Archer v. Eden, 2023 BCPC 142

Citation: Archer v. Eden 2023 BCPC 142 Date: 20230602 File No: 47058 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOHN ARCHER and DOUGLAS BERTZ CLAIMANTS AND: JEREMY EDEN and MARILYN EDEN DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.K. KEYES Appearing on their own behalf: J. Archer, D. Bertz Counsel for the Defendants: I. McAndrews Place of Hearing: Penticton, B.C. Date of Hearing: April 20, 21, May 3, 2023 Date of Judgment: June 2 2023

INTRODUCTION [1] The Claimants purchased a house from the Defendants. The Claimants assert that after the purchase, they discovered defectiveelectrical wiring that caused them concern. They also complain that the kitchen hood fan was not vented to the outside, there was noexhaust fan in the ensuite bathroom, one of the smoke alarms did not work and the exterior electrical outlets protruded from the siding.The Claimants claim that these electrical defects or concerns posed a serious and immediate safety risk to them, as a result of which theyhad to move out so that repairs could be made.

The Claimants seek to recover from the Defendants the costs associated with correctingall of the electrical defects and associated drywall repairs and repainting. The Notice of Claim field by the Claimants sought $35,000 indamages. On the first day of trial, the Claimants informed the Court they were seeking only $21,000 in damages. [2] The Claimants introduced into evidence a permit to do electrical work pulled by Dettling Electrical Contracting Ltd. (“Dettling”)issued on September 13, 2005, with respect to the house. That permit describes the work as “Kitchen and Ensuite renovations”.

TheClaimants assert that their electrician found “new” wiring in places in the house other than the kitchen and ensuite, so they seek to havethe court infer that the electrical work done in areas of the house (other than the kitchen and ensuite) was done without obtaining apermit.

If the work done by Dettling was done without a permit, then the Claimants argue that the Defendants declaration in the PropertyDisclosure Statement (“PDS”), (which was incorporated into the Contract of Purchase and Sale (the “Contract”) of the house) to theeffect that they were not aware of any electrical work done without permits, was false.

The Claimants assert that the electrical-wiringproblems were a latent defect, known to the Defendants, which rendered the house dangerous and uninhabitable and thus, they claim theDefendants should compensate the Claimants for repairs and related expenses. [3] The Defendants say that in 2005, shortly after they purchased the house, they hired a licenced electrical contractor, DettlingElectric Ltd., to perform electrical work in connection with renovations that they did to the property. The Defendants maintain the onlyelectrical work done to the property while they owned it was done by Dettling.

Dettling obtained an electrical permit and did all of thework. Thus, the Defendants say the statement in the PDS was true; that is, the only work they were aware of was done with a permit. [4] The Defendants say they did not have any problems with the electrical work done by Dettling and that they did no otherelectrical work in the house, which was built in the 1970s. Thus, they submit that if there were problems with the electrical wiring in thehouse, they had no knowledge of it.

They further submit that the Claimants chose not to have the house inspected and knew, or shouldhave known by appropriate observation, that the bathroom had no exhaust fan, the hood fan in the kitchen was not a vented hood fan, theexterior outlets protruded slightly from the siding, and that one of the fire alarms did not work. Thus, the Defendants submit that theyhave no liability to the Claimants for any of the claimed deficiencies. LAW [5] The law in British Columbia with respect to the purchase and sale of real property is well settled. In Cardwell v.

Perthen, 2007BCCA 313, the BC Court of Appeal upheld the trial decision regarding the applicability of the doctrine of caveat emptor – let the buyerbeware – and its exceptions, with respect to real-estate purchases. In the lower court decision found at 2006 BCSC 333, commencing atparagraph 119, Justice Ballance stated the law as follows: [119] The doctrine of caveat emptor, meaning “let the buyer beware”, continues to endure with validity and effect in allocatingresponsibility between a vendor and purchaser in the context of the purchase and sale of real property.

Its efficacy was confirmed by theSupreme Court of Canada in the leading case of Fraser-Reid v. Droumtsekas (1979), (SCC), [1980] 1 S.C.R. 720 at723, 103 D.L.R. (3d) 385 [Fraser-Reid]: Although the common law doctrine of caveat emptor has long ceased to play any significant

part in the sale of goods, it has lost little ofits pristine force in the sale of land. In 1931, a breach was created in the doctrine that the buyer must beware, with recognition by anEnglish Court of an implied warranty of fitness for habitation in the sale of an uncompleted house . . . Otherwise, notwithstanding newmethods of house merchandising and, in general, increased concern for consumer protection, caveat emptor remains a force to bereckoned with by the credulous or indolent purchaser of housing property.

Lacking express warranties, he may be in difficulty becausethere is no implied warranty of fitness for human habitation upon the purchase of a house already completed at the time of sale. Therationale stems from the laissez-faire attitudes of the eighteenth and nineteenth centuries and the notion that a purchaser must fend forhimself, seeking protection by express warranty or by independent examination of the premises.

If he fails to do either, he is withoutremedy either at law or in equity in the absence of fraud or fundamental difference between that which was bargained for and thatobtained. [Emphasis in original]. [120] Caveat emptor has been described as operating passively because the vendor need not do anything to inform himself about thestate of the property being sold or the existence of any defects: that burden falls to the purchaser.

A vendor therefore has no obligation toreview the condition of the home in order to be able to describe to prospective purchasers which areas are worn out, in need of repair,were constructed in a shoddy fashion or to the highest standard.

Partly for historical reasons and in part because the buyer is in the bestposition to determine the quality of the home he wishes to purchase, the law has put the onus on the purchaser to determine the state andquality of the property being sold. [121] Although on its face caveat emptor appears to offer a vendor a complete defence to any claims made by a purchaser regardingdefects in the property (absent specific contractual terms), the doctrine has been attenuated by a number of exceptions.

Circumstanceswhere caveat emptor will not operate to deny a plaintiff recovery were summarized by Bennett J. in McCluskie v. Reynolds (1998), (BC SC), 65 B.C.L.R. (3d) 191, 19 R.P.R. (3d) 218 at para. 53 (S.C.) [McCluskie]: 1. where the vendor fraudulently misrepresents or conceals; 2. where the vendor knows of a latent defect rendering the house unfit for human habitation;

3. where the vendor is reckless as to the truth or falsity of statements relating to the fitness of the house for habitation; 4. where the vendor has breached his duty to disclose a latent defect which renders the premises dangerous. [122] The distinction between patent and latent defects is central to a vendor’s obligation of disclosure under the doctrine. Patent defectsare those that can be discovered by conducting a reasonable inspection and making reasonable inquiries about the property. Theauthorities provide some guidance about the extent of the purchaser’s obligation to inspect and make inquiries.

The extent of thatobligation is, in some respects, the demarcation of the distinction between latent and patent defects. In general, there is a fairly high onuson the purchaser to inspect and discover patent defects. This means that a defect which might not be observable on a casual inspectionmay nonetheless be patent if it would have been discoverable upon a reasonable inspection by a qualified person: 44601 B.C. Ltd. v.Ashcroft (Village), [1998] B.C.J. No. 1964 (S.C.) [Ashcroft]; Bernstein v. James Dobney & Associates, 2003 BCSC 986 [Bernstein].

Insome cases, it necessitates a purchaser retaining the appropriate experts to inspect the property (see for example Eberts v.Aitchison (2000), 4 C.L.R. (3d) 248, 2000 BCSC 1103. [123] In Tony’s Broadloom & Floor Covering Ltd. v.

NMC Canada Inc. (1996), (ON CA), 141 D.L.R. (4th) 394, 6R.P.R. (3d) 143 at para 19, the Ontario Court of Appeal noted that the plaintiff, the purchaser of contaminated industrial lands, couldhave determined that the land was contaminated prior to purchase: If I am wrong and the presence of the contaminant was a defect, I agree with the conclusion of White J. (at pp. 35-37) that the defect wasa patent one. It would have been readily discoverable by the appellants had they exercised reasonable vigilance in the circumstances.

Indeciding whether the appellants exercised reasonable vigilance, it must be remembered that the appellants were buying industrial land onwhich they proposed to build a residential condominium. A reasonable inspection of the property, reasonable inquiries of therespondents, reasonable inquiries of the local and provincial authorities would have put the appellants on notice of the existence of thecontaminant.

Indeed, had the appellants pursued the taking of soil samples with reasonable diligence after the respondents had permittedthem to take those samples, they would have learned of the existence of the contaminant before closing.

Instead, the appellants chose notto disclose their intended use of the property and to take no steps to satisfy themselves that the property could be used for that purpose. [124] In Bernstein the court found at para. 9, that the rot in the structure was a patent defect at the time of sale because it was readilydiscoverable due to “suspicions that arose from the presence of visible cracks, discolorations, patching and staining on columns andbeams on the interior of the house”. At para. 17 Stromberg-Stein J. stated: The authority Khaira v.

Nelson (2002), 2002 BCSC 1045 , 1 R.P.R. (4th) 76 (B.C.S.C.), 2002 B.C.S.C. 1045 provides that thereis no duty on the part of a vendor to disclose patent defects to the purchasers, patent defects being those which are discoverable byconducting a reasonable inspection of the premises and making reasonable inquiries into its qualities. In the case of patent defects, therule of caveat emptor strictly applies.

It is also the case that a purchaser will be held to a fairly high standard of inspection. [125] In the Khaira case cited by the court in Bernstein, the defect complained of was a slope of some twelve inches across the width ofa house of forty-eight feet. The court concluded that the defective slope was patent because it was visible to the eye on a reasonableinspection, and accordingly, the vendor was not obligated to bring it to the purchaser’s attention. [126] In Bracic v.

Prior (2003), 7 R.P.R. (4th) 262, 2003 BCSC 106 at para. 45, Warren J. found that water ingress into the basement ofa home possibly caused by the lack of a perimeter drainage system was a patent defect: The plaintiff’s claim in contract requires that she establish a defect and, once established, it must be determined whether the defect islatent or patent. There is no remedy at law for a patent defect and the rule of caveat emptor is still the law. [Citations omitted].

Thedefect alleged by the plaintiff is the lack of a perimeter drainage system, but the plaintiff has not proven there was no perimeter drainagesystem. Even if there were no such system it would not be a defect as the home did not require such a system at the time it wasconstructed. In any event, it was patently obvious that the down spouts emptied onto the ground and everyone, including the plaintiffand her realtor saw that.

Further enquiries could have addressed any concerns the plaintiff may have had, but none were made. [127] Latent defects ─ being ones which are not discoverable by observation and reasonable inquiry ─ are treated differently. A vendorwho is aware of and fails to disclose and/or conceals or makes non-innocent misrepresentations with regard to a latent defect may wellbecome liable to the purchaser for damages suffered as a result of that latent defect.

This principle is sound because, unlike a patentdefect, a latent defect is not discoverable by a purchaser on appropriate inquiries and inspection and thus, as a matter of fairness in thecommercial transaction, the obligation to disclose and to not misrepresent will rest with the party who knows about the deficiency. [128] Every imperfection or deficiency which a reasonably careful inspection and inquiry will not reveal cannot amount to a latentdefect of the kind capable of displacing the doctrine of caveat emptor.

In order to qualify as such, the defect must carry with it aconsequence of substance; that is, it must be of such a nature as to render the house uninhabitable or dangerous: McCluskie. Beyond that,the vendor has no obligation to disparage his own property. [129] It is clear that subjective knowledge of an undisclosed latent defect which may be dangerous or make the property uninhabitable issufficient to negate a vendor’s defence of caveat emptor.

In McCluskie at para. 54, Bennett J. suggests that something less than actualknowledge may be sufficient to ground liability: In conclusion, I find that although the law of vendor and purchaser has long relied on the principal of caveat emptor to distribute losses inreal estate cases, the rule is not without exception. Two major exceptions are in the case of fraud, and in cases where the vendor is awareof latent defects which he does not disclose.

The law also supports the imposition of a duty to disclose latent defects on the vendor wherehe is not subjectively aware of those defects, but where he is reckless as to whether or not they exist. It is up to the plaintiff to prove thisdegree of knowledge or recklessness. Bennett J. came to this conclusion after reviewing a number of authorities which suggested that a reckless disregard of the existence of alatent defect would be sufficient to establish liability. In particular her Ladyship, at para. 50, cited a decision of the Ontario Court of

Appeal: In McGrath v. MacLean (1979), (ON CA), 22 O.R. (2d) 784 (Ont.

C.A.), Dubin J.A., speaking for the majority said: I am prepared to assume that, in an appropriate case, a vendor may be liable to a purchaser with respect to premises which are not new ifhe knows of a latent defect which renders the premises unfit for habitation. . . in such a case it is incumbent upon the purchaser toestablish that the latent defect was known to the vendor, or that the circumstances were such that it could be said that the vendor wasguilty of concealment or a reckless disregard of the truth or falsity of any representations made by him. [6] To summarize, if the purchaser complains of a defect in the property which could have been discovered by a reasonableinspection by a qualified person, it is a patent defect and the purchaser cannot recover against the vendor for that defect.

If the defectcannot be discovered by such an inspection, it will be a latent defect, for which the vendor will be liable to the purchaser only if: (

a) the defect is known to the vendor but not disclosed, or (

b) the defect is known to the vendor and concealed, or (

c) the vendor is reckless about the truth or falsity of statements about the fitness of the house for habitation, and (

d) the defect is one which renders the house dangerous or uninhabitable. [7] Regarding statements about the property, typical contracts for the purchase and sale of real property incorporate the PropertyDisclosure Statement (“PDS”) into the contract between the parties. Thus, in this case, the PDS contained a question and answer by theDefendants as follows: I.

Are you aware of any additions or alterations made without a required permit and final inspections: eg. building, electrical, gas, etc?Answer: No. [8] While such statements are incorporated into the Contract, they do not constitute a warranty as to the quality of the property, nor awarranty that no work has in fact occurred without permits; it is simply a statement about the current knowledge of the vendors. InHanslo v.

Barry, 2011 BCSC 1624 , 2011BCSC 1624, the court stated: [96] Based on these authorities, it is my view that in this case, the incorporation of the PDS into the contract did not turn therepresentations contained in the PDS into contractual warranties. There was no warranty that the circumstances referred to in thequestions, which were answered in the negative, did not exist. They are representations as to the true state of knowledge of the vendorand may support a claim in breach of contract if the statement was untrue and did not accord with the vendor’s true belief at the time.

Itis my view that insofar as a claim is based on breach of contract, it is not necessary that the representations relate to latent defects that aredangerous or that render the premises uninhabitable. It is sufficient if there is a breach of contract which caused damage. [Emphasis in original.] [9] Applied to the circumstances of this case, the representation does not constitute a warranty that there have not been anyalterations or additions to the property without permits, only that they were not aware of any.

If the statement made by the Defendantswas untrue – that is, that they were in fact aware of additions or alterations that were done without a permit, then they may be liable forbreach of contract, provided that the Claimants suffered damage thereby. [10] The Claimants in this case have submitted in argument that the Defendants’ answer in the PDS (noted above) was a fraudulentmisrepresentation. In Knight v.

White, 2014 BCPC 226, Judge MacCarthy summarized the law with respect to fraudulentmisrepresentation as follows: Fraudulent Misrepresentation [101] To establish a fraudulent misrepresentation, the Claimants must prove four elements: 1. that the representation was made by the Defendants to the Claimants; 2. that the representation was, in fact, false; 3. that the Defendants, making the representation, knew it was false or made it recklessly without knowing whether it was true or false; 4. that the Claimants were induced to enter the contract by the representation. [11] The Defendants maintain that the representation in the PDS was true, but regardless of its truth, the Defendants argue that theClaimants did not rely in any way on the representations in the PDS.

That is, the Claimants were so determined to purchase the housethat they paid no attention to any of the readily observable items they now complain about; they chose not to retain a home inspector;and presented a “without subjects” offer to purchase significantly in excess of the asking price. EVIDENCE Mr Archer [12] Mr Archer testified that after he and his husband moved into the house, they decided to do some cosmetic alterations, includingchanging all the electrical switch plates and plugs in the house to a more modern kind. He testified that when his electrician went to the

basement to start the work, he found that the switches and plugs had “new” wire in them. [ 13 ] Mr Archer said he became suspicious at that point because he had made a FOI request to obtain the electrical permits for the house and the permit only said work was done in the kitchen and ensuite bathroom. Mr Archer did not explain why he did a FOI request to obtain the prior electrical permits prior to having any concerns about the electrical wiring in the house. [ 14 ] Mr Archer claimed the wire was dated June 2005, although he later said that he obtained that information from his electrician, Mr Bunjaku.

However, Mr Bunjaku testified that he did not know the age of the wire he saw. Mr Archer said a fire alarm in one area had no light on and it turned out that the wires to it were disconnected. He complained that another switch, when it was pulled out from the wall to be changed, had a loose wire that was arcing in its box.

He also complained that in the guest bathroom downstairs, there was a light fixture that was mounted to the wall or ceiling without being mounted to a junction box, which was a code violation. [ 15 ] Mr Archer said he then instructed his electrician to move upstairs to inspect the work done in areas that had been subject to the permit, whereupon the electrician found numerous additional code violations, which required that all six pot lights in the kitchen be removed.

Mr Archer also claimed that his electrician found wall sockets improperly installed on the exterior of the house and Mr Archer noted that there was nothing in the electrical permit referring to exterior work. Mr Archer said the six pot lights in the downstairs daycare-area ceiling had to be removed as they were “not appropriate.” [ 16 ] Ultimately, Mr Archer said that they carried on uncovering electrical work, which necessitated cutting the drywall to access wires and then replacing and repairing all the drywall and repainting.

Because of his allergy to drywall dust, they had to move out while the drywall finishing work was done. [ 17 ] Under cross-examination, Mr Archer admitted that he had made a without-subjects offer of $50,000 over the asking price to the Defendants to purchase the house. He admitted that he had not obtained a home inspection. He agreed with the suggestion that he did a more thorough inspection of the house knowing there was no home inspection, but admitted that he did not notice whether the smoke alarm had a light on and he did not try to push on it to test whether it worked.

He also admitted that he knew the kitchen hood fan was not vented to the outdoors before he purchased the house. He admitted that the fact that the outside electrical outlets were not recessed would be noticeable to a keen eye.

He said they would not be noticeable to a casual observer and he did not notice them until his electrician pointed them out. [ 18 ] Mr Archer agreed that he intended to update the kitchen lighting “eventually” so he told Mr Bunjaku to go up and look at the lighting, but said he would not have changed out the pot lights in the kitchen except that Mr Bunjaku told him there was a problem with them.

He denied any intention to change lighting anywhere else, but then admitted he changed the lighting in the living room and dining room “to update them”, but left the original pot lights in the hall. [ 19 ] Mr Archer admitted that he and his partner planned extensive renovations to the house, which included removing part of the wall in the middle bedroom, taking out a window and putting in double doors, taking out a corner of the master bedroom, and refinishing floors, but claimed that those renovations were not done until 2022.

Mr Archer testified that all the electrical work that was done to repair the deficiencies, including the drywall patching and repainting, occurred prior to the renovations to the house. He provided invoices to support the expenses for repairs, including two invoices for “patching, taping and filling”, dated August 2021 and “patching, filling, texturing, taping, filling ready for paint”, dated November 19, 2021. Only one of those invoices indicates it was for this particular address.

Mr Archer submitted an invoice for $9,400 dated January 12, 2022 for “interior prep and painting” but it does not state where the work was done – that is, there is no site address on the invoice. However, the electrical “quote” from Mr Bunjaku for his work is dated January 10, 2022. Mr Bunjaku [ 20 ] Mr Bunjaku testified that he is a licenced electrician. He was employed in 2005 with Klassen Electric and then moved to Dettling Electric as an apprentice in 2011. He was qualified as an electrician in 2014 and he worked for Dettling Electric for 11 years. He now has his own business.

He said he had worked for Mr Archer for several years on renovation projects involving five homes and two condos. [ 21 ] He explained that he is now a journeyman and is qualified as a field safety rep, which means he can inspect his own work and sign off on jobs. Without that, he cannot work alone and cannot pull permits. He said a permit cost is based on the value of the work done, so he includes everything that he is doing on the permit – to avoid cheating the system. He said that the permit for electrical work comes from the Technical Safety Authority, a private organization, not from the City of Penticton.

He testified that if a job is inspected, the inspector will be from the Technical Safety Authority, not the city inspector. [ 22 ] Mr Bunjaku said that he personally would expand the permit if the job expanded, but there is no way for an inspector to know whether more work was done – they do not crawl into attics to check. He admitted that the permit has nothing to do with the quality of the work.

He acknowledged that the electrical code is revised every four years. [ 23 ] In examination in chief, Mr Bunjaku testified that he started with electrical work in the kitchen, which then led to the bathrooms and the outside deck and he replaced plugs and switches in the basement. In cross-examination, Mr Bunjaku testified that when he came to the house to do work, he assumed he was doing a renovation.

He testified that Mr Archer definitely wanted to renovate the lights in the kitchen and the living room; specifically, the plan in the kitchen was to add more lights because Mr Archer was not happy because there was not enough light in the kitchen. Mr Bunjaku said Mr Archer was planning to change out the existing system and put in updated modern lights. [ 24 ] Mr Bunjaku explained if he encounters a code violation, he is required to fix it, otherwise, he becomes liable for it. Thus, as he encountered code violations, he was obliged to fix them.

He agreed that every smoke detector has a test button that anyone can press to find out if it works, and that all smoke detectors have a light on if they are working. If that light is not on, it will be obvious to anyone walking by that it is not working. Mr Bunjaku noticed that a smoke detector in the basement did not have a light on. He discovered that it was not hooked up to electrical power. Since the smoke detector wiring was not hooked up, its light was not on. In examination in chief,

he testified that he replaced the fire alarm that was not hooked up; however, he said all of the smoke detectors in the house were being changed out anyway, because they were the wrong colour – beige instead of white – so he changed them all out. [ 25 ] Mr Bunjaku provided information regarding various items shown in photographs. He pointed out in Photo 1 that there was a stripped copper wire in the switch box which had the potential to arc, and that the red wire to the switch was loose, which could cause a fire.

In cross-examination, he admitted that the loose wire had been attached but came undone as he pulled out the box, and that there was no indication that any arcing had in fact occurred. He admitted that all wires are hooked up to breakers which are supposed to pop if the wire had come into contact with another wire or other object, but said sometimes the breaker does not pop. [ 26 ] He said he found “new” wiring in the den and living room, and that the pot lights in the living room and kitchen were not rated for being in contact with insulation, so he had to replace them.

He said that the housing boxes for the pot lights shown in Photo 2 were the ones he removed from the kitchen. He said such pot light housings were in use before he began as an electrician in 2005 and that they are still in use today. They provide airflow around the pot light in insulated spaces. The problem he identified was that the metal edges of these housing boxes were taped up with black tape and that was improper, because wires could get cut from the sharp metal edges.

He admitted, however, that he saw no signs of any existing wire being cut or damaged. [ 27 ] In cross-examination, Mr Bunjaku was confronted about a statement he signed in which he stated that there were no code violations in the work done in the kitchen or ensuite bathroom by Dettling. Mr Bunjaku said he could not explain what was written in his statement (about all the Dettling work in the kitchen being up to code) because he believed that the improperly taped up pot-light housing boxes came from the kitchen.

He then suggested that what he meant in his letter was that the plugs and switches in the kitchen were up to code. [ 28 ] Regarding Photo 3, he testified that he discovered an open junction box in the attic, without a cover plate. He said code requires a cover plate in case of sparks. He admitted that he saw no signs of any sparking.

Regarding Photo 4, a photo of a pot light dangling from a hole in the ceiling in which insulation can be observed, he testified that a pot light cannot be in contact with insulation – although he could not recall where in the kitchen, living room, or dining room this particular pot light was located. [ 29 ] In Photos 5, 6, and 7, which are photos of pot lights installed above the deck outside, he pointed out that the wires had no insulators around the holes where they entered the electrical boxes and the cover plates for the boxes were not installed.

He observed that the cover plate for one of the boxes appears to be sitting adjacent to the box in one photo. He said the installation of these lights was not to code and was hazardous because if mice got in and chewed the wires, there could be a risk of fire. [ 30 ] Mr Bunjaku observed that Photo 8 was a photo of a fixture in a bathroom that was not to code because it did not have a junction box.

He confirmed that the white plastic-covered wiring is newer than the black fabric-covered wiring visible in some photos, but Mr Bunjaku said the white wiring has been in use his entire career as an electrician and he was unable to say when any of the wiring or fixtures were installed. However, he stated that the items he found not to be to code would never have been to code. Mr Eden [ 31 ] Mr Eden testified that he and his wife purchased the house in July 2005 but did not get possession of it until September.

He and his wife decided to do extensive renovations to the property before moving in, putting in a new bathroom downstairs and enlarging the ensuite bathroom, changing the kitchen and dining room to an open-concept plan, and installing new pot lights in the kitchen, dining room, living room and hallway, new windows, doors and roof shingles, and they replaced most of the plugs and switches so that they matched. They hired contractors to do all of the work except that Mr Eden did the painting.

Approximately three years later, Mr Eden changed the existing exterior siding to HardiePlank, but there were no changes to the existing outside electrical outlets. [ 32 ] Regarding the electrical work that was done during the renovation, Mr Eden hired Dettling, because his friend Mr Stel worked there and he trusted them to do a good job. Mr Eden took out a building permit from the City of Penticton regarding the building renovations, but Dettling took out the electrical permit for the electrical work and the plumbers dealt with permits for plumbing.

He recalled that there were two permits posted by the front door of the house and that one of them was the building permit, but he did not recall whether it was a plumbing or electrical permit posted alongside. He paid Dettling approximately $7,000 for their work. [ 33 ] Mr Eden recalled reading the building permit before he posted it, but did not recall reading the electrical permit – or even whether he had seen it at all.

He said Dettling was a professional company and he had faith in them. [ 34 ] Mr Eden testified that he changed an outside fixture in the carport when it broke, but aside from that, no one (other than Dettling) did any electrical work at the house while he and his wife owned it. He commented that his wife ran a licenced daycare in the basement the whole time they lived there, which was regularly inspected by the fire department and the licensing authority, and always passed inspection.

He testified that they had no problems with the electrical system in the 18 years that he and his wife lived there – no flickering lights, no flipping breakers – although he admitted that on occasion when he plugged in his 20-amp compressor, it caused a breaker to flip. [ 35 ] Mr Eden recognized the switch shown in Photo 1 as being in the laundry room, by the colour of the wall paint – it was the only room in the house that was yellow – but did not know anything else about it. With respect to Photo 3, he testified he had never gone into the attic and had not seen that junction box before.

Photo 4, he identified as one of the pot lights installed by Dettling, located in the dining room. He identified the pot lights shown in Photos 5, 6 and 7 as being located in the uninsulated area over their deck. He testified that the deck lights were already there when he bought the house. He was not able to identify Photo 8, (which appears to be the base of a light fixture) but said it was nothing he did. Mrs Eden [ 36 ] Mrs Eden testified. Her evidence regarding the renovation was similar to her husband’s.

She confirmed that they hired contractors to do the renovations and that she did not do anything herself, aside from painting. She commented that she was working full time, running a daycare. She testified that when she ran the daycare at the house, she had to do monthly fire drills with the children. Once

each month, she pressed the fire alarm in the hallway closest to where the children were so that it would start the alarm and then the children would have a fire drill. She testified that the fire alarm she used was not the one that Mr Bunjaku found to be non-functional. She said the fire department regularly attended to check her fire drill log and they also tested the smoke alarm. [ 37 ] Mr Archer showed Mrs Eden a photo of a wall with two screws in it, spaced apart vertically.

He suggested to her that there had been an etched art piece permanently affixed to that wall and that she had wrongfully removed it when she left. Mrs Eden denied that suggestion. She testified that a large, heavy candleholder hung from those two screws and that naturally she took it with her when she left because it was not affixed to the wall. She commented that Mr Archer had asked to buy it, but she refused to sell it. Jim Stel [ 38 ] Mr Jim Stel also gave evidence. He is a master electrician with 30 years’ experience. He was qualified to give expert testimony regarding electrical work.

Mr Stel testified that he had been a friend of Mr Eden for many years and recalled doing work at the Eden residence 18 years ago. He is employed by Dettling and was so employed when the renovations were done at the Edens’ house. He testified that at that time, Dwayne Dettling, the owner of Dettling, pulled all the electrical permits for all of their jobs. [ 39 ] Mr Stel confirmed that the Technical Safety Authority is not concerned with the description of the work on a permit application; rather, the only thing the authority is concerned about is the value of the work.

With respect to the language used to describe the work in the electrical permit obtained by Mr Dettling for the Edens’ renovations, he testified that Dwayne typically just put “reno” as the description of the work to be performed, so he saw nothing unusual in the description of the work as “Kitchen and Ensuite renovations”, even though there was work done in other places in the house. [ 40 ] He testified that the electrical permits are not normally posted at the jobsite, but that whenever a portion of the electrical work is ready for inspection, the electrician posts an affidavit regarding that portion of the work by the electrical panel, and then if the inspector attends to do an inspection, he will attend to the electrical panel.

He testified that once the electrician calls for an inspection, the inspector has 48 hours to attend and inspect. If the inspector does not attend during that time, then the work can be covered by drywall. He says the work done by Dettling is rarely inspected because they have a reputation for good work. [ 41 ] Mr Stel identified his signature on a document entitled “Electrical contractor Authorization”, in which he certified that he had inspected the work done and that it complied with the Safety Standards Act and electrical safety regulations of BC.

The document was dated September 29, 2005, referred to the work as “rough wiring”, in the “Kitchen area”. The document also had the notation “partial”.

Mr Stel said that this is the document he referred to as the “affidavit” and added that similar affidavits would be prepared and posted by the electrical panel as other parts of the work were ready to be covered by drywall. [ 42 ] Mr Stel testified that he did not remember everything he did at the Edens’ house, but he recalled changing plugs and switches, putting in lighting and switching in the living room and kitchen, changing light fixtures, and installing a smoke alarm in the basement where the daycare was. He thought he put a pot light in the ensuite bathroom.

In the guest bathroom, he thought he changed the GFI and put white switches and he might have hung a new light fixture above the mirror. He said everything he did was in accordance with the electrical code at the time. He acknowledged that the code has changed several times since 2005 and that some things that were to code then would not be to code now, but that would not make them dangerous. [ 43 ] With respect to the photos, Mr Stel testified that the switch in Photo 1 was an older switch, of a kind not sold by the wholesaler Dettling used.

He believed it must have been installed in the house before the Edens bought it. Mr Stel did not recognize the metal boxes shown in Photo 2. He said such boxes can be used for pot lights in insulated spaces, but he did not use them. He said the pot lights he installed did not have boxes but were designed to be used in insulated spaces. Photo 4, a photo of a pot light dangling from the dining room ceiling, depicts the kind of pot light he installed in the house. He pointed out that there was no box installed around it in the ceiling and the insulation is visible adjacent to the light cavity.

He testified that at that time, those pot lights were approved for insulated spaces and they had a temperature sensor that would shut of the light if they got too hot. He said now it is necessary to build a box to go around the pot lights for airflow and insulation. [ 44 ] Regarding the uncovered junction box in the attic ceiling, he agreed that the cover plate should have been put into place to prevent mechanical damage to the connections.

However, as long as the marettes are good and tight on the connections, there is no issue with safety. [ 45 ] Regarding the pot-light installations above the deck, shown in Photos 5, 6 and 7, Mr Stel testified that the wiring installation was not good, pointing out that there should have been a cover plate on each junction box and there should have been snap-in plastic grommets at the holes where the wires enter the junction box. He testified that he did not do this work and he doubted it was done by an electrician.

With respect to Photo 8, he said it looked like someone wired up a light fixture without a junction box, which he suspected the previous owner of the house may have done. He testified that all of the work he did was up to code at the time. FINDINGS OF FACT Did the electrical defects render the house dangerous or uninhabitable? [ 46 ] Although Mr Bunjaku testified that the wiring problems he found were dangerous because they could have caused arcing or sparks or fire, there is no evidence that any such thing ever happened.

There is no evidence of sparks or fire in the open junction box and there is no evidence of mice eating the wires, or wires having been cut or crimped by contact with taped up metal junction boxes. These defects were apparently present for at least the 18 years that the Edens owned the house, but never caused any discernible problem. Similarly, there is no evidence that they caused any difficulty for the Claimants when they occupied the house. I find the defects did not render the house dangerous or uninhabitable.

The smoke alarm [ 47 ] I accept Mr Bunjaku’s evidence that without power, the light on the smoke alarm would not be on and that fact would be obvious

to anyone walking by. Thus, this defect would have been apparent to Mr Archer when he walked by. I also accept Mrs Eden’s evidence that she used a different smoke alarm for her monthly fire drill and that her premises were regularly inspected and tested by the fire department. Mr Bunjaku did not say that none of the fire alarms were working, only that one of them was not. Thus, I accept the evidence of Mrs Eden that the fire alarm she regularly used was functional and that when the system was tested by the fire department, it functioned.

I find that even if one fire alarm was not functioning, that fact did not render the house dangerous or uninhabitable. I also find that the fact that the fire alarm was not working was readily observable to anyone. The pot-light housing boxes [ 48 ] Mr Stel testified that the pot lights he installed that were rated to have direct contact with insulation, as shown in Photo 4, a picture of the pot light in the dining room. It is clear from the photo that there is no housing around that pot light and the insulation is visible in the cavity adjacent to where the pot light would sit in the ceiling.

Mr Stel believed he put the pot lights in the kitchen, living room and dining room. He said he did not use the pot light boxes shown in Photo 2. Mr Archer said all six of the pot lights in the kitchen had to be removed due to electrical infractions, but that he removed the pot lights from the living room to “update them.” [ 49 ] Mr Bunjaku’s evidence was that the pot lights had to be removed from the kitchen and living room because they were not rated for being in contact with insulation.

However, he also said the pot the pot-light housing boxes created a hazard because of the sharp metal edges covered in electrical tape, and they came from the kitchen. Mr Bunjaku’s evidence about the kitchen pot lights is internally contradictory. Clearly, if the impugned pot light housings were housing the kitchen pot lights, then those pot lights would not have been in contact with insulation, because the whole purpose of those housings is to create an air space between the pot light and the attic insulation.

His evidence that he removed them because they were not rated to be in contact with insulation is inconsistent with his evidence that the housings came from the kitchen. [ 50 ] Mr Bunjaku was cross examined about things he wrote in a statement dated January 2022. He admitted that when he wrote his statement in January 2022, his memory was better than at trial. In that statement, he wrote that the work done by Dettling in the kitchen and ensuite was done to code.

Given that admission, and the fact that the dining room pot light (which on the evidence was installed by Dettling at the same time as those in the kitchen and living room) clearly did not have a box, I am not satisfied that the pot light housing boxes complained of by Mr Bunjaku came from the kitchen. I find the pot lights installed there did not have boxes around them. [ 51 ] I accept the evidence of Mr Stel that all of the pot lights he installed were ones rated for contact with insulation and did not have boxes. I find that they were to code at the time and did not pose a hazard.

Further, I infer from the fact that Mr Archer left the pot lights in place in the hallway, that he was content that they did not pose any electrical hazard. Mr Archer admitted that he had changed the pot lights in the living room to “update them” – not because they were hazardous.

Thus, I find that the removal, at Mr Archer’s direction, of the pot lights in the kitchen was not due to electrical defects but because, as Mr Bunjaku said, Mr Archer was unhappy that the kitchen was too dark and wanted to update the entire lighting system. [ 52 ] Mr Archer said that the pot lights in the downstairs daycare room had to be removed because of the improper housing boxes, which required the whole ceiling to come down, although Mr Bunjaku said nothing about that.

Mr Archer said that situation came to light during his renovations (which he said happened in 2022, so at least seven months after the Claimants took possession of the house) when he had a gas fitter install a gas line, who observed an electrical line going through the attic and down to the basement. [ 53 ] There was no evidence presented to me that Dettling installed any pot lights in that downstairs room. Mr Stel testified that he did not install those boxes.

Thus, although it appears likely that the impugned boxes shown in Photo 2 were removed from the daycare-room ceiling, there was no evidence introduced by anyone as to when they were installed or by whom. There is no evidence that the Defendants knew anything about them. Presumably, they were installed by the owners previous to the Defendants. In any event, there is also no evidence that the edges of the boxes had actually cut any wires, created a hazard or rendered the house uninhabitable.

Clearly, it had been inhabited without a problem for the 18 years the Edens lived there and during the time that the Claimants lived there. The exterior pot lights [ 54 ] There is no evidence that the Defendants or Dettling installed the exterior pot lights above the deck. Mr Stel testified that it did not appear to him that an electrician had installed them. The evidence is that they were already installed when the Defendants purchased the house.

There is no evidence that the Defendants knew anything about whether they were installed correctly or not, nor is there any evidence the defendants ever had reason to think they were installed improperly. Similarly, although both Mr Stel and Mr Bunjaku agreed that the method of installation was not to code, there is no evidence that the improper installation had in fact created a hazard. Age of wiring [ 55 ] Mr Bunjaku testified that when he went to switch out various cover plates and plugs, he discovered that there was “new” wiring to those switches and plugs.

The “new” wiring was described as white plastic-covered wiring, whereas the old wiring was black fabric covered. Mr Archer testified Mr Bunjaku told him that the “new” wire was dated June 2005, but Mr Bunjaku testified he was unable to say what age it was, because it had been in use his entire career.

To the extent that at least some of the wire was dated “June 2005”, that evidence is consistent with the evidence of Mr and Mrs Eden and Mr Stel, that there were extensive renovations done to the house in 2005, which included, among other things, changes in the kitchen, dining room, living room and ensuite bathroom, as well as the installation of a washroom and a fire alarm downstairs and changing out many switch plates and plugs.

However, there is no basis upon which I can infer that all of the white wiring found in the house was installed in September 2005, since such wiring was already in use prior to that time. Mr Bunjaku testified that he was unable to say when the electrical work he observed was installed. When was the electrical work complained of performed? [ 56 ] There is no evidence that anyone other than Dettling did any electrical work at the house after the Edens purchased it.

I accept that Dettling pulled the electrical permit and did all the electrical work for the 2005 renovation. [ 57 ] The Claimants point to specific instances of code violations, in the wiring of the attic junction box and the put door pot lights. I

note the junction box without a cover found in the attic appears to have “old” black fabric-covered wire going into it. I infer that the wiring of that junction box predates the 2005 renovation, in which only white plastic-covered wire was used. [ 58 ] However, I note that the outdoor pot lights were wired with white plastic coated wire. The evidence of Mr and Mrs Eden was that the pot lights present in the uninsulated cavity over the deck were there when they purchased the property. Mr Stel testified that he did not install those lights.

I find that white plastic coated wire was already in use in the house prior to its purchase by the defendants. Similarly, with respect to the switch in the laundry room, I accept Mr Stel’s evidence that it was an older switch of a kind that his wholesaler did not provide. I accept his evidence that it must have been installed previous to the Eden’s purchase of the property. Was the statement by the Edens in the PDS statement true or false? [ 59 ] The Claimants submit that the Edens falsely stated in the PDS that they had no knowledge of any non-permitted work at the house.

I accept the evidence of Mr and Mrs Eden that neither of them did any electrical work themselves and that the only electrical work done at their home while they owned it was the work done by Dettling in 2005. I accept their testimony that they relied on Dettling to obtain the proper permits for that work.

I find as a fact that Dettling did obtain a permit in connection with the 2005 renovation. [ 60 ] The Claimants ask the court to infer from the description “Kitchen and Ensuite renovations” contained in the permit pulled by Dettling, that the rest of the electrical work done by Dettling in that renovation was performed without a permit – and that the Defendants knew that. I find that is not a reasonable inference to draw from the evidence before me.

I find the Defendants hired Dettling to do the electrical work for the entire renovation and that they expected Dettling to pull a permit for the work - which is in fact what happened. [ 61 ] Mr Stel testified that Dwayne Dettling, the owner of Dettling was the person who pulled the permit. There is no evidence that the Defendants knew or had any control over how Mr Dettling described the work on the permit application.

Mr Stel testified that Mr Dettling typically put very little in the description category, such as “renovations”, but that it did not matter what the description was because the Safety Authority was only concerned about the value of the work to be done, not the description. [ 62 ] Mr Bunjaku agreed that the Safety Authority was concerned about the value of work to be done, because their fee is based on the value of the work. No evidence was presented to me that the permit fee was different or lower than would be appropriate for the electrical work that was done.

I cannot infer from the undisputed fact that Dettling obtained a permit for the 2005 renovations, that the work they did was performed without a permit. Such a conclusion would be absurd. I find the work performed by Dettling was performed pursuant to a valid permit. [ 63 ] I accept the evidence of the Defendants that they did no electrical work themselves and that they hired Dettling to do their electrical renovations in 2005. That work was done pursuant to a permit. There is no evidence that any other electrical work was done on the Defendants house while they owned it.

I find, therefore, that the Edens’ statement in the PDS was true. Did the Edens have knowledge of any electrical defects? [ 64 ] Mr and Mrs Eden testified that they did no electrical work themselves and that they relied on Dettling to do the electrical work they performed in a professional manner. They testified that they had no difficulties with any of the electrical systems in the house the entire time they lived there.

Mr Eden testified that he caused a breaker to flip when he plugged in his compressor – which I find is evidence that the electrical system worked as intended. [ 65 ] There is no evidence presented by the Claimants that they had any problems with the functionality of the electrical systems in the house. Certainly, Mr Archer gave no evidence of any flickering lights or breakers popping or sparks or smoke while he resided in the house after he and his partner purchased it. It was only when Mr Bunjaku commenced renovation work that any concerns were raised.

There is no evidence at all from any witness from which I can infer that the Defendants had any knowledge of any defects in the electrical system. DECISION [ 66 ] In any civil lawsuit, the Claimants must prove their case on a balance of probabilities. The court may draw inferences from certain evidence, but it cannot engage in speculation in order to find that the claimant has establish the facts essential to its case.

In this case, the Claimants advance two possible avenues to success – one for breach of contract (a misrepresentation in the PDS, relied on by the Claimants, which caused damage to the Claimants) and the other on the basis that the Defendants had knowledge of a latent defect that was dangerous or rendered the home uninhabitable. I find the Claimants have failed to establish any of the facts required to support either claim. [ 67 ] Regarding the PDS statement, I have found that the statement made by the Edens, that they were not aware of any unpermitted work, was true.

I accept the Defendants’ evidence that they did not do any electrical work themselves and that they hired Dettling to do their electrical renovations. I find Dettling obtained a permit. I find there was no misrepresentation by the Edens in the PDS. Thus, the Claimants cannot succeed on the breach-of-contract claim. [ 68 ] The Claimants chose not to hire a qualified home inspector. Mr Archer was a sophisticated purchaser and renovator of residential property. I infer that was the reason he chose not to retain the services of a qualified home inspector.

Mr Archer admitted he knew the kitchen exhaust fan was not vented at the time of the purchase, and that the bathroom had no exhaust fan, which begs the question as to why he complained about it. [ 69 ] However, having chosen not to retain the services of a qualified home inspector, the Claimants cannot then complain about failing to observe defects that anyone, including a qualified home inspector, would have observed.

I find that the non-working smoke alarm, non-vented kitchen hood fan, non-existent bathroom exhaust fan and the slightly protruding outdoor electrical outlets would have been obvious to anyone paying a modicum of attention. As such, they were patent defects for which the Claimants cannot recover.

[ 70 ] With respect to the latent-defects claim, the Claimants have not satisfied me on any of the required issues. I am not satisfied that any of the “defects” complained of rendered the house dangerous or uninhabitable – it had remained occupied for 18 years while it was occupied by the Defendants and for several months while occupied by the Claimants without showing any signs of electrical hazards.

Further, the Claimants continued to occupy it while it was being repaired – Mr Archer testified that he and his partner and friend only moved out for a week during drywall repairs - because he is allergic to drywall dust, not because the electrical system rendered the house uninhabitable. [ 71 ] The Defendants are entitled to rely on the professionalism of qualified tradespersons. I find the work performed by Dettling was in compliance with the electrical code at the time.

While Mr Stel testified that code has changed since the work performed by Dettling in 2005 (in particular with respect to pot lights in close proximity to insulation), those changes are not retroactive in effect, and cannot be construed as “defects” – that is, a change in the electrical code does not instantaneously impose an obligation on all British Columbians to immediately tear out the existing electrical wiring in their homes to bring them into compliance.

It simply means that any projects undertaken subsequent to those changes must be in compliance with the current code. [ 72 ] The Defendants cannot be fixed with responsibility for any “defects” pre-existing their ownership of the home when there is no evidence whatsoever that they knew of any pre-existing defects. The Claimants have not satisfied me that the defendants knew or ought to have known about any defects. Thus, the Claim must fail. [ 73 ] That is not the end of the matter, however.

Mr Archer went to great lengths to submit to me that I should find the Defendants – particularly Mrs Eden, to be dishonest and that I should find they made fraudulent misrepresentations in the PDS. Mr Archer argued that I should find Mrs Eden to be dishonest because she took a piece of “art work” hanging on her bathroom wall with her when she moved out. The photo submitted by Mr Archer clearly shows two screws, one above the other, with their heads protruding out of the wall.

Both the wall and the screws are painted uniformly and there are no marks on the screws nor on the wall to indicate anything permanently attached to the wall had been removed. Mrs Eden said that she had a large heavy candleholder with holes in the back so that it hung on those two screws in the bathroom. To remove it, she simply lifted it off the screws. [ 74 ] I find the “art work” was exactly what Mrs Eden said it was – a candleholder hanging on the wall on two screws, in much the same way any picture or ornament might hang on a wall.

It was not a fixture and Mrs Eden was entirely within her rights to take it with her, just as she would take any other ornament in her home. Mr Archer’s submission that Mrs Eden is dishonest or acted fraudulently is utterly without foundation. [ 75 ] I have already found that the Claimants have failed to prove any misrepresentation of any kind by the Defendants. Indeed, the Claimants were unable to impeach the credibility of the Defendants in any way. [ 76 ] Conversely, it is clear that the evidence presented by the Claimants put Mr Archer’s credibility in question.

For instance, Mr Archer claimed he had no intention of removing the kitchen pot lights until after he was told by Mr Bunjaku that there were problems with them, but Mr Bunjaku testified he was called in by Mr Archer to do renovations and that Mr Archer specifically wanted to replace the kitchen lights and upgrade all the lighting to modern lighting right from the start.

I have found that the kitchen pot lights were removed because Mr Archer wanted to renovate, not because of any electrical defect. [ 77 ] Mr Archer testified that he did not start any renovations (as opposed to repairs resulting from electrical defects) until 2022. Mr Bunjaku did not say when he started or completed his work at the house, but he did say he came there to do renovations. However, the “quote” for Mr Bunjaku’s electrical “repair” work was dated January 2022. Given the detailed nature of that “quote”, I suspect that it was prepared after he had already done the work, not before he started it.

I infer that the “repairs” were performed in the course of the renovations Mr Bunjaku had come to perform – such as replacing all the lighting in the kitchen.

I note that the invoices submitted by the Claimants for drywall repairs were dated August and November 2021, but the invoice for painting was dated January 2022. [ 78 ] I find it highly unlikely that the Claimants would conduct “remedial” electrical work – including having all the drywall removed to do it, repair it all, and paint it, in late 2021 or early 2022, only to tear out walls and windows and then have to do drywall repairs and paint all over again in the same year. The whole reason the electrical work was begun, according to Mr Bunjaku, was that the Claimants were commencing renovations.

I find the invoices submitted, if they pertained to this house at all, were in connection with renovations the Claimants chose to do. I accept the submission made on behalf of the Defendants that the Claimants brought this lawsuit simply to have someone else pay for their renovations. [ 79 ] The Claimants have failed to prove a single element needed to support their claim. For these reasons, the Claim is dismissed with reasonable costs payable to the Defendants as assessed by the Registrar.

Penalty [ 80 ] Rule 20(5) of the Small Claims Rules provides that the court may impose a penalty of up to 10% of the claim on a party who proceeds through trial with no reasonable basis for success. A full 10% penalty can be awarded to each successful co-defendant, even when they are collectively represented at trial: Sheridan v. British Columbia Rapid Transit Co. , [1999] B.C.J. 2425 (QL) (Prov Ct.) .

In this case, 10% of the Claim as filed is $3,500.The maximum penalty under Rule 20(5) is therefore $7,000, or $3,500 payable to each of the Defendants. [ 81 ] I find the Claimants pursued this claim through trial with no reasonable basis for success. The Claim had no merit whatsoever. The Claimants sought damages in their claim of $35,000, which also appears to have had no foundation whatsoever. Mr Archer announced that he was pursuing only $21,000 on the first day of trial. Thus, not only did the claim have no reasonable basis for success, it was also grossly exaggerated.

Mr Archer alleged fraud when there was no evidence whatsoever of any fraud. He alleged dishonesty when there was none – except perhaps his own. This is reprehensible behaviour. [ 82 ] The Defendants had no choice about their participation in this litigation. At times, a blameless party might agree to settle a meritless claim merely to be relieved of a nuisance, but a claim of $35,000 is well beyond the range of a nuisance settlement. Thus, the Defendants were put to the trouble of filing a reply, preparing for and attending two settlement conferences and a pre-trial conference as

well as three days of trial to defend themselves against a claim which I have found to be utterly without merit. The additional settlement conference was ordered because the Claimants failed to file and provide to the Defendants the reference documents upon which they relied. [ 83 ] I find it is appropriate to impose a penalty of $4,000 upon the Claimants pursuant to Rule 20(5) of the Small Claims Rules, for the reasons noted above.

The Claimants must pay the Defendants the sum of $4,000 forthwith, (that is, $2,000 for each Defendant) in addition to reasonable costs assessed by the Registrar. [ 84 ] I am unaware whether the Defendants made any offers to settle pursuant to Rule 10.1, but if such an offer was made by the Defendants and rejected by the Claimants, the Defendants are at liberty to make application for a penalty pursuant to Rule 10.1(5). _____________________________ The Honourable Judge S. Keyes Provincial Court of British Columbia