Gingras v. Wijnhorst, 2021 BCPC 4

Citation: Gingras v. Wijnhorst 2021 BCPC 4 Date: 20210108 File No: 19-1813 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DUANE GINGRAS and ELIZAVETA GINGRAS CLAIMANTS AND: REMCO WIJNHORST and ERIN SMITH-FRIESEN DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. WHYTE Appearing on their own behalf: D. Gingras Appearing on their own behalf: R. Wijnhorst Place of Hearing: Williams Lake , B.C. Date of Hearing: November 30 and December 1, 2020 Date of Judgment: January 8, 2021 INTRODUCTION

[ 1 ] This dispute arises out of a short term holiday rental agreement between the parties (the “Rental Agreement”). Claimants Duane and Elizaveta Gingras seek from Defendants Remco Wijnhorst and Erin Smith-Friesen a full refund of monies they paid pursuant to the Rental Agreement.

The Claimants were able to recoup some of these costs through other means, and as such seek only $1000.00 further from the Defendants, plus expenses and interest. [ 2 ] The Defendant Wijnhorst seeks reimbursement for the full cost of the short term rental, totalling $2000.00 plus expenses and interest. [ 3 ] The Defendant Smith-Friesen says she was improperly named as a Defendant in these proceedings, as she did not hold herself out as owner of the vacation property, and only signed as a witness to the owner, Mr. Wijnhorst. [ 4 ] The dispute was initially heard by the Civil Resolution Tribunal (“CRT”).

On December 18, 2018, CRT member Lynn Scrivener decided the claim in favour of the Respondents, who are Defendants in the instant case. Ms. Scrivener ordered the Applicants, who are Claimants in this case, to pay to the Defendants $2,000.00 in respect of the forfeited rental fee; $27.01 in pre-judgment interest; and $125.00 in tribunal fees for a total of $2152.01. [ 5 ] The Claimants filed a Notice of Objection pursuant to s. 56.1 of the Civil Resolution Tribunal Act .

The filing of this document had the effect of making the CRT decision unenforceable until a new hearing was conducted in the Provincial Court. [ 6 ] On September 13, 2019, Judge Whonnock ordered the Claimants to pay a deposit of $2,152.01, plus $40.00 in service fees, into court. PRELIMINARY MATTERS [ 7 ] There has been some confusion from the outset as to the nomenclature to be used in this case. [ 8 ] Rule 1.1(4) of the Small Claims Act R.S.B.C. [1996] C. 430 (the “ Act ”) deals with the process for making a claim if proceedings have been previously initiated before the CRT. It reads:

(4) For the purposes of the notice of civil resolution tribunal claim, (

a) a claimant is the initiating party who made the initial request to the civil resolution tribunal and who was first given an initiating notice in relation to a claim in the proceeding before the civil resolution tribunal, (

b) a defendant is, in relation to the initiating notice referred to in paragraph (a), a person who was required to make a response, and (

c) a third party is a person, other than a claimant or defendant, who was required to make a response in the proceeding before the civil resolution tribunal referred to in paragraph (a). [ 9 ] The initial request to the CRT was made by Duane and Elizaveta Gingras. As such, I refer to them as the Claimants. Mr. Wijnhorst and Ms. Smith-Friesen responded to the initial request, and are the Defendants in this case. [ 10 ] This trial matter was heard on November 30 and December 1, 2020.

At the conclusion of the evidence portion of the proceedings, I reserved my decision pending receipt of written submissions from the parties. Written submissions were received from the Defendant on December 8, 2020, and from the Claimants on December 10, 2020. These reasons reflect my decision in this matter.

SUMMARY OF THE EVIDENCE [ 11 ] While both parties were organized and well prepared for this hearing, it became clear that each of them at different times sought to rely on evidence that was hearsay in nature. For example, each wished to enter correspondence that they had with various third parties connected to the case, but who did not testify at the hearing. [ 12 ] I have decided that some of this evidence should be admitted for the truth of its contents, despite being hearsay.

This approach is, in my view, consistent with s. 2 of the Act , which directs that the purpose of the Act is to allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive, and simple manner. [ 13 ] It is also consistent with s. 16(1) of the Act , which allows the court to admit evidence that it considers credible, trustworthy, and relevant to the matter being heard, even though it may not be admissible as evidence in any other court. [ 14 ] There is substantial agreement between the parties regarding the making of the Rental Agreement, and the circumstances that led to it unravelling.

As such, it is appropriate to summarize the testimony of the two witnesses who gave evidence in this hearing, Remco Wijnhorst and Duane Gingras. [ 15 ] The Defendant Wijnhorst owns a property called Birch Haven, located at 6613 Millar Road, Horsefly, British Columbia (the “Rental Property”). The Defendant Wijnhorst rents a cottage on the Rental Property on a short term basis to interested parties. [ 16 ] On May 5, 2017, the Claimants and Defendant Wijnhorst executed the Rental Agreement.

The property is referred to in the Rental Agreement as “Birch Haven.” However, the Rental Agreement has, at the bottom of each page, the words “Birch Haven Vacations © Short Term Rental Agreement 2017.” [ 17 ] The parties agreed that the Claimants would rent the cottage for a period of 14 days between July 22 and August 5, 2017, at a cost of $1500.00 per week plus a $500.00 damage deposit, for a total of $3500.00. [ 18 ] Under the heading “Terms and Conditions,” the Rental Agreement contains 24 paragraphs that provide further details regarding the rental.

[ 19 ] On page 7 of the Rental Agreement, under the heading Payment Conditions and Terms, paragraph 6 indicates that “all e-transfers for payment should be sent to ‘ [omitted for publication]@gmail.com ’.” [ 20 ] Also contained on page 7 of the Rental Agreement is a Cancellation Policy, which reads: 1. If the property is struck by disaster then all contracts will be null and void and payments refunded. 2. If the Renter(

s) wish to cancel the agreement, he/she/they must notify the Owner in writing and the following policy shall apply to all cancellations. If a cancellation is received then the Owners (sic) will endeavour to find a replacement booking for the same time period.

a) if the Owner is successful in securing a complete replacement booking, then all monies will be refunded less a $200 administration fee.

b) if the Owner is unsuccessful in finding a replacement booking, then the rental deposit is forfeited. The Damage/Security Deposit will be refunded in full. [ 21 ] The Claimants forwarded to the Defendant Wijnhorst $1500.00 by e-transfer on May 5, 2017, followed by a further deposit of $2000.00 on June 22, 2017, through MasterCard via PayPal. [ 22 ] On July 7, 2017, in response to a number of wildfires that were burning out of control around the province, the government of British Columbia declared a provincial State of Emergency in various locations, including the Cariboo region.

The news releases from the government, relied upon by the Claimants, indicate that many of the fires in British Columbia displayed aggressive, volatile, and unpredictable fire behaviour, and that it was extremely unsafe for people other than authorized and trained personnel to go near these fires. [ 23 ] The Claimants became concerned with information from various sources, including social media, that there may also be food and fuel shortages in and around Horsefly. [ 24 ] On July 12, 2017, the Claimants emailed the Defendants to inquire about the wildfire situation.

The Defendants replied on July 12, 2017, advising in part as follows: Fire season is upon our region in full force indeed. So far Horsefly has been alright. We have power, water, telephone and internet. Supplies and fuel are limited though and road access is mostly through backroads at this time. Conditions are smokey (sic), but we still have sunshine. [ 25 ] On July 13, 2017, a new release from the government of British Columbia indicated that all recreation sites and trails in the Cariboo Fire Centre were closed.

Recreationalists were encouraged to avoid travelling in the backcountry in areas of active wildfires, or where the fire danger rating was high to extreme. [ 26 ] On July 14, 2017, based on the unstable environmental conditions brought about by the wildfires, the Claimants first emailed the Defendants and advised them of their decision to cancel the Rental Agreement. They also requested a full refund.

This set off a flurry of email correspondence between the parties. [ 27 ] In essence, the Defendants (both of them are involved in various correspondence with the Claimants) declined to refund the monies paid under the Rental Agreement, save and except the damage deposit, which they returned. [ 28 ] The Defendants took the view that the Cancellation Policy dictated that a refund was available only if the Rental Property was struck by disaster. They noted that the Rental Property was not in an area bound by either an Evacuation Order or Evacuation Alert.

Although they appeared to acknowledge that an Evacuation Order was in place for areas approximately 20 kilometres west of Horsefly, including Williams Lake, they stated that the nearest active fire was at Spokin Lake, which was between 40 and 60 kilometres from the Rental Property.

In their view, while the wildfires were a concern, they did not create a circumstance that would allow the Claimants to receive a full refund upon cancellation of the Rental Agreement. [ 29 ] The Defendants also provided the Claimants with a number of options to assist them in travelling around the region, including into the Evacuation Order area itself. The Defendant Wijnhorst tendered a variety of documents showing that he had received a resident pass that would allow him to escort the Claimants to the Rental Property.

The Defendant Wijnhorst said the resident pass system would also allow him to accompany the Claimants into the Evacuation Zones if they needed to purchase groceries, gas, or other supplies. [ 30 ] The Claimants made various inquiries of the Cariboo Regional District (“CRD”) about the resident permit pass offered by the Defendants. They were unable to confirm the legitimacy of the resident pass system, which they concluded was the result of an informal agreement between the Defendants and some CRD employees, rather than an official pass.

They were skeptical as to whether this option was truly open to them. [ 31 ] As a further alternative, the Defendants provided the Claimants with a backcountry road map which the Defendant Wijnhorst said would allow the Claimants to access the Rental Property without crossing into any Evacuation Zones (the “Backcountry Option”).

The Backcountry Option required the Claimants to travel a circuitous route through Barkerville and Likely, BC, on gravel back roads and in areas where there was no cellular telephone coverage and no service stations. [ 32 ] The Claimants questioned whether the Backcountry Option would be available to them, as some social media posts suggested children would not be allowed to travel this route. It was understood that the Claimants would be travelling with their four year old child. [ 33 ] According to a document tendered by the Claimants entitled Danger Class, Cariboo Fire Centre – Saturday July 22, 2017,

Horsefly was predicted as being a “high danger” area on July 22, 23, and 24, 2017; and as an “extreme danger” area on July 25, 2017. It is acknowledged that the Rental Property is located east of the community of Horsefly, adjacent to Horsefly Lake. [ 34 ] The Claimants tendered other government documents that suggested the air quality in Horsefly was less than ideal at the commencement of the cottage rental period.

The Defendants conceded in their July 12, 2017 email that environmental conditions were impacted to some degree by smoke emanating from areas around Horsefly. [ 35 ] However, the Defendants alleged in email correspondence that by July 21, 2017, (the day before the rental was to commence), the circumstances had improved substantially. While the Evacuation Orders and Alerts remained in effect, they argued that the air quality had improved; the road restrictions had been relaxed; and supplies and services had been restored to normal levels.

POSITION OF THE PARTIES [ 36 ] The Claimants seek full reimbursement for monies paid pursuant to the Rental Agreement. They argue that the environmental conditions caused by the wildfires (including the existence of Evacuation Alert and Evacuation Order Zones adjacent to the Rental Property) were outside of the contemplation of the parties at the time the Rental Agreement was signed.

They submit that the official information they received from the British Columbia government, CRD officials, and the Emergency Operations Centre led them to conclude that it was fundamentally unsafe for them to travel to the Rental Property. [ 37 ] The Claimant’s central argument is that the Rental Agreement was frustrated by the conditions caused by the wildfires.

The circumstances had changed drastically between the signing of the Rental Agreement and their scheduled attendance at the Rental Property; consequently they should not be held accountable to pay the costs associated with the Rental Agreement. [ 38 ] The Defendant Wijnhorst submits that neither the Rental Property nor the community of Horsefly was ever subject to an Evacuation Order or Alert. While it is acknowledged that the wildfires presented a challenging circumstance for all, they did not cause a “disaster” to occur on the Rental Property.

As the Cancellation Policy only permits a refund “[i]f the property is struck by disaster...,” the Claimants are responsible for full payment under the terms of the Rental Agreement. [ 39 ] Further, the Defendant Wijnhorst argues that he made various arrangements to ensure the Claimants could access neighbouring areas bound by Evacuation Alerts or Orders. Firstly, by organizing a resident pass that would allow the Claimants to travel through these zones if escorted by him.

Secondly, by providing the Claimants with the Backcountry Option, which would allow them to travel in the area without crossing into Evacuation Alert or Order Zones. [ 40 ] Finally, the Defendant Wijnhorst submits that the essence of the Rental Agreement was the provision of a cottage at the Rental Property. At all material times the Rental Property was ready to be occupied by the Claimants. The conditions were far from ideal, but more than simple inconvenience is required in order to found a case for frustration of contract.

THE LAW [ 41 ] Frustration occurs when an event makes performance of an agreement impossible, impractical, or fundamentally different from what the parties expected. If a situation arises that neither party envisioned when the agreement was struck, that radically changes the conditions surrounding the agreement, and no provision for the situation was made in the agreement, it can be argued that the agreement should be deemed unenforceable. [ 42 ] The Defendant Wijnhorst relies on Wilkie v. Jeong , 2017 BCSC 2131 (“ Wilkie ”) in support of his position.

Wilkie involved an analysis of the effect of a Foreign Buyer Tax on a real property purchase. The defendant in Wilkie argued that the imposition of the tax (which occurred after the contract was entered into, but before completion) changed its nature so radically that it amounted to frustration. She argued that frustration can be found where the supervening event renders the contract fundamentally different from what was originally contemplated by the parties, as in the venerable case Krell v. Henry , [1903] 2 K.B. 740 (C.A.) , cited in Veritas Geophysical (Nigeria) Ltd. v.

Energulf Resources Inc., 2010 BCSC 1253 at para. 48 . Wilkie at para. 20 . [ 43 ] The Court in Wilkie found that the contract was, at its core, an agreement to transfer title to the property in exchange for the purchase price. While the Foreign Buyer Tax caused hardship to the defendant, it neither changed the fundamental nature of the contractual obligation, nor undermined the foundation of the contract. Wilkie at para. 40 . [ 44 ] Courts in Canada have generally accepted two

definitions of frustration. The first of these is found in KBK No. 138 Ventures Ltd. v. Canada Safeway Limited , 2000 BCCA 295 (“ KBK ”), where Justice Braidwood quoted with approval from Davis Contractors Ltd. v. Fareham U.D.C. [1956] All E.R. 145 (H.L.): So perhaps it would be simpler to say at the outset that frustration occurs whenever the law recognizes that without the fault of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.

Non haec in foedera veni . It was not this that I promised to do. There is, however, no uncertainty as to the materials upon which the court must proceed. "The data for decision are, on the one hand, the terms and construction of the contract, read in the light of the then existing circumstances, and on the other hand the events which have occurred" … In the nature of things there is often no room for any elaborate inquiry. The court must act upon a general impression of what its rule requires.

It is for that reason that special importance is necessarily attached to the occurrence of any unexpected event that, as it were, changes the face of things. But, even so, it is not hardship or inconvenience or material loss itself which calls the principle of frustration into play. There must be as well such a change in the significance of the obligation that the thing undertaken would, if

performed, be a different thing from that contracted for. See Wilkie at para. 16 . [ 45 ] In National Carriers Ltd. v.

Panalpina (Northern) Ltd. , [1981] 1 All ER 161 , Lord Simon of Glaisdale offered the following definition: Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance. [ 46 ] As noted in Wilkie the elements of frustration include the following: 1. a qualifying supervening event (one for which the contract makes no provision, which is not the fault of either party, which was not self-induced, and which was not foreseeable), which 2. caused a radical change in the nature of a fundamental contractual obligation.

Wilkie at para. 18 . [ 47 ] Mere inconvenience or onerousness is an insufficient basis upon which to found frustration. The change must totally affect the nature, meaning, purpose, effect, and consequences of the contract so far as concerns either or both parties. Folia v. Trelinski (1997), 14. R.P.R. (3d) 5 (B.C.S.C.), as quoted in KBK at para. 18 . ANALYSIS [ 48 ] The Claimants argue that they would not have entered into the Rental Agreement had they been aware, at the time the Agreement was signed, that the province of British Columbia would be bound by a State of Emergency.

They say they would never subject their family to the risk inherent in travelling through active Evacuation Order or Alert Zones, under escort or otherwise. Nor would they risk driving a circuitous route on backcountry roads devoid of service stations or cellular service in order to access the Rental Property.

The circumstance that presented on July 14, 2017, and thereafter was fundamentally different than that for which they bargained, and as such presented a radical change to the nature of the contract such that they should not be bound to its performance. [ 49 ] The Defendant Wijnhorst submits that the Rental Agreement provided a place for the Claimants and their guests to sleep for a period of 14 days. He says the cottage was available for the Claimants.

While it may have been inconvenient and less than desirable for them to stay at a property adjacent to an active fire zone, the circumstances did not result in a radical change to the fundamental nature of the agreement. [ 50 ] The analysis requires a consideration of the terms of the Rental Agreement, as it is necessary to determine the essence of the contract. Is it the facilitation of a family vacation, as argued by the Claimants, or merely the provision of a place to stay, as argued by the Defendant Wijnhorst? [ 51 ] In reviewing the Rental Agreement and other evidence, I note the following: 1.

The Defendant and his partner consistently associate themselves to “Birch Haven Vacations.” Each page of the Rental Agreement identifies it as copyrighted by “Birch Haven Vacations.” The Defendant’s email is identified as “ [omitted for publication]@gmail.com . ” The Defendant’s website, as listed at the top of each page of the Rental Agreement, is “https://www.birchhavenvacations.wixsite.com/mysite.” While it is acknowledged that Birch Haven Vacations is not an incorporated entity, it is clear that the Defendant Wijnhorst held out his business to be the provision of a vacation rental, rather than simply short term housing. 2.

As a condition of the Rental Agreement, the Claimants accepted that the cottage was solely for their recreational purposes only , and no commercial, sub-letting, or other activity was permitted. 3. Under the Terms and Conditions portion of the Rental Agreement, paragraph 6 stipulates that the rental includes the use of an aluminium row boat. The only reasonable conclusion to be drawn from this is that the row boat was for use on Horsefly Lake, which is adjacent to the Rental Property. 4.

Paragraph 8 of the Terms and Conditions stipulates that a one-half cord of wood is included in the rental fee for use in campfires. The paragraph specifically prohibits the use of this wood in wood stoves inside the cottage. 5. Under the heading Acknowledgment, the renters accepted that the use of the property was at their own risk, including injury resulting from use of the grounds, boats, and lake use. [ 52 ] In my view, the Claimants contracted for more than simply a place to stay for 14 days.

They bargained for an experience in a rural vacation setting, which included access to the grounds, the building of campfires, and the use of a rowboat on close by Horsefly Lake. [ 53 ] It is clear that the existence of the State of Emergency brought about by the wildfires in the summer of 2017 was an unforeseeable supervening event, one for which the contract makes no provision, and for which neither party bears responsibility. [ 54 ] The more difficult question to answer is whether the circumstances surrounding the State of Emergency caused a radical change

in the nature of a fundamental contractual obligation. That change must constitute more than mere inconvenience, expense, or onerousness. Rather, it must result in a circumstance that would make it unjust to hold the Claimants liable to complete the contract. [ 55 ] Having considered the evidence tendered in this hearing, coupled with an analysis of the intention of the Rental Agreement, I find that the contract was, indeed, frustrated.

I find that the Claimants would not have entered into the Rental Agreement if they were aware, at the time, that the Province of British Columbia would be bound by a State of Emergency due to wildfires.

It would be unjust to hold the Claimants responsible to complete a contract where doing so would require them to choose between travelling through areas bound by active Evacuation Orders or Alerts, or following the Backcountry Option, which would take them far afield from their destination. [ 56 ] While neither Horsefly nor the Rental Property was bound by Evacuation Orders or Alerts, it is clear that the area west of the Rental Property was subject to an Evacuation Order.

I also accept that the wildfires negatively impacted the air quality in Horsefly, and the Rental Property. [ 57 ] The province’s news releases at the time indicated that fires in British Columbia displayed aggressive, volatile, and unpredictable behaviour, and that it was extremely unsafe for people other than authorized and trained personnel to go near these fires. The Rental Agreement, by necessity, would place the Claimants within a reasonably close proximity to the Evacuation Order Zone that encompassed Williams Lake and surrounding areas at the time.

Given the erratic nature of wildfires, it was conceivable that the fires could have spread to the Horsefly area. [ 58 ] Vacationing in an area adjacent to an Evacuation Alert Zone due to wildfires is fundamentally inconsistent with that which the Claimants bargained for when they entered into the Rental Agreement. The presence of unpredictable, volatile fires within proximity of the Rental Property significantly changed the nature of the agreement between the parties (even if the closest active fire was 40-60 kilometres away, as asserted by the Defendant Wijnhorst).

This possibility was not in the minds of the parties at the time the Rental Agreement was signed. [ 59 ] I do not find the workarounds offered by the Defendant to be sufficient to bring the circumstance into the definition of mere inconvenience or onerousness.

I find it would be unjust to hold the Claimants accountable to complete a contract which involved the provision of a family vacation, in a location where the environmental conditions resulted in a designation of the surrounding area as being classified as being either at “high danger” or “extreme danger.” LIABILITY OF THE DEFENDANT SMITH-FRIESEN [ 60 ] Having found in favour of the Claimants, it is necessary to determine what, if any, liability is borne by the Defendant Smith- Friesen. [ 61 ] The Defendant Smith-Friesen argues in the pleadings that she should never have been labelled as a Defendant.

She did not sign the Rental Agreement as a party, but rather only as a witness to the Defendant Wijnhorst’s signature. [ 62 ] While both Defendants Wijnhorst and Smith-Friesen corresponded with the Claimants as representatives of “Birch Haven Vacations,” I find that only the Defendant Wijnhorst signed as “Owner” of the Rental Property. Clearly the Defendant Smith-Friesen was more than merely a witness to the Defendant Wijnhorst’s signature on the Rental Agreement. However, I do not find that she was a party to the Rental Agreement. DECISION [ 63 ] I find in favour of the Claimants. I order as follows: 1.

The $2192.01 deposited with to the court by the Claimants pursuant to the order of the Honourable Judge Whonnock made September 13, 2019, shall be released forthwith to the Claimants. 2. The Defendant Remco Wijnhorst shall pay $1000.00 to the Claimants Duane and Elizaveta Gingras within 30 days of the date of this judgment. 3. The Claimants are entitled to pre and post-judgment interest pursuant to the Court Order Interest Act, R.S.B.C. 1996 c. 79 for each of these sums. 4. The Defendant’s counterclaim is dismissed. 5.

Pursuant to Rule 20 of the Small Claims Rules, the Claimants are entitled to reasonable costs associated with filing and serving of documents (including the $200.00 Notice of Objection filing fee) if the monies paid into court do not fully reflect these costs. 6. The Claimants are at leave to bring an application to determine whether further charges or expenses related to the conduct of this proceeding ought to be ordered against the Defendant Wijnhorst. __________________________ The Honourable Peter D. Whyte Provincial Court Judge