2012 BCPC 317, 2012 BCPC 317

Citation: Yavari v. Dekker, et al. Date: 20120301 2012 BCPC 0317 File No: 09-20422 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GHOLAM HOSSEIN YAVARI CLAIMANT AND: IRENE DEKKER CREST REALTY LTD. CAL PYE 492522 B.C. LTD. DEFENDANTS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER

Appearing on his own behalf: G. H. Yavari Counsel for the Defendants Dekker and Crest Realty Ltd. : C. Johnston Counsel for the Defendants Pye and 492522 B.C. Ltd. : S. MacKenzie Place of Hearing: North Vancouver , B.C. Date of Judgment: March 1, 2012 [ 1 ] THE COURT: So, Mr. Yavari, do you wish to say anything in answer to the application, the motion? [ 2 ] MR. YAVARI: For this one here? [ 3 ] THE COURT: Yes. Do you understand what it is? [ 4 ] MR. YAVARI: No, I do not. [ 5 ] THE COURT: Okay.

At this stage in any trial, even in a criminal trial, if the defendant does not believe that the person prosecuting the claim or the charge has put a certain level of evidence before the court or certain evidence before the court, they can say, "There's nothing for us to answer to. We don't have to go any further. We don't have to call our witnesses because there is no case that's been made out by the other party." [ 6 ] So the test is not one whether -- I do not assess credibility.

In other words, I do not say, "Well, I believe this person and therefore I draw a certain inference from their evidence." It is just looking at what is before me on the record relating to material issues at trial. [ 7 ] Now, one of the -- what Mr. Johnston has said is one of the material issues at this trial is the standard of care owed to you by Ms. Dekker as a realtor, what is that, and in particular, with respect to what you have brought forward as your concern.

So is she -- they are saying there is no evidence that it was -- there was any duty on her to, you know, sort of take you through those reports or tell you what was in those reports, nothing of that nature. [ 8 ] They are saying she gave them to you. You cannot say she did not give you the engineering reports. We know you got an email that gave you access to them, a site, and that you could get those through the seller. There is no evidence even from you that you followed up on that. So that is the evidence.

That is the body of the evidence that I have. [ 9 ] I know that you said you may have reviewed them, but did not read them carefully.

You cannot even say what documents you had or whether you had the reports or not, but more importantly, what is it you say she is supposed to do in those circumstances when she is selling someone a strata and she takes the step of making sure as in -- I mean that is trite, really, that realtors have to make sure that you get access to the minutes and any assessments of engineering reports, et cetera, in the strata. [ 10 ] I mean that is standard and that I do not have any difficulty with, but there is no evidence as to what further steps she needs to take or whether she should have acted in some particular way one way or the other with the email that she received from Mr.

Pye. She provided them to you as the buyer so you were informed, but I do not know whether -- I am not a realtor. There is nothing before me from you to say as a prudent realtor she should have done X, Y, or Z with those. [ 11 ] So that is what Mr. Johnson is saying. There is just no evidence that she did anything wrong. We know what she did, but there is no evidence that she did not do what a prudent realtor needed to do one way or the other.

I do not know if she did or did not because I am not a realtor and I am not aware of what they should do in these cases except anecdotally and I cannot draw on that. [ 12 ] So that is what he is saying and that the case that he has referred to -- well, here, I will just say to you this, that the standard, just so you know, is whether there is any evidence if left uncontradicted to satisfy a reasonable person, and in this case, that Ms. Dekker was negligent. I have to conclude whether a reasonable trier of fact could find in the plaintiff's favour if the evidence were believed up to that point.

So it is not really that issue, particularly, today. [ 13 ] It is the fact that there is no evidence as to what their standard of care is, whether she breached that standard of care. All I know is what she did, but I do not know whether that was right or wrong. [ 14 ] So the case that he referred to and law in Canada is both enacted by Parliament or the Legislatures and also there is common law.

So judges look at those laws and they look at the circumstances and they write judgments and, from that, we distil down what we call our common law and, in this case, it says, "In my opinion, this is not a case where the realtor's conduct is so blatantly negligent or so egregious as to be clearly negligent such that there is no need for expert evidence to establish the standard of care," and then that judge actually quotes another case which doubtless quotes other cases on the issue. [ 15 ] So there is nothing before me that would indicate that she was blatantly negligent.

I think counsel probably would agree that if she had not put in that subject-to and advised you that you needed to look at the minutes that would be something I could probably conclude was grossly negligent. When you are buying into a strata unit, very important that you know whether there are assessments because although your unit may be fine, you are buying into the entire complex and you are responsible to pay for the entire complex. So he is saying she did what on the face of it needed to be done. [ 16 ] MR. YAVARI: Your Honour, well, at least she knew that some cladding is a problem.

Is it not part of her duty or obligation to

suggest that he put some holdback. [ 17 ] THE COURT: No, I do not know. That is the problem. There is no evidence before me that that is what she should have done. There is no evidence before me that she should have as a prudent realtor made further inquiries. That is the problem. That is what he is saying. You are saying she should have. I do not know whether that is expected of her, whether that is what I will refer to as an industry standard. I do not know and there is no evidence. There is nothing to help me with it. [ 18 ] MR. YAVARI: Okay. [ 19 ] THE COURT: All right.

Well, I do not know that I need to give any further reasons than I have just done in terms of explaining it to Mr. Yavari, but this is a motion for non-suit or no evidence. There is a reserved right to call further evidence should they not succeed in this matter, but either approach to the problem, I find there is simply no evidence before the court from which I could conclude or anyone could conclude, credibility aside, that Ms. Dekker was negligence or failed in her duty of care to Mr.

Yavari on the evidence in the trial to this point. [ 20 ] So I will dismiss the claim as against Irene Dekker and Crest Realty. [ 21 ] MR. MACKENZIE: Your Honour, if I may at this time -- [ 22 ] MR. JOHNSTON: Sorry to interrupt my friend. We have the judgment and the dismissal and I would just like to advise that we would not be seeking any costs. [ 23 ] THE COURT: Oh, all right. Thank you. So they are not going to ask for any costs against you which is decent of them. Okay, you can be seated. So Mr. MacKenzie. [SUBMISSIONS RE APPLICATION TO DISMISS CLAIM AGAINST DEFENDANTS PYE AND 492522 B.C.

LTD.] [ 24 ] THE COURT: What the first case he referred to says, it talks about what a negligent misrepresentation -- what you have to prove, and that is you, you have to prove. So, firstly, the duty of care owed by Mr. Pye to you, and there is nothing except his being president to bring in the strata or the corporation, all right. The only -- you were saying he was their representative or agent, I assume. So one stands behind the other just as it did with Ms. Dekker and Crest Realty. [ 25 ] So what do you say is the duty of care owed arising from a special relationship between you and Mr. Pye? [ 26 ] MR.

YAVARI: I have no special relationship -- special relationship? [ 27 ] THE COURT: Yes, what is the relationship you had with Mr. Pye? [ 28 ] MR. YAVARI: No relationship. [ 29 ] THE COURT: And I have talked to you about this already, about the representation being false, inaccurate, or misleading. I do not know that it was. It does not appear that it was. When you look at that report, indeed, 3.6 million of the cost is for cladding, stucco conversion to Hardi-plank, so replacing the exterior of the building. [ 30 ] MR. YAVARI: Plus -- [ 31 ] THE COURT: On the evidence before me, it is consistent. [ 32 ] MR.

YAVARI: Plus windows repair and -- [ 33 ] THE COURT: Included, balcony membrane replacement included, in cladding. [ 34 ] The other thing I have to look at is that Mr. Pye acted negligently and yet what Mr. Pye, in fact, did was put you on notice that the very assessment you are complaining about was on the way. He says that, "If they decide to go ahead, there's going to be a big -- an assessment coming." He tells Ms.

Dekker to get an inspection which you did and your inspector told you, "Make sure you read the minutes and went through the strata documents," and you simply chose not to. [ 35 ] Instead, you made assumptions about what Mr. Pye meant. You assumed that cladding could not be that expensive and yet they are talking right -- there is just no question they were talking about the cladding for an entire building. That is surely going to be more than $50 or $100. As you said in your evidence, you cannot do anything for $50 or $100 these days. I do not think you can rent a power washer for $50 or $100. [ 36 ] MR.

YAVARI: No. [ 37 ] THE COURT: So it was not reasonable for you to have concluded that that could not be a significant expense. You just assumed that it was not and you assumed that, because it was not a leaky condo, as you said, not a leaky condo, that therefore whatever was coming down the road, whatever this assessment was, would not be very much.

So it was not reasonable -- the manner in which you relied upon it was not reasonable because you only focused on a tiny bit of what was said and not the rest of it which is, "There may be an assessment, go look at the reports, make sure you get an inspection." [ 38 ] You, in fact, did get the reports, you did get the inspection, and you did not follow through. You did not go and look at the engineering report.

If you had, you would have seen what the amounts were because there were a couple of reports, I think, by the time this last one comes along where they are talking about nearly a half a million dollars. [ 39 ] So, first of all, I do not think he misrepresented anything or at least there is a paucity, lack of evidence that that is the case. On

the evidence before me, it is consistent, and there does not appear to be a duty of care owed between he, Mr. Pye, and you, although arguably had Ms. Dekker relied on something he had said in that somehow, I suppose she could have had a -- she would have had a relationship with him because she consulted him in his capacity as president and as a realtor, but again, we do not have any evidence about whether she should or should not have done that or what her duties were.

That is why the case against her has been dismissed. [ 40 ] So on the bases that are set out in this first case that was referred to, you have not -- there is insufficient evidence of -- I will almost go so far to say no evidence of a negligent misrepresentation on several grounds. [ 41 ] The second case, again, it tells me that, as Mr.

Justice Finch said, the reasonable purchaser would in the circumstances have put on its inquiry from the outset and would have taken steps promptly to ascertain the boundary of the subject property, and I find that you should have read those minutes and looked at the reports as Mr. Pye suggested, as it says in the contract, and your inspection report said you should. [ 42 ] So I cannot find that there is a case to answer for Mr. Pye or Crest -- or, sorry, or the corporation, either. [ 43 ] I will just touch on another thing just for your benefit in the future, Mr. Yavari.

You cannot simply come before the court and say, "Well, English is my second language so therefore I do not read documents and I do not pay attention to them and I assume that people are telling me -- giving me the straight goods." [ 44 ] If you need assistance in understanding a document where you are making a $490,000 purchase, you take it to somebody who speaks your language and who can explain it to you.

So in the future, you have to make very sure that you indeed do understand what is being said and what is being done. [ 45 ] So I just say that for your benefit because you cannot conduct yourself in English and then later say, "Well, I didn't understand." You would have had to say, "I don't understand. I need an interpreter," or get a realtor who speaks your own language or find a notary who speaks your own language or bring someone along who speaks your language. Okay. [ 46 ] So the case against 492522 B.C. Ltd. and Cal Pye is also dismissed on the motion. [ 47 ] MR.

MACKENZIE: Thank you, Your Honour. [ 48 ] MR. PYE: Thank you, Your Honour. [ 49 ] THE COURT: All right, and you are not seeking any costs against? [SUBMISSIONS RE COSTS] [ 50 ] THE COURT: So what that means, then, is that there were 2,000 copies that they made just to put their book of documents together.

So the fact that there are others because they would have disclosed earlier to you, there would have been documents been going back and forth between all the parties, that what that tells me, really, is it is not an unreasonable amount of copy. [ 51 ] Okay, so this will be filed with respect to expenses and, all of them being appropriate, it would appear there will be $2,125.97 in costs, $50 in filing fees, and that is all of it? [ 52 ] MR. MACKENZIE: That is it, Your Honour. [ 53 ] THE COURT: All right. [ 54 ] MR.

MACKENZIE: Thank you. [DISCUSSION RE TIME TO PAY COSTS] [ 55 ] THE COURT: So it will be payable within six months. [REASONS FOR JUDGMENT CONCLUDED]