts to sort this out but, in his words, communications fell apart. He never heard from Mr.

Kjerside again until this litigation. [ 35 ] What unfolded was what I could only describe as a complete nightmare for two people who are health and environmentally conscious. The first was the odour of sewage coming from their new system. Dr. MacDonald checked the tanks and noticed that they were not well sealed so he purchased rubber to form a gasket in an attempt to eliminate the odour. Dr. MacDonald advised Mr. Kjerside of this problem who told him that the odour would disappear after a few months. It did not.

In fact, it was going to get a lot worse. [ 36 ] There were a number of problems with the new system and it is not necessary to my decision to list and discuss them all. Dr. MacDonald testified, and I accept, that the lift station tank under the kitchen became clogged and the pump failed, causing grey water to overflow. More importantly, eventually, the three tanks in the new system filled with sewage and grey water. The tanks were each about 400 imperial gallons and the wastewater was all going into an old 250 gallon water tank which, of course, eventually overflowed. Dr.

MacDonald described sewage flowing from the tank onto the ground. He immediately conducted emergency repairs and installed a longer pipe and infiltrator to move the sewage away from the house. [ 37 ] Dr. MacDonald and Dr. Overhill both described the odour as unbearable. [ 38 ] Dr. MacDonald decided to have the system inspected to determine what needed to be done to allow them to obtain the proper permits and address the odour problem. He retained Sheldon May, a Registered Onsite Wastewater Practitioner (ROWP). Mr.

May was qualified as an expert to provide expert opinion about the installation, repair and maintenance of sewage systems and the necessary requirements to ensure the legality of those systems. He inspected the MacDonald/Overhill property on June 27, 2020 and provided a report shortly thereafter. There was no real conflict between his evidence and the evidence from the parties. His opinion was not shaken or undermined during cross examination. Mr. May was an unbiased and objective witness and I accept his evidence. I set out the most important and, in my view, relevant aspects of his evidence below: (

a) Prior to the installation of any component of a sewage system, a Record Of Sewage System must be filed with the Ministry of Health, in this case, Vancouver Island Health Authority and this had not been done by Mr. Kjerside; (

b) The Record of Sewage System and a Letter of Certification must be completed by an authorized person defined in the Sewerage System Regulation ( SSR ) B.C. Reg. 2004/326 (the Regulation ) as a Registered On-Site Wastewater Practitioner; (

c) An authorized person is required to conduct a site evaluation to determine a design of a sewage system. This involves digging test holes to determine the soil texture, structure, depth of soil and adherence to setbacks to freshwater and marine water bodies. There is a substantial number of setback requirement set out in the Standards Practices pursuant to the Sewerage System Regulation ( SSR ) B.C. Reg. 326/2004 (the Regulation ); (

d) The wastewater system that had been installed by Mr. Kjerside was illegal or prohibited because the proper filing and certification had not been provided to VIHA; (

e) Effluent from three 400 Imp. Gallon tanks flowed to an above ground water tank of about 250 Imperial gallon volume (which was not designed for sewage) and which then flowed to a small infiltrator (dispersal) bed of about 2 sq. metres and which was not buried; (

f) This dispersal field was illegal without a hydrogeological study within a filing permit because it was only 75 feet from the well which was used for drinking water instead of the required 100 foot setback from wells that is required and, in addition, it was within the minimum 15 metre setback to the high tide mark; (

g) The lift station “sump pump” was not intended for greywater applications, premature failure would be possible and, in addition, no high level alarm was provided to indicate a failed or clogged pump; (

h) Water tank lids on the septic tanks did not seal and required proper gas proof sealable lids; (

i) There was no media installed in the primary fermenter and clarifier and, in addition, an incorrect air pump and supply lines had been used; (

j) Effluent was not being treated as intended. Go green systems require plastic media to provide aerobic treatment; (

k) The dispersal system was significantly undersized and created a potential health hazard due to the exposed dispersal bed area.

[39] The crux of Mr. May’s opinion is that the system installed by Go Green was “an incomplete, intended Type 2 or Type 3 “GoGreen Wastewater” treatment system. These systems are designed to contain media but what was installed by Mr. Kjerside did not havethis feature. Mr. May testified that a Type 1 system is just a basic aerobic septic tank treatment but only the Type 3 provides fulldisinfection of the effluent. Only an engineer can authorize a Letter of Certification for a Type 3 system.

All types of systems must meetstandards set by the Canadian Safety Association (CSA) or the National Sanitary Foundation (NSF). Mr. May’s opinion is that thesystem installed by the defendant did not meet those standards. [40] He recommended further evaluation by a certified ROWP to determine the feasibility of providing a proper dispersal field thatwas compliant with the Regulation. [41] Mr. Kjerside testified that he is the sole director and officer of Go Green Environmental since 1985 and was the designer of thesystem. He confirmed Dr.

MacDonald’s evidence about meeting at a conference and subsequently sending him materials andinformation about the system. [42] Mr. Kjerside agreed that he is not a ROWP. He is not authorized to plan wastewater systems. He is not authorized to installwastewater systems. He is not authorized to obtain the necessary permits from the health authority. He testified that he only sellscomponents, that he “pre installs” the components and in this case, he was responsible for delivering the components.

He agreed that heis not authorized to design or install a sewage dispersal system and that he cannot install a system with a drain field (dispersal orinfiltrator). To do so, required an engineer who would do the certification and the “application”. His evidence is that he told Dr.MacDonald that he was not an engineer and he always had a professional engineer “sign off” on a Type 3 system, because of theRegulation. He also testified that he did not recall if he explained this to Dr. MacDonald and then corrected his evidence and said he didnot explain this because Dr.

MacDonald did not want a drain field. [43] When I asked him how much of the Contract price was for the 80’ drain field, he did not know. He guessed that the “component”would be $1,200 to $1,400. [44] His evidence is that after the Contract was signed, Dr. MacDonald changed his mind and told Mr. Kjerside that he no longerwanted the 80’ infiltrator (the dispersal field) and that is the reason Mr. Kjerside amended or changed the document signed by Dr.MacDonald on January 10, 2018. His evidence is that he never pointed this out to Dr. MacDonald. His evidence is that he never evendiscussed this amendment with Dr.

MacDonald. This is contrary to Dr. MacDonald’s evidence that Mr. Kjerside told him the reason forthe need to sign second document was to be paid 50% to ensure delivery of the system. [45] Mr. Kjerside’s evidence is that Dr. MacDonald wanted, and received, a Type 2 system. His evidence is that Dr. MacDonaldasked him to connect the Go Green system to the old white water tank to use as the dispersal field. He agreed that the system he installeddid not contain media. [46] Dr. Overhill’s evidence is that Mr. Kjerside told them that his engineers would “sign off on everything”.

She was veryapprehensive about there being no media processing in the system because that was important to her. [47] He could not recall exactly what else he told Dr. MacDonald but sent out his “standard quote”. According to Mr. Kjerside, theywent over “the list” and Dr. MacDonald told him he did not want the infiltrator. [48] Mr. Kjerside’s evidence, and the thrust of his defence, is that the contract clearly indicated that Dr. MacDonald was responsiblefor obtaining approvals and permits from the health authorities and that included paying for the services of an engineer. Mr. Kjersidetestified that if Dr.

MacDonald had only asked, Mr. Kjerside would have retained an engineer, Allan Dakin, whom he has used in thepast. Discussion: [49] I heard evidence from Dr. MacDonald, Dr. Overhill, Mr. May and Mr. Kjerside. There is a conflict in relation to a few veryimportant pieces of evidence: • Whether or not Dr. MacDonald told Mr. Kjerside that he did not want the 80’ dispersal infiltrator installed; • Whether or not Dr. MacDonald told Mr. Kjerside to connect the wastewater pipe to the old 250 gallon water tank on the property; • Whether or not Dr. MacDonald told Mr.

Kjerside that he wanted a type 2 system. [50] I am mindful that forthrightness, lack of embellishment, appearance of a witness and demeanour is not a reliable way to assess awitness’ evidence. The way in which judges should approach an assessment of credibility and make findings of fact in the face ofconflicting evidence was eloquently expressed in Faryna v. Chorny, (B.C.C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions ... [51] In assessing the evidence of each witness, I consider both credibility and reliability. Credibility relates to honesty.

Reliabilityrelates to the ability of a witness to observe and remember the events. [52] After having assessed the witnesses’ evidence with the aforementioned principles in mind, I conclude that where the evidence ofDr. Overhill and Dr. MacDonald differ from Mr. Kjerside’s evidence, I prefer the evidence of Dr. Overhill and Dr. MacDonald.

[ 53 ] There are a number of reasons for this. [ 54 ] The document signed by Dr. MacDonald on May 20, 2017 (the Contract) and on January 10, 2018 specifically stated that Go Green was providing a Type 3 wastewater system. This is also consistent with the evidence from Dr. Overhill and Dr. MacDonald that they wanted to have a flushing toilet for use as they were getting older and they wanted something that was advanced in green technology. They both testified that the Type 3 system seem to be a very complete and advanced system that was suitable for them and their lifestyle. Dr. MacDonald and Dr.

Overhill are environmentally conscious and a clean, green system was what they wanted and what they thought they were getting. Unfortunately, they did not receive anything close to that. [ 55 ] I have concluded that the system provided by Go Green was not in accordance with the Contract signed by Dr. MacDonald on May 20, 2017. I have concluded that Mr. Kjerside altered this contract to conform to the fact that he was not qualified or legally authorized to design or install a dispersal system. In other words, he could not legally install the 80’ Infiltrator as set out in the Contract without engaging an engineer.

I do not accept Mr. Kjerside’s evidence that Dr. MacDonald told him he no longer wanted the Infiltrator. [ 56 ] The second document, signed on January 10, 2018, was altered by Mr. Kjerside in a fundamental way – it excluded the 80’ Infiltrator dispersal system. He did not point this out to Dr. MacDonald. I find that he told Dr. MacDonald that it was required to allow him to make delivery. This is consistent with the document making reference to a “50% payment request” which ostensibly was required before Go Green would make the delivery. However, it was not necessary to ask Dr.

MacDonald to sign a second contract – the first one already contained a condition that 50% of the quote was to be paid on order confirmation and the remaining 50% prior to delivery. [ 57 ] It is a fundamental tenet of contract law that a valid contract requires an offer, acceptance of the offer and consideration. In this case, the consideration was the promise to pay $21,420.00 in exchange for the provision and installation of the Type 3 Go-Green wastewater system. The offer, acceptance and consideration crystallized when Dr. MacDonald signed the contract on May 20, 2017.

There was no additional consideration flowing from the claimants to the defendants when the second document was signed by Dr. MacDonald on January 10, 2018. In fact, in a document dated January 9, 2018, Dr. Overhill had already signed an authorization allowing Go Green to charge her Visa for $10,710.00. Furthermore, if Dr. MacDonald had actually told Mr. Kjerside that he did not want the Infiltrator, and instead told him just to use the existing water tank, the contract price surely would have been reduced accordingly. It was not. [ 58 ] Notwithstanding that Mr.

Kjerside attempted to have the court characterize this document as a revised and new contract, the document signed by Dr. MacDonald on January 12, 2018 was not a valid and binding contract. . [ 59 ] Mr. Kjerside’s reasons for not pointing the amendment out to Dr. MacDonald – that he was simply reflecting Dr. MacDonald’s wishes not to have the 80’ dispersal field are disingenuous at the least, at worst they were calculated to deceive. For the following reasons, I have concluded that Mr.

Kjerside’s actions should be properly characterized as deliberately deceptive. [ 60 ] He deliberately refrained from pointing out an important change in the contract when he substituted “pipe for exsisting (sic) tank” for “80’ Infiltrator”. [ 61 ] Mr. Kjerside gave evidence that he was aware that the Regulation required an engineer to “sign off” on any installation of a Type 3 system. He testified that he is not allowed to install the drain field (the Infiltrator), only the “treatment system.” He agreed he knew that an engineer is required to complete the application and soil percolation tests.

He testified that if a drain field had been required by Dr. MacDonald, he would have used another company called ABC Application Facilitating (ABC) to do the percolation test and then would have retained an engineer, Mr. Dakin, to attend the site and “verify”. As I understand it from Mr. Kjerside’s evidence, ABC is another company he operates. He testified that he could have hired Mr. Dakin to put in a Type 3 system, but Dr. MacDonald did not want that. In cross examination he testified that Mr. Dakin retired eight years ago, but when it was suggested that for that reason Mr.

Dakin could not have been their engineer, his response was “I could have asked him.” [ 62 ] He did not recall if he explained this to Dr. MacDonald or Dr. Overhill and he did not use ABC because they did not want a drain field. He explained that he made sure the “next” contract was changed and asked him to sign it because he “did not want him to think an infiltrator was coming.” I do not know how he could accomplish this without also pointing out the change from the original (and only) Contract to Dr. MacDonald.

He was “sure” that he sent a diagram depicting a white pipe with holes that was to go into the white tank to Dr. MacDonald on May 22, 2017. He “believed” he explained this to Dr. MacDonald. I do not accept Mr. Kjerside’s evidence. [ 63 ] He testified that he installed a Type 2 system. He testified that when he did the initial site investigation, he saw the white tank with a pipe going in and going out and knew that would not work because it was too close to the high water mark. When asked if he told Dr.

MacDonald this, he answer was “no … he was not interested.” He testified that he did not have an engineer make any submission to VIHA before proceeding with the installation. He agreed he was aware that in accordance with the Regulation , he could not legally design a system without an engineer. Under cross examination, when asked if he assured Dr. MacDonald that an engineer would “sign off” he replied “if you (would) pay for it”. This is contrary to his earlier evidence that he did not discuss this with Dr. MacDonald because the latter was not interested and no longer wanted the infiltrator.

It is also contrary to his assertion that according to the Contract, the owner was responsible for the approvals and permits from the health authorities. [ 64 ] I conclude that Mr. Kjerside knew very well that he was not legally authorized to provide and install a Type 3 wastewater system. I conclude that the Contract required Go Green to provide a Type 3 wastewater system. Mr. Kjerside knew, in particular, that he was not legally permitted to install a drain field – the 80’ infiltrator.

I conclude this was the reason that he purported to “amend” the contract so as to make it appear that he was operating within the legal requirements of the Regulation . I conclude this was the reason he unilaterally changed the wording of the Contract by removing the 80’ infiltrator and substituting it for terms that Go Green would use of the existing water tank, which was clearly inadequate and, I accept, clearly contrary to the wishes and expectations of Dr. MacDonald and Dr. Overhill. [ 65 ] I do not accept Mr. Kjerside’s contention that the Contract made Dr.

MacDonald responsible for obtaining engineering approval. Quite the opposite. The Contract clearly states that a professional engineer “will sign the Filing to the Health Authority.” This is consistent with Mr. Kjerside’s knowledge that a Type 3 system can only legally be installed with the oversight of an engineer.

[ 66 ] I also do not believe Mr. Kjerside’s evidence that the system he provided did not require media. That is contrary to his own promotional material which clearly indicates that a Type 3 system has media, as does a Type 2 system. It is contrary to Mr. May’s expert evidence, which I accept, that media is part of, and included in, a Type 3 system. [ 67 ] The system provided by Go Green did not provide Dr. MacDonald and Dr. Overhill with what they had intended to purchase – a completed Type 3 wastewater system which included a dispersal field.

I conclude that Go Green failed to provide a Type 3 waste water system as required by the Contract. Expenses Incurred by the Claimants After the Breach of Contract : [ 68 ] Following Mr. May’s inspection and report, Dr. MacDonald and Dr. Overhill retained Mr. May to design a Type 3 wastewater system. They retained Fine Line Septic and Drainage (Fine Line) to install the Type 3 waste water system which required the services of an engineer and a complete redesign of the dispersal system.

Fine Line did a retro-fit of the existing tanks, installed a bionest treatment system, and added a new pump tank and a new drain field. Due to problems with water from a nearby brook, additional work had to be undertaken to correct for this. The actual costs incurred and amounts claimed are as follows: (

a) Mr. May – Terra Firma property inspection and report June 27, 2020: $ 729.75 (

b) Mr. May – deposit plan with Island health – filing fee: $ 1,775.00 (

c) Mr. May – septic system commissioned and certified: $ 1,575.00 (

d) Allan Dakin P Eng – hydro geologic assessment of location of wastewater treatment tank and water well August 23, 2020: $ 1,738.89 (

e) Shane Mallis-Fine Line Septic & Drainage – installation and retro fit of wastewater system: $17,850.00 (

f) Materials – sand, Inlet Navigation and CR Marine Terminal re delivery: $ 1,464.00 (

g) Materials – plumbing: $ 967.13 (

h) Cost of emergency and remedial repairs after system overflowed: $ 1,127.35 Sub Total: $27,227.12 [ 69 ] The claimants also seek reimbursement for their costs of litigating this matter which total $2,063.99 and are summarized as follows: Filing and Service Fees: $ 250.00 Expert witness testimony and travel (Mr.

May): $1,031.78 Accommodation for the claimants two nights: $ 595.60 Ferry expense for the claimants: $ 30.65 Meal expenses for the claimants: $ 155.96 Sub Total: $2,063.99 [ 70 ] Overall, the claimants seek $29,291.11 as compensation for their losses. [ 71 ] They also request that judgment be awarded against both defendants: Go Green and Mr. Kjerside personally. [ 72 ] Dr. Overhill and Dr. MacDonald now have a legal, properly operating Type 3 wastewater system.

Had this been investigated by a ROWP and an engineer in the first place, the additional work to install a proper and legal dispersal field, including the design needed to deal with the nearby brook, would have be required in any event. They would have needed the services of an engineer, percolation tests and someone with Mr. May’s credentials as a ROWP. They would have incurred the costs to file the necessary plans and certification. However, they incurred emergency repairs that otherwise would not have been necessary. They paid Go Green for something that was completely inadequate and non-functioning.

They did not receive what they contracted for and I find that Go Green failed to follow the terms and conditions of the Contract under which it was obligated to provide a Type 3 wastewater system. [ 73 ] The claimants paid Go Green $21,420.00 for the system and, in addition, travel, accommodation and other miscellaneous costs of about $3,000.00 for a total of $24,447.74. In addition, the claimants expended $1,127.35 for emergency repairs when the sewage overflowed. This was not contested by the defendants and I accept the claimants’ calculation.

Conclusion: [ 74 ] In assessing the appropriate compensation for the breach of contract, I take into account that the claimants were able to use the tanks provided by Go Green. Mr. Kjerside testified that the three tanks cost $1,700 each for a total of $5,100. There is no evidence to the contrary. The travel expenses by Mr. Kjerside were likely duplicative, to some extent, of the travel expenses incurred by Fine Line Septic during the installation of the new, legal system. Some of the travel expenses were incurred by Mr. Dakin and Mr.

May who needed to perform additional inspections and would have been incurred in any event. [ 75 ] Doing the best I can with the evidence before me, I award $ 19,447.35 to Dr. Overhill and Dr. MacDonald. This reflects $21, 420.00 paid to Go Green for the Type 3 system that they did not receive, less $5,100.00 to reflect the fact they have been able to use the tanks provided by Go Green, for a net total of $16,320.00. I have added an additional amount of $2,000.00 to reflect costs that were unnecessarily duplicated when they were required to retain the services of Mr.

May and Fine Line as a result of the breach of contract. Lastly, they are awarded $1,127.35 for emergency repairs. The total award is $19,447.35. [ 76 ] This judgment is against the corporate defendant Go Green. The claimants are also entitled to pre and post judgment interest in

accordance with the Court Order Interest Act , [ RSBC 1996]

Chapter 79 . [ 77 ] In addition to $19,447.35, the claimants are entitled to reasonable costs incurred as a result of this litigation. The claimants ask to be reimbursed $2,063.99 for a number of expenses as summarized at paragraph 69 of this judgment. They have already provided a copy of the invoice in the amount of $729.75 for Mr. May’s expert report. I ask that they provide to the Court, and to Mr. Kjerside, copies of the invoice or invoices from Mr. May and the other expenses incurred for his attendance at the trial. I also request that they provide a breakdown of the costs of meals and accommodation Dr.

MacDonald and Dr. Overhill incurred to attend the trial, including dates they were incurred. This should be done by June 30, 2022. Mr. Kjerside will have until 3 pm Friday, July 8, 2022 to respond by email to the Judicial Case Manager and to the claimants, failing which I will proceed with my ruling on costs. [ 78 ] Mr. Kjerside must advise how and when Go Green intends to pay the judgment. He may do so by sending an email to the Judicial Case Manager and to Dr. MacDonald no later than 3pm Friday July 8, 2022. [ 79 ] The claimants also seek an order that judgment be granted against Mr. Kjerside personally.

A corporation is, in other words, they seek to “pierce the corporate veil”. It is trite law that, while not absolute, officers and directors of a corporation are protected from a corporation’s legal obligations. There are circumstances in which a director, officer or shareholder of a corporation may be held personally liable for the debts of a corporation but there must be evidence in a trial to address this issue: Jouhari-Sardasht v. Warke , 2014 BCSC 836 .

It is not enough that declining to pierce the corporate veil would be unfair and “the separate legal personality of the corporation will not lightly be disregarded”: Edgington v. Mulek Estate , 2008 BCCA 505 at paras 16 and 24 . [ 80 ] Once the final amount of the judgment is ascertained (after my ruling on costs), the appropriate procedure is to continue the trial on the issue of whether the corporate veil should be lifted to allow judgment to be awarded against Mr. Kjerside personally. This will allow Mr. Kjerside to give evidence and all parties to make submissions in relation to this issue. If Dr.

MacDonald and Dr. Overhill wish to proceed with this issue, they are at liberty to

schedule a brief appearance (by MS Teams is fine) before me for further directions and to discuss how the continuation will proceed. [ 81 ] The counterclaim filed by the defendants is dismissed. This Court does not have jurisdiction to hear claims based on defamation. Given my findings of fact, I also conclude that the defendant Go Green is not entitled to any additional payments from the claimants. [ 82 ] In

summary: • Go Green Environmental Consulting Inc. is required to pay, to the claimants, $19,447.35. plus filing and service fees and reasonable expenses related to the conduct of the proceeding and incurred by the claimants; and • The counterclaim made by the defendants is dismissed. [ 83 ] The claimants are to provide invoices and a breakdown relating to their claim for expenses incurred in this litigation (Mr.

May’s invoice for the initial inspection and report has already been provided to the defendants and the Court) by 3 pm June 30, 2022, as set out in paragraph 77 of this judgment. [ 84 ] Go Green is to provide a response to the claim for expenses by 3pm July 8, 2022, as set out in paragraph 77 of this judgment.

In the event that Go Green fails to reply by that time, I will proceed with a ruling on expenses incurred in this litigation. [ 85 ] Go Green is required to advise the Court when and how it intends to pay the judgment, by 3pm July 8, 2022, as set out in paragraph 78 of this judgment. [ 86 ] If this is not satisfactory to the claimants, I direct that a payment hearing be scheduled under Rule 12 (10) and notice provided to both parties. If that is scheduled, Mr.

Kjerside, as the sole director and officer of Go Green, is ordered to provide, to the claimants, evidence relating to the following: • Income and assets of Go Green for the previous fiscal years 2017 to 2022 inclusive; • Debts owed to and by Go Green for the same period; • Assets disposed of by Go Green since 2017; • Means that Go Green has, or may have in the future, of paying the amount owed. [ 87 ] This evidence is to include Balance Sheets and Statements of Income and Expenses for fiscal years including 2017 to 2022. [ 88 ] Go Green must provide this evidence no later than 14 days before the payment hearing. _______________________________ The Honourable Judge Flewelling, PCJ