Winkler v. Chow Date:, 2017 BCPC 164

Citation: Winkler v. Chow Date: 20170224 2017 BCPC 164 File No: 16-55941 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: TOM WINKLER CLAIMANT AND: WILLIAM CHOW AND KET FONG CHOW DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing for the Claimants: C. Perel, co-owner Appearing for the Defendants: W. Chow Place of Hearing: Vancouver , B.C.

Date of Hearing: October 19, 2016 Date of Submissions: January 11, 2017 Date of Judgment: February 24, 2017 [ 1 ] This matter concerns a dispute between the parties regarding the condition of the subject property situated at 522 East 18 th Avenue, Vancouver, BC. [ 2 ] The Claimant says that the Defendants are responsible for expenses to repair a broken water main, as they had notice as of April 22, 2016, approximately two weeks before the Contract of Purchase and Sale closed between the parties, that the City of Vancouver required the water main to be repaired.

The cost of the repair was $1,400. [ 3 ] Additionally, the Claimant claims that the Defendants did not leave the property in a condition that was reasonable, as there was debris that the Claimant had to remove at an expense of $208.95. [ 4 ] Mr. Winkler was unable to be in attendance due to a recent emergency hospitalization. Ms. Perel appeared on his behalf, and proceeded notwithstanding Mr.

Winkler’s condition. [ 5 ] The parties each provided me with a brief memorandum of law pertaining to this case, which I requested. [ 6 ] The hearing proceeded without the Defendants’ Trial Statement. [ 7 ] One of the issues is whether or not the City of Vancouver provided notice to the Defendants regarding the broken water main. [ 8 ] I reject the Defendants’ submissions that the onus fell on the Claimant to make inquiries of the City of Vancouver if the property was in compliance with City bylaws.

In my opinion, the Defendants had the onus to notify the Claimant of any defects known to them. [ 9 ] The information provided by the tenant, Vincent Lam, to the Defendants confirms that Mr. Lam delivered the City of Vancouver notice regarding the broken water main to the Defendants with his May 1, 2016 rent payment. [ 10 ] Between May 6 and May 22, 2016, the Claimant attempted to resolve the dispute through the parties’ respective real estate agents. The discussion between the agents confirms that the Defendants were provided notice when Mr.

Lam delivered the letter with his May 1, 2016 rent. [ 11 ] The Claimant relies on a letter dated May 6, 2016 from the City of Vancouver which had handwritten on it that the first notification was on April 20, 2016. If there is any issue over hearsay which was argued by the Defendants, I am satisfied this letter overcomes that issue. [ 12 ] I am satisfied that notice was given as explained by Mr. Lam and the Claimant. [ 13 ] Mr. Chow was responsible for the property on behalf of he and his elderly mother.

They did not appreciate the importance of the letter from the City of Vancouver because the property had been sold. However, that does not release them from the liability. [ 14 ] It does not matter that the property may be a “tear down”, i.e. has limited value beyond the value of the land. The Defendants had an obligation to deliver up the property so it complied with the City bylaws. [ 15 ] The Claimant alleged that debris had to be removed from the property.

I do not accept the Claimant’s submission that it was up to the Defendants to “clean” or “clear” the property given its state at the time of the inspection. There is nothing specific in the contract of Purchase and Sale that the property was to be delivered up in “perfect” condition. [ 16 ] Also, I am not satisfied that the Claimant mitigated the damages. There was no evidence about an alternative manner in which the debris could have been removed. [ 17 ] However, the Claimant was put to additional work which was the responsibility of the Defendants.

In that regard, I assess the damages for the clean-up to be $100. [ 18 ] Accordingly, there will be judgment in favour of the Claimants, as follows: Plumbing: $1,400.00 Debris clean up: 100.00 Filing Fees: 100.00 Service Fees: 110.00 Total: $ 1,710.00 [ 19 ] Under the circumstances of this case, I decline to award pre-judgment interest. __________________________

Lawrence A. Kahn Adjudicator