Su v. Empire Developments Ltd. Date:, 2017 BCPC 141

Citation: Su v. Empire Developments Ltd. Date: 20170419 2017 BCPC 141 File No: 14-49998 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: YUE SU CLAIMANT AND: EMPIRE DEVELOPMENTS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Appearing on their own behalf: Y. Su Appearing for the Defendant: R. Johal Place of Hearing: Vancouver , B.C.

Date of Hearing: March 24, 2017 Date of Judgment: April 19, 2017 INTRODUCTION [ 1 ] The claimant Ms. Su is the owner of a condominium unit (“the condo unit”) in a low-rise condominium building (“the building”) on East 54 th Avenue in Vancouver, British Columbia. The defendant, Empire Developments Ltd. (“Empire”) is the developer of the building. Ms. Su filed a claim in provincial court for damages against Empire in the amount of $20,000 which represents what Ms. Su believes to be the loss of value of her condominium unit due to a breach of contract.

The breach of contract alleged is that the parking space assigned to her in the underground parkade of the building is smaller in size than the parking space requirements designated by the City of Vancouver Parking Bylaw (“the Vancouver Parking Bylaw”). CIRCUMSTANCES LEADING TO DISPUTE Claimant’s evidence [ 2 ] In early May 2011 Ms. Su offered to purchase strata lot 32, described as penthouse PH 5 in the building on East 54 th Avenue in Vancouver. At the time she made the offer the building was still under construction.

A complete copy of the agreement of purchase and sale (“the purchase agreement”) she signed was not provided to the court, so it is not clear what the precise closing date was or what specific provisions, if any, there were in the purchase agreement regarding parking spaces. Ms. Su testified she did not think parking was addressed in the purchase agreement. However, it was Ms. Su’s understanding that by paying the purchase price she would receive a condo unit and underground parking. When asked by the court whether she had been told anything about parking, she answered that she did not know.

She did not think about it at the time she made the offer to purchase. [ 3 ] The terms of the purchase agreement required Ms. Su to pay an initial deposit of approximately $22,000 upon the vendor’s acceptance of the offer. A further deposit of approximately $45,000 was payable six months from the date of the vendor’s acceptance of the offer. The balance of the purchase price was to be paid on the completion date. [ 4 ] Ms. Su was provided a Disclosure Statement on or about the time she placed an offer on the condo unit. The precise date she received the Disclosure Statement was not clear.

The Disclosure Statement given to Ms. Su provided that at least one parking stall would be reserved for the exclusive use of the owner of each residential strata lot. [ 5 ] At some point a decision was made to assign parking stall number 13 (“the parking stall”) on the P1 level of the underground parkade to Ms. Su. Mr. Johal, the president of Empire, testified on its behalf. He said parking spaces were assigned at random. He left it up to the realtors handling the sale of the condo units to come up with a method to assign parking spaces. He testified it was done by drawing names.

He did not have a list of the parking spaces and the units to which they had been assigned. [ 6 ] Ms. Su noted, however, that three of the penthouse condo units had adjacent parking stalls, so it did not appear to her that the parking stall assignment was made on a random selection basis. No other evidence was presented regarding the assignment of parking stalls.

In particular, there was no evidence presented to the court regarding any specific provisions pertaining to the assignment of parking stalls, either in the purchase agreement or in the Disclosure Statement. [ 7 ] Eventually an occupancy permit was issued for the condo building (presumably by the City of Vancouver officials). This was confirmed by Mr. Johal’s evidence. However, he did not specify the date when the occupancy permit was issued. He also did not provide any evidence about any other inspections of the building that may have occurred. [ 8 ] Ms.

Su testified that on June 13, 2012, she, a real estate agent, and Jim Kahlon, a subcontractor working for Empire, met at the condo unit for an inspection. Ms. Su said she had to see everything within a half hour so the inspection process was rushed. On that occasion she was told her assigned parking space was parking stall 13. Ms. Su testified that Mr. Kahlon measured parking stall 13 as well as two other parking stalls adjacent to it. He told Ms. Su the three parking stalls were all about the same size width-wise. She told him she wanted to change her parking spot to a bigger one. However, she was told by Mr.

Kahlon this was the parking stall she had been assigned and there was nothing that could be done. [ 9 ] Ms. Su moved into her condo unit in late July or early August 2012. She testified that as soon as she began using the parking stall she found it was difficult to drive the car in and out of it. Ms. Su looked up the City of Vancouver bylaws online. She reviewed the Vancouver Parking Bylaw and in particular

Section 4.8.1 (a). As a result of that review, it was her understanding the minimum width of a parking stall should be 2.7 meters. Accordingly, she measured her assigned parking space, parking stall 13. There is a cement post to one side of and near the entry to the parking stall. Photographs entered as exhibits show that part of the cement post sits within the parking stall. When she measured the width from the end of the cement post to the center of the white demarcation line on the other side, Ms. Su found the distance was 2.41 meters. [ 10 ] On August 20, 2012, Ms.

Su sent an email to Juliet Reynolds who worked for Empire. She explained her concern that the parking stall she had been assigned did not meet the requirements of the Vancouver Parking Bylaw. She also attached a link to the bylaw for reference. Ms. Su sent a follow-up email to Ms. Reynolds 10 days later asking why she had not received a response. She received an email from Ms. Reynolds who wrote that the developer was out of the office. Once Ms. Reynolds heard something from the developer she would let Ms. Su know. [ 11 ] On September 10, 2012, Ms. Su again sent an email to Ms.

Reynolds expressing concern that she had not yet received an answer. She also explained all she wanted was parking stall number 11 which was designated as a “small car” parking space. Notwithstanding that designation, Ms. Su said it was better than the parking stall that had been assigned to her, which did not meet the Vancouver Parking Bylaw.

[ 12 ] Ms. Reynolds told Ms. Su she could use parking stall 11 on an interim basis. However, on February 12, 2013, Ms. Reynolds advised Ms. Su that penthouse PH 3 had been sold and parking stall 11 was owned by that unit. Moreover, Ms. Reynolds told Ms. Su she had to vacate her “unofficial use” of parking stall 11. On February 14, 2013, someone else from Empire sent an email (the name of the sender is not in the email) which advised Ms. Su that if she did not move her vehicle from parking stall 11 by the next day, February 15, 2013, the vehicle would be towed. [ 13 ] On October 9, 2014, Ms.

Su filed a notice of claim in provincial court claiming loss of property value due to breach of contract. Mediation was held on June 24, 2015, but was not successful. There followed a trial conference on October 26, 2015. That conference was adjourned to allow the defendant the opportunity to make inquiries to determine whether arrangements could be made for Ms. Su to switch parking stalls. Nothing came of those inquiries. A subsequent case conference was held on August 22, 2016, when the matter was set for trial.

At that case conference the parties were ordered to exchange documents and any expert reports to be relied on at trial. [ 14 ] Ms. Su testified she received disclosure materials from Empire. One of the disclosed documents was a letter from a professional engineer that addressed the size of the parking stall. From that letter she learned about other documents issued by the City of Vancouver that applied to parking stalls. One of those documents was the Parking and Loading Design Supplement issued by Engineering Services of the City of Vancouver.

The other document was Appendix A to the Parking and Loading Design Supplement which set out certain parking stall guidelines and diagrams. [ 15 ] On reviewing these materials Ms. Su found there was another problem with the parking stall assigned to her. Those documents contained guidelines for the width of the “aisle” in parking areas in addition to guidelines regarding parking spaces. I take the term “aisle” to mean the area leading to the parking stalls used by vehicles to access the parkade and the parking stalls.

She measured the aisle adjacent to her parking stall and found it was one half meter less than the measurements suggested in Appendix A. [ 16 ] I asked Ms. Su whether she had contacted the City of Vancouver about the issue before the court. She said she contacted the City of Vancouver and spoke to two persons. One person was a woman, the other was a man. Ms. Su said they told her this problem was too hard. They gave her very fuzzy answers. She could not recall the names of the persons she spoke to. She said a man came to the condominium building and looked at the parking stall. However, he did not do anything.

Ms. Su said it was her impression that although the City of Vancouver has a parking bylaw it does not enforce the bylaw very well. She said the man did not provide any report about his visit or his findings. Ms. Su said the man, in effect, suggested she should be happy she had parking because many other people do not. She did not have the name of the man who came to check out the parking stall. [ 17 ] With respect to damages, Ms. Su understood from information she was given at one of the case conferences that it was her responsibility to estimate the damages she had sustained. Ms.

Su testified she contacted a couple of realtors to obtain information regarding the monetary amount of damage she had sustained. She was told damages relating to property value are difficult to estimate. Accordingly, it would be difficult for the realtors to give her an exact estimate of damages. One of the realtors she contacted told her the value of a parking space varies from area to area. In the area where her condo is located a parking space may sell from $30,000 to $50,000. [ 18 ] One of the realtors she spoke to told her he could not give her a specific number.

However, he pointed out that now she knew there was a problem with the parking stall she would have to disclose the problem to any prospective buyer in the future. [ 19 ] Ms. Su entered as an exhibit an email from a realtor she had contacted. That realtor wrote that parking space value varies and pointed out that in some downtown condos parking spaces sell for $50,000 and up. He recommended she get a professional appraiser to give her an evaluation. Defendant’s evidence [ 20 ] Mr. Johal, the president of Empire, testified on Empire’s behalf.

He testified that Empire was the developer of the project on East 54 th Avenue. Scott Kennedy, who works at Cornerstone Architecture, designed the building, including the parking area. Ken Wong and Associates did the survey work. The general contractor was Mark Alair. [ 21 ] Mr. Johal testified that the size of the parking stall would not affect the price of a condo unit in the building. He said there were smaller parking spaces in the building. He also said there had been no other issues raised about the parking spaces. [ 22 ] Mr.

Johal said there is a requirement for the parking to be inspected and it was inspected. However, he did not have the inspection report or other details of the inspection. Mr. Johal said an inspection was done by an engineer before and after the parking stall lines were drawn. It was not clear if this was an engineer employed by Empire or an engineer employed by the City of Vancouver. He also testified he obtained an occupancy permit which applied to the whole building and to the underground parkade where residents park.

He did not have the occupancy permit with him and did not provide a copy to the court. [ 23 ] Mr. Johal testified he left it to the realtors to decide how to assign the parking spaces. They did it by drawing names. [ 24 ] Mr. Johal on behalf of Empire relied on a four page document that was entered as Exhibit 4 in these proceedings:

a) The first page is undated and simply indicates that the person who signed that page, Scott Kennedy, is a professional engineer and is a principal of Cornerstone Architecture. He has worked in that capacity since 1985. Mr. Kennedy attested to having worked in 20 buildings of a similar nature to the East 54 th Avenue development. He has ongoing involvement with other buildings that are under construction or in the design stage. Mr. Kennedy wrote that he deals with parking design issues with the City of Vancouver Engineering Department and has applied those principles “in most of our work done in the City”.

b) The second page is a drawing showing the plan of parking stall 13 as part of strata plan BCS4453. It shows the dimensions of the parking stall.

c) The next two pages appear to be a letter from Mr. Kennedy. However, the letter is not signed. Moreover, it is not clear if the two

pages provided to the court are the entire letter. [ 25 ] The letter is dated October 14, 2016, and is addressed “to whom it may concern”. The reference in the letter is to parking stall number 13 at the address on East 54 th Avenue. The writer notes he has been asked to provide an opinion as to whether parking stall 13 meets the minimum requirements of a regular car stall set out in the Vancouver Parking Bylaw. The writer notes he has not visited the site and has relied on the survey provided by Ken Wong and Associates for dimensional information on the existing conditions. He refers to Vancouver Parking Bylaw

Section 4.8.1. He also refers to an

interpretation guide issued by the City of Vancouver. He attached a diagram taken from a revised City of Vancouver document dated February 13, 2002. [ 26 ] In the letter the writer points out that the guideline “does not quite capture the situation we have in this instance”. However, he goes on to give his

interpretation of how the situation should be interpreted. He relies on an example of a two-car module to make his point. He concludes based on the survey provided by Ken Wong and Associates, that the parking stall conforms to the City requirements. [ 27 ] Empire also filed four photographs of a Range Rover parked in parking stall 13. Documents tendered at trial [ 28 ] The claimant tendered the following documents:

a) the claimant’s trial statement (Technically this is not an exhibit but as both parties referred to their trial statements I permitted them to file the document along with their other exhibits.),

b) page 1 of the agreement of purchase and sale dated on or about May 9 or 10, 2011,

c) three pages of drawings of parking stalls in the building,

d) a drawing of parking stall 13 showing cement post, measurement of post, and the measurement from the post to the white line,

e) black-and-white photographs of parking stall 13 illustrating measurement thereof,

f) one page from the City of Vancouver Parking Bylaw (page 4 - 24) dated November 2009 referring to

Section 4.8.1,

g) selected emails exchanged between the claimant and Juliet Reynolds,

h) an email from James Hampton,

i) emails from the complainant to Mr. Charles Anderson lawyer for the defendant and his response,

j) a hand-drawn diagram showing parking stall 13 and adjacent parking stalls,

k) a photograph of stall 13 with car parked therein,

l) claimant’s notes responding to defendant’s letter from architect,

m) the Parking and Loading Design Supplement from the City of Vancouver Engineering Services dated February 12, 2002, including guidelines for additional dimension requirements for parking areas (Appendix A), and

n) Appendix A (pages 1 to 3 inclusive) setting out parking stall guidelines and drawings illustrating same,

o) a drawing of parking level I, (sheet 4 of 9 sheets) last updated March 26, 2010. [ 29 ] The defendant tendered the following documents:

a) the defendant’s trial statement (As noted this is technically not an exhibit but as both parties referred to their trial statements I permitted them to file the document along with their other exhibits.),

b) an undated note from Scott Kennedy a professional engineer with Cornerstone Architecture,

c) a drawing showing size of parking stall 13 at strata plan BCS4453,

d) a two-page unsigned letter on Cornerstone Architecture letterhead dated October 14, 2016 (Mr. Johal’s evidence is that this letter was from Scott Kennedy),

e) four photographs of a Range Rover parked in what was identified as stall 13. POSITION OF THE PARTIES [ 30 ] Ms. Su claims $20,000 as damages for loss of property value due to breach of contract as well as filing fees and service fees. Ms. Su submits Empire did not provide her with a proper parking stall that meets the Vancouver Parking Bylaw requirements. She submits that parking stall 13 is smaller in size than the required parking stall size set out in the Vancouver Parking Bylaw.

In particular she says she has established that the narrowest width of parking stall 13 is 2.36 meters, whereas the Vancouver Parking Bylaw requires the minimum width to be 2.7 meters. [ 31 ] Ms. Su explained that she made numerous efforts to arrive at a resolution with Empire. Until February 2013 Empire had an

option of assigning her another parking stall because one of the penthouse condo units remained unsold. However, once that condo unit was sold, Ms. Su believes there was little that could be done and she was “stuck” with parking stall 13. [ 32 ] Ms. Su asserts she has suffered a loss in property value because of Empire’s failure to provide her with a proper parking stall. Accordingly, she is seeking monetary compensation for the loss. Ms. Su arrived at the $20,000 damages estimate by making inquiries about how much she should lower the selling price to induce a potential buyer to purchase her condo.

She concluded that $20,000 would be a reasonable inducement. [ 33 ] Empire submits that evidence provided at the trial establishes that Ken Wong and Associates, the surveyor who prepared the strata plan, measured the dimension of the parking stall and determined that the size of parking stall 13 is 2.68 meters x 5.59 meters for a total of 14.98 square meters. Empire asserts these are the dimensions of parking stall 13 that are set out in the strata plan registered in the Land Title Office. [ 34 ] Empire acknowledges that on one side of Ms.

Su’s parking stall there is a concrete wall for the stairwell to the parking garage. This concrete wall abuts into the parking stall for a distance of approximately 1.33 meters. Empire submits that the concrete column on the other side has not been measured but it is less than half that width. Empire submits that neither the stairwell wall nor the concrete column interfere with the opening and closing of vehicle doors. [ 35 ] Empire points to a letter from a professional engineer. Empire relies on that letter and urges the court to accept the engineer’s

interpretation of the parking stall guidelines and his conclusion that parking stall 13 conforms to the Vancouver Parking Bylaw. THE BURDEN AND STANDARD OF PROOF [ 36 ] The burden of proof in a civil case such as this lies with the claimant to prove her case on a balance of probabilities: see, F.H. v. McDougall , 2008 SCC 53 . Accordingly, Ms. Su has the legal and evidentiary burden of proving, on a balance of probabilities, that (

a) Empire did not provide her with a proper parking stall and, (

b) as a consequence she has suffered damages. In each instance she must present admissible evidence that provides an evidentiary foundation for her claim. [ 37 ] In Northland Properties Corp. v. British Columbia , 2010 BCCA 177 , the Court of Appeal explained that the legal burden lies with the party whose responsibility it is to prove a fact. In this case that is the claimant Ms. Su. If the party who bears the legal burden fails to prove its case, or if the evidence weighs equally between the two sides, then that party loses. ANALYSIS Has Ms.

Su established a breach of contract? [ 38 ] There is no question that the parties entered into an agreement which resulted in the sale of the condo unit to Ms. Su. It is also not disputed that, while there was no specific mention of parking stalls in the purchase agreement, the issue of parking stalls was addressed in the Disclosure Statement. In particular, the Disclosure Statement provided that at least one parking stall would be reserved for the exclusive use of the owner of each residential strata lot. Initially, the plan was that the parking stalls would be designated as common property.

However, the Disclosure Statement was amended and the parking stalls were to be designated as limited common property on the strata plan when it was deposited in the Land Title Office. [ 39 ] On the evidence before me it appears that Ms. Su did not turn her mind to the parking stall when she initially made the offer to purchase. Moreover, she did not address the issue of the parking stall in any way before the inspection date on June 13, 2012. Furthermore, although Ms.

Su expressed some concern about the size of the parking space during inspection on June 13, 2012, she nevertheless completed the purchase of the condo unit. [ 40 ] The nub of the issue between the parties is twofold, namely, whether Ms. Su has proved that the parking stall assigned to her was not a proper stall because it did not comply with the Vancouver Parking Bylaw and, if so, whether damages flowed from such a breach. [ 41 ] Each party presented evidence regarding the size of stall 13. Empire presented a letter from Cornerstone Architecture. Ms.

Su presented measurements she and her partner had taken and information contained in the Vancouver Parking Bylaw. [ 42 ] Ms. Su claims that her parking stall is a standard vehicle parking space, not a small car parking space. Accordingly, pursuant to the Vancouver Parking Bylaw the minimum length of the parking space should be 5.5 meters and the width should be 2.5 meters. These same measurements are also set out in the Parking and Loading Design Supplement under the heading “Parking area, Parking space size”.

The conversion in feet set out in the Parking and Loading Design Supplement is that a standard vehicle parking space should be 8 feet 2 inches in width and 18 feet in length. [ 43 ] Ms. Su maintains there is a different requirement where a parking stall is adjacent to a wall or a column. In such case the width of the parking stall increases to 2.7 meters – or 8 feet 1 inch for a standard vehicle. Ms.

Su provided a drawing (to scale) showing that the width at the entry portion of her parking stall is only 7 feet 10 3/4 inches, whereas further into her parking stall the width is 8 feet 4 1/2 inches. [ 44 ] The 7 feet 10 3/4 inches measurement reflects the fact there is a column on one side of parking stall 13. Ms. Su argues that if a column is located more than 1.2 meters (4 feet) from either end of the stall, the required stall width has to be increased to 2.7 meters. Ms.

Su maintains that the location of the column in her parking stall is such that no encroachments are permitted. [ 45 ] Empire relies on the opinion provided by Cornerstone Architecture, presumably Scott Kennedy. Mr. Kennedy likens the situation of parking stall 13 to the two car module example set out in the guidelines issued by the City of Vancouver. This appears to be a reference to the Parking and Loading Design Supplement. In his opinion a column can encroach up to 6 inches into the parking stall for a two car module.

Therefore, the width from the column to the center line of the parking stall divider would be 2.35 meters, namely,

7 feet, 8 33/64 inches. That would conform to the Vancouver Parking Bylaw. [ 46 ] He also opines that if one looks to the two car module for guidance, it allows a width encroachment in the first 4 feet of a stall length of .15 meters so that the clear width of the stall at the end would need to be 2.35 meters (7 feet, 8 33/64 inches). He notes that the survey indicates it is 8 feet, 5 1/2 inches when measured from a line formed by allowing the column to encroach 6 inches, so the actual clear width is 8 feet, 5 1/2 inches minus 6 inches which equals 7 feet, 11 1/2 inches.

Accordingly, it conforms to the Vancouver Parking Bylaw. [ 47 ] I will first address the weight, if any, that should be given to the opinion evidence tendered by Empire. In a relatively recent decision of the Supreme Court of Canada, White Burgess Langille Inman v. Abbott and Halliburton Co ., 2015 SCC 23 , the court reviewed the importance of expert opinion evidence. It noted that such evidence can be a key element in the search for truth, but may also pose special dangers. It further noted that expert witnesses have a special duty to the court to provide fair, objective and non- partisan assistance.

A proposed witness who is unable or unwilling to comply with that duty is not qualified to give expert opinion evidence and should not be permitted to do so. The court also noted that many provinces and territories have provided explicit guidance about the duty of an expert witness.

For example, in British Columbia the Supreme Court Rules require experts to certify they are aware of and will comply with their duty to the court. [ 48 ] The Supreme Court of Canada concluded that independence and impartiality have a bearing not just on the weight that should be given to expert evidence but also on the admissibility of the opinion evidence itself.

If the evidence is admitted, an expert’s lack of independence and impartiality is an appropriate factor to take into consideration in determining the weight to be given to the evidence. [ 49 ] In this case, I have set out in some detail the format of the expert evidence Empire presented to the court. I fully appreciate that the Small Claims Rules are less stringent and much more flexible than the Supreme Court Rules. In fact, in this case I allowed Empire to tender the documents it had obtained from Cornerstone Architecture.

However, even though the documents were admitted as exhibits, I must still consider the weight to be given to that evidence. In this regard I have considered the following:

a) The documents tendered do not appear to be a complete set of documents.

b) It is not clear from the documents whether the writer of the October 14, 2016, letter was aware that the letter was being submitted to the court.

c) The letter containing the opinion is not signed.

d) The writer acknowledges that although he relies on the guidelines issued by the City of Vancouver, they do not quite capture the situation in this case.

e) The writer provides an “interpretation” about the situation facing him and the rules that apply in determining the size of the parking space, but he does not explain the rules and how they have been applied to similar cases within his knowledge.

f) The writer did not visit the site and did not take any of the measurements himself, instead he relied on the survey provided by Ken Wong and Associates.

g) The writer, according to Mr. Johal’s evidence, designed both the condo building and the parking area where the parking stall in question is located. [ 50 ] I have concluded that in these circumstances it is not appropriate to rely on the opinion of Cornerstone Architecture in determining whether the minimum requirements set out in the Vancouver Parking Bylaw have been met in relation to parking stall 13. However, my conclusion not to rely on the Cornerstone Architecture letter is not the end of the matter. [ 51 ] I must nevertheless determine whether the evidence presented by Ms.

Su proves, on a balance of probabilities, that the parking stall falls below the minimum standards set out in the Vancouver Parking Bylaw. In considering the evidence provided by Ms. Su I acknowledge she and her partner went to great lengths to provide helpful information to the court. I am certain she and her partner did their best to obtain the correct measurements and relay that information to the court. However, the issue I must address is not simply whether the measurements they took are correct, but whether their underlying assumptions about the application and

interpretation of the Vancouver Parking Bylaw are correct. [ 52 ] Ms. Su provided the court with excerpts from the Vancouver Parking Bylaw, the Parking and Loading Design Supplement, and from Appendix A attached thereto, issued by Engineering Services of the City of Vancouver. I found those materials to be confusing and difficult to understand. In part this was because I was only provided excerpts and did not get the full picture. In part this was because the Vancouver Parking Bylaw sets out a specialized, complicated regulatory regime.

This is a case where the court would have benefited from expert evidence provided by an architect or an engineer who had considerable knowledge about Vancouver bylaws, in particular the requirements, regulations and application regarding parking and parking spaces in condominium buildings. [ 53 ] Information helpful to the court could also have been provided by calling as a witness a staff member of the City of Vancouver Engineering Services familiar with parking design and parking stall sizes required to meet the standards set out in the Vancouver Parking Bylaw.

The very fact that the City of Vancouver Engineering Services thought it prudent to issue a design supplement underscores my observations about the complexity of the City’s regulatory requirements in this regard. [ 54 ] I appreciate that Ms. Su, with the help of her partner, did her best to understand and apply the Vancouver Parking Bylaw and other explanatory directives to her specific situation. However, Ms. Su does not have any particular area of expertise regarding the Vancouver Parking Bylaw or other bylaws applicable in the circumstances of her case.

Accordingly, while I have considered her evidence and her understanding of the Vancouver Parking Bylaw, in the circumstances before me I have found it is not determinative of the issue.

[ 55 ] Let me explain some of the matters that have not been satisfactorily addressed. First, in this case, Ms. Su has proceeded on the assumption that she was entitled to a standard vehicle parking space as that space is defined in the Vancouver Parking Bylaw. I was not directed to anything in the purchase agreement or in the Disclosure Statement which specifically identifies the type of parking space to be provided. Second, the excerpt from

Section 4 of the Vancouver Parking Bylaw provided by Ms. Su, namely

Section 4.8.1, sets out the design standards “for parking uses located in R”. There are a number of exceptions. It was never established in evidence whether the location of the condo building on East 54 th Avenue fell into the R zoning category and/or whether it fell within any of the exceptions listed in the Vancouver Parking Bylaw. Third, the Parking and Loading Design Supplement issued by Engineering Services, sets out information “to assist in the drafting of plans and to avoid confusion and delay”. In a

section titled Parking Space Size the supplement sets out exceptions which deal with adjustments which ought to be made if a column is located a certain distance from either end of the parking stall, or if there is any column encroachment into the parking stall and so forth. The difficulty with relying on the supplement is that there is no evidence before the court about whether the supplement is merely information provided to the development community or whether it is an integral part of the Vancouver Parking Bylaw.

However, what is clear to me is that there are variables at play when determining the size of a parking stall. On the basis of the evidence before me I am not able to conclude that parking stall 13 does not comply with the Vancouver Parking Bylaw. [ 56 ] In reaching my conclusion I have also considered the fact attested to by Mr. Johal for Empire that the condo building was inspected and that Empire obtained an occupancy permit from municipal authorities.

One would expect that if there were irregularities or breaches of the City of Vancouver Bylaws that pertain to the construction and design of a condominium building and any related parking areas, such irregularities would have been addressed before an occupancy permit was issued. [ 57 ] Ms. Su testified that she raised the matter with several people at the City of Vancouver and at one point a man from the City of Vancouver went to view the parking stall. She did not obtain his name and, if she did, she did not remember it.

Her recollection about what the man told her was that this was too difficult an issue and she should simply be content with the fact she had parking when many others did not. It appears from her evidence that there is no formal documentation of this visit. Given the provisions of

Section 15 of the Vancouver Parking Bylaw, especially Sections 15.1.1 and 15.2.1, such a cavalier response, assuming that it was made as remembered by Ms. Su, is surprising. [ 58 ]

Section 15 of the Vancouver Parking Bylaw deals with general prohibition, offense and penalties.

Section 15.1.1 provides as follows: 15.1.1 No person shall use or occupy any land or building in contravention of the provisions of this By-law.

Section 15.2 provides as follows: 15.2.1 Every person who violates any of the provisions of this By-law, suffers or permits any act or thing to be done in contravention or in violation of the provisions of this By-law, or who neglects to do or refrains from doing anything required to be done by any of the provisions of this By-law, or who does any act which violates any provisions of this By-law, or who fails to comply with any order, direction or notice given under this By-law, is guilty of an offense against this By-law and liable to the penalties hereby imposed. Each day that a violation is permitted to exist shall constitute a separate offense. [ 59 ]

Section 15 also provides for penalties of not less than $250 and not more than $10,000 for each offense. Ms. Su expressed the view that although there were bylaws in place she thought they were not well enforced by the City. This was her opinion but she provided no evidence to support this view. Moreover, she provided insufficient evidence about her efforts to have the bylaws enforced or to establish that the measurements of her parking stall did not meet the bylaws. Ms. Su’s evidence that she dealt with an unnamed man at Vancouver City Hall who apparently did not take her complaints seriously is not enough to support her claim. A plain reading of

Section 15 suggests that the drafters of the Vancouver Parking Bylaw viewed breaches of the bylaw seriously and provided a range of penalties to address breaches of the Vancouver Parking Bylaw. [ 60 ] In

summary, I find that Ms. Su has not proved on a balance of probabilities that there was a breach of contract because she was not provided a proper parking space. In particular, on the basis of the evidence presented to the court I am not able to conclude that the parking space assigned to her did not meet the Vancouver Parking Bylaw: see, Northland Properties Corp. v. British Columbia . DAMAGES [ 61 ] I will address the issue of damages because, even if I had found that the parking stall did not meet the requirements of the Vancouver Parking Bylaw, I would not have made an order for damages because Ms.

Su has not established that she in fact sustained damages. [ 62 ] The case law is clear that a party who claims to have sustained a loss has the responsibility of proving not only that a loss has occurred but also the value of that loss. Where there is evidence available to a claimant that he or she has sustained a loss it is the responsibility of the claimant to provide that evidence to the court. If the claimant fails to do so the court may decline to award damages: see, Vancouver Canucks Limited Partnership v. Canon Canada Inc. , 2015 BCCA 144 . [ 63 ] In this case Ms.

Su has not sold or attempted to sell her condo unit. Although she no longer lives in her condo unit, she still owns it but simply rents it out. Accordingly, there is no direct evidence that can be led to show she sold her condo unit at a loss because of the size of the parking stall. There is also no evidence that the size of the parking stall would detrimentally affect the sale price of the condo. Moreover, I cannot rely on the evidence tendered by Ms. Su to conclude that she has sustained damages in the amount of $20,000 because of the size of the parking stall.

The only evidence she has presented is hearsay evidence (that is, what has been told to her by unidentified realtors) and an email from a named realtor. In that email the realtor noted that he would like to help her. However, he recommended she get a professional appraiser to give her a valuation. He noted that a valuation was going to be more persuasive with a judge. [ 64 ] On the basis of the evidence presented I cannot find, on a balance of probabilities, that there has been a loss in value with

respect to the sale price the condo unit could fetch. Accordingly, in the particular circumstances of this case, even if Ms. Su’s contention that the size of the parking stall did not meet the minimum requirements of the Vancouver Parking Bylaw is correct, Ms. Su has not established that she suffered a loss on account of the size of her parking stall. CONCLUSION [ 65 ] As noted above, I find that Ms. Su has not proved on a balance of probabilities that there was a breach of contract because she was not provided a proper parking space.

In particular, on the basis of the evidence presented to the court, I am not able to conclude that the parking space assigned to her did not meet the Vancouver Parking Bylaw: see, Northland Properties Corp. v. British Columbia . Moreover, for reasons set out above, even if the size of the parking stall did not meet the minimum requirements of the Vancouver Parking Bylaw, Ms. Su has not established that she has suffered a loss. _____________________________ The Honourable Judge M.F. Giardini Provincial Court of British Columbia