Slade-Kerr v. Miks, 2020 BCPC 116

Citation: Slade-Kerr v. Miks 2020 BCPC 116 Date: 20200520 File No: 17490 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: GAVIN SLADE-KERR KELLY SLADE-KERR CLAIMANTS AND: EDWARD MIKS LAURA MIKS DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Claimants: A. CHOI Appearing in person: The Defendants Place of Hearing: New Westminster , B.C. Dates of Hearing: January 16, 17, and 24, 2020 Date of Judgment: May 20, 2020 INTRODUCTION: [ 1 ] This case involves a claim by the current owners of a house against the former owners, after a canopy roof, following a

windstorm, partly separated from the house. That occurred 11 years after the sale, and 17 years after the canopy roof was built. The house was originally built in 1937. [ 2 ] The current owners say the former owners misrepresented in the Property Disclosure Statement that the canopy was built with a building permit and that the current owners relied on that. They also say that the former owners, who were also the builders, were negligent in the design and construction of the canopy, causing the separation.

Indeed, they maintain that the canopy was a latent defect, which the former owners knew and failed to disclose. [ 3 ] The former owners say that there was no such misrepresentation in the Property Disclosure Statement, and that the current owners relied upon a building inspection at the time of purchase. They also say that the canopy was structurally sound even if not built with a permit, and that the separation after all those years was in part because of water leakage from a failed attempt by the new owners to install some flashing. [ 4 ] The primary issues are: 1.

Whether the new owners have established that they relied on what was in the Property Disclosure Statement to purchase the house on the terms that were agreed? 2. Whether the new owners have proven that the construction of the canopy failed to meet the required standard of care?; and/or, 3. Whether the former owners failed to disclose what they knew to be a latent defect in the construction, putting the new owners in danger? EVIDENCE Background -the house [4] The Defendants (“the Miks”) bought the house and lived there with their children starting in 1999.

The house was then 62 years old and there were a number of former owners and renovations. In that same year, the Miks did a major renovation that added a floor and a family room to the main level, all with engineer’s drawings and permits. [ 5 ] Mr. Mik was a very experienced red seal carpenter (in 2006 becoming a faculty member in carpentry at Kwantlen College). He did the work with a crew, acting as his own general contractor.

That renovation was nominated for an award in 2004, and is not directly at issue in this proceeding. - the purchase [ 6 ] The current owners and claimants (the “Slade-Kerrs”) purchased the house from the Miks in 2005, and were aware of the major renovation done by Mr. Miks and his qualifications as a carpenter. The Miks completed a Property Disclosure Statement (the “PDS”), and the Slade-Kerrs requested a building inspection, both of which required the Slade-Kerr’s approval as a condition of the purchase.

Those were approved and the sale completed. - the separation [ 7 ] Eleven years later, on March 25, 2016, the Slade-Kerrs came home from a Spring Break vacation and found that the canopy roof on the back of the house had, after a windstorm, partly separated from the house when some of the nails pulled away (the “separation”). The canopy roof otherwise remained attached to the house.

The Slade-Kerrs placed some temporary posts to avoid any further separation and made a claim with their insurance company. - the insurance claim [ 8 ] That insurance claim was rejected on the basis that the inspector sent by the insurance company, Dale Schneidmiller, of Inspect Right Property Inspection Services, found that the separation was not due to an insured peril such as a sudden weather event.

In his report, he confirmed his observations of water damage and the construction and opined that the separation was directly related to the poor securement of the ledger to the house with common nails, which was greatly undermined by continued water movement into the canopy as a result of poor or no flashing (the “Schneidmiller opinion”). [ 9 ] He also says that the canopy needn’t be demolished, but could be repaired and re-secured to the house. -the Slade-Kerrs’ investigation [ 10 ] In June 2016, the Slade-Kerrs contacted the original engineers for the major addition of 1999, but were informed that the canopy was not included in the original drawings and was not part of the major addition.

The Slade-Kerrs then determined that the canopy was built by Mr. Miks, but not with a building permit. [ 11 ] The partly separated canopy sat for an extended period of time, which Ms. Slade-Kerr described as a very busy time in her life. The Slade-Kerrs made some inquiries about possible repair, which included an inspection by Cameron Robinson, P. Eng. (“Mr. Robinson”), a structural engineer for Lateral Engineering, in August 2017. - the Notice of Claim [ 12 ] On March 19, 2018, the Slade-Kerrs filed a Notice of Claim against the Miks, seeking the cost of repair and/or replacement.

They claimed negligent design and construction of the canopy. They also alleged that, in the PDS (a copy of which the Slade-Kerrs did

not have at the time), the Miks misrepresented that “they were not aware… of any additions or alterations to the Premises made without a permit” or of any structural problems with the Premises. -expert opinion [ 13 ] In May 2018, the Slade-Kerrs retained Mr. Robinson to design a replacement cantilevered canopy. In support of their legal claim, they also asked him to provide an opinion regarding the cause of the separation and the standard of work performed on the canopy.

That expert opinion report was completed on June 19, 2018, which attributed the cause to the use of nails, rather than screws or lag-bolts, which was required under the Building Code (the “Robinson opinion”). The Slade-Kerrs [ 14 ] Ms. Slade-Kerr testified for the claimants. [ 15 ] She admitted that, contrary to her original claim, the Miks disclosed in the PDS that they were aware of work done without permits. The question was as follows: “Are you aware of any work done without permit?” The Miks both stated “Yes”. Beside that answer was an asterisk.

Then in the “Additional Comments” at the end of the PDS, following another asterisk, was written: “No Permit back deck (conforming)”, and further reference to that deck being built within the last 60 days. [ 16 ] Despite their incorrect belief at the time of filing the Notice of Claim, Ms. Slade-Kerr says that they were attentive to and reliant on the PDS at the time of the purchase. She says that was reflected in the approval of the PDS being one of the conditions of sale. Ms.

Slade-Kerr maintains that the specific reference to the back deck done without a permit caused her to believe, at the time of purchase, that was the only work done without a permit. [ 17 ] She also says the importance of the work being done with permits was reflected in her attendance at the city hall permit department to check on the major renovation before the subjects were removed. She says that she would not have been capable of reading drawings, which would have shown that the canopy was not included in the renovation. Ms.

Slade-Kerr admits that they did not ask the Miks any follow up questions to those in the PDS, including anything related to the construction of the back deck. [ 18 ] Ms. Slade-Kerr confirmed that they arranged a house inspection as a condition of purchase, but were unable to locate the house inspection report, or recall the name of the inspector. Therefore, no evidence from either of those sources was called at trial. [ 19 ] Ms.

Slade-Kerr’s recollection was that the noted concerns of the house inspector were minor, unrelated to the canopy, resulting in the two additional conditions of sale, requiring the Miks to install gutters and downspouts (a design choice), and some moulding on the upper floor, both of which were done. She was unaware whether the building inspector was given a copy of the PDS. [ 20 ] Ms. Slade-Kerr also recalled that the house inspector noted there was no flashing where the canopy attaches to the house. She said that sometime between 2008 and 2013, Mr.

Slade-Kerr had attempted to install flashing, but that he had not done a good job of it. Most of that flashing had been removed after the separation, before the insurance company or Mr. Robinson had inspected the canopy. [ 21 ] Ms. Slade-Kerr says that she doesn’t know what she’d have done if she had known that the canopy was not built with a permit, but is sure she would not have purchased on the same terms. She suggested she was not concerned about the back deck being done without permits because that was only a trivial matter. [ 22 ] Ms.

Slade-Kerr presented evidence of the cost of replacing the canopy with a cantilevered roof, designed by Mr. Robinson. She says that is what they had when they bought the house. -reliability/credibility [ 23 ] While I generally found Ms.

Slade-Kerr to be credible, there were some areas of her evidence that suggested she was trying to fit the story into a finding of liability on the part of the Miks rather than providing an accurate recollection of what took place and her intentions at the time. [ 24 ] In particular, she steadfastly maintains that she was misled at the time of purchase by the “Additional Comments” specifying the back deck done without permit, despite her belief when filing the Notice of Claim that there was a general denial by the Miks of any work done without a permit.

Her certainty in the face of that false belief makes me question her reliability. [ 25 ] Also, when asked about her inquiries at the city hall permit department some 14 years earlier, she had a seemingly specific recollection, but gave no less than three different answers within a very short period, each time seemingly adjusting her version to her apparent benefit. The Miks [ 26 ] Mr. Miks offered evidence for the defendants. [ 27 ] He says he built the canopy, which wraps around the back area of the house for covering the deck. He did so just a few months after the rest of the renovation.

He knew getting permits would delay the process and wanted it built before the winter. He admitted that he did not build the canopy with permits and not entirely according to the Building Code. [ 28 ] He described the overall construction of the canopy, which he had done more than ten times previously. As for the connection to house, he used four 3-inch nails, toe-nailing each of the rafters into the studs of the house. He also used some strapping to assist with the support.

He did not install flashing, which he says is a roofer’s special skill, but provided for other water protection and observed no leakage after construction and before the sale. He maintains that the canopy was well-constructed and according to the current standards of the time.

[ 29 ] However, he also admits that the initial construction plan was to install beams and posts, as he had with his previous canopy construction, and says “he never got around to it”. Nonetheless, he says he was very confident in the canopy’s construction, even without beams and posts. In support of that confidence, Mr. Miks says his family, including his children, utilized the area under the canopy during the 6 years that they continued to live there. He checked the canopy by placing weight on it following any heavy snows or windstorms, listening for any creaks that would suggest any problems.

He also stood on the canopy to paint the house. [ 30 ] In 2005, shortly before the house was put up for sale, Mr. Miks also completed a new back deck underlying the canopy. He did so without a permit and it did not meet all of the Building Code. [ 31 ] When the house was put up for sale, the Miks completed a PDS with the assistance of their realtor, Derek Thornhill. Mr. Thornhill filled in the PDS, including the asterisks and the reference to the “No permit rear deck” in the additional comments, but it was initialled and signed by the Miks. Mr.

Miks says that they actually brought up the work without permit on the canopy with Mr. Thornhill, but that he told them it was unnecessary to include that in the “Additional Comments”. [ 32 ] Mr. Miks says that following the building inspection arranged by the Slade-Kerrs, the absence of flashing was raised, but installation of that was not made a condition in the addendum, unlike the moulding and outside gutters. No mention was made, nor addendum sought, regarding the absence of beams and posts. [ 33 ] Mr.

Miks provided documentary evidence of the professional standards and expectations of a building inspector, arguing that the canopy without beams and posts would have been readily observable and whether that was according to the Building Code, easily determined by a reasonably competent building inspector. [ 34 ] Mr. Miks was of the view that the separation was, at least in part, caused by water damage as stated in the Schneidmiller opinion. [ 35 ] He also provided evidence that repair rather than replacement of the canopy was a reasonable option, by jacking up the canopy and re-attaching it to the house.

He provided an estimate from another contractor of the cost for that repair. - reliability/credibility [ 36 ] I found Mr. Miks, who testified for the defendants, to be very credible. He was honest about matters that were clearly to his detriment and not otherwise discoverable, including his admission that he simply “didn’t get around to” putting up beams and posts, rather than suggesting they weren’t necessary for structural safety purposes, although that was clearly his view.

I found him to be genuine when he stated he believed the construction of the canopy was strong. [ 37 ] I also found the admission that he had considered including in the PDS that the canopy was built without permits and mentioned it to the realtor, to be an otherwise undiscoverable admission that was to his detriment. He knew that he was responsible as the signatory to the PDS for what is included (or not included) there. I did not find that was an attempt to put blame on the realtor, but more to his own regret in following the realtor’s advice. Mr.

Robinson’s Report and Expert Opinion [ 38 ] The claimants rely on the Robinson report and expert opinion. As required under s. 10 of the Small Claims Act Rules , they provided notice to the defendants, who did not challenge Mr. Robinson’s qualifications, nor require him for cross-examination. The Slade-Kerrs also did not call Mr. Robinson to give evidence. [ 39 ] Mr. Robinson first attended the site for the possibility of repair, and took pictures, on August 16, 2017. Mr.

Robinson did observe evidence of water in the area of the canopy separation at that time, but attributed that to torn building paper after the separation (Schedule C-2 photo 4). [ 40 ] He completed his expert opinion report when requested 10 months later, after he had been retained to design a replacement canopy. One of his assumptions was that the canopy was built in 2004 or 2005. [ 41 ] That opinion was sought to address the “cause of damage to the rear canopy” and “whether the canopy was: (

a) Built in accordance with the 1998 BC Building Code” and “(

b) Built in accordance with prudent industry practice at the time it was constructed”. [ 42 ] Mr. Robinson attributed the cause of the separation to the use of nails at the ledger connection to the house. He calculated that the canopy was only designed, based upon the use of nails at the connection, to support 27.9 percent of its own weight during a snow load (calculated for the City of New Westminster). He concluded that the canopy likely separated during a snow load the previous winter. [ 43 ] Mr.

Robinson says that, according to the Building Code, a roof without beams and posts (cantilevered) requires a structural engineer to design it. It also requires that the ledger connection to the house be secured with three ¼ inch x 4.5 inch screws at each stud, as well as metal joists and strapping. [ 44 ] Mr. Robinson’s opinion was that prudent industry practice at the time would be to apply for a building permit, which would require following the Building Code, including a structural engineer-designed cantilevered roof.

He says: “If application for a building permit was made, it is very likely that the observed canopy failure would not have occurred.” (Page 3,

Part 4.3, sub para. 1) [ 45 ] In response to the Schneidmiller opinion, Mr. Robinson’s email of March 8, 2019 says there was no evidence of decay or deterioration of the wood material, in support of his opinion that the separation was not related to water leakage and damage.

Mr. Schneidmiller’s Report and Opinion [ 46 ] The Miks sought to have considered the Schneidmiller opinion and report. [ 47 ] Mr. Schneidmiller attended the property on April 25, 2016, taking a number of pictures, and completed his report on May 9, 2016. Mr.

Schneidmiller was a certified building inspector and technologist (structure) in water migration and building envelope, as well as a certified consultant in roof systems and roof system inspectors, and building codes. [ 48 ] His opinion was that the separation was caused by a combination of the poor securement of the canopy to the house with common nails, and the water damage done by virtue of insufficient or missing flashing between the main house and the canopy, and which was further facilitated by the omitting of “column supports” (posts). [ 49 ] The Miks did not seek to have Mr.

Schneidmiller qualified as an expert, nor called to give evidence. The Slade-Kerrs sought to have the Schneidmiller opinion excluded, or given little or no weight, arguing, among other things, that it was not served as an expert opinion, that he did not do drawings or calculations, and that there is a basis for concluding it was biased in favour of the insurance company. He was not required for cross-examination, in the event his opinion was admitted. [ 50 ] I admitted that report and opinion. [ 51 ] Rule 16.(1) of the Small Claim Act Rules states as follows: Rule 16.

(1) The Provincial Court may admit as evidence in a proceeding under this Act or the rules any oral or written testimony, record or other relevant thing that the court considers is credible or trustworthy and is relevant to the matter being heard, even though the testimony, record or other thing is not admissible in any other court under the rules of evidence. [ 52 ] The Schneidmiller report and opinion was, in my view, both credible and trustworthy. It was created at the request of the Slade- Kerr’s insurance company and completed by an inspector with significant qualifications.

The inspection was done just a month after discovery of the separation. Photographs were taken and included in the report. While there might arguably be a motive for denying the claim in favour of the insurance company, the reason for that denial does not favour the Miks. That report and opinion is certainly relevant, as it relates to the cause for the separation of the canopy and the claim for negligence. For all of those reasons, it was admissible under Rule 16(1). [ 53 ] I also admitted as responsive to that report, the email dated March 8, 2019 from Mr.

Robinson, submitted at trial by the Slade- Kerrs. [ 54 ] The issue is what weight is to be given to all of that evidence. [ 55 ] I must consider that the Schneidmiller opinion was not served as an expert opinion by the Miks, nor was the author qualified as an expert, although he has significant qualifications relevant to the opinion.

An expert opinion report should generally carry more weight than an opinion where the author has not been qualified as an expert. [ 56 ] However, also relevant to the issue of weight is the strength of the expert opinion itself. [ 57 ] In that regard, I find that there are some problems with Mr. Robinson’s opinion. [ 58 ] Firstly, Mr.

Robinson did not attend and inspect the house until seventeen months after the separation, which was well into the second summer, and only for the purpose of repair, calling into question his ability to adequately observe the condition of the canopy and any possible moisture closer to the time of separation. [ 59 ] Secondly, his opinion is based on an assumption that is incorrect, which is that the canopy was constructed in 2004 or 2005, when in fact it was constructed in 1999. Would Mr.

Robinson’s opinion have remained the same if he were aware that the canopy had been built 17 (rather than 11 or 12) years earlier? [ 60 ] Thirdly, there was no evidence of any issues with the canopy at any time before the discovery of the separation on March 25, 2016, nor was any evidence presented of any specific snow loads during the period of the Slade-Kerrs’ absence from early March, 2016. Therefore what is the factual basis for Mr.

Robinson’s opinion that the separation “likely occurred when snow accumulated on the canopy the previous winter”? [ 61 ] Fourthly, the canopy continued to hold and showed no problems through almost 17 years. How was that possible when Mr. Robinson’s calculation was that the load capacity was significantly exceeded, including by more than 72% during a snow load? [ 62 ] Those are not matters for clarification that lie at the feet of the Miks, by requiring Mr. Robinson for cross-examination.

The Slade-Kerrs were seeking to rely on that expert opinion and the onus was on them to prove their case, which includes clarification of the contents of the report and opinion. [ 63 ] In the end, because of the timely and independent observations by Mr. Schneidmiller for the purpose of determining causation, and the stated weaknesses in Mr.

Robinson’s opinion, I give some weight to the opinion that water leakage from missing or inadequate flashing contributed to the separation. [ 64 ] However, both opinions are consistent that the use of nails in these circumstances (no beams and posts) were the primary cause of the separation, such that I find that the water leakage contributed to the separation by likely bringing it on earlier than it otherwise would have occurred. THE LAW

Negligent Misrepresentation [ 65 ] In order to find negligent misrepresentation, I must find: (1) a “special relationship”; (2) an untrue, inaccurate, or misleading statement; (3) negligently made; (4) reliance on that statement; and, (5) a resulting loss based on that reliance (R. v. Cognos Inc., [1993] 1. S.C.R. 87 ). Negligence [ 66 ] A claim in negligence requires: (1) a duty of care, (2) a breach of the standard of care, (3) causation, and, (4) a loss resulting from that breach.

Non-disclosure of a latent defect [ 67 ] The doctrine or principle of caveat emptor , that the buyer must be aware and protect themselves, continues to apply to the sale of property generally, and in all cases to patent defects.

There are four exceptions to the doctrine in regards to the sale of property: 1. where the vendor fraudulently misrepresents or conceals; 2. where the vendor knows of a latent defect rendering the house unfit for human habitation; 3. where the vendor is reckless as to the truth or falsity of statements relating to the fitness of the house for habitation; 4. where the vendor has breached his duty to disclose a latent defect which renders the premises dangerous. ( Cardwell v. Perthen, 2006 BCSC 333 , affirmed at 2007 BCCA 31 ; Nixon v.

MacIver, 2016 BCCA 8 at para. 47 ) ANALYSIS Negligent misrepresentation (1) special relationship [ 68 ] A “special relationship” may give rise to a duty that does not otherwise exist between parties, including those between a vendor and purchaser of real property, where the doctrine of caveat emptor normally applies. That “special relationship” does exist in regard to the provision of the PDS at the time of sale (Hanslo v. Barry 2011 BCSC 1624 para. 117 ).

Therefore, it exists in this case. (2) untrue, inaccurate or misleading -no structural problems [ 69 ] The question in the PDS was: “Are you aware of any structural problems with the premises or the other buildings on the property?” The Miks’ answer was: “No”. [ 70 ] Mr. Miks testified that he was very confident in the building of that canopy and its structural integrity even without the beams and posts. There were no other areas of concern regarding the house or property.

I accepted the Miks’ belief as genuine. [ 71 ] Therefore, the claimants have failed to prove that the answer to that question in the PDS was “untrue, inaccurate, or misleading”. -“No Permit back deck (conforming)” [ 72 ] The Miks, having disclosed that they were aware of work done without permit on the property, had no requirement to list all (or any) of that work done.

They could have remained silent on that, subject to any additional questions or inquiries from the potential purchasers. [ 73 ] Indeed, there was no factually false statement in the PDS which would have survived the contract, such that the Slade-Kerrs have properly not claimed a breach of contract. [ 74 ] But could the particularizing of the “No Permit back deck”, while neither inaccurate nor untrue, have had the effect of misleading the reader to believe that was the only work they were aware of done without permit? I conclude that it could.

It was misleading, even if, as I find, there was no intention to do so. (3) negligently made [ 75 ] Were those additional words negligently made? Again, I conclude that they were. They had the reasonably foreseeable effect to mislead and therefore were careless and negligently made. (4) reliance on the PDS [ 76 ] The PDS provided a series of questions to the vendor, some of which are factual in nature and almost all others that request an “are you aware” or “to the best of your knowledge” response.

It generally just provides the knowledge of the current owners, gained primarily during their period of ownership, as to the general condition and any known defects, which in this case relates to a house built 68 years earlier, but where the Miks lived for just 6 years. [ 77 ] For that reason, the Slade-Kerrs could not have expected to receive a complete picture of the condition of the house and property from the PDS. Had the house been not so old and the period of occupation by the Miks substantially longer, then some

additional reliance on the PDS may have been reasonable. [78] The PDS itself also states that “the prudent buyer will use this property disclosure statement as the starting point for the buyer’sinquiries”. That puts the obligation on the purchaser to take further steps should they wish to protect themselves, which may includeseeking professional advice or searching additional sources, but it may also include relatively simple steps, such as asking furtherquestions of the vendor.

Those further questions, sometimes in writing, can be specific and form part of the PDS. [79] I am not satisfied from the evidence that the Slade-Kerrs relied on the PDS and specifically the misleading nature of “No Permitback deck (conforming)” in the “Additional Comments”, for the reasons presented below. [80] Firstly, I am unable to rely on the evidence of Ms. Slade-Kerr as to her recollection back to the time of the purchase, particularlywhere her recollection of the PDS was clearly wrong at the time she filed the Notice of Claim.

That false belief also calls into questionhow much attention was paid to the entirety of the PDS at the time of purchase, and therefore the reliance on it.

If the Slade-Kerrs hadthat false belief at the time of purchase, then the “Additional Comments” may not have even been considered by them. [81] Secondly, if the information in the PDS was indeed being significantly relied upon, then why did the Slade-Kerrs not ask anyfollow up questions, including the nature of the construction of the back deck, or even what was meant by “non-conforming”, when thatcould be so easily done? [82] Thirdly, going to the city hall permit department to check that the major renovation had been done with permits may support theimportance of that to the Slade-Kerrs, but it also suggests that they were not relying on what was disclosed in the PDS. [83] Fourthly, if the Slade-Kerrs were certain to take steps, such as seek better terms, if the canopy construction without permit hadbeen disclosed, then why did they not do so in respect of the back deck done without permit, which was disclosed?

I did not find Ms.Slade-Kerr’s explanation that the deck was somewhat trivial and not concerning, to be convincing. It seems more likely that the Slade-Kerrs were prepared to accept the without permit work on the deck because they knew Mr. Miks, who had done the major addition, hadalso built the deck. [84] Finally, and perhaps most significantly, the Slade-Kerrs hired a professional building inspector.

Surely that, and not the PDS,was their primary source of reliance with respect to the identification of any defects or deficits. [85] The apparent failure of the building inspector to do so arises in the context of the absence of beams and posts under the canopy.From all of the evidence, I had no trouble concluding that cantilevered roofs, which under the Building Code require design by astructural engineer, are very much the exception. The absence of beams and posts is, therefore, both readily observable (patent) andpotentially significant.

The significance was heightened by the lack of flashing on the canopy, contrary to the Building Code, which wasobserved by the building inspector. [86] As to whether a canopy without beams and posts met that Building Code requirement would be discoverable with an inquiry atthe city, either by the building inspector or by the prospective purchaser on the advice of the building inspector. [87] From a review of the evidence regarding building inspection standards, that observation and further inquiry was well withinwhat would be expected.

I reject the argument that a competent building inspector would assume that this was a structural engineer-designed cantilevered canopy, and not advise the Slade-Kerrs of the absent beams and posts under the canopy and the need for furtherinquiry. [88] For all of those reasons, I find that the claimants have not established that they relied on the misleading reference to the “NoPermit back deck (conforming)” in the PDS, so as to enter into the purchase of the house on the terms agreed.

Negligence (1) duty of care [89] The duty of care from a vendor to a purchaser, with respect to work performed by the vendor on the property, is limited.However, when that vendor is also a contractor, the duty of care of a contractor to a subsequent purchaser comes into play. [90] The duty of care of a contractor to a subsequent purchaser was established by the Supreme Court of Canada in WinnipegCondominium Corp v. Bird Construction (SCC), [1995] 1 S.C.R. 85 (“Bird Construction”).

That duty in tort arises ifit is “foreseeable that a failure to take reasonable care in constructing the building would create defects that pose a substantial danger tothe health and safety of the occupants” (my emphasis). It is not a duty that extends, on a policy level, to work that is simply shoddy orsubstandard.

It is also limited to the requirement to bring the property to a condition that does not pose a substantial danger. [91] That duty of care would seem to recognize that a contractor is in the business of construction, both holding themselves out to bequalified to perform their work and in a position to profit by it. That would include a contractor who builds and sells houses, or buyshouses and renovates for the purpose of sale, sometimes called “property flipping”. To that extent, the duty clearly extends to a vendorwho is also a contractor. [92] In this case, the canopy was not built by Mr.

Miks directly in his role as a contractor, unlike the major addition. Mr. Miks’swork on the canopy was, in essence, a vendor’s “do-it-yourself” project, but one which accompanied the work for the major renovation.This was also unlike that sort of “property flipping” case, in that the Miks lived in the house for 6 years and did the large renovation,including the canopy, well before sale. They built it for their own use, even if future value in the work may have also been aconsideration. [93] Nonetheless, unlike a “do-it-yourself” vendor, Mr.

Miks was by occupation a contractor and carpenter with significantconstruction experience, who performed the work in conjunction with the major renovation. The foreseeability of risk was, for that

reason, available to him. Therefore, I find that there was that duty of care in this case. (2) breach of the standard of care [94] The Slade-Kerrs rely in large part on Mr. Robinson’s opinion that seeks to establish a breach of the standard of care. Aside fromusurping the court’s role to determine that issue, that opinion wrongly focusses on the permit application as the standard of care,including obtaining a structural engineer’s drawing for a cantilevered roof.

Since the canopy was not intended to be cantilevered, evenobtaining a permit would not have required a structural engineer to design it. [95] I accepted Mr. Miks’ evidence that he successfully built many canopy roofs in the past, with the use of nails at the houseconnection. But in each case he installed beams and posts, which serve to significantly support the weight of the canopy.

The nails weresufficient to hold that connection, and I find would have held in this case, had there been beams and posts (indeed the evidence alsosuggested, but I needn’t decide, that the use of the Building Code-required screws would have likely supported the canopy withoutbeams and posts). [96] Therefore, where beams and posts are installed, I do not find that the use of nails as described by Mr. Miks at the houseconnection, even if contrary to the Building Code, was contrary to the standards of a prudent contractor at the time.

While the BuildingCode may provide guidance of the standard of care, it does not determine it. (Canada v. Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R. 205 at 225-226) [97] But in this case, Mr. Miks did not install beams and posts, as was the plan and had always been done before. And that remainedthe case. Mr. Miks initial belief in the strength of the canopy was seemingly strengthened over the 6 years, during his own family’soccupation and following maintenance checks.

The 17 years that the canopy remained in place suggests that belief was not entirelyunreasonable. [98] However, it was certainly contrary to the Building Code to use nails at the house connection for a cantilevered canopy roof,which was what the canopy ended up becoming when Mr. Miks decided not to install the beams and posts. The evidence was that thisdecision put significant additional load on the nails at the house connection and led to the separation.

For that reason, I find that theconstruction of the canopy, despite its relative longevity without issue, was in that regard substandard. [99] But the question is this: Was it foreseeable when he knew he had used nails and chose to not install the beams and posts, that hehad created a defect that posed a substantial risk to the health and safety of future occupants? [100] To suggest that the canopy could really injure someone if it fell on them, is simply to state the obvious, because it is a roof. Buta canopy attaches to the outside of a house to cover a deck or porch.

It is not a part of the roof structure overlying the living area of ahouse, in which even a partial failure may create a significant risk to the occupants inside the house. That is not to say that a canopycould not present a significant risk to the occupants, as is certainly the case in the event of complete collapse. Nor is a complete collapsenecessary to create a significant risk to safety. [101] However, I was not satisfied from the evidence, including Mr.

Robinson’s opinion and report, which does not address the issue,that there was a risk of complete collapse or of any significant danger to the safety of the occupants. It took 17 years and was advancedby water leakage unrelated to the original construction. There was only a limited portion of the lengthy attachment to the house in whichthe separation had occurred.

The placement of some temporary posts while the Slade-Kerrs continued to live there for over 2 yearsbefore doing repairs, suggests that even in that ongoing state it did not present a significant danger. [102] I find that while it was foreseeable that the substandard work may over time reduce the connectivity of the canopy attachmentand require rehabilitation or repair, the evidence failed to establish that the decision to not install beams and posts created a significantrisk of collapse of the canopy. [103] I do not find that Mr.

Miks breached the standard of care. (3) causation [104] Based on my finding with respect to the failure of the claimants to prove a breach of the standard of care, I needn’t considercausation or damages. However, I will do so for the purpose of completeness. [105] I return to the opinions of both Mr. Robinson and Mr. Schneidmiller. They generally agree that, without beams and posts, theuse of nails rather than screws was the primary cause of the separation. Mr.

Schneidmiller opined that water leakage from inadequate orabsent flashing also contributed to that separation, which I found to be the case by bringing it on sooner. [106] Based on those opinions, were there to have been a breach of the standard of care, causation was established by the evidence. (4) damages [107] Based on the duty established by the Supreme Court of Canada in Bird Construction, the defendants would only have anobligation to repair and remove the danger (were I to have found one) by virtue of the use of nails in combination with the failure toinstall beams and posts.

That could have been done without replacement and redesign of a cantilevered roof, which is also not what theSlade-Kerrs had when they bought the house. That repair would have involved some material replacement, re-securement of the canopyto the house, and the installment of beams and posts. Non-Disclosure of a latent defect [108] I find on all of the evidence that the construction of the canopy was not a defect, latent or otherwise, which made the house unfitfor habitation or dangerous.

[ 109 ] I also accept Mr. Miks’ evidence regarding his confidence in the construction of this canopy. Therefore, I do not find that the Miks’ conduct falls into any of the categories of exceptions to the application of caveat emptor . They followed the real estate agent’s instructions to not include that the canopy was done without permits. While they are bound by that decision otherwise, the non- disclosure was not on the basis of a fraud or concealment, or even recklessness, for what they believed was a defect and unsafe. They didn’t believe the construction created a danger .

ORDER [ 110 ] I dismiss the claim and the parties are responsible for their own costs. _____________________________ The Honourable Judge D. Sudeyko Provincial Court of British Columbia