Krikke v. Slang, 2022 BCPC 159

Citation: Krikke v. Slang 2022 BCPC 159 Date: 20220808 File No: C-5608 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DALE KRIKKE and THOMAS KRIKKE CLAIMANTS AND: ALAN SLANG and LINDA SLANG DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.V. SACCA Appearing on his own behalf: T. Krikke Counsel for the Defendant: E. Pedersen Place of Hearing: Duncan, B.C. Dates of Hearing: October 12 and 15, 2021, January 10, July 14 and 15, 2022 Date of Judgment: August 8, 2022

[ 1 ] The Claimants, Thomas and Dale Krikke, purchased the residential property known as [omitted for publication], Duncan, British Columbia (“the [omitted for publication] Property”) from the Defendants, Alan and Linda Slang. At the time of the initial viewing, the Defendants were in the midst of completing renovations to the basement and exterior deck, and had yet to put the [omitted for publication] Property on the market for sale. [ 2 ] The parties met and agreed to enter into a Contract of Purchase and Sale prepared by the Claimants’ lawyer.

The contract provided that the renovations would be completed by the Defendants prior to the closing date. [ 3 ] The Claimants completed the purchase on August 31, 2018 and took possession on September 1, 2018. They subsequently complained that the Defendants did not complete the renovations satisfactorily or with the appropriate building permits resulting in damages as the Claimants were forced to remediate the deficiencies.

Moreover, the Claimants allege the Defendants improperly removed chattels from the property including a lamp, built-in vice, a washer and dryer. [ 4 ] The Claimant, Dale Krikke, withdrew her claim in September 2021. The Claimant, Thomas Krikke, continued the action. Witnesses and Exhibits Claimant’s Witnesses [ 5 ] The Claimant called the following witnesses: a. Thomas Krikke, homeowner and purchaser of the [omitted for publication] Property; and b. Joseph De Lange, carpenter and friend. Defendants’ Witnesses [ 6 ] The Defendants called the following witnesses: a.

David Hewetson, City of Duncan Building Inspector; b. Alan Slang, homeowner and seller of the [omitted for publication] Property; and c. Linda Slang, homeowner and seller of the [omitted for publication] Property. [ 7 ] A number of exhibits were relied upon including the Contract of Purchase and Sale, various addendums to the contract, photographs of the [omitted for publication] Property, building permit documents and receipts for materials and labour submitted by both parties.

Background [ 8 ] The Defendants, Alan and Linda Slang, were the registered owners of a residential property of the [omitted for publication] Property. They purchased the [omitted for publication] Property 14 years earlier on November 1, 2004 and lived in the property as their primary residence. [ 9 ] At the time of purchase, the basement was partially completed with a rec room, den, bathroom and unfinished laundry/storage area. Additionally, the prior owner had enclosed a carport off the kitchen to create a sitting area with a family room and bathroom.

The partially renovated basement and the carport renovations were completed prior to the Slangs purchasing the [omitted for publication] Property. [ 10 ] During their term of ownership, the Slangs undertook various renovations including: a. In 2012 or 2013, they removed a plenum on the ceiling containing some duct work to raise the height of the ceiling in a portion of the basement. Additionally they installed a steel beam to reinforce a doorway header. The supporting beam had been compromised by renovations completed by the prior owners. b.

In 2014, they installed a natural gas fireplace in the kitchen sitting area. Additionally, they installed a wooden deck over the original cement deck off the back of the home. c. In 2018, they began to renovate and update the basement in preparation to list the [omitted for publication] Property for sale. The basement renovations included updating the existing two-piece bathroom and adding a shower and bathtub.

Additionally, they added a railing to the exterior wooden deck and replaced the roof. [ 11 ] In mid July 2018, prior to completing the basement renovations, the Claimants approached the Defendants asking to view the property. They expressed an interest in purchasing it. The [omitted for publication] Property was not yet on the market. [ 12 ] On July 17, 2018, the Claimants viewed the property. It was clear the basement was still in a state of renovation with the basement bathroom at the rough in stage and yet to be completed. The Defendants saw Mr.

Slang working on the property and understood that he was doing a large part of the renovations himself. They understood the basement was still under renovation but were still interested in purchasing the property. As Mr. Krikke stated in his testimony, they had decided they would purchase the home before even viewing it, given its location and price. [ 13 ] There was some disagreement as to how many times the Claimants viewed the property. I am satisfied that the Claimants attended the property on more than one occasion prior to submitting an offer to the Defendants to purchase the property. Mr. Krikke

testified that he viewed the property only once, and for five minutes, however I accepted, for reasons I will address later in my decision, the Defendants’ evidence who stated the Claimants attended at least two further times to view the property. On one such occasion, Mr. Slang and the Claimants discussed the heating systems in place as well as the steel beam that was visible from the basement bathroom and storage area. [ 14 ] The Claimant, Mr. Krikke, being a mechanical engineer, inspected the steel beam, took measurements, and later provided Mr.

Slang with calculations confirming the load to be adequate to the beam. [ 15 ] Mr. and Ms. Krikke returned and viewed the [omitted for publication] Property a further time. Their counsel prepared a Contract of Purchase and Sale dated July 24, 2018. The offer was presented to the Defendants on August 1, 2018. The Contract contained the following conditions: a. The provision of a Property Condition Disclosure Statement by August 10, 2018, b. The seller completing all renovations currently undertaken in a workmanlike manner, c.

The seller providing all building permits relating to the current renovations and an unconditional building permit if applicable, and d. The buyer confirming that the renovations have been completed to a standard equal or better to the current basement renovations completed to date with such confirmation to be provided within 48 hours notice of the seller confirmation completion of the renovations. [ 16 ] A Property Condition Disclosure Statement (the “PDS”) dated August 3, 2018, was provided, and this condition was removed from the Contract. The Defendants answered “no” to the following questions: 3.

BUILDING REPLY I. Are you aware of any additions or alterations made without a required permit and final inspection e.g. building, electrical, gas etc. No J. Are you aware of any problems with the heating and/or central air conditioning system? No K. Are you aware of any moisture and/or water problems with the walls, basement or crawl space? No N. Are you aware of any problems with the electrical or gas system? No [ 17 ] As stated in the PDS, “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”. [ 18 ] The Claimants did not obtain a professional home inspection although they clearly had the opportunity to obtain one. They returned to the [omitted for publication] Property between four and five times prior to the anticipated closing date. The Slangs involved them in selecting some of the finishings such as the bathroom flooring, tiles and bathtub in the full knowledge that Mr.

Slang was doing much of the finishing work himself. [ 19 ] Copies of all permit documents, including electrical and plumbing, were delivered to the Claimants on August 29, 2018 with Mr. Slang attending the Krikke’s residence and leaving a package of material in the mailbox.

No issues were raised by the Claimants as to the adequacy of the permit documents. [ 20 ] On August 30, 2018, the Claimants removed the following conditions: a. the seller completing all renovations currently undertaken in a workmanlike manner; and b. the seller providing all building permits relating to the current renovations and an unconditional building permit if applicable. And added the following condition which was approved by the Defendants: Subject to the Buyer, on or before the Completion Date, approving the renovations undertaken with respect to the Property by the Seller.

This condition is for the sole benefit of the Buyer. The Seller agrees that all renovations to the bathroom and the basement, and all outstanding conditions noted in the City of Duncan Permits, will be completed in a workmanlike manner as soon as reasonably possible after the Completion Date. This provision shall survive the completion of this transaction. Time shall remain of the essence. [ 21 ] The Claimant, Mr. Krikke, and the Defendant, Mr. Slang, met on August 30, 2018 and did a full viewing of the [omitted for publication] Property. A handwritten list of items requiring completion was prepared by Mr.

Slang at the meeting. The items were largely cosmetic in nature. [ 22 ] The transaction completed on August 31, 2018 and funds were released from the buyer to the seller. This automatically vitiated the first condition being “subject to the buyer, on or before the completion date, approving the renovations undertaken” by virtue of the completion of the contract signalling the buyer’s approval of the renovations.

The only condition remaining was “that all renovations to the bathroom and basement and all conditions noted in the City of Duncan Permits be completed in a workmanlike manner as soon as reasonably possible”. [ 23 ] Mr. Slang testified that he completed all of the items on the list with the exception of installing the basement door sill on

September 1, 2018. All of the outstanding conditions in the building permit were completed save and except for the installation of the outside basement stair railing flagged by the city inspector as a necessary life safety item. [ 24 ] Mr. Krikke testified that Mr. Slang removed a plug in lamp and workbench vice from the workshop without consent and as a result he did not allow him entry into the [omitted for publication] Property again. Mr. Slang confirmed that he did in fact take the lamp and vice on September 3, 2018 located in the shed after attempting to coordinate their return with Mr.

Krikke without success. [ 25 ] On or about September 5, 2018, Mr. Slang testified that he attended the [omitted for publication] Property prepared to complete the door sill, and Mr. Krikke dismissed him, saying he would have someone qualified do the work. Mr. Krikke allegedly became very agitated calling Mr. Slang a derogatory racist name and poking at him in the chest. Mr. Slang left the necessary building materials and left the [omitted for publication] Property. He was prevented by the Claimants from completing the last two outstanding items set out in the list prepared on August 31, 2018. [ 26 ] Mr.

Michael David Hewetson, City of Duncan, Building Inspector and assistant Fire Commissioner was called to testify in this matter. Part of his job as building inspector is to approve building permits in accordance with City bylaws. He testified that in approximately July of 2018 he was contacted by Mr. Slang in relation to the [omitted for publication] Property. He recalled speaking to Mr. Slang at the counter in relation to a plumbing permit relating to a basement renovation. [ 27 ] Mr. Slang subsequently sent an email to Mr. Hewetson on July 24, 2018 asking that he send a copy of the building code. Mr.

Hewetson responded sending an excerpt of the code dealing with handrails on exterior stairs. [ 28 ] A permit application was submitted by the Defendants on August 8, 2018. The permit specifically states the scope of the work was to “convert existing basement room into full bath”. The value of the work was estimated at $3,000.

The permit had two special considerations: a. provide floor plan showing location of bath in existing basement; and b. the scope of permit is for bathroom plumbing and installation only – downstream plumbing and existing sewer pump not included in permit. [ 29 ] A hand sketched floor plan had been provided with the permit application however a notation on the drawing stated “provide basement floor plan”. Mr. Hewetson confirmed that a more detailed floor plan was necessary however there was no expectation that it would be a professionally drafted floor plan. [ 30 ] Mr.

Hewetson attended the [omitted for publication] Property. He testified that he went through the main part of the home, into the basement, and out the back stairs. He concerned himself with the work that was the subject matter of the building permit. He stated that the City simply does not have the resources to backtrack and look at work that may have been previously completed however, he noted that if he encountered any life-safety issues, his practice was to point them out. As part of this walk through, he asked Mr. Slang to take out a permit relating to a necessary deck repair to make it code compliant.

Specially, he stated that the stairs off the back deck needed to be extended to make them code compliant. [ 31 ] In respect of the sump pump, Mr. Hewetson confirmed that the Defendants were essentially updating the existing sump pump by replacing the dated pump that was presumably functional. They were adding a bathtub to the basement bathroom that had previously only had a sink and toilet. They were not creating a suite and were not changing any of the basement rooms into a bedroom. From his review there were no life safety issues noted. [ 32 ] He attended the property on August 17, 2018 and noted that J.S.

Plumbing had completed the work presumably in the basement bathroom, the basement sump pump had been replaced and vented, and the plumbing rough-in had been completed. [ 33 ] A more detailed floor plan was provided by Mr. Slang as requested in the permit application. Mr. Hewetson confirmed on the plan that: a. Building Permit #1558 related to a new bath in an existing partially finished basement; b. Revision to Building Permit #1558 – scope of plumbing to including new (replacement) sewage pump; and c.

Basement area is part of upper floor – not approved as a secondary suite. [ 34 ] A second page floor plan was added which included the deck off the back of the house. Mr. Hewetson confirmed on the second page floor plan: a. Stair repair on existing deck to meet rise/run requirements of BC Building Code . [ 35 ] A final inspection was completed on August 29, 2018. Mr. Hewetson attended the residence and did a walk through. He noted that that stair extensions were completed and a non-skid was in place. The bathtub was in place and the tiling commenced.

He further noted that for a building permit to issue the Defendants would need to “complete life-safety issues (plug covers etc.)”. [ 36 ] Mr. Hewetson saw nothing other than what was noted which he considered a life-safety issue in his attendances at the home. He did not point to any misconduct by the Defendants in either applying for a building permit or carrying on the work in the [omitted for publication] Property during the permit process. The Claimant’s case [ 37 ] The Claimant relies upon the following:

a. That the Defendants breached the Contract of Purchase and Sale specifically the Addendum of August 30, 2018 by not completing all portions of the renovation work in a workmanlike manner. b. That the Defendants made misrepresentations resulting in the Claimant being forced to remediate deficient work on the property. c. That the Defendants removed items from the home before and after the date of possession without the Claimant’s consent. Credibility and Reliability [ 38 ] The Claimant bears the legal and evidentiary burden of proving his case on a balance of probabilities.

This means the evidence, in its totality, must be sufficiently clear, convincing and cogent: F.H. v. McDougall , 2008 SCR 41. Evidence of the Claimant and Defendants [ 39 ] The Claimant, Thomas Krikke, is a mechanical engineer and operates a consulting firm with a specialty in construction defects. He stated that he has been an expert for lawyers and courts in the area of construction disputes in British Columbia and across Canada.

He has owned several properties and purchased the [omitted for publication] Property with the intention of completing extensive renovations of his own after taking possession. [ 40 ] He testified that his spouse had been looking for a home in the specific area of the [omitted for publication] Property. He was alerted by a mutual friend that the Slangs intended to sell their home. Mr. Krikke reached out to Mr. Slang to view the property. He went to the [omitted for publication] Property on July 17, 2018, viewed it for five minutes, and shook hands as to a purchase price of $475,000.

He could not recall if he viewed it again before presenting a written offer to purchase. [ 41 ] By contrast, the Slangs testified that the Krikke’s attended July 17 , 2018 for a cursory tour and returned the next day going through the house in great detail. The viewing last approximately 1.5 hours with Mr. Slang walking Mr. Krikke through every aspect of the renovation and the history of the [omitted for publication] Property. They subsequently attended once more before presenting an offer to purchase. [ 42 ] I accepted the evidence of the Slangs and I found it illogical that Mr.

Krikke, a seasoned real estate investor and professional engineer, would offer to buy a home – clearly under renovation - after a five minute viewing. [ 43 ] Mr. Krikke testified that Mr. Slang warranted all permits were in place for the renovations on the date of the first viewing. A condition of the agreement was to provide copies of all permit documents. Mr. Slang testified that in furtherance of complying with permits he had completed the following: a. Hired electrical contractors who assured him their work was done with a permit.

A Technical Safety BC inspection report was completed dated August 27, 2018 confirming the electrical work was performed in compliance with all required statutes and regulations. b. Worked with the City of Duncan to apply for a plumbing permit in respect of the basement bathroom. c. Enquired with the City of Duncan as to any other matters which may require a permit when the city inspector attended the property. d. Actively engaged with the City of Duncan city inspector to complete the basement renovations and any other life safety issues brought to his attention in an appropriate manner. [ 44 ] Mr.

Slang testified that he provided the Krikke’s with copies of all of the relevant permit documentation by leaving a copy in their mailbox on August 28 or 29. Mr. Krikke testified that he did not receive any such material. I did not accept his evidence for the following reasons: a. The Krikke’s added a condition to the purchase agreement on August 30 that stated: “all renovations to the bathroom and the basement, and all outstanding conditions noted in the City of Duncan Permits (emphasis added), will be completed in a workmanlike manner as soon as reasonably possible” (“the August 30 addendum”). I find that Mr.

Krikke had reviewed the permit documentation otherwise he would not have had any knowledge as to “outstanding conditions noted in the City of Duncan Permits” as set out in the August 30 addendum. b. When asked that very question on cross-examination, he reiterated that he had never seen any City of Duncan Permits and had not discussed the issue with his lawyer, despite signing the August 30 addendum to the purchase agreement. Again, I do not accept Mr. Krikke’s evidence. It defies logic that Mr.

Krikke would sign the August 30 addendum specifically referring to “outstanding conditions noted in the City of Duncan Permits” without having every received or reviewed any building permit information. [ 45 ] Mr. Krikke testified that a structural beam was removed by the Slangs and a new beam installed requiring a permit. The Slangs testified the structural beam had been removed by the prior owner and, upon their discovery, they sought to reinforce the house in 2016 out of an abundance of caution. A small steel beam was added by Mr.

Slang. [ 46 ] The beam was pointed out at one of the Krikke’s initial viewings and, as an engineer, Mr. Krikke provided maximum load calculations to Mr. Slang. Mr. Krikke testified that the beam should have been engineer certified however he provided no such evidence of this requirement other than his testimony. He further stated that, although he could do the certification work, he would need to be paid at least $1,000 either by the Slangs or his now former wife. If the certification was important to Mr.

Krikke then he could certainly do it at very little to no expense given his unique knowledge and capabilities. [ 47 ] Mr. Krikke claimed the heating system in the [omitted for publication] Property was defective and did not adequately heat the

entire home. He testified that unplugged ducts were found within the basement walls. Moreover, he testified the heat source was inadequate for the size of home. Mr. Slang testified that he had a lengthy conversation with Mr. Krikke at one of the viewings wherein he explained the heating system and made Mr. Krikke aware that the home was heated by a forced air gas heating system; a gas fireplace being the source of heat for the kitchen sitting area; and electric heaters installed in the renovated basement. The Slangs testified that they had no issue whatsoever with the heating system in the home. [ 48 ] Mr.

Krikke stated that the electrical work performed by the Slangs was deficient and produced a Technical Safety BC Report dated February 23, 2021 (the “February Report”). A series of deficiencies were noted. They included a hot tub wired without permits, half of the basement wired without permits and a non metallic sheathed cable running close to heating sources. Mr.

Krikke admitted that he had the hot tub installed after moving to the [omitted for publication] Property along with four pot lights in the upper floor without a permit however, he contended the remaining deficiencies noted in the February Report, were the result of the Slangs’ work. He estimated 95% of his electrician’s work was attributable to rectifying such deficiencies. [ 49 ] I found Mr. Krikke’s evidence to be unbelievable. The work completed by the Slangs was inspected and approved by the Technical Safety BC Report dated August 27, 2018. Mr. Krikke in his email of March 16, 2020 to Mr.

Hewetson stated “I did check and there was an electrical permit”. Therefore, the work done in the basement without a permit could clearly only be Mr. Krikke’s. [ 50 ] I did not accept Mr. Krikke’s estimation that 95% of electrical the work he had done in the basement consisted of rectifying the Slangs’ deficiencies. On cross-examination, and with the aid of the photos taken by the Slangs upon their tour of the home in the course of the within litigation, it became evident that a significant amount of additional electrical work was completed by Mr.

Krikke in the basement unrelated to this litigation, including new pot lights in the basement, a new room complete with lights, light switches and electrical outlets. The February Technical BC Safety Report notes “I spoke with the previous contractor that did work in 2018. They indicated that they only wired half of the basement. Therefore half of the basement was done without permits”. [ 51 ] Given the evidence of the August 2018 Technical Safety BC Report, the half of the basement done without permits could only refer to Mr. Krikke’s subsequent work. This gave me much pause about Mr.

Krikke’s estimation that 95% of the electrical work was unrelated to his own renovations. [ 52 ] Mr. Krikke testified that the Slangs removed the washer and dryer that he viewed in the property in July 2018 and replaced them with unusable mold infested appliances. This was disputed by the Slangs and confirmed by the photo evidence introduced at trial. Images of the washer and dryer were captured in the August 2018 Appraisal Report prepared by Mr. Krikke prior to the completion date. Additionally, Mr. Krikke introduced photographic evidence subsequent to the completion date.

One such photo included the laundry room with what appear to be the very same washer and dryer he alleged the Slangs removed. [ 53 ] Mr. Krikke testified that Mr. Slang and his son remained living in the [omitted for publication] Property until approximately September 4, 2018. This was disputed by the Slangs who both testified they had moved the majority of their furnishing well in advance of the completion date, to allow easier access for the renovations, and the remainder on August 31, 2018 as confirmed by their U-Haul rental receipt. I accepted the Slangs’ evidence on this issue. [ 54 ] Mr.

Krikke testified that Mr. Slang removed two further chattels from the [omitted for publication] Property. One being a lamp and the other being a vice. Neither the lamp nor the vice were affixed in any way to the property. The lamp had a clamp that can affix to any desk and the vice had finger bolts to affix to a work bench. I do not find either to have been chattels included in the purchase contract. Although I do not condone Mr. Slang attending the shed beyond the possession date to remove his tools without Mr.

Krikke’s express consent, I do not find the items in question belonged to the [omitted for publication] Property. [ 55 ] After September 4, 2018, Mr. Krikke engaged in a pattern or harassing and threatening text messages and emails with the Slangs, their electrician and the City of Duncan inspector threatening civil action and criminal charges. A sample included: a. November 18, 2018: Email to Ms. Slang wherein he states “I will discuss with Mike G and hopefully you will come to your senses, else it is ADR and I assure you that you will lose there – you can see my website if you like”. b.

January 17, 2019: Email to Ms. Slang “I will advise you of the total costs and for payment, if you do not want to abide by the amendment we will proceed directly to small claims court. I did speak with Mike and QC in Vancouver – the contract is sound. Settlement would be easiest, as it would limit the civil action and other charges.” c.

March 16, 2020: Email to the Slangs’ electrician “Please note that I am a Professional Engineer and do construction disputes for a living – successfully.” Review of the Case Law The Doctrine of Caveat Emptor [ 56 ] The doctrine of caveat emptor was summarized by Professor Laskin (as he then was) in “ Defects of Title and Quality: Caveat emptor and the Vendor’s Duty of Disclosure ” in Law Society of Upper Canada, Contracts for the Sale of Land (Toronto: De Boo, 1960) at 403: Absent fraud, mistake or misrepresentation, a purchaser takes existing property as he finds it, whether it be dilapidated, bug-infested or otherwise uninhabitable or deficient in expected amenities, unless he protects himself by contract terms. [ 57 ] As set out by this Court in Van Geemen v.

Stevenson , 2021 BCPC 234 : [107] In British Columbia, caveat emptor is the principle governing the liability of sellers for defects in property they have sold. Buyers must 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 appropriate

inquiries and investigations themselves… [58] The British Columbia Court of Appeal in Nixon v. MacIver, 2016 BCCA 8, stated: [33] The doctrine continues to apply to real estate transactions in this province, subject to certain exceptions: fraud, non-innocentmisrepresentation, an implied warranty of habitability for newly-constructed homes, and a duty to disclose latent defects. … [47] …a vendor has a common law duty to disclose: (

i) a latent defect that is not discoverable through a reasonable inspection or throughreasonable inquiries; and (ii) the latent defect renders the property dangerous or unfit for habitation.

If a defect does not render a propertydangerous or uninhabitable, caveat emptor applies regardless of whether the defect in question is patent or latent. [59] Patent defects are described at para. 40 in Nixon as those that can be discovered by conducting a reasonable inspection andmaking reasonable inquiries about the property. “In general, there is a high onus on the purchaser to inspect and discover patent defects.That means a defect that might not be observable on a casual inspection may nonetheless be patent if it would have been discoverableupon a reasonable inspection by a qualified person”. [60] Every imperfection or deficiency which a reasonably careful inspection and inquiry does not reveal will not amount to a latentdefect sufficient to displace the doctrine of caveat emptor.

At para. 41 in Nixon: “In order to qualify as such, the defect must carry with ita consequence of substance; that is, it must be of such a nature as to render the house uninhabitable or dangerous”. Disclosure Statements [61] The Court of Appeal summarized the case law in respect of disclosure statements at para. 48 in Nixon: [48] Information contained in a disclosure statement that is incorporated into a contract of purchase and sale may be a representationupon which a purchase can rely: Ward v. Smith, 2001 BCSC 1366 at para. 31.

However, a vendor is only obliged to disclose his or hercurrent actual knowledge of the state of affairs of the property to the extent promised in the disclosure statement and need say “no morethan that he or she is or is not aware of problems”: Arsenault v. Pederson, [1996] B.C.J. 1026 at para. 12. A vendor is not required towarrant a certain state of affairs but only to put prospective purchasers on notice of any current known problems.

The purpose of adisclosure statement is to identify any problems or concerns with the property, not to give detailed comments in answer to the questionsposed… [62] The Court went on to state that the PDS only requires the vendor to provide information based on their current actual knowledge.There is no positive obligation on the vendor to disclose information that may be relevant to the purchaser if that information is notdirectly responsive to one of the specific questions in the PDS. [63] As set out in Van Geeman at paras. 110 and 111: [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 be correct:Nixon v. MacIver. Because a defect is relatively easy to discover after purchase does not necessarily establish that the seller was aware ofthe deficiency and concealed or misrepresented it: Weller v. Gordon, [2001] O.J.

No. 1277. The Tort of Negligent Misrepresentation [64] The Supreme Court of Canada in Queen v. Cognos Inc., (SCC) set out the five necessary elements to establishliability in a negligent misrepresentation claim: 1. There must be a duty of care based on a “special relationship” between the representor and representee; 2. The representation must be untrue, inaccurate or misleading; 3. The representor must have acted negligently in making the representation; 4. The representee must have relied, in a reasonable manner, on said negligent misrepresentation; and 5.

The reliance must have been detrimental to the representee in the sense that they suffered resulting damage. [65] 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: Hamilton v.Callaway, 2016 BCCA 189 at para. 51 [66] As stated in Hanslo v.

Barry, 2011 BCSC 1624 in considering where there was a special relationship between buyer and sellercreating a duty of care where the vendor makes representations on a PDS: [118] …I find that the special relationship extends only as far as the representations made in the PDS…If the special relationshipextended further than the PDS, the result would be that all vendor/purchaser relationships would be “special relationships”. This woulddefeat the purpose of the doctrine of caveat emptor entirely. Caveat emptor is intended to be the rule, not the exception... Analysis

[ 67 ] I am satisfied that the Defendants, having completed and signed the PDS, owed the Claimants a duty of care. [ 68 ] The questions I must answer are as follows: a. Do any of the exceptions to the rule of caveat emptor apply in this circumstance? b. Was there a negligent misrepresentation by the Slangs based on representations made in the PDS? [ 69 ] As noted by the case law referred to, the principle of caveat emptor applies. I do not find any of the exceptions to the rule applicable in this case.

I find there was no fraudulent misrepresentation by the Slangs, they were not aware of any latent defect rendering the house they lived in for over 14 years unfit for habitation, they were not reckless as to the truth and they did not breach their duty to disclose a latent defect that rendered the [omitted for publication] Property unfit for habitation or dangerous. [ 70 ] The Slangs indicated on the PDS that they were not aware of any problems with the heating system, plumbing system or moisture in the home. These were three areas of concern raised by the Claimant.

As I have detailed in my judgment, the Claimant has failed to prove that the statements in the PDS were false and did not accord with the vendors’ true belief. ( Arsenault v. Pederson, para. 96 ) . [ 71 ] Insofar as the Slangs’ statement that they were not aware of any additions or alterations made without a required permit and final inspection, I accept their evidence that as of the date of the PDS, being August 4, 2018, they understood that: a. The electrical permit and inspection by Technical Safety BC was well underway. b.

They had applied for a plumbing permit and were actively engaged with the City of Duncan inspector as the renovations were ongoing. c. They had actively engaged with the city inspector to canvass any other issues which may require a permit and inspection. [ 72 ] I therefore find the Claimant has failed to prove the statement in the PDS relating to the permit did not accord with the vendor’s true belief. [ 73 ] As a result, I am dismissing the claim. _____________________________ The Honourable Judge K.V. Sacca Provincial Court of British Columbia