Zhang Zhijun v. National Home Warranty et al. Date:, 2012 BCPC 251

Citation: Zhang Zhijun v. National Home Warranty et al. Date: 20120627 2012 BCPC 0251 File No: 23081 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ZHANG ZHIJUN CLAIMANT AND: NATIONAL HOME WARRANTY GROUP INC. and ONNI DEVELOPMENT (IMPERIAL LANDING) CORP. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. D. SCHMIDT Counsel for the Claimant: J. Cao Counsel for National Home Warranty Group Inc : R. Johal Counsel for Onni Development (Imperial Landing) Corp : I. Ali

Place of Hearing: Richmond , B.C. Dates of Hearing: June 14 and 15, 2012 Date of Judgment: June 27, 2012 [ 1 ] The Claimant purchased a condominium in Richmond in May 2005. He made the purchase with his wife after visiting a model suite for the proposed construction. [ 2 ] They were not intending to make a purchase that day, but upon seeing the model suite building, they decided to look and made the decision to purchase a suite. While the Claimant went to obtain bank financing, his wife stayed at the site. [ 3 ] She did not communicate with the sales staff as her English was not sufficient.

Later that day, her husband signed a purchase contract. [ 4 ] When the building was ready, they were the first to move in. Following their move into the suite, they noticed a number of deficiencies. The most notable was that the floor sloped. [ 5 ] On January 26, 2006, the Claimant notified the Defendant, Onni Development Corp., and informed them of the defect. On January 31, 2002, Onni responded and advised that they “recognized” the problem as a Home Warranty claim and would include it with the year end service request.

There is a deficiency review after one year and repairs are made at that time by the Builder under the Home Warranty Plan. [ 6 ] The Claimant did not find that acceptable, and on February 15, 2006 demanded immediate action. The Defendant sent an inspector to investigate the problem who verified the problems in a report to the Defendant dated March 28, 2006. On March 29, 2006, Onni advised that they would fix the problems noted. On May 18, 2006, the Claimant made a demand to Onni requesting a more detailed engineers report about the sloping floor.

In an undated letter with a later notation of June 6, 2006, the Claimant wrote again and advised that there was a new problem and described it as the ceiling sinking. [ 7 ] On June 19, 2006, Onni committed to the repairs to level the floors and countertops and to “investigate / repair” the new problem of a sloping ceiling. [ 8 ] The Claimant then went to a lawyer who wrote to the Defendant, National Home Warranty, making a claim for the deficiencies that the Defendant Onni had agreed to fix or investigate. [ 9 ] On September 25, 2006, Onni wrote to the Claimant to

schedule repairs and advise that in order for the repairs to be completed, the Claimant would have to remove certain items from the suite and vacate for a period of time. The Defendant Onni advised that they would pay for costs associated with the move and the accommodation. The Claimant did not make the arrangements to vacate as he continued to ask for further structural assessments. He made these demands through counsel. [ 10 ] Onni had already agreed to remove drywall and investigate / fix structural problems related to the ceiling once they were out of the suite and the floor repairs were being made.

The Claimant was unsatisfied with this and continued to press for structural reports and engaged his own engineers who suggested cutting back drywall to investigate. This is what Onni had already agreed to do. Onni responded by sending in engineers to do a visual inspection and again, by viewing the property, they confirmed that there were no structural problems evident and no safety concerns. [ 11 ] Matters came to a standstill as Onni held its offer open to repair and the Claimant sought assurances of proper repair.

On three occasions, Onni wrote to the Claimant, attempting to arrange for the repairs, but received no response. It was not until April 2009 that the Claimant finally allowed repairs to commence after he had exhausted investigating remedies by various government agencies and the Better Business Bureau. [ 12 ] Onni paid for moving and accommodation costs while they undertook the repairs. All items listed by the Claimant were repaired. The repairs to level the floor and ceiling were extensive.

The repairs were no more extensive than they had agreed to in 2006. [ 13 ] The Claimant now claims for all costs related to getting the Defendant to undertake the repairs including lawyers’ fees, engineers’ fees, and lost wages for meetings.

The Claimant also claims for diminution of value due to the repairs resulting in a ceiling he believes is three inches lower in some rooms than the 9-foot ceiling advertised in the sales brochure. [ 14 ] The court finds that the Defendants stood ready and willing to make the necessary repairs from the date the Claimant first advised them of the initial deficiencies noticed by the Claimant.

When further deficiencies were noted, the Defendants stood ready and willing to investigate and repair as necessary. [ 15 ] The Claimant did not accept the attempts of the Defendants to resolve the issues and expended moneys to exact assurances that were not necessary for the work to commence and could not be given until such time as the repairs were commenced. The Defendants had agreed to conduct a full investigation of the Claimant’s concerns with the ceiling while the floor repairs were being conducted and when the drywall was removed.

Onni did not ignore the Claimant’s concerns but obtained further reports to address them and sent copies to the Claimant. The Claimant engaged his own engineer, a Mr. Chui, but he did not accept his findings.

The second engineer he hired recommended an investigative procedure which was readily agreed to by Onni, but he did not readily accept that the nature of the problem could only be assessed when drywall was removed while the floor repairs were being undertaken. [ 16 ] The money that the Claimant spent on lawyers, engineering reports and on various other inquiries was not spent as a result of the conduct of either of the Defendants and is not compensable by them. That money was spent by the Claimant due to an unwarranted

distrust of the Defendant’s ability to repair the suite in the large complex the Defendant had developed. The Defendant at no time attempted to escape responsibility or set up any roadblocks for the Claimant in seeking repairs. [ 17 ] The court has no evidence that the repairs or the state of the condo prior to repairs has resulted in a diminution of value. There is no allegation that the repairs were substandard.

The court cannot find, in the absence of any evidence, that there is any diminution of value of the suite because of the initial defects, defects which later occurred, or the repair of them. [ 18 ] The Claimant also claims for damages because he did not get what he bargained for. He says it was important to him to have 9- foot ceilings and that was what the brochure advertised. As a result of the straightening of the slope in the floor and ceiling, there are some areas of the suite that have a slightly lower ceiling height.

There is no hard evidence as to the final measurements, but the allegation is that some parts of the ceiling are 3 inches less than 9 feet. [ 19 ] The contract for purchase contains an addendum as follows: 8. Construction. The Strata Lot is as shown on the preliminary strata plan (the “Preliminary Plan”) forming part of the Disclosure Statement. The Vendor may make alterations to the features and layout of the Strata Lot which are desirable in the discretion of the Vendor.

The Vendor reserves the right to alter the common property of the Development at any time and from time to time if, in its sole opinion, such alteration or alterations improve the structural integrity of the Development, its mechanical systems, its ability to withstand water penetration or aesthetics. The proposed dimensions, lot lines and location of the strata lots in the Development are set out in the Preliminary Plan.

The actual size, dimensions and/or configuration of the strata lots, balconies, patios and/or decks and/or other limited common property as set forth in the final strata plan (the “Final Strata Plan”) for the Development may vary from what is depicted on the Preliminary Plan. The areas and dimensions of the strata lots in the Development set out in the marketing materials referred to in

section 7 are approximate and are provided for information purposes only and are not represented as being the actual final areas and dimensions of the strata lots (including the Strata Lot) in the Development.

In any event of any discrepancy between the area, size, dimensions, location and/or configuration of the strata lots, balconies, patios and/or decks and/or other limited common property in Preliminary Plan and/or any architectural plans relating to the Development and/or any marketing materials and the Final Strata Plan, the Final Strata Plan will prevail.” [ 20 ] The Claimant says this clause does not have relevance because it is his submission that the dimensions changed because of shrinkage that occurred after the purchase.

The court refers to the above contract and notes that it refers to “the actual final area and dimensions”. [ 21 ] The court does not know when the shrinkage occurred, but even if it developed over the first five months of occupancy, the evidence is that shrinkage is a natural phenomenon in a 4-storey wood frame building.

It is therefore a part of the building process and the word “final” would logically include the dimensions after shrinkage and any repairs that might become necessary after shrinkage. [ 22 ] The Claimant had counsel for the purchase and was free, even before the signing of the contract, to have the contract interpreted for him if he did not have a grasp of the English language. There is no allegation that he was misled or pushed into signing the contract by sales staff. On the contrary, he was anxious to purchase and signed, apparently without hesitation, on the day he saw the show suite.

He is bound by the terms of the contract and has no claim that the suite did not match the description in sales brochures. [ 23 ] In addition, there is no evidence that repairs were done poorly or in a shoddy manner, and there can be no diminution in value caused by the repairs. In fact, the repairs were undertaken by the Defendants at a cost of $27,000 plus accommodation and moving costs.

The Defendant Onni says that they did not agree that all repairs sought by the Claimant were defects, but did make changes to preserve goodwill and reputation as a company. [ 24 ] The Claimant made a submission about unconscionable practices and offences under the Business Practices and Consumer Protection Act and the Homeowner Protection Act .

Those submissions are not understood by the court, but in any event, the court has found that the Defendants both acted promptly and respectfully to the complaints by the Claimant and were only hampered in that by the conduct of the Claimant who refused them access to effect the repairs. [ 25 ] The claim of the Claimant is dismissed in its entirety. _____________________ E. D. Schmidt, P.C.J.