Geekie v. Wilding and Hasselback Date:, 2014 BCPC 343

Citation: Geekie v. Wilding and Hasselback Date: 20150815 2014 BCPC 0343 File No: 96960 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARVIN GEEKIE CLAIMANT AND: HELEN-ROSA WILDING and PAUL HASSELBACK DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.V. HOGAN Counsel for the Claimant: Stephen W. Turner Counsel for the Defendants: Self-Represented Place of Hearing: Kelowna , B.C. Date of Hearing: July 15, 2014

Date of Judgment: August 15, 2014 [ 1 ] In a contract for the purchase and sale of a house, what does “the property…will be in substantially the same condition at the Possession date as when viewed by the Buyer” mean? [ 2 ] The claimant wanted to purchase a house so that his wife, who is extremely sensitive to odors, could live in a scent free house.

The defendants were selling their home, and it was a “subject to” condition of the contract of purchase and sale that “the seller (remove) from the property…all scented products including, but not limited to, scented candles, diffusers, incense, perfumes, soaps, and cleaning products.” The facts of the case are really without contest, and are easily summarized. [ 3 ] On November 27, 2011, the claimants entered into a “contract of purchase and sale” to purchase the defendant’s house.

The defendants had moved out of their house some months before, and a neighbour was keeping an eye on it for them, going in and checking on the interior for them. She was asked by the defendants to remove any items listed in the “subject to” clause, and testified that she did. A home inspector, acting on behalf of the claimants went through the house, on November 30, 2011, and prepared a report, not noting anything in regard to this claim. In his testimony at trial however, the home inspector said he had turned the water on, when he entered the house, and turned it off when he left.

In the house he thought there was a strong odor, “like some kind of bathroom deodorant.” [ 4 ] Sometime after December 1, 2011, but before completion of the contract, Mr. Geekie, the claimant, who is a lawyer, went through the house himself. He found three scented glass jars remaining in the house, and put them in the garage. The claimant said he was upset about finding the glass jars, but that finding them was not enough to repudiate the contract. He said the house had no other issues, “scent wise”.

The purchase of the house was completed and the claimant took possession on December 17, 2011. [ 5 ] A painter was hired, to do some painting with unique low odor paint. He started painting interior rooms on or about December 21, 2011. At the end of the first day the painter went to the laundry room sink, wetted a rag to clean his paint brush. The next day while painting, he heard a noise in the laundry room which sounded like something falling. He went into the laundry room and saw the PVC U joint from under the sink,--sometimes called a P trap-- on the floor, about two feet away from the sink.

When the painter tried to screw the U joint back into place it simply started disintegrating. Some water, and some chemicals, had spilled on the floor and a strong smell came out of the pipe. On the drive home he noted that the smell, which was on a drop cloth used to clean up, became so strong he began to feel dizzy. It was a sweet smell, like room aerosol, or perfume, a strong chemical smell. [ 6 ] The claimant was alerted to this smell by the painter, and hired a self-employed contractor to deal with the issue.

The contractor testified that he replaced the damaged parts, but in the process of examining the PVC pipes he followed them behind the walls into the room below. Those pipes had a crack and had to be replaced. He also found a dried out cloth lying near the pipes in the lower room. The witness said that the odor was “peculiar perfumy odor…pleasant at first…after a while overpowering.” The contractor brought some of the PVC piping with him, in a sealed plastic bucket, so that the court could confirm the odor.

Judges sometimes take a view, but I declined to take a smell. [ 7 ] The defendant called his realtor who was in the house from time to time, and before and after the furniture was moved out, and he never noticed any odor. The neighbour who went in and out of the house removed any scented candles or diffusers that she saw, and didn’t pour anything into the drains. The defendant Dr.

Hasselback testified that although he and his wife had staged the home for viewing, including using scents and candles, and some diffusers, once they became aware of the potential purchaser being sensitive to scents and odors that they made a good effort to remove them. [ 8 ] Mr. Geekie told the court of his extensive remediation efforts to remove the odor, and provided receipts to demonstrate his renovation costs. What is to be done? [ 9 ] This is a very unusual set of circumstances.

Common human experience tells us that PVC pipes under sinks rarely disintegrate, fall onto the floor and then contaminate a room with a strong odor. There is no evidence of why that occurred or how or when some odiferous substance got into the pipes. No one can tell me definitively why that happened. [ 10 ] The onus of proof is on the claimant and this evidentiary gap as to causation is normally hard to overcome. The claimant acknowledges that, by seeking damages strictly on the breach of the “substantial condition” cause in the contract of purchase and sale.

Normally, disputes about the condition of houses after sale are framed in tort, with claims being advanced for negligent misrepresentation. [ 11 ] It is also unusual that I found all the parties and the witnesses to be credible. Conclusion [ 12 ] Two things prevent the claimant from succeeding in breach of contract. [ 13 ] Neither party provided me with any case law as to what “substantially the same condition” meant. The usual meaning of the word “substantial” as commonly defined is “ being largely but not wholly that which is specified .” In the sale of a used house it is difficult to see that a collapse of a

section of PVC pipe, entirely unanticipated by either of the parties, meant that the house was not in substantially the same condition as when viewed by the claimant. [ 14 ] If it is the odor itself which is complained of, the facts are against the claimant, as the home inspector testified in court that on November 30, 2011, he encountered a strong odor in the house. Thus a strong odor was present, before the completion date, but not

reported to the claimant by his home inspector. The house had a strong odor when the house was open for inspection, and it had an even stronger odor after the claimant took possession. However, that means it was still in substantially the same condition. [ 15 ] I therefore dismiss the claim. The defendant is entitled to its filing fees, and costs of attending the hearing, including meals and accommodation, from Nanaimo. If the parties are unable to agree on the costs within 14 days of the filing of the judgment, the registry upon notice by the defendants shall set this down before a Justice of the Peace to determine the costs. The Honourable Judge P.V. Hogan