Van Geemen v. Stevenson, 2021 BCPC 234

Citation: Van Geemen v. Stevenson 2021 BCPC 234 Date: 20211005 File No: 2057269 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: EMMELINE VAN GEEMEN and KEVIN VAN GEEMEN CLAIMANTS AND: ERIC STEVENSON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Appearing on their own behalf: E. Van Geemen and K. Van Geemen Appearing on their own behalf: E. Stevenson Place of Hearing: Prince George , B.C. Dates of Hearing: June 8, 9, 10, 22, August 3, and September 15, 2021 Date of Judgment: October 5, 2021 Introduction [ 1 ] This is an archetypical case of buyer’s remorse.

On May 31, 2019, the Claimants, Emmeline Van Geemen and Kevin Van Geemen, purchased a residential property located at 4294 Hanet Road, Prince George, British Columbia. It was a 43 year-old residence on two and one-half acres on the banks of the upper Fraser River. The Claimants say the seller, Eric Stevenson, misrepresented the condition of the Residence when he sold it to them. Specifically, they complain that Eric Stevenson failed to disclose a bat colony that

had taken up roost in the cathedral ceilings. The Claimants had no issue with the bats who lived peacefully outside in their bat houses, but recoiled from sharing their inside space with the flying mammals. [ 2 ] The Claimants do not allege fraud, but contend that Eric Stevenson was negligent in failing to take reasonable care in his efforts to evict the bats from inside the Residence.

The Claimants argue that Eric Stevenson knew or ought to have known his efforts in this regard were inadequate and this lack of attentiveness created a substantial danger to the health and safety of its occupants, present and future. The Defendant says he used his best efforts to prevent the bats from penetrating the building envelope and never saw a bat inside the Residence. Witnesses and exhibits Claimant’s witnesses [ 3 ] The Claimants called the following witnesses: a. Emmeline Van Geemen, homeowner and eye witness to the issues before the court; b.

Kevin Van Geemen, homeowner and eye witness to the issues before the court; c. Tim Higham, Realtor representing Emmeline Van Geemen and Kevin Van Geemen in their acquisition of the Property; d. Eric Moore, owner and operator of “Eric’s Renos”, a contractor responsible for remediating and renovating of the Residence from July 9, 2019 to September 15, 2019; e. Linda Stewart, a friend of Emmeline Van Geemen was at the Residence on May 31, 2019; and f. Erin Waye, a friend, who visited the Claimants at the Residence from the evening of May 31, 2019, until the morning of June 2, 2019.

Defendant’s witnesses [ 4 ] The Defendant called the following witnesses: a. Eric Stevenson, homeowner and seller of the property; b. Hannah Clare Watler, spouse of Eric Stevenson, who lived on the Property with Eric Stevenson; c. Ari Carleton, Realtor who listed the property and represented Eric Stevenson in its sale; and d. Patricia Bernice Alvarado, a close friend of Hannah Watler who visited the Property during the summer months on a number of occasions.

Exhibits [ 5 ] The parties introduced the following documents which were marked as exhibits at trial: Exhibit 1 : nine pages of screen shots of the “Property” posted on the Royal LePage website in late April 2019: Claimants’ Documents pp. 17 to 25; Exhibit 2 : a twenty-eight page Inspection Report of J. Hunter Inspection Services Ltd. dated May 9, 2019, together with correspondence from Jody Hunter dated November 11, 2019: Claimant’s Documents pp. 26 to 60; Exhibit 3 : documents including: (

a) undated correspondence from Leo Shea of Honey-Do Renovation: Claimant’s Documents p. 61; (

b) three photographs of the exposed ceiling in the upstairs master bedroom taken May 14, 2019 “during the subject removal process”: Claimant’s Documents pp. 62 to 64; (

c) Property Disclosure Statement signed by Eric Stevenson on April 26, 2019, and by Kevin Van Geemen and Emmeline Van Geemen on May 7, 2019: Claimant’s Documents pp. 65 to 68;(

d) text messages (two pages) between Realtor, Tim Higham and Emmeline Van Geemen on May 28, 2019, concerning the taking of a water sample and the possession date: Claimant’s Documents pp. 69 to 70; Exhibit 4A : documents including: (

a) a portion of a note Hannah Watler wrote to the Claimants concerning various issues, including the cold water valve of the laundry sink facet: Claimant’s Documents p. 71; and (

b) a photograph of the cold and hot water taps in the downstairs laundry area taken June 2019: Claimant’s Documents p. 72; (

c) photograph of the wall beneath the laundry area sink and taps taken in June 2019: Claimant’s Documents, p. 73; Exhibit 4B : Six photographs taken from taken July 19, 2019. Specifically, (

a) one photograph of the upstairs master bedroom suite taken July 19, 2019, prior to commencing any renovation work: Claimant’s Documents p. 74; (

b) one photograph of upstairs hallway taken July 19, 2019, prior to commencing any renovation work: Claimant’s Documents p. 75; (

c) one photograph of the upstairs master bathroom taken July 19, 2019, prior to commencing any renovation work: Claimant’s Documents p. 76; (

d) one photograph of the upstairs hallway/foyer taken July 19, 2019, prior to commencing any renovation work: Claimant’s Documents p. 77; (

e) one photograph of the sunroom taken July 19, 2019, prior to commencing any renovation work: Claimant’s Documents p. 78; (

f) one photograph of the living room on July 19, 2019, prior to commencing any renovation work: Claimant’s Documents p. 79; Exhibit 5A : correspondence from 1st Defence Pest Control Services Ltd. (Tim Garvin) dated August 22, 2019, concerning the bat infestation: Claimant’s Documents pp. 80 to 81;

Exhibit 5B: research conducted by Emmeline Van Geemen on bats, including an excerpt from ss. 25 to 27 of the Wildlife Act:Claimant’s Document p. 82; and excerpts from the B.C. Community Bat Project guide book entitled “Got Bats?”, including: (a)“Managing Bats in Buildings”: Claimant’s Documents pp. 83-86; (c) “Excluding Bats from a Building”: Claimant’s Documents pp. 87 to88; (d) “Got Bats?”: Claimant’s Documents pp. 89 to 106; Exhibit 6: Fifty-two photographs taken by Emmeline Van Geemen in July 2019 or August 2019 of the Property before and duringremediation; Claimant’s Documents pp. 107 to159; Exhibit 7: (

a) four invoices from Eric’s Renos (Eric Moore) for remediation work dated August 15, 2019, August 30, 2019, September7, 2019, and September 15, 2019: Claimant’s Documents pp. 160 to 161; and (

b) a receipt from Quantum Foam Inc. dated November 1,2019 for spray foam insulation: Claimant’s Documents pp. 162 to 164; Exhibit 8: (

a) correspondence from Marcotte Law, legal counsel for Kevin Van Geemen and Emmeline Van Geemen, to Traxler Haines,legal counsel for Eric Stevenson, dated November 18, 2019. The correspondence does not include enclosures: Claimant’s Documents pp.165 to 166; (

b) BC Property 2020 assessment for 4294 Hanet Place, Prince George, BC: Claimant’s Documents p. 167: (

c) BC Property2020 Decision Notice after reassessment for 4294 Hanet Place, Prince George, BC: Claimant’s Documents p. 168; (

d) City of PrinceGeorge 2020 Property Tax Notice with due date of July 3, 2020: BC Property 2020 assessment for 4294 Hanet Place, Prince George,BC: Claimant’s Documents p. 169; Exhibit 9: Estimate dated May 14, 2019 from Honey-Do Renovations for renovations to the bathroom and master bedroom: Claimant’sDocuments pp. 9 to 10; Exhibit 10: Ten Photographs taken by Emmeline Van Geemen in October 2019, depicting (

a) work done by Eric’s Reno of the livingroom, upstairs hallway, upstairs sunroom, master bedroom: Claimant’s Documents pp.11 to 20; Exhibit 11: (

a) Curriculum Vitae of Jody Hunter: Claimant’s Documents p. 21; and (

c) Interrogatories of Jody Hunter of J.

HunterInspection Services Ltd.: Claimant’s Documents pp. 22 to 23; Exhibit 12: Email from Randie Korum of High Tech Restoration to Emmeline Van Geemen dated November 27, 2020, concerning theinspection on May 13, 2019, for water damage to the roof of the Property: Claimant’s Documents pp.1 to 2; Exhibit 13: Curriculum Vitae of Riley Waytes, terrestrial ecologist: Defendant’s Documents pp. 43 to 44; Exhibit 14: Expert Report of Riley Waytes, terrestrial ecologist: Defendant’s Documents pp. 41 to 42, Exhibit 15: Interrogatories of Riley Waytes: Defendant’s Documents pp. 47 to 51; Exhibit 16: Twenty-three photographs of the exterior and interior of 4294 Hanet Road taken by a professional photographer inDecember 2018: Defendant’s Documents pp. 13 to 36; Exhibit 17: Remax Real Estate Listing of 4294 Hanet Road, Prince George, BC: Defendant’s Documents p. 10; Exhibit 18: Addendum to Contract of Purchase and sale dated May 13, 2019 of 4294 Hanet Road, between the Buyers, Emmeline VanGeemen and Kevin Van Geemen, and the Seller, Eric Stevenson: Defendant’s Documents p. 9; Exhibit 19: Two photographs of the unfinished master bedroom in 4294 Hanet Road, Prince George, BC, taken by realtor, Ari Carletonabout April 26, 2021: Defendant’s Documents p. 11 to 12; Exhibit 20: Fifty-One page booklet from the B.C.

Community Bat Project entitled “Got Bats?” authored by Craig J., M Sarell and S.Holroyd, 2014: Defendant’s Documents pp. 52 to 101. [6] The Claimants and Eric Stevenson provided Court with closing submissions and the following authorities: a. Queen v. Cognos Inc., (SCC) (elements of the tort of negligent misrepresentation); b. Nixon v. MacIver, 2016 BCCA 8; c. Paniccia v. Eckert, 2012 BCSC 1428; d. Zaenker v. Kirk, 1999 3096 CanLII e. 1893569 Alberta Ltd. v. Maryon, 2017 BCPC 417 f. Sauvageau c. Roy, 2006 QCCQ 4927 g. Facchini c. Nardelli, 2010 QCCS 6291 h. MacMillan c. Tedeschi, 2012 QCCQ 2 i. Gordon c.

Sampson, 2017 QCCQ 1749 j. Laroche c. Miller, 2018 QCCQ 4258 k. Macri c. Raco, 2018 QCCQ 9472

l. Alevizos v. Nirula, 2003 MBCA 148 (fraudulent misrepresentation) m. Paton v. Little, 2003 SKQB 43 (fraudulent misrepresentation) n. McMillan v. Green, 2005 SKQB 382 (fraudulent misrepresentation) o. Thomas v. Blackwell, 1999 SKQB 168 (fraudulent misrepresentation) p. Swayze v. Robertson, [2001] O.J. No. 968 (S.C.J.) (excerpt) [7] I have read all the cases and thank the parties for bringing them to my attention. The Claimants have framed their caused ofaction as the common law tort of negligent misrepresentation, although they could also have pled breach of contract. I note that the casesfrom the Court of Quebec are decided in relation to

Article 1726 of the Civil Code of Quebec. The cases from the Manitoba Court ofAppeal and Saskatchewan Court of Queen’s Bench deal principally with the tort of fraudulent misrepresentation. This Court is bound bythe decisions of the Supreme Court of Canada and British Columbia superior courts. Nixon v. MacIver, 2016 BCCA 8, is the governingauthority in this province on the tort of negligent misrepresentation arising in the context of a contract for the purchase and sale of aresidence incorporating by reference a disclosure statement. This is the case before me.

Background facts [8] Eric Henry Stevenson (“Eric Stevenson” or the “Defendant”) is a heavy duty mechanic who lives and works on VancouverIsland. His partner is Hannah Clare Watler (“Hannah Watler”). [9] In December 2014, Eric Stevenson purchased the lands and premises situated at 4294 Hanet Road, Prince George, BritishColumbia, legally known and described as: Lot 21, District Lot 808, Cariboo Land District, Plan PGP 20832; PID: 003-871-321 (the“Property”). Eric Stevenson acquired the Property in a Court-ordered sale after the bank had foreclosed on its mortgage.

He paid the fulllisting price for the property and did not obtain a professional house inspection. Thus, Eric Stevenson learned very little of the Property’santecedents. [10] The Property was the first time Eric Stevenson lived in a home he owned. Previously he lived in a rental unit in Prince George,BC, and elsewhere. [11] The residence (the “Residence”) situated on the Property was built in the mid-1970s and architecturally interesting. It has abasement and two upper floors. It was panelled inside and out with cedar. The main floor is comprised of a living room, dining area, andembryonic kitchen.

The next level consists of two “mid-level bedrooms.” Eric Stevenson created a third bedroom by relocating thelaundry facilities to the basement. The upper floor includes the master bedroom, ensuite bathroom, a hallway, foyer and sunroom. [12] Eric Stevenson moved onto the Property in early 2015. His partner, Hannah Watler, joined him in May 2015. They say theProperty was a “spectacular place to live” situated on a large beautiful lot on the upper Fraser River within the municipal boundaries ofthe City of Prince George, BC. [13] Although it had been well built, the Residence was unfinished, neglected and rundown.

It required a lot of work but was stillliveable. The Residence was originally constructed with a cedar shake roof which leaked profusely. Consequently, the cedar panellingand fibreglass insulation were heavily stained from water damage. Five years prior to Eric Stevenson acquiring the Property, the previousowners replaced the shake roof with a metal one. [14] At some point the previous owners stopped paying their mortgage and abandoned the Residence. When Eric Stevenson movedin, he had to purge it of field mice. He succeeded in doing so fairly quickly with the assistance of his cat and mouse traps.

Thereafter, themice lived outdoors. [15] Over the ensuing years Eric Stevenson repaired and upgraded the Residence. He considered himself a “Do-it-Yourself” carpenterand undertook most of these renovations himself with the assistance of his father and brother. When the task was beyond his skill set,Eric Stevenson hired professional tradespeople. [16] Eric Stevenson’s improvements to the interior of the Residence include the following: a. creating a kitchen where there was none, including reconfiguring the wall and installing: (

a) new cabinets; (

b) trim; (

c) a continuouspour concrete counter top; (d) (used) kitchen appliances; (

e) range hood and venting; (

f) tiles; and (

g) a solid maple butcher’s block. EricStevenson estimates he spent $15,000 to $20,000 on the kitchen materials alone; b. installing new flooring throughout the main floor and portions of the upper floors; c. constructing a pony wall in the living-room/dining room area; d. relocating the laundry room to the basement to create a third mid-level bedroom; e. installing a vanity sink in the mid-level bedroom; f. replacing the mirror in the bathroom; g. installing shelving and racks; h. mudding and taping damaged gyprock; i. installing or replacing light fixtures;

j. replacing hollow doors with ones of solid wood; k. repairing and replacing the trim on the floor and windows; l. painting the inside walls; m. building a new entranceway to the basement; n. framing in the basement bathroom; o. retiling the basement bathroom floor; p. installing an air/heat exchanger; q. replacing broken window panes; r. building ski racks in the basement; and s. installing a pellet stove to heat the basement. [ 17 ] Eric Stevenson also made significant improvements to the outside of the Residence and Property, including: a. demolishing the decrepit carport attached to the house; b. erecting a lean-to adjacent to the Residence in order to store firewood; c. replacing badly weathered and damaged siding; d. filing holes and caulking cracks in the cedar siding caused by knots, woodpeckers, and the elements; e. hiring professional trades people to install gutters; f. installing ice dams on the metal roof; g. excavating the perimeter of the foundations of the Residence and installing polyvinyl chloride piping (“PVC”) to prevent water seepage into the basement; h. having the exterior of the house professionally painted; and i. hiring Eagle Valley Holdings to clear and mulch a large swath of bush on the Property near the Residence; [ 18 ] Eric Stevenson worked on the house continuously for four and one-half years.

Hannah Watler testified he spent all of his free time maintaining and renovating the Residence. Emmeline Van Geemen glibly characterizes Eric Stevenson’s improvements as “cosmetic” - “lipstick on a gorilla” - slapped on to flip the Property for a quick buck. I find her derision unwarranted. Clearly, the Residence was a “fixer upper”. Although Eric Stevenson had invested much time, labour and money repairing and renovating the Residence, by the spring of 2019, there was still much work to be done.

Evidence of bat activity [ 19 ] When Eric Stevenson acquired the Property there were two bat houses attached high on the rear wall of the residence. The reasons for these accessories became evident in the late spring when the Property was teeming with mosquitos. Bats have a voracious appetite for flying insects. [ 20 ] Initially, Eric Stevenson knew very little about bats. When he moved into the Residence in 2015, he had no reason to suspect that any bats had entered or inhabited the Residence.

He noticed the bats arrive in late spring, after the mosquito hatch, and then migrate south in the late summer or early fall. The bats roosted in their bat houses and feasted on the swarms of mosquitos which infested the Property. Eric Stevenson and Hannah Watler lived harmoniously with the bats and regarded them as an ecological asset. [ 21 ] In the fall of 2016, Eric Stevenson decided to replace the exterior siding on the south side of the sunroom which had cupped and curled. He was concerned the siding was so damaged it would no longer protect the Residence from the elements.

The exterior walls had a unique assembly. From the inside out they consisted of: (1) the interior wall; (2) plywood; (3) tar paper; (4) spray Styrofoam; (5) strapping; and (6) exterior cedar siding. [ 22 ] While engaged in this project, Eric Stevenson discovered what he suspected was old and dried guano inside the exterior siding. There was not a significant amount and he did not encounter any bats. From what he observed, Eric Stevenson believed that at some time in the past the bats had roosted in the gaps in the spray foam immediately behind the exterior siding.

Eric Stevenson did not see any opening which would allow the bats to penetrate the interior walls. He cleaned up the guano with a shop vacuum and replaced the sun- damaged siding. Thereafter, Eric Stevenson routinely inspected the exterior of the Residence for any openings or access points and sealed them with foam and mortar. [ 23 ] In his efforts to prevent the infiltration of rain water, Eric Stevenson removed and replaced the most weathered portions of the exterior cladding. This included the siding on the sunroom, along the upper roof, and around the electrical panel.

He found no evidence of bat activity beyond the guano he uncovered in the fall of 2016 when replacing the sunroom siding. [ 24 ] Sometimes Eric Stevenson would monitor bat activity at dusk. He never detected any sign of the bats entering or inhabiting the

Residence. On the contrary, he observed the bats tucked inside their designer bat houses and the guano which fell onto the roof of the lean-to below. [ 25 ] In the fall of 2017, Eric Stevenson turned his attention to the master bedroom, and its ensuite bathroom, which he described as “gross”. The ensuite was dated. It still had its original linoleum, all of the tiles were chipped and there was no trim. As the ceiling and walls were heavily water-stained, Eric Stevenson wanted to inspect the integrity of the insulation.

To that end, he removed most of the cedar ceiling boards in the master bedroom revealing a plastic vapour barrier covering the fibreglass insulation installed between the trusses on the underside of the roof. The insulation was badly discoloured from the ingress of water before the shake tile roof was replaced. [ 26 ] In the course of removing the cedar planking from the master bedroom, Eric Stevenson uncovered a handful of desiccated guano. He inspected the vapour barrier and roof insulation, and satisfied himself there was no recent indoor bat activity. He vacuumed up the guano and threw it on yard.

He considered it benign. [ 27 ] Although a few of the cedar boards Eric Stevenson removed from the ceiling were stained with guano, 95 percent of them were “completely fine.” Eric Stevenson used the clean boards for trim and the stained ones for kindling. Eric Stevenson did not consider the guano a health hazard because he believed it was non-toxic and made excellent fertilizer. [ 28 ] Eric Stevenson suspected the guano he found in the ceiling of the master bedroom was from bats which had gained access to the interior via the attic. He crawled through the attic with a black light to investigate his theory.

He carefully searched for entry or exit points, paying particular attention to the ends of the gable and trusses. He pulled back the edges of the insulation and vapour barrier and inspected the roof cavity. These investigations produced no further evidence of bat activity. Eric Stevenson concluded the guano he found in the ceiling was old and there were no bats currently living inside the Residence. [ 29 ] The handful of dried guano in the master bedroom ceiling in 2017 was the last time Eric Stevenson observed any signs of indoor bat activity.

Neither he nor Hannah Watler ever saw a bat inside the Residence; they never saw a bat enter or exit the Residence. They never heard or saw anything to suggest bats were roosting in the ceiling. Their cat and dog never behaved in any way to indicate there were bats inside the Residence. Yet, in “ Got Bats? ,” the authors state that predation by house cats is the primary cause of bat mortalities reported to the BC Community Bat Program: . . . Bats did not evolve with predatory cats so it is not natural for bats to avoid these voracious hunters.

Cats can hear the bat echolocation calls so are effective and efficient predators of bats. [ 30 ] Eric Stevenson never finished or occupied the master bedroom suite before selling the Property in May 2019. It remained a “dead space”, used primarily to wash the dog in the ensuite bathtub. As they had a choice of three finished bedrooms Eric Stevenson and Hannah Watler did not regard renovating the master bedroom a priority.

Still, Eric Stevenson would go into the room from time-to-time to inspect the plumbing to ensure it was not leaking. [ 31 ] Despite having worked continuously on or about the Residence for four and one-half years, Eric Stevenson only encountered what he assumed were signs of bats having infiltrated the building envelope on two occasions: (

a) in the fall of 2016 when he replaced the exterior siding on the sunroom and; (

b) in the summer of 2017 when he removed the cedar planks from the ceiling of the master bedroom. He says he did his best to remediate and monitor the situation, and in the subsequent years had “zero problems” with bats. [ 32 ] In 2015, 2016, and 2017, Eric Stevenson observed the bats returning to the Property between late May and mid-June. The bats only appeared once the mosquitos hatched. He says that in 2018, there were significantly fewer mosquitos on the Property than in previous years.

Eric Stevenson attributed this anomaly to the City’s larvicide program and to his removing a swathe of bush in close proximity to the Residence. Whatever the reason, there was a low mosquito density on the Property in the summer of 2018, and hence, few if any bats. [ 33 ] In 2018 and 2019, Hannah Watler was working on a Master’s degree in social work at University of Northern British Columbia. She spent three to five hours per day on her studies, using the sunroom as her office and worksite. The sunroom is on the same level as the master bedroom. Hannah Watler sometimes worked into the evening.

She never saw or heard anything to cause her to believe there were bats inside the Residence. [ 34 ] Hannah Watler’s close friend and colleague, Patricia Alverado, visited Hannah Watler at the residence at least ten times, mostly in summer. She never heard or observed anything to suggest the Residence was infested with bats. [ 35 ] In September 2018, Hannah Watler began working with the Vancouver Island Health Authority and she and Eric Stevenson decided to relocate to the Island. In late April 2019, they decided to sell the Property. It was a difficult decision because they loved living on the Property.

Also, Eric Stevenson enjoyed his current job in Prince George. [ 36 ] On April 26, 2019, Eric Stevenson listed the Property for sale with Ari Carleton, a realtor with Remax City Centre Realty in Prince George. It was posted on the MLS website on April 29, 2019. Eric Stevenson had listed the property for $369,000. In settling on this amount Eric Stevenson took into consideration the fact the Residence was unfinished and obviously needed work. The listing described the Residence as follows: Here’s a West Coast Custom designed by an architectural drafter in the mid-70s. Located only 20 minutes from downtown.

The current owners have spent the past five years updating certain portions of the house for efficiency and functionality, while still keeping the original charm of the home intact. Four bedrooms and three bathrooms, 2.5 acres of riverfront, vaulted ceilings, wood fireplace with a river-stone wall, open kitchen, loads of windows, and a massive master suite. Laundry moved to the basement to create a three main- floor bedrooms. Kitchen features new cabinets, and a one-piece cast-in-place concrete countertop and two sinks. Old-growth cedar paneling throughout . . . and a metal roof.

Requires some finishing to the master suite to make it really shine! [ 37 ] The MLS listing included photographs of the Property and Residence, including one of the unfinished master suite.

[ 38 ] Eric Stevenson left the ceiling of the master suite uncovered so the purchasers could clearly see the state of the vapour barrier and stained insulation. In the yard, he left behind a stack of cedar planks he had removed from the master bedroom ceiling, including a few bearing guano stains. [ 39 ] As part of the real estate listing, the Eric Stevenson signed a Property Disclosure Statement (“PDS”) on April 26, 2019. The PDS includes an information page which does not form part of the disclosure statement.

On Page 1, the PDS states: THE SELLER IS RESPONSIBLE for the accuracy of the answers on this property disclosure statement and where uncertain should reply “Do Not Know”. This property disclosure statement constitutes a representation under any Contract of Purchase and Sale if so agreed, in writing, by the seller and buyer. [ 40 ] On April 26, 2019, Eric Stevenson responded “no” to the following questions 3. BUILDING REPLY F. Are you aware of any infestation or unrepaired damage by insects or rodents? No 4. GENERAL B.

Are you aware of any material latent defects as defined in Real Estate Council of British Columbia Rule 5-13(1)(a)(

i) or Rule 13(1)(a)(ii) in respect of the Premises? No For the purposes of Clause 4.B of this form, Council Rule 5-13(1)(a)(

i) and (ii) is set out below 5-13 Disclosure of latent defects For the purposes of this section: Material latent defect means a material defect that cannot be discerned through a reasonable inspection of the property, including any of the following: (

a) a defect that renders the real estate (

i) dangerous or potentially dangerous to the occupants (ii) unfit for habitation [ 41 ] The PDS also included the following statement on page 3: The seller states that the information provided is true, based on the seller’s current actual knowledge as of the date on page 1. Any important changes to this information made known to the seller will be disclosed by the seller to the buyer prior to closing. The seller acknowledges receipt of a copy of this property disclosure statement and agrees that a copy may be given to a prospective buyer. PLEASE READ THE INFORMATION PAGE BEFORE SIGNING. . . .

The buyer acknowledges that the buyer has received, read and understood a signed copy of this property disclosure statement from the seller or the seller’s brokerage on 5/7/2019. The prudent buyer will use this property disclosure statement as the starting point for the buyer’s own inquiries. The buyer is urged to carefully inspect the Premises and, if desired, to have the Premises inspected by a licensed inspection service of the buyer’s choice. . . .

The seller and the buyer understand that neither the listing nor selling brokerages or their managing brokers, associate brokers or representatives warrant or guarantee the information provided about the Premises. The Contract of Purchase and Sale [ 42 ] The MLS listing attracted a number of interested buyers, including the Claimants, Emmeline Van Geemen and Kevin Van Geemen. Emmeline Van Geemen is 34 years old, a licenced practical nurse and community volunteer.

Kevin Van Geemen is a commercial truck driver. [ 43 ] In 2018 Emmeline Van Geemen and Kevin Van Geemen lived in rental accommodations in Prince George, BC. At the time, they had no children. In 2019 they began looking to purchase their first home. The Claimant hired Tim Higham, a realtor with ReMax in Prince George, to help them find the right property and to handle its purchase. They viewed ten or more houses, but none were remotely suitable. Emmeline Van Geemen saw the MLS listing for the Property shortly after it appeared online in late April 2019. The Claimants arranged to view the Property on May 1, 2019.

When they arrived other interested buyers were already viewing the Property. [ 44 ] The Claimants were smitten by the Residence and its isolated location on the banks of the upper Fraser River. Emmeline Van Geemen found the Property stunning. Kevin Van Geemen said he was “shaken” when he first viewed the Property.

Having a river in his front yard was a dream of his ever since he learned “you could have a river in your front yard.” [ 45 ] Emmeline Van Geemen described the Residence as “old and dated – very dated.” The mechanical systems, although functional, were “slightly derelict.” The Residence was “not dirty, but not clean”, at least to her standards. Although much of it had been newly renovated, the basement and the master bedroom remained unfinished. The ceiling in master bedroom was exposed; the ensuite “gutted.”

The Claimants noticed the insulation and vapour barrier in the master bedroom were heavily stained and in some areas, shredded. Emmeline Van Geemen testified, “They were not hiding it at all.” As the Residence was sparsely furnished the Claimants’ view of the floor, walls and ceiling was largely unobstructed. Obviously, they could not see what lay behind the walls or the enclosed portions of the ceiling. [ 46 ] Despite its shortcomings, the Claimants thought the Residence was “beautiful.” They made an offer to purchase the Property for $364,500, subject to: (

a) financing; (

b) inspections; (

c) receiving and approving a water potability test; (

d) inspection of the quantity and quality of the water supply; (

e) inspection of the waste water treatment system; and (

f) receipt of the property disclosure statement. The Claimants had until May 15, 2019, to remove the “subject to clauses” in the contract of purchase and sale. [ 47 ] The Claimants did not put into evidence the Contract of Purchase and Sale. They did however, mark the PDS as part of Exhibit 3. [ 48 ] Jody Hunter inspected the property on May 9, 2019, between 8:30 a.m. and 11:30 a.m. and produced the Inspection Report marked Exhibit 2. She indicated at the time of her inspection, the Residence was occupied and furnished, and the buyer (Kevin Van Geemen) was present at the end of the inspection.

Her report was damming. Jody Hunter pointed out a plethora of deficiencies to the Residence which could be expensive to repair or investigate, or conditions that required further evaluation before an assessment could be made. Jody Hunter met with Kevin Van Geemen on the Property and pointed out all of the deficiencies she had identified. She provided the Claimants with her written Inspection Report later that evening. Her “non-exhaustive” list of deficiencies and recommendations include: a. some of the exterior siding was cupped and curled from weather or pitted and pockmarked from woodpeckers.

Jody Hunter recommended the Claimants have the weathered damaged exterior siding replaced as soon as possible to improve water tightness; b. many of the electric baseboard heaters were inoperable or missing. The residence had a high heat loss ratio making it hard to warm in all areas with just the wood stove. Jody Hunter recommended the Claimants obtain quotes from an electrician for the repair of the electrical baseboard heaters; c. the water heater was 13 years old, which is three years beyond its best before date.

Jody Hunter recommended the Claimants budget for the replacement of the hot water heater given it was near the end of its life expectancy; d. there was evidence of significant water ingress in the interior (living room ceiling, interior wall, exterior wall, window casings, floor joists, and crawlspace). Water stains were observed in many locations throughout the living space.

Jody Hunter recommended the Claimants investigate the nature of the stains and obtain quotes for repairs which might improve the insulation and ventilation; e. the style of the residence made it prone to significant ice damming and condensation damage; f. significant ice dams had the potential to leak on all the walls all the way to the basement; g. there was evidence of water leakage in the crawlspace; h. the roof space was not deep enough for adequate insulation and/or ventilation; i. there was potential for concealed damage (rot, mold, insulation damage); j. the windows required replacing due to rot, failed seals, leaking, etc.

Jody Hunter recommended the Claimants consider upgrading the windows as soon as possible; k. the roof was estimated to be more than ten years old; l. the gutter and down spouts discharge were below grade; m. the patio concrete had shrinkage cracks; n. there was no ground fault circuit interrupter receptacle by the sinks. Jody Hunter recommended the Claimants have GFI protection installed near the main sink; o. the pellet stove may not be operational.

Jody Hunter recommended the Claimants arrange a WETT inspection of the fireplace and pellet stove to determine if they actually worked; p. the floor drain was clogged with sediment. Jody Hunter recommended the Claimants clear the drain as soon as possible; q. the handrails and guard rails were missing from the interior stairs. Jody Hunter recommended the Claimants install hand rails and guard rails as soon as possible; r. the basement bathroom was missing its ventilation fan.

Jody Hunter recommended the Claimants install a ventilation fan when completing the renovations; and s. the fan duct termination could not be located. Jody Hunter recommended the Claimants investigate, and repair discharge fans to the exterior as soon as possible. [ 49 ] Jody Hunter could not inspect all of the plumbing because she thought the water supply was turned off to the basement bathroom fixtures, laundry tub and master bathroom which were under renovations. Accordingly, she did not test the laundry facilities and dishwasher.

Jody Hunter’s inspection of the Residence was further limited by her inability to: (

a) reach the highest

section of roofing: (

b) inspect areas concealed by walls and ceilings; and (

c) access the roof space.

[ 50 ] On November 11, 2019, Jody Hunter stated in her correspondence to the Claimants: I write to confirm details that I recall on a home I inspected on your behalf which is located at 4294 Hanet Road, Prince George, BC on May 9, 2019. Evidence of rodent infestation is a condition that I report by taking photos, describing and reporting the condition observed in the recommendations

section of my reports. I confirm that the absence of mention of pest infestation does in fact indicate that none was observed. Evidence sought is anything visible related to animal presence (other than domestic animals) and can include things such as scat, stains, material damage, tracks or trails, sounds, smells, and of course the animal itself. I remember the inspection of 4294 Hanet Road and recall Wood Pecker damage to the exterior cladding as reported. None of the interior conditions observed appeared to be related to animal infestation. The space was free of scat.

There were multiple stains on surfaces that appear to be related to water ingress, leaking, and/or condensation issues. [ 51 ] The Claimants carefully reviewed Jody Hunter’s Inspection Report and digested its dire news. They opted to follow Jody Hunter’s advice and retained a number of professionals and trades people to inspect the Property, including: a. Mr. Tomas Horalek, an experienced structural engineer with Troika Consulting in Prince George, attended at the Residence on May 13, 2019, to inspect the roof. Mr.

Horalek poked the insulation in the master bedroom with a tape measure and opined the insulation was insufficient. He gave the Claimants advice on preventing ice dams and recommended they bump up the roof to enhance circulation and install more insulation to prevent ice damming, preferably spray foam insulation;. b. Randie Korum and his assistant from High Tech Restorations attended at the Residence on May 13, 2019, to assess it for water damage, mold, mildew, and rot.

They used an electronic heat/dryness reader and scanned the many stains and drips that were on the walls and ceiling, and concluded they were all dry. They inspected the roof, but did not test or remove any insulation or any part of the vapour barrier. Mr. Korum told Emmeline Van Geemen the stains and discolorations from water ingress appeared old and not molding. He opined that that whatever caused the stains was fixed when the homeowners replaced the roof. c. Canuck Plumbing and Heating attended at the home on May 13, 2019, and inspected the heating and air exchange system.

The plumbers advised Emmeline Van Geemen that not all of the baseboards were working; d. Todd White of Northwood Glass inspected the windows. He determined they were unsalvageable and needed to be replaced. He estimated the cost at $1,500 per window, for a total of $20,000; e. Leo Shea of Honey-Do Renovations & Handyman Services attended at the Residence on May 14, 2019, to assess the master bedroom and ensuite and provided an estimate for its completion and renovation.

Honey-Do quoted $13,435 to complete the work on the master bathroom and $2,665 to install drywall on the ceiling of the master bedroom plus GST; and f. Blockbuster Drain & Sewer Services inspected the waste water system on May 16, 2019. They pointed out a number of deficiencies with the septic system, including the fact the septic tank had no lid, the distribution box was cracked, and one pipe was clogged.

Although the aging septic field was “grandfathered in”, it was situated too close to the well by modern standards. [ 52 ] Eric Stevenson agreed to extend the time in which the Claimants had to remove the subject clauses to May 16, 2019, to accommodate Blockbuster’s inspection of the waste water system. Eric Stevenson also authorized some invasive testing both inside the Residence and outside in the yard. Ultimately, the Claimants did not remove or test any sample of the stained insulation.

Eric Stevenson refused to extend the subject to financing date to allow the Claimants time to negotiate a “purchase plus” mortgage to finance the repairs and improvements they sought necessary or desirable. [ 53 ] The Claimants wanted to conduct even more inspections than they could arrange in the time permitting. This included retaining an electrician and building envelope specialist and conducting a water potability test. Eric Stevenson balked at giving the Claimants further access to the property just three days before the possession date to take a water sample.

By that time, the Claimants had already removed the subject clauses and Eric Stevenson and Hannah Watler were readying themselves to surrender possession of their home. [ 54 ] The Claimants said that upon receiving the Inspection Report, they would have “backed out”, but for the encouragement they received from the people who inspected the Residence. Emmeline Van Geemen said, “Everyone had good news for us.” They assured the Claimants the roof looked intact and the stains were dry.

The consultants opined the pervasive staining throughout the Residence was the result of water ingress prior to the shake tile roof having been replaced with a metal one. [ 55 ] The Claimants reservation about proceeding with the purchase was assuaged by the “overwhelming positive things” people had to say about the Residence. Still, the Claimants estimated there was $30,000 to $40,000 worth of work that needed to be done. This amount covered urgent repairs alone and did not include the cost of upgrades or improvements. The Claimants sought to negotiate a reduction in the purchase price.

Eric Stevenson was not prepared to reduce the price more than $5,000 because he had already factored the deficiencies into the original MLS list price. But for the deficiencies, Eric Stevenson would have listed the Property for $500,000, not $369,000.

His realtor, Ari Carleton testified that had the master bedroom been renovated, the Property would have listed to $20,000 to $30,000 more. [ 56 ] Before removing the subject clauses on the Contract of Purchase and Sale, the Property had been viewed, assessed and inspected by a host of people, including a building inspector, an engineer, realtors, trades people, friends, and of course, the buyers and sellers themselves. All of these people, except the plumbers, went into the master bedroom.

Before the possession date the Claimants had been on the property four or five times; Tim Higham had been there twice, and Ari Carleton, six to ten times. Eric Stevenson lived in the Residence continuously and Hannah Watler, intermittently. No one observed any sign of a bat infestation inside the Residence. [ 57 ] Ultimately, the Claimants removed the subject clauses and completed the purchase of the Property for $10,000 less than the list price. They took possession on May 31, 2019.

Change of ownership [ 58 ] Eric Stevenson lived at and worked on the Residence until he surrendered its possession to the Claimants on May 31, 2019. Prior to relinquishing the keys, Hannah Watler did one final walk through the Residence to say goodbye to her home of several years. She did so in the company of her friend, Patricia Alverado. None of Eric Stevenson, Hannah Watler nor Patricia Alverado heard or saw any sign of bat activity inside the Residence. Hannah Watler even left the new owners a note with helpful information about the Residence and Property and the neighbourhood.

She told them about the leaky cold-water valve in the laundry sink in the basement. [ 59 ] May 31, 2019, was a particularly hot spring day and the mosquitos were out in full force. Emmeline Van Geemen says that she had no idea how bad they were prior to taking possession of the Property, because at the time of the inspections, the mosquitos had not hatched. [ 60 ] The day they moved in the Claimants noticed a sprinkle of small black droppings on the floor in southeast corner of the master bedroom by the wall under the peaked roof.

They thought it was mouse feces and put down traps and invited their cat into the room. [ 61 ] I pause to note that in “ Got Bats ?” the authors state that whereas mouse droppings are scattered, bat guano form piles. Guano crumble when crushed into tiny, dry flecks and contain shiny bits of insect exoskeletons whereas mouse droppings have vegetative matter and do not crumble. [ 62 ] Two of Emmeline Van Gleemen’s friends toured the Residence shortly after the Claimants took possession. In the late morning of May 31, 2019, Linda Stewart accompanied Emmeline Van Geemen to the Residence.

When she entered the master bedroom she noticed what she thought was “mouse poop” on the floor. She did not notice it in any other room. [ 63 ] Erin Waye drove from Edmonton to Prince George to share with the Claimants the exciting first days in their new home. She also saw the black droppings in the master bedroom because the Claimants warned her to watch her step. Emmeline Van Geemen testified that six people helped move the Claimants into the Residence. All received a tour; all saw the small black droppings in the master bedroom; all agreed the Claimants’ little rescue cat could take care of the problem.

Although the windows were tightly shut, no one detected anything particularly malodorous. The house did not smell of animal waste or even cleaning agents. [ 64 ] At the end of the day on May 31, 2019, the Claimants hosted a barbeque for their helpers. Emmeline Van Geemen did not see any bats and Erin Waye saw one. Kevin Van Geemen says he went for a walk with his friend Nat at dusk, who pointed some bats flying over-head. The Claimants were not concerned.

They thought bats ate a lot of bugs, were good for the ecosystem, and “very cool”. [ 65 ] The Claimants’ enthral with the Residence unravelled as the lived with the reality of its defects, including: a. one of the elements on the kitchen range did not work; b. the dishwasher did not wash dishes; c. the fridge froze food; d. the new tile floor scuffed and chipped with use; e. the continuous pour concrete counter top they first thought was “super neat” proved uneven; f. as Hannah Watler warned in her note of May 31, 2019, the cold water valve on the downstairs laundry sink leaked.

After heavy use, water inundated the drywall and pooled under the washer and counter, The Claimants called a plumber who charged them $300 to $400 to replace the disintegrated valves; g. although the Claimants had made the purchase subject to water potability, they did not actually test the water. Rather, they relied on a 2015 water test that Eric Stevenson had provided to his realtor. When the Claimants finally had the water tested, it proved positive for cloriforms.

They paid $1,200 to install an ultra violet light disinfecting water treatment system to remove the microbiological contamination from the well water; h. within a week or so of moving into the house Emmeline Van Geemen believes she randomly heard weird soft sounds she could not identify.

She thought, perhaps, there were mice in the ceiling; and i. despite cleaning up the scattering of droppings on the master bedroom floor and giving the cats free reign, the feces reappeared and the live mouse traps remained empty. [ 66 ] Near the end of June 2019, Kevin Van Geemen removed one of the ceiling boards in the ensuite bathroom. Feces rained down on him.

The Claimants still believed they had a mouse problem, although they never actually saw a mouse in the residence and their cats did not catch any. [ 67 ] In early July, the Claimants hired Eric Moore of Eric Reno’s to install an electric fireplace and chandelier in the master bedroom. He started this project on or about July 8, 2019. His first task was to replace the cedar tongue-and-groove planking on the intended feature wall with fire-retardant drywall. When removing the cedar boards, Eric Moore found what he identified as rodent feces in the walls. He thought deer mice had moved in and were running amuck.

He alerted the Claimants to the problem. [ 68 ] The Claimants had enough of the mysterious mice which would never show themselves and deftly eluded the traps and cats. They arranged for Timothy Garvin of 1st Defence Pest Control to deal with the pests. Timothy Garvin attended at the Residence in mid July 2019. Upon arriving and learning the droppings were on the upper floors. Timothy Garvin told the Claimants they did not have a mouse problem, they had a bat problem. [ 69 ] Timothy Garvin warned Emmeline Van Geemen as to the perils of bats inside the Residence. He told her bats could carry rabies

and their guano was toxic. He persuaded the Claimants that guano was akin to asbestos in that it was not dangerous until disturbed. They learned guano can contain fungal spores which cause histoplasmosis, a species of lung infection. Tim Garvin gave the Claimants some advice on evicting bats and offered to perform this service for $225 per hour. He quoted a total of $5,775 for remediating the master bedroom alone. [ 70 ] Eric Moore overheard Timothy Garvin’s discussions with Emmeline Van Geemen. Although he knew nothing of bats, Eric Moore was an experienced carpenter and level one building inspector.

He offered to carry out the remediation and exclusion work for $75 per hour, which was a third of Timothy Garvin’s rate. The Claimants accepted Eric Moore’s offer and diverted his attention from the installation of the fireplace to remedying the bat problem. [ 71 ] Eric Moore and the Claimants proceeded with the remediation project on the premise that bats and guano inside a Residence posed a grave danger to human beings and pets.

Specifically, they feared that live bats could infect them with rabies, which is lethal, and guano could carry fungal spores which cause histoplasmosis. [ 72 ] The Claimants began educating themselves about bats. They obtained the “ Got Bats?” handbook online. They contacted the BC Conservation Services, and learned that bats are a protected species under the Wildlife Act . The officers cautioned the Claimants against harming the bats, but could offer no assistance in rehoming them.

The Claimants sought advice and direction from the BC Community Bat Program, a network of community bat projects established in 2014 in partnership with the Ministry of Environment. The goal of this provincial “ Got Bats?” network is to: a. raise awareness about bat conservation in British Columbia; b. identify bat roost sites in buildings; c. conserve and enhance bat habitat; d. provide support to landowners with bats in buildings; and e. engage residents in citizen - science to monitor bat populations. [ 73 ] The BC Community Bat Program is concerned that a number of bat species are vulnerable to extirpation.

A female bat has only one pup per year which has only a 50 percent chance of surviving its first winter. Bat populations are being decimated by habitat loss, wind turbines, restricted distribution, susceptibility to white-nose syndrome, and predation. Hence it is illegal to kill, poison, trap, exterminate, or harass bats or evict them from their roost during the maternity season from May 1 to September 1. [ 74 ] In July 2019, Eric Moore removed the cedar panelling from the ceiling in the master bedroom. He uncovered various concentrations of guano and urine.

At first the Claimants wanted to refinish and reinstall the cedar boards, but it became too expensive to pay Eric Moore $75 per hour to do so. Although the Claimants loved the cedar ceiling, it became less costly to simply tear out the boards and replace them with gyprock. [ 75 ] Eric Moore said that on one occasion when removing the insulation above the vapour barrier, a bat flew out. He was surprised to see it and wondered why it was there, as the rest of the colony had already migrated to its winter habitat.

I gather the bats were generally confined to the space between the roof and insulation and could not access the human living area. [ 76 ] One evening the Claimants went outside the Residence at dusk. They turned off every electronic device in the Residence. They could hear the bats before they saw them. They observed a “swarm of bats spewing out from the gutters” of the house in a wave from the peak of the sunroom roof. They counted 85 in total.

Although it was too dark to photograph or videotape the bats, the Claimants concluded they emerged from the southeast roof area of the sunroom where the soffit and gutters meet. The Claimants went on to identify two secondary exits from which the odd bat emerged. [ 77 ] The Claimants believed the bats had penetrated the building envelope and had nested in the ceiling above the insulation and vapour barrier. Still, they never saw any live bats inside the Residence. As discussed, Eric Moore saw only the one live bat in the house, although he did discover the carcass of a mummified bat amid the guano.

The Claimants mailed the mummified bat carcass to the BC Bat Community, but never learned its species. Emmeline Van Geemen describes the bat as incredibly light, as though it were hollow. [ 78 ] The Claimants and Eric Moore embarked on a mission to dislodge the bats. In 2019, after the bats migrated south in early August, the Claimants began the exclusionary work necessary to seal the Residence to prevent their return. The remediation work took five months.

Eric Moore testified the project proceeded slowly because the Claimants were having difficulty paying him in a timely manner. [ 79 ] The Claimants followed the recommendations of “ Got Bats?” on evicting and excluding the bats. This project is labour intensive because bats are extremely small. They can squeeze through spaces as small as 5 mm (¼”).

Moreover, bats can be very persistent in finding alternate routes into buildings once their primary routes are blocked off: “ Got Bats?” p. 14. [ 80 ] The Claimants’ remediation work included: a. quarantining the upstairs with polyethylene sheeting; b. removing the fibreglass insulation and plastic vapour barrier; c. disposing of the guano; d. disinfecting the boards and trusses; e. replacing the old fibreglass with spray polyurethane foam. Because it is toxic until it cures, the Claimants and their pets had to

evacuate their house for a week; f. replacing the cedar planking with drywall; g. disposing of the materials that might be contaminated with histoplasma capsulatum fungal spores as biohazard waste; h. identifying where the bats gained access to the inside roof the Residence; i. bat-proofing the Residence by sealing gaps with: (

a) steel wool and expanding aerosol foam; (b) 2 x 4 inch boards wrapped in wiremesh; and j. installing two additional bat houses in the southeast corner of the Property to provide the bats had an alternative roost with highsolar exposure. [81] The Claimants estimate their expense for remediating the bat problem was $33,036.19 allocated as follows: a.

Eric Moore’s Invoice 161971 issued August 15, 2019 in the total amount of $8,988 allocated as follows: i. the removal of cedar panels, insulation and vapour barrier between July 9 – 27, 2019 ( 99 hours x $75 per hour= $7,425)’ ii. $400 for scaffolding; and iii. $200 for biohazardous material disposal; iv. $401.25 PST; and v. $561.75 in GST b. Eric Moore’s Invoice 161971 issued August 30, 2019 in the amount of $3,780 for the sanitizing roof rafters (45 hours x $75 perhour = $3,375 + $168.75 GST + $236.25 PST = $3,780); c.

Eric Moore’s Invoice 161979 issued September 7, 2019 in the amount of $3,584 for exclusion work; d. Eric Moore’s Invoice 161986 issued September 15, 2019, in the amount of $3,584 for installing a gyprock ceiling where the cedarboards had been removed; e. Quantum Foam Inc’s Receipt 1906-1316-3948 issued September 25, 2019, in the amount of $7,999.98, for closed cell spray foaminsulation of the vaulted roof; and f. The Claimants lost wages totalling $5,160.21 due to the bat infestation. [82] The Claimants discovered the stack of cedar boards Eric Stevenson had left them.

Some of the boards showed what EmmelineVan Geemen believed to be guano staining. She said “it felt malicious” and made her want to take action. The Claimants did not keep thecedar boards, but rather hosed them off and gave them away. [83] On January 17, 2020, the Claimants filed a Notice of Claim against Eric Stevenson in the amount of $33,332.19, inclusive offiling fees and service fees. The Claimants say they were denied the right to enjoy their new home because of “his bats” – “his” meaningEric Stevenson’s.

The Claimants say they suffered financially, emotionally, and physically from the moment they took possession of theResidence until the bats had been “professionally removed.” Their financial strain and emotional suffering persists. [84] On February 12, 2020, Eric Stevenson filed a Reply disputing the Notice of Claim in its entirety. [85] Although he does not contest the Claimants found guano in the ceiling, Eric Stevenson says the real reason they tore it apart wasto replace the old stained fibreglass insulation with new foam insulation pursuant to Tomas Horalek’s recommendations.

When they ranout of money, the Claimants had Eric Moore remove and replace the cedar ceiling boards with gyprock. The costs the Claimants saythey incurred were far in excess of what was reasonable or necessary to remediate the bat problem. [86] Eric Stevenson argues the Claimants are seeking reimbursement for renovations undertaken to improve the Residence to a statewell beyond that which they bargained for. In essence, he argues the sums the Claimants seek would constitute a windfall or betterment.Specifically, the Claimants have, (

a) replaced the old discoloured insulation with a new and superior product; (

b) installed a ceiling in themaster bedroom where there was none; and (

c) replaced the old water-stained cedar with new gyprock. [87] In Roberts v. Hutton, 2013 BCSC 640 , Justice Davies noted that generally, damages for negligent misrepresentation ina residential real estate transaction reflect any difference between the price a successful claimant actually paid for the property and thatwhich should have been paid if the impugned representations were true. Damages for the investigation, replacement or repair of theitems in issue are applicable to breaches of warranty, rather than negligent misrepresentation. Also see: Beacock v Moreno, 2019 BCSC955 , citing Zorzi v.

Barker, (BC CA) and Sorensen v. Kaye Holdings Ltd. (1979), (BC CA).Of course, any issue as to the measure of damages is only triggered if the Court allows the claim. Legal Framework [88] Both parties in these proceedings were self-represented. They did a commendable job in assembling their evidence andpresenting their case. Occasionally, they attempted to adduce inadmissible evidence, which I will ignore. The court does not expect self-represented litigants to be familiar with all the exigencies of the rules of evidence. Although these rules are sometimes abridged in small

claims litigation, they still govern the admissibility of evidence. For this reason, it is necessary to consider the relevant sections of theSmall Claims Act and the Small Claims Rules. [89] Sections 2 and 16 of the Small Claims Act, RSBC 1996 c. 430 provide as follows: Purpose 2

(1) The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and tohave enforcement proceedings concluded in a just, speedy, inexpensive and simple manner.

(2) Subject to this Act and the rules, in conducting a hearing the Provincial Court may make any order or give any direction it thinksnecessary to achieve the purpose of this Act and the rules. Evidence 16

(1) The Provincial Court may admit as evidence in a proceeding under this Act or the rules any oral or written testimony, record orother thing that the court considers is credible or trustworthy and is relevant to the matter being heard, even though the testimony, recordor other thing is not admissible as evidence in any other court under the laws of evidence.

(2) The Provincial Court may not admit as evidence in a proceeding under this Act or the rules anything that is privileged under the lawsof evidence. [90] Rule 10 of the Small Claims Rules provides in part as follows: Rule 10 — The Trial How evidence will be heard at a trial

(1) A judge may conduct a trial without complying with the formal rules of procedure and evidence, and in doing so may (

a) ask the parties to explain their cases, to respond to each other and to call witnesses (see Rules 7 (15) (

b) and 7.5 (15)(b)), or (

b) receive evidence in any other way the judge thinks is appropriate (see Rules 7 (15) (

b) and 7.5 (15) (b)). Evidence to be sworn

(2) All oral evidence must be given under oath or affirmation. Experts' evidence — advance notice of evidence required

(3) A party may not call an expert to gives evidence of the expert's opinion unless (

a) the party serves a

summary of the expert's evidence on all other parties at least 30 days before the expert is called to give evidence, or (

b) a judge grants permission. Experts' reports must be given in advance

(4) Instead of calling an expert to give evidence, a party may introduce a report stating opinions of an expert, if (

a) the party serves a copy of the report on all other parties at least 30 days before the report is introduced, or (

b) a judge grants permission. Experts' qualifications

(5) A statement of qualifications in an expert's report is proof that the expert has those qualifications unless there is evidence to thecontrary. Experts may be called for cross-examination

(6) A party receiving another party's expert report may serve on the other party, at least 14 days before the trial date, a notice requiringthe expert to attend the trial for cross-examination. Cost of calling other party's expert

(7) If a judge determines that calling another party's expert was unnecessary, the judge may order the party who required the expert toattend to pay the expert's expenses. [91] Although the rules of evidence are often applied in a flexible manner in small claims proceedings, they still play a critical role inprotecting procedural fairness: Recently, in Izzard v. Hopkins, 2021, BCPC 35 , Judge J. P.

MacCarthy states: [221] When applying the flexible evidentiary provisions of s.16 of the Small Claims Act and in Rule 10 (1), it is clear that a judge musttake into consideration the goals set out in s. 2 of the Small Claims Act. With those goals in mind, a judge should be flexible, patient andunderstanding when considering the use of the provisions of s. 16 and Rule 10(1). This is particularly true when dealing with self-represented parties.

[222] Balanced against this is the overriding consideration of trial fairness. . . . [92] The evidentiary issues which caused me some consternation in this case was the use and misuse of opinion evidence. Typically,only properly qualified experts may provide opinion evidence, and only about matters of fact, not about legal issues: R. v. Graat, 1982,CanLII 33 (SCC). In J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308, leave to SCC ref’d, Justice D.

Smith, on behalf of the appellate court, reiterated the test established by the Supreme Court of Canada for admissibilityof an expert’s opinion as follows: [150] The test for determining the threshold admissibility of an expert’s opinion is set out in R. v. Mohan, [SCC], 1994 2S.C.R. 9. To be admissible, opinion evidence must be relevant and necessary; it must not be rendered inadmissible by any otherexclusionary rule; and it must be offered by a properly qualified expert.

Expert opinion evidence must also be fair, objective andnonpartisan to be admissible: White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 [CanLII] at para 2. If an expertis not properly qualified and is not neutral, his or her opinion has the potential to “swallow whole the fact-finding function of the court”:R. v. Abbey, 2009 ONCA 624 [CanLII] per Doherty J.A.

Opinion evidence that fails to meet these requirements is prejudicial toeach party’s right to a fair determination of the issues, lacks probative value and is therefore irrelevant, unnecessary andunhelpful. [Emphasis added] [93] Each party sought to call an expert witness. On October 23, 2020, at a Pre-Trial Conference, Judge Keyes made a consent orderpermitting the parties to tender expert evidence at trial by way of written reports and interrogatories. [94] The Claimants have provided the Inspection Report of Jody Hunter of J.

Hunter, together with her curriculum vitae and answersto interrogatories: Exhibits 2 and 11. Jody Hunter is a home inspector operating a business “J. Hunter Inspection Services Ltd.” in PrinceGeorge, BC. Jody Hunter is licenced with Consumer Protection BC. I accepted Jody Hunter as an expert qualified to provide opinionevidence on visible residential home inspections.

I accepted into evidence the Inspection Report dated May 9, 2019, and marked Exhibit2 in these proceedings. [95] Eric Stevenson tendered a report of Riley Waytes on bats in British Columbia, together with his curriculum vitae and answers tointerrogatories posed by the Claimants. I accepted Riley Waytes as an expert qualified to provide evidence on the terrestrial ecology ofbats in British Columbia. As he did not attend at or inspect the Residence, I do not accept his opinions specific to the bats habituating onthe Property. [96] Both parties also tendered into evidence Craig J., M Sarell and S.

Holroyd’s, 2014 handbook, “Got Bats BC Community BatProject Frequently Asked Questions,” featured on BC Bats website. I found this source material relevant, credible, and trustworthy, andadmitted it into evidence pursuant to Rule 16 of the Small Claims Rules. It is, however, simply a guide on managing bats in buildings nota legislative pronouncement. [97] The realtors involved in the purchase sale of the Property were Tim Higham and Ari Carleton, both of whom testified at trial.They too were also asked to provide opinions on various issues in their direct evidence or cross-examination.

Some of those opinions Ifound helpful, others, not so much. I do accept as significant the fact that neither realtor noticed any sign of a bat infestation when theyattended at the residence in the spring of 2019. [98] The opinion evidence I found most troubling was from Eric Moore, who admitted he knew nothing of bats, and Timothy Garvin,who did not attend court or testify at trial. [99] I accept Eric Moore tackled the remediation project from the perspective that bats are inherently dangerous creatures and theirguano is potentially lethal if disturbed.

This perspective informed his view the Residence had to be stripped of any inside materials withwhich the bats made contact. He considered these materials contaminated and treated them as biohazardous waste. [100] Although I accept this was his belief, it is not one shared by the learned authors of “Got Bats?” who state that health concernsassociated with bats in buildings is a general misconception of many landowners.

They opine the first and best option for the bats is toallow them to remain in their existing roost and prevent bat-human contact by ensuring that all openings between the bat roost site andhuman living quarters are properly sealed. Homeowners are entitled to bat-proof the human living space by providing interior seals atany time of the year. “Got Bats?” goes on to state: In BC, the only known health risk associated with bats is rabies, which requires direct bat-human contact for transmission. There are noother documented health risks to humans from bats in BC. . . .

Bats rarely carry rabies and will sicken and die if they contract it, unlike some other animals that are unaffected carriers. . . . Bats are an extremely low health risk. There are more deaths annually from dogs and bee stings than from bats. Statistically, havingan occupied bat-house in your yard is safer than owning a dog or planting flowers! . . . since guano poses no known health risk in BC and makes an excellent fertilizer, it can be used on the garden . . .

Histoplasmosis is a concern in eastern North America but has never been documented from bat droppings in BC. [101] The Claimants have also tendered a letter from Tim Garvin dated August 22, 2019. The letter identifies Tim Garvin as a “SeniorTechnician” of “1st Defence Pest Centred Services.” Tim Garvin purports to offer opinion evidence as to the existence and pre-existenceof a bat colony in the insulation between the roof of the Residence and the cedar panel ceiling. Tim Garvin did not testify at trial; he didnot provide a curriculum vitae; he did not respond to interrogatories.

Tim Garvin came to the Property sometime in July 2019, as a resultof the Claimants discovering what they thought were mice droppings in the interior wall of the master bedroom. Tim Garvin toldEmmeline Van Geemen that given their location, the droppings were bat guano. He provided the Claimants with an estimate of what hewould charge to remediate the problem. There is no suggestion Tim Garvin investigated further at this initial meeting, and as a result,never charged the Claimants for his time. Ultimately, the Claimants retained Eric Moore to carry out certain renovations and remediation

work. [102] Tim Garvin returned to the Property on August 22, 2019, at the Claimants’ request. The Claimants retained him to provide anopinion letter date which states: I was called to your home to do an inspection and quote for a rodent problem. I discovered that you are having a bat infestation in yourroof. They were in the insulation between your tin roof and cedar panel ceiling. There are approximately 60 to 80 bats residing there,which is determined by the level of activity and amount of feces found.

This was a pre-existing infestation because of the size of the colony and the fact there is already a bat house installed on the wall of thehouse. I estimate the colony has resided there for a minimum of 5 years. Bats are a seasonal problem between spring and fall, they migrate south for the winter. They return every year to the same summernesting site. [103] Tim Garvin estimated his cost to clean out the bat feces, urine, insulation removal and anti-bacterial solution treatment was $3000+ $150 GST = $3,150. He quoted $2,500 + $125 GST + $2,635 for the exclusion work. And this was only for the master bedroom.

TimGarvin’s letter goes on to state: I also recommend the purchase of at least 2 additional bat houses. Locating them a minimum of 10 to 15 feet back from the house and 15to 20 feet off the ground. This quote does not include the cost of removing the ceiling boards and/or replacement of the insulation and ceiling. [104] I cannot accept Tim Garvin as an expert witness. The Court has not been provided with sufficient evidence as to Tim Garvin’seducation, training, or experience with bats. He declined to attend court in these proceedings - for good reason.

People who work in pestcontrol could spend untold hours in court if they allow themselves to become entangled in lawsuits arising from infestations. TimGarvin’s letter also suggests that he undertook an extensive investigation of the Residence which is not supported by the evidence attrial. Consequently, I do not know if Tim Garvin’s opinion is based on his own observations or investigations, or something theClaimants told him.

Nevertheless, I do accept Tim Gavin: a. attended the Residence sometime in July 2019 in response to the Claimant’s concerns the Residence was infested with mice; b. observed animal excrement Eric Moore had discovered behind the walls in the master bedroom; c. advised Emmeline Van Geemen he believed the Residence did not have a mouse problem, but a bat problem; d. provided Emmeline Van Geemen with some helpful pointers on how to deal with bats that might be roosting in the ceiling; e. provided Emmeline Van Geemen with some alarming information as to the danger bats and guano posed to human beings; and f. provided Emmeline Van Geemen with an estimate of his costs for dealing with the problem. [105] I also accept the Claimants acted on Tim Garvin’s advice.

Legal Framework [106] The legal framework for proving the tort of negligent misrepresentation was articulated by the Supreme Court of Canada inQueen v. Cognos Inc., (SCC).

The Supreme Court of Canada set out the five constituent elements for establishingliability in a negligent misrepresentation claim: a. there must be a duty of care based on a “special relationship” between the representor and representee; b. the representation must be untrue, inaccurate, or misleading; c. the representor must have acted negligently in making the misrepresentation; d. the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and e. the reliance must have been detrimental to the representee in the sense they suffered resulting damage. [107] In British Columbia, caveat emptor is the principle governing the liability of sellers for defects in property they have sold.

Buyersmust satisfy themselves of the condition of the property before the sale closes. A problem they discover after closing is their problem.Buyers of real property have an obligation to perform their own due diligence before purchasing a property and must make appropriateinquiries and investigations themselves. In Nixon v. MacIver, 2016 BCCA 8, Justice D. Smith for the unanimous court provides adescription of the circumstances when liability would befall a seller in a real estate transaction: [47] In

summary, the doctrine of caveat emptor remains very much alive in the context of real estate transactions in BC: Fraser-Reid;Cardwell CA; Wescan CA. In general, purchasers bear the risk of defects in the quality of a property. Liability for this risk may shift tothe vendor where there is established: (

i) a breach of contract; (ii) active concealment (i.e., fraud); (iii) non-innocent misrepresentation;or (iv) an implied warranty of habitability in the case of newly-constructed homes. Liability for this risk may also shift where latentdefects are established that render a property dangerous or uninhabitable. In short, a vendor has a common law duty to disclose: (

i) alatent defect that is not discoverable through a reasonable inspection or through reasonable inquiries; and (ii) the latent defect renders theproperty dangerous or unfit for habitation. If a defect does not render a property dangerous or uninhabitable, caveat emptor appliesregardless of whether the defect in question is patent or latent.

[108] The reasonable reliance component distinguishes the test for negligent misrepresentation from that of fraudulentmisrepresentation. In Hamilton v.

Callaway, 2016 BCCA 189 at para. 51, Justice MacKenzie explained: …negligent misrepresentation requires the purchaser to have reasonably relied on the misrepresentation, whereas fraudulentmisrepresentation requires only that the purchaser was induced to enter the contract in reliance upon the representation. [109] The Court of Appeal in Nixon also summarized the law relating to property disclosure statements: [Citations Omitted]: [48] Information contained in a disclosure statement that is incorporated into a contract of purchase and sale may be a representationupon which a purchaser can rely . . .

However, a vendor is only obliged to disclose his or her current actual knowledge of the state ofaffairs of the property to the extent promised in the disclosure statement and need say “no more than that he or she is or is not aware ofproblems” . . . In other words, the vendor must correctly and honestly disclose his or her actual knowledge, but that knowledge does nothave to be correct. A vendor is not required to warrant a certain state of affairs but only to put prospective purchasers on notice of anycurrent known problems.

The purpose of a disclosure statement is to identify any problems or concerns with the property, not to givedetailed comments in answer to the questions posed . . . [110] In sum, latent defects are defects that are not discoverable through a reasonable inspection or reasonable inquiries. If portions ofthe property or building must be removed to find the defect, it likely qualifies as latent.

Unless a latent defect renders the property unfitfor habitation or dangerous, sellers do not have a duty to disclose latent defects to prospective buyers. [111] Sellers only have a duty to disclose current actual knowledge of such latent defects and that knowledge does not have to becorrect: Nixon v. MacIver. Because a defect is relatively easy to discover after purchase does not necessarily establish that the seller wasaware of the deficiency and concealed or misrepresented it: Weller v. Gordon, [2001] O.J. No 1277.

Claimant’s position [112] Although the Claimants originally pleaded fraud, they withdrew that allegation on June 8, 2021, the first day of trial. TheClaimants amended their Notice of Claim to simply allege “the seller did not disclose a pre-existing bat infestation in the house.” TheClaimants assert that the doctrine of non-innocent or negligent misrepresentation applies. They argue a prior bat infestation is a latentdefect because bats return each year to the same roost site.

In this case their roost site was behind the ceiling boards, vapour barrier andinsulation and hence not discoverable through a reasonable inspection.

Because they can carry rabies and their guano histoplasma fungus,bats can render a residence dangerous or uninhabitable. [113] In particular, the Claimants submit: a. the Defendant failed to disclose the fact that that he had uncovered what he believed to be guano in the exterior cladding of thesunroom in 2016; b. the Defendant failed to disclose the fact he found what he believed to be guano in the ceiling of the master bedroom in 2017; c. the Defendant did not remediate the residence precisely as recommended in “Got Bats?” Specifically, the Defendant: i. did not fill the holes and cracks with the filler materials “Got Bats?” recommended; ii. did not replace all the weathered siding; iii. did not build additional bat houses in the sunniest part of the Property; d. as a result of his lack of due diligence the Defendant ought to have known the bats would return to roost inside the Residence; e. as this was a real estate transaction, there is a special relationship between a buyer and seller, and the seller owes the buyer a duty ofcare: Hanslo v.

Barry, 2011 BCSC 1624, at para. 72; Hamilton v.

Callaway, 2016 BCCA 189 ; f. because the defendant was aware of the historical bat issues when he completed and signed the PDS, his misrepresentations as toany latent defects were negligent; g. the Claimants were first time home buyers involved in a significant transactions and relied on the representations in the PDS whendeciding to continue with the purchase of the Property; h. the Claimant’s reliance on the truthfulness of the Defendant’s representation in the PDS was reasonable in the circumstances; i. their reliance was detrimental to Claimants because they completed the purchase of the property without knowledge of the batissue; and j. had they known the bats would likely return to roost in the ceiling, the Claimants would not have purchased the property. [114] As an alternative, the buyers could seek damages for breach of contract as the PDS was incorporated into the contract of purchaseand sale.

The Claimants did not argue this point and did not tender the contract into evidence. I am satisfied this case can be justlydecided on the issue of negligent misrepresentation. Defendant’s position [115] The Defendant says that when he completed and signed the PDS, he reasonably believed he had remediated the bat problem.Neither he nor Hannah Watler ever saw a bat inside the Residence. The last time he observed any sign of indoor bat activity was in thefall of 2017, and even then, it was a small amount of guano he considered old. He carefully inspected the Residence, inside and out. He

did not regard this handful

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