Thorp v. Cordova Housing Holdings Inc., 2018 BCPC 179

Citation: Thorp v. Cordova Housing Holdings Inc. 2018 BCPC 179 Date: 20180705 File No: 16-55568 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: AMY THORP CLAIMANT AND: CORDOVA HOUSING HOLDINGS INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Appearing on her own behalf: A. Thorp Counsel for the Defendant: S.D. Coblin Place of Hearing: Vancouver , B.C. Dates of Hearing: June 29, 2017 and March 9, 2018 Date of Judgment: July 5, 2018 I. INTRODUCTION

I. INTRODUCTION [ 1 ] On November 2, 2010, Amy Thorp (the “claimant”) executed a Contract of Purchase and Sale (the “contract”) with Cordova Housing Holdings Inc. (the “defendant”) to purchase unit 907 (the “unit”) in a pre-development condominium project (the “strata project”) located at 1010-66 West Cordova Street in the Gastown area of Vancouver. [ 2 ] The purchase price was $287,900.

The contract required an initial deposit of $10,000 with a further deposit of $4,395 eight days after the initial contract date and a further deposit of $14,395 thirty days thereafter. [ 3 ] The claimant signed the contract and initialled each page of the attached Terms and Conditions (“Schedule A”) as well as various addendums. This process was witnessed by real estate agent Katrina Louie.

The contract was then forwarded to an authorized agent for the defendant for its signature to close the sale. [ 4 ] In early April 2012, the claimant testified that she experienced a “very big disappointment” when she entered her unit for the first time and observed that her two north-facing windows installed on the Juliet balconies were partially obstructed by frosted glass. [ 5 ] In May 2016, the claimant filed a Notice of Claim in Small Claims Court.

She claims that she viewed promotional materials and an artist’s rendering of the strata project prior to purchase that depicted clear glass windows were installed on the Juliet balconies. [ 6 ] In addition, she claims that she paid a premium price for her unit as she was told she would have a better view from the ninth floor. She claims that she is only able to see over the frosted glass by standing on a stool.

She claims her obstructed view has diminished the value of her unit. [ 7 ] The claimant seeks $15,000 for the cost of replacing two frosted glass railings, $2,000 for the cost of “creating access” and permits to carry out this work, and $5,000 for breach of contract, for a total of $22,000, plus filing and service fees. [ 8 ] At the time the claimant filed her Notice of Claim, she was living in Saskatchewan. She testified that she had moved to Saskatchewan approximately a year and a half prior to the commencement of this trial. She is renting out her unit for $1,875 per month. II.

ISSUES [ 9 ] The issues that must be determined are: 1. Has the claimant established a breach of contract? 2. Has the claimant established the installation of the frosted glass diminished the unit’s market value? 3. Would an award of damages offend the windfall principle? III. THE EVIDENCE a.

The Claimant [ 10 ] In her opening statement, the claimant’s principal concern turns on the anticipated expense she would have to absorb to have the frosted glass windows replaced by clear glass windows. [ 11 ] The claimant submitted that it was “reasonable” for her to expect an unobstructed view from her unit for which she had paid a premium price. [ 12 ] In addition, the claimant expressed concern that while her unit is now an income rental property, if she should ever sell the unit, or should she move back into the unit, the property value would be diminished. [ 13 ] The claimant’s evidence in direct examination can be summarized as follows: • that the strata project was a unique project in a very “cool and trendy” part of Vancouver offering units at very affordable prices; • that the sales centre for the strata project was very basic; • that she went to the sales centre around the end of 2010 and learned that there were only three units left for sale in the strata project; • that at the sales centre she recalled seeing a floor plan on the wall and colour scheme tiles, but did not think there was a mock-up of the proposed building in the sales centre; • that she was told by a sales representative that there were only three units left, including unit 907 which would give the claimant a good view but at a premium price; • that she did not recall any conversation about frosted glass versus windows, but “assumed” it would be clear glass; • that she did not retain the services of her own real estate agent; • that the contract and

Schedule A were presented to her by a sales representative for the defendant; • that she could not remember if she read all of the details of the contract and

Schedule A, though she knew it was important to read all of the terms and conditions of the contract;

• that the purchase price for her unit before taxes was $289,890; • that the completion date was April 12, 2012 and she took possession on April 13, 2012; • that when she took possession she was very disappointed that her view was obstructed by the frosted glass; • that she went through her unit after she took possession with a sales representative and completed a Deficiencies Report; • that she told the sales representative that she was not happy about the frosted glass or an image on the outside of her front entrance door; • that the sales representative told her that she could not mark those concerns down as defects as there was no “guarantee” that these concerns could be fixed before the claimant moved into her unit; • that Vancity Credit Union (“Vancity”) was a partner with the defendant in providing financing for prospective purchasers of units in the strata project; • that she downloaded a depiction of the strata project which included two Vancity employees standing in front of the proposed strata project in which all of the windows were clear glass with see-through Juliet balcony railings; • that she relied upon a quote from Phoenix Glass Inc. which states: “To completely remove (1) existing glass guard rail approximate size 70” x 40” at unit # 1010 and supply and install (1) new picket guard rail approximate size 70” x 40” at base price $7500”; • that the quote relied upon by the claimant for her unit was actually a quote used by Seth Wheeldon (“Wheeldon”) in an earlier small claims action that he brought against the defendant for breach of contract in relation to his Juliet balcony railings and frosted windows; • that she submitted an application to the strata management agency for the strata project seeking approval to remove the frosted glass installed on her Juliet balconies and replace them with clear glass; • that the Strata Management Ggency sent correspondence to the claimant in which it is noted that the claimant had received “permission from the city development planner” and, further, that the claimant was not to commence work until receipt of the written approval of the strata Council; • that during the three and a half to four years that she lived in her unit that she lost the enjoyment of an expansive view; and • that, while she did not have a rental appraisal, she believed she could have rented out her unit for more money than she was currently receiving if the unit had a better view. [ 14 ] The claimant’s evidence in cross-examination can be summarized as follows: • that she cannot recall/remember if there was a scale model on display in the sales centre; • that she asked someone in the sales centre if they had a mock-up that showed the suites and was told there was no budget for any mock-up; • that she recalled the sales representative telling her there would be an increase in price for her unit because of the view; • that she assumed the view would be unobstructed; • that she believed she read the entire contract before she signed it while explaining it was a “very long time ago, and I was a lot younger then and probably not quite as mature and intellectual as I am today”; • that typically when she enters into a written contract she does not necessarily read the entire contract before she signs the contract; • that she admitted that she did not seek legal advice and that as a first-time homebuyer she “probably made a bunch of mistakes”, but still believed that it was reasonable to assume that she would get an unobstructed view from her unit; • that she was unable to explain why she made no complaint about the frosted glass windows until her claim was filed some four years after closing; • that she agreed that in the Deficiency Report that was completed after she took possession, the sales agent had recorded her complaint that she was unhappy about the image on the entranceway front door; • that she had not applied for or received from the City of Vancouver Planning Department any written permission to perform the proposed alteration to her two frosted glass windows; • that she purportedly had a telephone conversation with an unidentified person at the City of Vancouver Planning Department who told her that he “did not think” it would be a problem for her to alter her two frosted windows; • that she thought this telephone conversation amounted to provisional permission subject to her formally going down to the Planning Department to complete the application;

• that when she spoke to this unidentified person at the Planning Department she had forwarded pictures of her building, including the exterior of her unit, to an email address - she did not keep any copies of the email(

s) and did not know the unidentified person’s name; • that she agreed this email exchange took place before the Small Claims Settlement Conference and that there is no mention of this email exchange in her Notice of Claim or in her Statement of Facts; • that she went down to the Planning Department but could not wait as it was very busy; • that she denied being untruthful in her evidence concerning the provisional permission to proceed with the renovation to her two frosted glass windows; rather, in her words, the circumstances surrounding the provisional permission were a “grey area”; • that she agreed that when she was marketing her unit for the rental market, she had placed an advertisement on Kijiji which in part she stated that her unit had “gorgeous city views” and “stunning mountain views”; • that Wheeldon was the coordinator for a group of owners in the strata project who were unhappy with the frosted glass Juliet balcony windows; • that she recalls that she may have commenced her action against the defendant after Wheeldon succeeded with his claim against the defendant; • that she may have calculated her damages based upon Wheeldon’s claim, including the Phoenix Glass Inc. quote that Wheeldon received; • that she agreed that she told the judge at the Small Claims Settlement Conference that she would be calling other witnesses to support her claim; and • that her plans to call other witnesses became overwhelming as she did not understand who qualified as a witness and therefore she was the only witness to support her claim. b.

The Defendant [ 15 ] Alfred Henriquez is a registered architect in British Columbia. He was the design architect for the defendant’s strata project. He testified that designing and developing buildings for the Gastown area of Vancouver is particularly challenging as Gastown is a World Heritage Site. There is a Gastown Advisory Panel and a Design Panel that requires designers and developers to follow specific historical district zoning guidelines. [ 16 ] Mr.

Henriquez testified that the rules designers and developers must follow for projects in Gastown are simple: Old buildings have to stay old and be restored and maintained. New buildings have to look new but be sympathetic to the old buildings and the architecture has to be consistent with a series of sort of principles about solid-to-void ratio, punched windows, things like that that start to be respectful to the historical context . . . Nowadays you see glass towers everywhere that are all glass.

In the old nineteenth Century context of Gastown you have brick buildings with little punched windows and that is the ideal thing the planners would like you to build. Transcript, March 9, 2018 at pp. 19 to 20. [ 17 ] Mr. Henriquez testified that he first applied for his development permit for the strata project on June 18, 2010. The application included information respecting the height and the exterior appearance of the project. Attached to the application was a set of architectural drawings. [ 18 ] Mr.

Henriquez testified that his initial application depicted the installation of guardrails on the Juliet balconies on the front façade of the strata project. It was his intention that the glass to be installed on the Juliet balconies was to be clear glass. [ 19 ] In correspondence to Mr. Henriquez dated October 1, 2010, the City of Vancouver Planning Department set out a series of preconditions and changes that were required before the strata project could proceed.

In particular, the planning department required clarification of the exterior finishes for the proposed strata project: Q I want to take you specifically to 1.3, which is on page 2. A Okay. Q What 1.3 says [as read in]: Clarification of the exterior finishes (materials, colours and textures) to achieve an appropriate exterior wall depth expression and textural quality in keeping with the level of architectural detailing commonly found within the historic context of Gastown. (Note to applicant - for more information please refer to

Section 5.2 and 5.3 of the HA-2 design guidelines.) So can you explain what that means? A Okay. It means we were pushing the boundaries on what was acceptable for Gastown. Traditionally they like to see only brick buildings mostly, right? And I proposed a zinc finish because the client wanted it. They liked the solid-to-void ratio to be more solid and less window than I had. Our client wanted more windows obviously. And so this, it was a generalized sort of a prior-to condition which meant we had to enter into negotiations with the planners to try and solve this dilemma.

We had to satisfy them that we were -- could get closer to the solid-to-void ratio that they were looking for somehow/someway.

Q Okay. So they -- their comment was that they didn't like the solid-to-void ratio on the exterior? A They wanted it to appear more solid, yes. Q Okay. And so did you -- you said you had to enter into discussions. Do you recall entering into discussions? A Yeah. I remember the meeting. I met with, believe it or not, the Director of Planning at the time, Brent Todarian and a senior planner on the job, a woman named Anita Malero [phonetic], and their -- they specifically focused on two things.

One was the clear glass guardrails, which they didn't like, and the other one was the zinc, they wanted us to provide some variety in the colours of the zinc. So I ended up negotiating two things, one which the zinc would be a dark zinc and a light zinc, so it would break up the façade a little bit with more, and also have some of the guardrails be opaque or translucent glass, so that it would -- the building would appear more solid.

So I designed a hybrid of some pickets for some of them and some solid ones and did sort of a collage on the façade, which was then accepted by both of them as being acceptable sort of solution to this requirement they gave me. Ibid , pp. 22 to 23. [ 20 ] Mr. Henriquez testified that the request by the City of Vancouver Planning Department for clarification of the exterior finishes for the strata project was addressed in a resubmission application dated October 28, 2010: Q Okay. So at 1.3 you've said: Clarification of the exterior finishes material -- You've repeated their question. A Yeah, and then I answered.

Q And your answer is -- A This is at -- this is done by Frank Stebner, who's a senior architect in my office, been with us 30 years. Q Right. And the last page I see it's also CC'd to you. Were you involved in this letter? A Yeah. No, I would have sat down with Frank and we'd gone through it all here. Q Okay. And the response he'd given here is: Exterior finishes on Cordova Street have been identified.

Material, colours and textures to achieve an appropriate exterior wall depth expression, the balcony doors have been recessed approximately 180 millimetres from the dark zinc façade and we have introduced two types of Juliet balconies. See drawings A104 and A301. Every second spandrel is also recessed by approximately 150 millimetres in the façade of the darker zinc and finished with a lighter-zinc panel. A Yeah, so they wanted more depth to the façade.

Older buildings had more depth than new, modern buildings, and so we created a recess -- two colours of zinc and then we recessed one of -- the inset that some of the panels to give it more depth and then we created the two types of Juliet balconies which I talked about, the opaque glass ones and then the picket ones to satisfy the condition. Ibid , pp. 25 to 26. [ 21 ] Mr. Henriquez testified that a development permit was issued by the City of Vancouver Planning Department following the resubmission of the development application. Following the granting of the development permit, Mr.

Henriquez was personally involved in supervising the construction of the scale model for the strata project. [ 22 ] Mr. Henriquez testified that great care must be followed in constructing a model of any development project as it depicts a mini building of the actual project. The model constructed for the strata project depicts two types of guardrails, “. . . one which are the vertical pickets and the other one which is the opaque, translucent glass”. [ 23 ] Mr.

Henriquez testified that it was this model depicting off-set frosted or opaque glass windows and clear glass windows that was on display in the sales centre for the strata project. The model remained unchanged throughout the promotion of the strata project. [ 24 ] Rhiannon Mabberley is a development manager for Westbank Projects Corp. (“Westbank”). Westbank was responsible for marketing of the strata project.

Westbank’s goal in marketing the strata project was to encourage first-time home ownership with a focus on affordability. [ 25 ] The strata project was promoted at under market pricing and potential purchasers were required to sign a declaration that they either worked in or were otherwise part of the Downtown Eastside community and that they would continue to be part of that community: Transcript, June 29, 2017 at p. 123. [ 26 ] Ms. Mabberley testified that she supervised the construction of the small sales centre for the strata project.

She testified that there were no “view” photographs that were taken to market the strata project. She testified that Westbank would often use “view” photographs taken at various heights through the use of a blimp so purchasers would have a sense of what their potential view would be from any level within a vertical distance: Ibid at pp. 123 to124. [ 27 ] Ms. Mabberley testified that in her experience architectural drawings are not attached as an Appendix to Disclosure Statements. Architectural drawings would be available at the City of Vancouver Planning Department.

[ 28 ] Ms. Mabberley testified that she had a “high level knowledge of the sales program” for the strata project and had no knowledge that there was a premium paid for a “view”. [ 29 ] In cross-examination Ms. Mabberley agreed with the claimant that the price she paid for her unit would be higher than the purchase price for a unit at the ground level. Ms. Mabberley explained: Q So you're aware that I paid more for the ninth floor unit than what you were charging for a ground-floor unit, the identical unit? A I'd be aware that you would have paid more in the vertical stack.

It is typically historical practice to pay more as you go up in a tower. Most people feel more secure as they get farther off-grade. There's a feeling of more openness. So you do pay more anywhere in a building. On the north side you would pay more. On the south side you would have the same premium to the upgrade. So I'd be aware that you would have paid a premium up of ground-floor units of which this development, the second floor is on the first ground- floor unit per se. And, yeah, you would have had a premium off the second floor.

Ibid at p. 125. [ 30 ] Katrina Louie was a sales representative for Westbank at the time the strata project was being promoted by the defendant. [ 31 ] She testified that the strata project was an “affordable housing model” targeting prospective buyers who had a connection to the area of the development. Westbank had only a modest budget to promote the strata project. Westbank did not have a budget for a splashy showroom. [ 32 ] Ms. Louie testified that a small sales centre was established in the Woodward’s building. The sales centre was no more than 500 square feet.

Within the sales centre there was a desk, a board with colour schemes, brochures, floor plate and the scale model of the strata project. The scale model was located to the right of the entrance into the sales centre and anyone entering the sales centre would have to walk past the scale model. [ 33 ] Ms. Louie testified that there was a significant interest in the sales project due in large measure to the low price point. The strata project sold out in approximately two weeks. [ 34 ] After looking at a copy of the contract, Ms. Louie confirmed that it is her witness signature that appears on the contract.

At the time of the trial she had no recollection of her interactions with the claimant. [ 35 ] Ms. Louie testified that the model was there to show prospective purchasers what the building would look like and where their unit was located. Prospective purchasers would also receive a basic brochure which essentially showed the floor plate for the units in the strata project. [ 36 ] Ms. Louie testified that there was no video that was used to market the strata project. As well, no view scales were used to show prospective purchasers what their view would be like from any given floor of the strata project. [ 37 ] Ms.

Louie denied that purchasers of units in the strata project were told they would be paying a premium for views from the upper floors. She could not recall if she had any conversation with the claimant in relation to the view she would have from the ninth floor of the strata project. Only the tenth and eleventh floors were promoted to having a view. [ 38 ] Ms. Louie testified that the price for units within the strata project would increase the higher one went up the floors of the strata project.

She described this increase as “typical” in any building development but it did not include a premium price over list for a view. [ 39 ] Ms. Louie testified that the unit pricing for the strata project was a fixed price and was not responsive to market conditions. She characterized the strata project as a “fixed set entry point building”. [ 40 ] Ms. Louie testified that the photograph of the scale model depicting some units with frosted glass windows and Juliet guardrails was the scale model on display at the sales centre.

At no time during the period that the sales centre was open were there any changes or alterations to the scale model. [ 41 ] Ms. Louie testified that she did not have a set of architectural drawings at the sales centre and that she never gave any architectural drawings to any prospective purchaser. [ 42 ] Ms. Louie identified her witness signature on the Disclosure Statement that formed part of the contract with the claimant.

She testified the Disclosure Statement was very important as there were very strict Vancouver City requirements that purchasers were required to either live, work, or volunteer in the Downtown Eastside before they were allowed to purchase a unit in the strata project: Ibid at p. 14. [ 43 ] In response to a question by the defendant as to her practice at the time when she was promoting the sales project, Ms.

Louie testified: A So as soon as they would walk in, we had a reception desk where we would greet them and give them a pamphlet which had a little bit of information about the affordability and the -- the difference of this project versus a typical project. And then we would go to the model which was literally right in front of the floor plate, so there was a model, and then the floor plate and then if they were interested, we would go through the colour schemes and the pricing and then that was really it. Ibid at pp. 7 to 8. [ 44 ] Ms.

Louie agreed with the suggestion of the claimant that there was some urgency in promoting the sale of the units in the strata project as it was selling out very quickly. That being the case, Ms. Louie testified that it was the practice that the sales representatives would meet with every single prospective customer and that quite a few prospective purchasers failed to qualify as they

were not working, volunteering or living in the Downtown Eastside. [ 45 ] Following a voir dire , Tom Garvey was qualified to give opinion evidence as a real estate broker with expertise in property valuations. [ 46 ] Mr. Garvey testified that, in his opinion, the presence of frosted glass windows on the Juliet balconies of the strata project did not result in a diminution of their current market value. [ 47 ] Mr.

Garvey testified that after performing a comparative market valuation of units that sold in the strata project, he found that some of the units with frosted glass windows sold for more than the list price and some have sold for less than the list price. The same held true for units with clear glass windows. [ 48 ] Mr. Garvey testified that, in his opinion as a real estate broker, he would not list units in the strata project with frosted glass windows for less than a unit without frosted glass windows. The critical feature in the resale of units in the strata project is the square footage.

There may also be some differentiation in price relative to a ground-level unit compared to a unit higher up in the strata project. [ 49 ] Mr. Garvey testified that in his opinion there were significant attractions to someone who may wish to purchase a unit in the strata project: Q What are the attractions in the marketplace of this building? I know it's right downtown. What are -- what are the attractions in your opinion that make this a vital market? A The price point. It's a lower price point than some areas right now. It is close to everything.

It's in an area, it's growing and it's -- the future for this area looks pretty bright. Construction costs right now for any new product coming online would be higher than this. So for anyone to purchase in this building, it's -- it's a good bet. Transcript, June 29, 2017 at p. 131. [ 50 ] Mr. Garvey testified that in his opinion the strata project was designed as an entry-level property and that views are not a critical factor in any resale value. Rather, “typically the price is the critical factor for most buyers . . .”: Ibid . [ 51 ] In cross-examination Mr.

Garvey testified that in his opinion if he was to live in one of the units in the strata project, a view, or lack of a view, would not result in diminished enjoyment. IV. POSITION OF THE PARTIES a. The Claimant [ 52 ] The claimant testified that she did not get the deal that she thought she had bargained for at the time she entered into the contract to purchase her unit. [ 53 ] In large measure, the claimant relied upon the case of Wheeldon v. Westbank Projects Corp. and Cordova Housing Holdings Inc. , Unreported Decision, March 27, 2015, Vancouver Provincial Court Registry No. 13-43841(the “ Wheeldon case”).

The Wheeldon case was upheld on appeal: 2015 BCSC 2301 . [ 54 ] The other closing submissions of the claimant are summarized as follows: • that the defendant breached the contract by charging a premium for her purchase unit and then obscuring her view by installing frosted glass windows on her two Juliet balconies; • that there was nothing in the contract to indicate she was agreeing to the installation of the frosted glass windows; • that while conceding that she was not guaranteed a specific view, the defendant did not have the contractual right to install the frosted glass windows on her two Juliet balconies; • that, as found in the Wheeldon case at para. 49 , that it would be reasonable and equitable to imply the term into the contract that the defendant would only install clear glass windows on her two Juliet balconies; • that, as found in the Wheeldon case at para. 56 , and based on other authorities, the claimant has established on a balance of probabilities that there was an implied term of the contract that she would be entitled to have clear glass windows; and • that in the Wheeldon case the claimant was awarded $11,705 for one obscured window, while in her case she has two obscured windows. b.

The Defendant [ 55 ] In its closing submissions the defendant characterizes the issue this action, at its core, as whether an artist’s rendering in the Vancity marketing brochure can give rise to a contractual obligation in the face of the written contract which contains an express clause excluding any reliance upon marketing materials. [ 56 ] The defendant further submits that in order to succeed the claimant has to establish on a balance of probabilities that there was either an express or implied term in the contract that guaranteed her a particular view or a particular exterior finish to the windows installed on her Juliet balconies. [ 57 ] The other closing submissions of the defendant are summarized as follows:

• that in this case the contract contains two express entire agreement at clauses 5 and 9; • that clause 10 of the contract expressly gives the defendants the right to alter the common property and aesthetics of thestrata project; • that to imply a term that the claimant was entitled to a view of her liking or that the strata project had to have a particularexterior finish, in the face of the express contractual terms to the contrary, would amount to the creation of essentially a new contract; • that the presence or absence of an entire agreement clause is an important factor to consider when a court is asked to implya term; • that the entire agreement clauses contained in the contract are comprehensive and expressly prohibit any implied term; • that the factors the court must consider when called upon to imply a term, as set out by the British Columbia Court ofAppeal (“BCCA”) in London Drugs Ltd. v.

Kuehne & Nagel International Ltd., (BC CA), 45 B.C.L.R (2d) 1, aff’d (SCC), [1992] 3 S.C.R. 299, have not been established in this case; • that the key element - that the implied term is necessary to make the contract as the parties intended - has not beenestablished; • that if there is evidence of a contrary intention on the part of either party, an implied term may not be found; • that the evidence supports a finding that there was a scale model in the sales centre and the scale model included some unitswith frosted glass windows installed on their Juliet balconies, thus demonstrating the intention of the defendant to not install all clearglass windows throughout; • that the contract expressly states that there is no guarantee as to view, material specifications or details; • that the contract expressly gives the defendant the right to change the exterior and aesthetics of the strata project; • that the decision to use frosted glass windows was made before the strata project went on sale and was a specific responseto a city requirement; • that the claimant was unable to explain why she did not make any complaint about the frosted glass windows installed onher Juliet balconies until she filed her claim some four years after closing and only after the Wheeldon case was decided; • that the Wheeldon case can be distinguished in three key aspects:

a) the defendant did not call evidence,

b) the judge foundthat the decision to use frosted glasswindows was made after Wheeldon entered into his contract, and

c) the judge found that a copy ofthe original architectural plans had been incorporated into the Disclosure Statement and that those plans showed clear glass windowswere to be applied to the Juliet balconies; • that in the alternative, even if the court was to find an implied term in the contract, the claimant has not established anydamages as she has relied upon inadmissible evidence being the Phoenix Glass Inc. quote that was utilized by Wheeldon in his case; • that in any event, even if the court was to find admissible evidence of repair costs, that Mr.

Garvey provided reliableevidence that there has been no diminution in value to the claimant’s unit as a result of the frosted glass windows installed on her Julietbalconies; and • that in assessing damages the court’s goal is to adequately compensate an aggrieved party while at the same time ensuringthat they do not receive a windfall. [58] The defendant relied upon numerous authorities in both its written and oral submissions. Where necessary to the decision,authorities cited by the defendant will be referenced in the case analysis. V. ANALYSIS AND FINDINGS a.

Entire Agreement Clauses [59] I agree with the submission of the defendant that the presence or absence of an entire agreement clause in a contract is animportant factor to consider when the court is asked to imply a term. [60] I find that the contract does incorporate two entire agreement clauses and an express clause giving the defendant the right toalter the common property and aesthetics of the strata project. [61] The Courts in British Columbia have often held that entire agreement clauses operate as a bar to implying a term in contracts,because to do otherwise would produce an effect that is inconsistent with the agreement as a whole: Water’s Edge Resort Ltd. v.

Canada(Attorney General) Ltd., 2014 BCSC 873, at para. 72, and Maxam Opportunities Fund Limited Partnership v. 729171 Alberta Inc., 2015BCSC 271, at para. 122. [62] Based on the foregoing case authority, I find that there is a strong presumption that the two entire agreement clauses and theexpress clause preclude the addition of any implied terms into the contract. [63] The contract expressly states that there is no guarantee as to view, material, specifications or details. The presence of the entireagreement clauses is evidence that the parties intended that there would be no implied terms.

Even if an implied term could be added,the contract expressly gives the defendant the right to change the exterior and aesthetics of the strata project.

b. Intention of the Parties [64] The intention of the parties is also a critical component in determining whether or not an implied term should be imported intothe contract. Leaving aside the two entire agreement clauses and the express clause, the BCCA in London Drugs Ltd., supra atpara. 244, summarized the factors that must be considered when implying a term into a contract: There is a useful restatement of the relevant principles in the reasons of Lord Simon of Glaisdale, for the Privy Council, in B.P. Refinery(Westernport) Pty Ltd. v.

Shire of Hastings (1977), 16 A.L.R. 363 (P.C.) at p. 376: Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which theparties have not thought fit to express.

In their view, for a term to be implied, the following conditions (which may overlap) must besatisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will beimplied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clearexpression; (5) it must not contradict any express term of the contract. [65] More recently, the BCCA in Moulton Contracting Ltd. v.

British Columbia, 2015 BCCA 89, at para. 55, established that theimplied term must be necessary for the effectiveness of the contract: [55] The key element is that the implied term is more than just reasonable; it is necessary to make the contract as the parties intended.

That is, without the term, the contract, as intended by the parties, would not be effective. (emphasis added) [66] I agree with the submission of the defendant that the proper consideration for the court is not what reasonable parties wouldanticipate, but rather what the specific parties in the specific circumstances of the contract actually intended. The Supreme Court ofCanada (“SCC”) in M.J.B. Enterprises Ltd. v. Defence Construction

(1951) Ltd., (SCC), [1999] 1 S.C.R. 619, atpara. 29, states: [29] As mentioned, LeDain J. stated in Canadian Pacific Hotels Ltd., supra, that a contractual term may be implied on the basis ofpresumed intentions of the parties where necessary to give business efficacy to the contract or where it meets the "officious bystander"test. It is unclear whether these are to be understood as two separate tests but I need not determine that here. What is important in bothformulations is a focus on the intentions of the actual parties.

A court, when dealing with terms implied in fact, must be careful not toslide into determining the intentions of reasonable parties. This is why the implication of the term must have a certain degree ofobviousness to it, and why, if there is evidence of a contrary intention, on the part of either party, an implied term may not be found onthis basis. As G. H. L.

Fridman states in The Law of Contract in Canada (3rd ed. 1994), at p. 476: In determining the intention of the parties, attention must be paid to the express terms of the contract in order to see whether thesuggested implication is necessary and fits in with what has clearly been agreed upon, and the precise nature of what, if anything, shouldbe implied. (emphasis added) [67] The claimant testified that she had paid a premium for the purchase of her unit in the strata project as she was told by the salesrepresentative that she would get a better view from the ninth floor.

The claimant has submitted that the court ought to find that therewas an implied term that the glass windows installed on her Juliet balconies would be clear glass and not frosted glass so she could enjoyan unobstructed view. [68] In the Wheeldon case, the judge found that there was undisputed evidence that Wheeldon paid $40,000 as a premium for histenth floor unit in the strata project. [69] In this case both Ms. Mabberley and Ms. Louie testified that a premium was not paid for a better view from the strata project.

They both testified that the strata project was promoted at under market pricing and targeted prospective buyers who had a connection tothe Gastown area. I accept their evidence as credible and reliable in establishing that a view was not part of the promotion of the claimant’s unit situated on the 9th floor. A view was only promoted for the 10th and 11th floors. [70] As noted at para. 29 of this judgment, Ms. Louie was aware that the higher one goes up the vertical stack of a development,typically a prospective purchaser may pay more. I accept the evidence of Ms. Mabberley and Ms.

Louie as credible and reliable infinding no premium was paid by the claimant for her unit. [71] I find further support in making this finding from the fact that there is nothing in the contract that speaks about a premium, aguaranteed view or an unobstructed view. On the contrary, the two entire agreement clauses and the express clause specifically state thatthe defendant does not guarantee a specific type of view. [72] The judge in the Wheeldon case made specific findings in respect to the defendant’s intentions.

In his reasons he pointed outthat the defendant led no evidence about why the frosted glass was installed on Wheeldon’s Juliet balcony, or whether the defendantconsidered the effect that this decision might have on the owners of other units in the strata project. [73] There has been evidence led by the defendant in this case that, if accepted, would establish that the defendant’s intentions wereinconsistent with an implied term that the claimant would have clear glass windows. [74] I accept the evidence led by the defendant to be credible and reliable in establishing that the defendant’s intentions wereinconsistent with an implied term that the claimant would have clear glass windows installed on her Juliet balconies. [75] The claimant testified that at the time of the trial she could not recall or remember if there was a scale model of the strata projecton display in the sales centre.

The brochure that the claimant downloaded which depicted the strata project with clear glass windowswould appear to be a Vancity brochure designed to promote financing for prospective buyers of units in the strata project. [76] There is no evidence that the Vancity brochure formed part of the promotion materials at the sales centre for the strata project.

In addition, there is no evidence that the defendant relied upon that brochure. [ 77 ] I accept the evidence of Mr. Henriquez and Ms.

Louie as credible and reliable in establishing that, at the time the claimant purchased her unit in the strata project, there was a scale model visibly displayed in the sales centre clearly depicting windows installed on the Juliet balconies - some with clear glass and some with frosted glass. [ 78 ] I found it troubling that the claimant testified that she spoke by telephone to a person at the City of Vancouver Planning Department who told her that he “did not think” it would be a problem for her to alter her two frosted glass windows. [ 79 ] It was on that basis that the Strata Management Agency noted on the Application for a General Renovation that the claimant had “Permission already obtained from the city development planner”. [ 80 ] Mr.

Henriquez testified that designers and developers must follow specific historical district zoning guidelines. I accept his evidence on this aspect of the case as credible and reliable.

Based on his testimony and the materials that I have reviewed, I find that the permit processes for Gastown developments are complex involving voluminous documentation both at the Planning Department end and at the designers and developers end. [ 81 ] I find it implausible that an employee in the City Vancouver Planning Department would give verbal provisional consent over the telephone for an alteration or renovation of any building in the Gastown area, as it is a World Heritage Site. [ 82 ] I find that the claimant did not receive “permission” from the City of Vancouver Planning Department for her proposed renovations to her Juliet balcony windows.

This finding reduces both the credibility of the claimant’s evidence overall and the ultimate reliability of her evidence. [ 83 ] I also found it troubling that the claimant remained virtually silent about her complaint concerning the frosted glass windows until she filed her claim some four years after closing. It would make sense that her decision to pursue the defendant for damages was influenced by the success of the claimant in the Wheeldon case.

Even with that in mind, her four years of silence remains troubling. [ 84 ] The claimant testified in direct examination that when she participated in the deficiency walk-through before closing, she raised two issues with the sales representative.

First, that her view from her two Juliet balcony windows was obstructed by the frosted glass and, second, that she was unhappy about the image on the exterior of her front door. [ 85 ] The claimant testified that the sales representative refused to note these two issues in the Deficiency Report, claiming that these issues were considered to be on the “outside of the unit”. [ 86 ] In cross-examination the claimant was confronted with the fact that her concern about the image on her front door was in fact noted in the deficiency report.

The claimant testified that it was her “guess” that the deficiency was noted because the sales representative told her that she would see about “swapping the door out”. [ 87 ] The Deficiency Report has a specific space for concerns about the windows. Nowhere in the Deficiency Report is there any notation expressing concerns about any of the windows.

I find that it is more likely than not that, at the time the claimant participated in the walk-through, she did not raise any concerns about her windows. [ 88 ] I also find it troubling that the claimant, in marketing her unit for rent to the public in her Kijiji advertisement, makes specific reference to the views from her unit: MR. COBLIN: Q So if I can now turn to the front page of the Kijiji ad. I just want to read a snippet here.

So you've described this, your suite [as read in]: Built in 2012 this one-bedroom apartment centrally located in historic Gastown a short walk to groceries, restaurants, malls and transit stations. This unique ninth-floor corner unit offers north- and south-facing windows, banks to the T shape of the building. Gorgeous city views from the bedroom and stunning mountain views from the living room and kitchen. Large sliding glass windows offer bright, natural light and fresh air circulation. Did you write those words? A Yeah.

Q And I take it you weren't intending to mislead your tenants when you described the view as stunning and gorgeous, right? You were trying to be truthful? A Mountain views, yeah. Transcript, June 29, 2017, at p. 82. [ 89 ] I agree with the submission of the defendant that the claimant’s positions on the impact of a view or lack of view are inconsistent. I find that her inconsistency has reduced both her credibility and reliability. [ 90 ] In the Wheeldon case the judge found that the original architectural plans had been incorporated into the Disclosure Statement.

The drawings “do not indicate which balconies would receive the pickets and which would receive the glass. There is no indication, written or otherwise, that the glass would not be transparent”: para. 41. [ 91 ] This finding and the finding in respect to the timing of the decision by the defendant to install frosted glass windows on the

Juliet balconies likely influenced the judge’s application of the London Drugs Ltd. factors. No evidence was led by the defendant in the Wheeldon case to contradict findings that the windows installed on the Juliet balconies would be transparent. [ 92 ] I find in this case that the contract was entered into by the claimant after the defendant decided to use frosted glass on some of the windows in the strata project in response to the City of Vancouver Planning Department requirements.

There were no architectural drawings that were incorporated into the contract and therefore no representations made about glass type being used in a particular location. [ 93 ] Taking all of the foregoing into consideration, I conclude that it is not appropriate to add an implied term to the contract between the claimant and the defendant c.

Is the Claimant Entitled to Damages? [ 94 ] The defendant submitted that, if the court adds an implied a term to the contract to the effect that clear glass windows were was to be installed on the claimant’s Juliet balconies, the claimant has not suffered any damages from the breach of this implied term. [ 95 ] It is well-established that the underlying principle in assessing damages for breach of contract is to put the claimant in the same position that she would have been in if the contract had been performed. [ 96 ] The claimant filed her claim approximately four years after closing.

There has been no evidence led that establishes that she took any steps to change the frosted glass windows installed on her Juliet balconies over those four years. [ 97 ] It was only after the claimant filed her claim against the defendant that she took any steps that would demonstrate her intention to seek an alteration or renovation to her frosted glass windows. I have found her evidence in this regard to be largely unreliable.

In particular, I find that she did not obtain the permission from the Planning Department of the City of Vancouver to make any renovations or alterations to her unit’s exterior façade. [ 98 ] Mr. Henriquez testified that his original application for a permit was rejected as the City of Vancouver Planning Department required that the design for the strata project had to be higher to the “solid-to-void ratio” design.

It was for this reason that the design for the strata project was changed and some of the window installations at the Juliet balconies contained frosted glass, while other windows were clear glass to reflect Gastown’s unique design and architecture. I accept his evidence as both credible and reliable. [ 99 ] It is a reasonable inference drawn from the evidence of Mr.

Henriquez that the claimant would likely be unable to obtain permission from the City of Vancouver Planning Department to make her proposed changes, as that would change the façade of the exterior of the strata project which would be contrary to the unique design and architecture of buildings in Gastown. [ 100 ] I find that the claimant has not established on a balance of probabilities that she intends to, or even has the ability to change the frosted glass windows installed on her Juliet balconies. [ 101 ] Mr.

Garvey gave opinion evidence that the claimant has not suffered any diminution in value to her unit because of the frosted glass windows. His evidence was not contradicted. I accept Mr. Garvey’s opinion evidence as credible and reliable. [ 102 ] Further, the claimant has been using her unit as an income rental property for almost two years. The claimant has not led any evidence that would establish that the two frosted windows installed on her Juliet balconies impeded her from using her unit as an income rental property, or reduced the amount of rent that she was able to charge.

On the contrary, she has marketed her unit as having “gorgeous city views” and “stunning mountain views”. [ 103 ] I do not find that the windfall principle applies in this case. [ 104 ] I conclude that, in any event of the result in relation to the issue of the implied term, the claimant has not established any quantifiable damages VI.

CONCLUSION [ 105 ] The claimant has failed to establish that the defendant breached the contract it entered into with her when she purchased her unit. [ 106 ] The claimant has failed to establish that the installation of the two frosted glass windows on her Juliet balconies has diminished her unit’s market value or interfered with her ability to rent out her unit. [ 107 ] The claimant’s action is dismissed. ______________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia