Rode v. LLW Holdings Ltd., 2019 BCPC 301

Citation: Rode v. LLW Holdings Ltd. 2019 BCPC 301 Date: 20191129 File No: C-83390 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS COURT BETWEEN: DOUGLAS A. RODE AND ARLENE A. RODE CLAIMANTS AND: LLW HOLDINGS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Appearing on their own behalf: D. Rode and A. Rode Counsel for the Defendant: C. Rubinstein Place of Hearing: Surrey , B.C. Dates of Hearing: May 27, August 22, 23, and September 23, 2019 Date of Judgment: November 29, 2019

A Corrigendum was released by the Court on December 16, 2019. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] Douglas Rode and Arlene Rode entered into a pre-construction contract on June 2, 2014 to purchase a White Rock condominium in the Newport at West Beach development in White Rock (“Newport”) that was marketed, promoted, and built by the Defendant, LLW Holdings LTD. (“LLW”). The Rode’s took possession of their third floor south-east facing condominium on July 31, 2017.

This condominium was to be the Rodes’ retirement home. [ 2 ] In this lawsuit the Rodes seek compensation from LLW for two things they say they did not bargain for in their contract with LLW, but which have been included in the Newport development.

The two features the Rodes complain of is the fact that the original promotional brochure for the Newport development said that the condominiums would have nine foot ceilings, but the finished product has eight foot ceilings, and secondly, a pedestrian walkway bridge was added to the third floor of the relevant part of the Newport project which has led to more pedestrian traffic outside of the Rodes’ condominium.

To mitigate this pedestrian traffic, LLW installed privacy glass on one of the Rodes’ balconies which the Rodes say adversely affects their view of the ocean and the enjoyment of their balcony. [ 3 ] The Rodes say that the eight foot ceilings and the pedestrian walkway outside of their condominium reduce the value of their home.

Based upon two property appraisal reports, they say that they paid $40,000.00 more for their retirement condominium than they should have given these two changes to the Newport development, and they sue LLW to recover their overpayment. [ 4 ] LLW says that the terms of this pre-construction contract of purchase and sale gave the Rodes an option to walk away from this transaction if any changes to the Newport project were substantial, and they would receive their deposit back with interest.

LLW says that it complied with all of the legal requirements imposed on property developers to disclose any changes to the Newport project to the Rodes, and the Rodes nonetheless completed the purchase. [ 5 ] In fact, LLW says that the Rodes knew of both the ceiling height issue and the walkway issue at least one year before this sale completed, and the Rodes completed their purchase despite having ample opportunity to opt out of the purchase and sale with LLW. [ 6 ] Both parties called expert evidence from very well qualified property appraisers in support of their respective positions in this case.

The Rodes rely on the opinion of Mr. John VanWoerkom to support their claim that they overpaid for their condominium by $40,000, and LLW relies on the opinion of Mr. Dean Doolan that Mr. VanWoerkom’s opinion is fatally flawed, and that the ceiling height and walkway issues cannot readily be quantified in terms of the value of these changes in the Newport project. In the end, this case fails to be determined on the expert evidence because there is very little factual dispute between these parties. BACKGROUND [ 7 ] Mr. and Mrs.

Rode agreed to purchase a third floor, south-east facing condominium in the Newport development from LLW on June 2, 2014 for $599,000. As of the date of this contract of purchase and sale, it is not clear to me whether a shovel had been put into the ground to start the development.

Regardless, the Rodes agreed to buy the condominium without knowing exactly what they were purchasing beyond the basic layout of the condominium, and the location of their condominium within the Newport development. [ 8 ] Attached to the contract of purchase and sale, and therefore forming a part of the contract of purchase and sale, was a one page promotional brochure about the Newport development.

Many features of the Newport development are listed on this promotional brochure, and one of the sixty features listed is the following: “9’ Ceilings throughout”. [ 9 ] When a developer promotes, markets, and sells pre-construction condominiums, that developer is required by law to provide to prospective purchasers disclosure statements that contain all material facts regarding the condominium and the development.

The purpose of these disclosure statements is to ensure that the purchasers are making an informed purchase. [ 10 ] When the Rodes entered into their contract of purchase and sale with LLW on June 2, 2014, they received the disclosure statement regarding the Newport development dated August 30, 2013.

There is nothing in that disclosure statement to indicate that the nine foot ceilings in the promotional brochure is incorrect and that, in fact, the Newport development would have eight foot ceilings. [ 11 ] The strata plan drawings of the Newport development included in the August 30, 2013 disclosure statement show the Rodes’ condominium as strata lot 35. In terms of the walkway issue in this case, the third floor strata plan drawings show the various condominiums located in

Section B (the

section of the Newport development that includes the Rode’s condominium), and

Section A which is immediately adjacent to

Section B. There is nothing obvious on these strata drawings that shows how pedestrian traffic can access the various condominiums in Sections A and B. There is, however, an elevator indicated on the strata drawings and the elevator is directly in front of strata lot 35, the Rodes’ condominium. [ 12 ] The promotion, marketing, and sale of pre-construction condominiums in British Columbia is governed by the Real Estate Development Marketing Act , S.B.C. 2004, c. 41 (“ REDMA ”).

REDMA obliges property developers to produce disclosure statements to buyers in order to ensure that buyers are making informed decisions when they enter into contracts of purchase and sale for a condominium that has yet to be built. [ 13 ] REDMA attempts to achieve a balance between informing buyers of what they are buying, and ensuring that developers can adapt to changes that occur in the process of the development, and that they can profit from their development. [ 14 ] With respect to the Newport development, LLW made the initial disclosure statement date August 30, 2013, and then the following further disclosure statements:

• The First Amendment to Disclosure Statement dated September 3, 2014; • The Second Amendment to Disclosure Statement dated March 8, 2016; and • The Third Amendment to Disclosure Statement dated June 30, 2017. [ 15 ] All four of these disclosure statements were given to the Rodes prior to the closing of their purchase of their condominium on July 31, 2017.

THE EIGHT FOOT CEILING ISSUE [ 16 ] The Newport Development promotional brochure clearly states that the condominiums in the development would have nine foot ceilings. [ 17 ] In his evidence before me, Daniel Martins – the project manager for the Newport development – stated that White Rock has very strictly enforced restrictions placed upon property developers. He said that the architectural drawings for the Newport development indicate that the ceiling height of this project would be eight feet, not nine feet as advertised.

In fact, he testified that the restrictions imposed on LLW were so strict that there was a variance of inches in terms of the height of the Newport development that LLW was required to meet. [ 18 ] On March 8, 2016, sixteen months prior to the Rodes decision to complete the purchase of their condominium, LLW prepared and distributed the Second Amendment to the Disclosure Statement, and within this second amendment LLW informed their buyers that:

Section 2.1(a), (c), (d), and (

e) shall be deleted entirely and replaced with the following: 2.1 General Description of the Development (a) … Notwithstanding any marketing material used or provided by the Developer, the height of the ceiling throughout the Development is variable, but in most instances it is approximately 8 feet in height. [ 19 ] On May 10, 2016 LLW wrote to the Rodes saying: Hello Douglas and Arlene, there was an error in the Newport Marketing materials, which stated 9 feet ceilings throughout.

This error was brought to the attention of the sales team and Newport Marketing at the end of last year, from the project manager and developer, LLW Holdings. This is one of the reasons the Second Amendment to the Disclosure Statement was filed and sent to the purchasers. Please send you comments and concerns in regards to this ceiling height error directly to Glenn Duff Newport Marketing and the Developer… [ 20 ] In response, the Rodes wrote back to LLW on May 18, 2016 saying: The Second Disclosure statement was reviewed and the following major concerns noted: 1.

The reduction of ceiling height from nine to eight feet, all documents we received clearly indicated 9’ ceilings throughout. Building plans and the building permit were approved with 9’ ceilings. Why did it take two years to discover the issue of ceiling heights and to notify the owners? Will this also alter the window sizes? … Please advise us on the compensation package for the above noted significant losses. [ 21 ] I have two comments to make regarding the Rodes response with respect to the Second Amendment to the Disclosure Statement.

First, their reference to “… all documents we received clearly indicated 9’ ceilings throughout” is an overstatement. In fact, in the course of hearing the evidence in this case, the only reference to nine foot ceilings in the Newport project is the one line in the promotional brochure attached to the contract of purchase and sale.

Nowhere else in any of the documents tendered in evidence did LLW indicate that the ceiling height in the Newport development would be nine feet. [ 22 ] Second, it is clear that LLW identified, what I would consider to be a significant change in the Newport development, that being ceiling heights of eight feet rather than nine feet as promised, and LLW bought that material change to the attention of the Rodes and the other buyers in a timely way. I will return to the options the Rodes had available to them when they were notified of the change in the ceiling heights in the Newport development.

THE WALKWAY ISSUE [ 23 ] When the Newport development was completed, there was a walkway built that allowed the residents on the third floor of block A to walk outside along the third floor of their building. The walkway gave the residents of block A access to the elevator that was located in front of the Rodes’ condominium. [ 24 ] However, according to Daniel Martins, the project manager for the Newport development, the third floor walkway in block A was only accessible from block B via the elevator.

This elevator has doors that open on both sides, so the occupant of the elevator can exit onto the third floor walkway of either block A or B. [ 25 ] During the course of building the Newport development, Mr. Martins testified that the City of White Rock and the associated emergency services required a pedestrian bridge be installed to allow emergency responders to access block A from block B without the necessity of waiting for the elevator to give them access to block A.

[ 26 ] The pedestrian bridge that LLW was obliged to add to the third floor between block A and B was a relatively small concrete walkway located immediately outside of the Rodes’ kitchen window and one of their balconies. To mitigate the expected traffic using this pedestrian bridge, LLW added some privacy glass around the Rode’s balcony. The privacy glass is opaque and does not permit pedestrians to look into the Rode’s balcony.

The framing of the glass impacts, to a very minor degree, the Rode’s view of Boundary Bay, which is visible from this balcony looking west past the elevator and the corridor between the ocean side condominiums on the third floor of Newport. [ 27 ] The Rodes argue that the original disclosure statement did not include any walkway on the third floor of block A. Rather, the residents of the condominiums on the third floor of block A were to access their units, and those of their neighbours, by utilizing exterior stairways between the second floor and the third floor of the Newport development.

Those residents, according to the Rodes, would then use the stairways up to the third floor to visit neighbours or to gain access to the front door of their condominiums. [ 28 ] In support of their argument, the Rodes point out that in the original disclosure statement, the third floor strata drawings makes no mention of the third floor walkway on block A.

The Rodes are correct that there is no reference to the third floor walkway; however, the walkway is depicted on the strata drawings, it is just not labelled on the drawings as a walkway. [ 29 ] In the First Amendment to the Disclosure Statement dated September 3, 2014, the third floor walkway on block A is clearly labelled a “walkway”.

The Rodes argue that the addition of the walkway is a material change in the Newport project, and that the addition of the word “walkway” on the strata drawings is misleading and insufficient to accurately describe the impact that this walkway would have on the Rodes condominium. [ 30 ] In his evidence, Mr. Martins said that there was always a walkway planned for the third floor of block A.

The only change in the original plans was the pedestrian bridge added immediately in front of the Rode’s condominium, at the insistence of the City of White Rock and the associated emergency services, for safety issues so that access to block A was available from block B without having to wait for the elevator to arrive on the third floor, and then walk through both sets of elevator doors from block B to Block A. [ 31 ] With all due respect to the Rodes, I cannot accept their evidence that there was never a plan for a walkway on the third floor of block A.

To accept their evidence would mean that the elevator to the third floor between block A and B would open on both sides, but those people exiting to block A would step into open air because there was no walkway to take them to their condominium. For obvious reasons, such a design could never have been planned for Newport. [ 32 ] However, the pedestrian bridge was an added feature to the third floor of the Newport project, and that bridge has an impact on the Rodes’ enjoyment of their condominium.

The installation of the privacy glass and the frame for the glass, the Rodes say, diminishes the value of their condominium. [ 33 ] On September 3, 2014, LLW issued its First Amendment to the Disclosure Statement. That Amendment was distributed to the Rodes three months after they entered into the contract for purchase and sale with LLW, and was nearly three years prior to the Rodes closing on the purchase and taking possession of their condominium. [ 34 ] In the First Amendment, LLW included the word “Walkway” on the third floor between block A and B.

On the basis of this First Amendment, there is no way that the Rodes could be misled that there would be a pedestrian walkway on the third floor of block A. While it is true that the strata drawings do not depict the presence of support columns on this third floor walkway, the presence of the walkway is beyond dispute. [ 35 ] The Rodes argue that inserting the word “Walkway” is misleading because it does not capture the full impact of the walkway and the pedestrian bridge on their privacy in their condominium.

While I have no doubt that pedestrian traffic across the pedestrian bridge negatively impacts the Rode’s peaceful enjoyment of their balcony, I find that the volume of traffic using the pedestrian bridge would be minimal, at best. [ 36 ] Residents of block A and their guests using the elevator would access the third floor condominiums in block A via the walkway that was always contemplated in the Newport. The only pedestrian traffic using the pedestrian bridge would be people walking from block A to block B. That would include residents of block A visiting neighbours in block B, and vice versa.

While there is no evidence in this case as to the volume of pedestrian traffic using the pedestrian bridge, I conclude that the Rodes main complaint is the privacy glass and the framing for that glass on their balcony, as it adversely affects their view of the ocean from their balcony, rather than the impact on their privacy on their balcony from the pedestrians using the pedestrian bridge. Indeed Mrs. Rode did not testify that there was a troublesome volume of pedestrian traffic using this relatively small pedestrian walkway outside of their condominium.

DISCUSSION AND ANALYSIS [ 37 ] As I indicated earlier in these Reasons, I have determined that this case fails to be decided on the expert evidence tendered by the parties. [ 38 ] I say that, because there is no dispute that the Newport was originally promoted as a development with nine foot ceilings, but was delivered to the buyers with eight foot ceilings.

Also, the original strata drawings in the disclosure statement dated August 30, 2013 did not include the word “Walkway” on the third floor outside of the condominiums in block A. [ 39 ] The real question or issue to be determined in this case is whether the Rodes have a valid claim for damages against LLW for the ceiling height and walkway issues set out above, and if they have established the amount of those damages. A. Mr. VanWoerkom’s Evidence [ 40 ] Mr. VanWoerkom is a property appraiser with over 30 years’ experience in the property appraisal industry.

His qualifications to offer opinion evidence as to the value of the Rode’s overpayment for their condominium in the Newport development were not challenged by LLW. Rather, LLW challenges Mr. VanWoerkom’s process in reaching his opinion with respect to the alleged loss

suffered by the Rodes. [ 41 ] Mr. VanWoerkom prepared two different property appraisals for the Rodes condominium. He prepared an “As Is” appraisal and an “As Promised” appraisal. The difference between these two appraisals is that one appraisal is Mr. VanWoerkom’s opinion of the value of the Rode’s condominium that they bargained for (As Promised), and the value of the Rode’s condominium that was delivered to them by LLW (As Is). [ 42 ] Mr. VanWoerkom’s opinion is that the “As Is” appraisal is $40,000 less in value than his opinion of the value of the Rode’s condominium “As Promised”. [ 43 ] Mr.

VanWoerkom arrived at his opinion of the different values of the Rode’s condominium by looking at the values of comparable condominiums that sold in and around the time that the Rodes completed the purchase of their condominium with LLW on July 31, 2017. [ 44 ] The comparable condominiums selected by Mr. VanWoerkom for the purpose of his appraisals are challenged by Mr. Dean Doolan, the expert retained by LLW, as not sufficiently similar to the Rode’s condominium upon which to base a valid value opinion. [ 45 ] For reasons that I will develop shortly, I agree with Mr. Doolan’s criticism of Mr.

VanWoerkom’s analysis and conclusion of the overpayment by the Rodes for their condominium in Newport. [ 46 ] In both of his appraisals, Mr. VanWoerkom selected three condominium sales that occurred between March 30 and June 19, 2017 that in his opinion had sufficiently similar characteristics with the Rode’s condominium in the Newport. Based upon the value of the comparable condominium sales, Mr. VanWoerkom’s opinion is that the Rodes paid $40,000 too much when they purchased their condominium as delivered by LLW on July 31, 2017. [ 47 ] In his analysis of the comparable condominium sales that Mr.

VanWoerkom used to establish his opinion, Mr. VanWoerkom assessed the value that, in his opinion, the Rodes paid for the promised nine foot ceiling height, the absence of the third floor walkway, and the attendant privacy glass and frame that were added to the Rode’s balcony. [ 48 ] He testified that there is no science to his opinion evidence; rather, the values that he arrived at are based upon his experience as a property appraiser. [ 49 ] In cross-examination, Mr.

VanWoerkom conceded that if he had known at the beginning of this appraisal project that the Rodes knew, well in advance of their decision to complete the purchase of their condominium, that the ceiling height was to be eight feet and not nine feet as promised, and that there would be a walkway outside their condominium on the third floor of block A, then there would be no purpose in Mr.

VanWoerkom doing his appraisal work for the Rodes. [ 50 ] What is clear from the evidence led in this case is that the Rodes were notified by LLW that there would be a walkway on the third floor of block A in the First Amendment to the Disclosure Statement dated September 3, 2014 – a mere three months after they signed their contract to purchase their condominium in the Newport Development, and nearly three years before they chose to close their deal to buy their condominium. [ 51 ] The Rodes also learned in March 2016 that their condominium would have eight foot ceilings rather than the nine foot ceilings as promoted in the one brochure by LLW.

The Rodes knew of this ceiling height “change” over one year before the Rodes opted to complete the purchase of their condominium. [ 52 ] So, this is not a case where the Rodes completed the purchase of their condominium only to find the changes they complain about after they made the decision to finalize the deal for their retirement home.

The Rodes knew well before they completed this real estate transaction that their condominium would be built with eight foot ceilings, and that there would be a walkway on the third floor of block A. [ 53 ] Indeed the contract for purchase and sale dated June 2, 2014 between the Rodes and LLW set the completion date for this transaction no later than May 31, 2017. The agreement goes further to state that if the transaction does not complete by May 31, 2017 then the Rodes had the right to terminate the contract, and LLW had to return the Rodes’ deposit with interest.

The Rode’s condominium purchase in Newport did not complete until July 31, 2017, two months past the deadline set in the contract of purchase and sale; so, with the full knowledge that their condominium had only eight foot ceilings and the presence of the third floor walkway in block A, the Rodes decided to complete this transaction when they had the option to walk away and get the return of their deposit with interest. [ 54 ] In addition, the contract of purchase and sale includes what I suspect are common clauses in property transactions involving pre- construction real estate contracts that permit the developer to make relatively minor changes to the property development with no consequences to the developer, and material design changes to the property development that permit the buyers to opt out of completing the transaction in return for their deposit with interest. [ 55 ] I accept that the change from nine foot to eight foot ceilings would be a material change in this property development project, giving the Rodes an opportunity to walk away from their condominium purchase in the Newport and receive the return of their deposit with interest.

The Rodes chose not to do so after they learned of the change in ceiling height over a year before they decided to complete the purchase of their condominium. [ 56 ] With respect to the Walkway issue, LLW included the word “Walkway” on the First Amendment to the Disclosure Statement dated September 3, 2014.

There can be no doubt that LLW complied with their disclosure obligations when they included the word “Walkway” on the strata drawings in the First Amendment to the Disclosure Statement. [ 57 ] The Rodes complain that simply inserting the word “Walkway” into the strata drawings is insufficient to notify them of the presence of a walkway, and it is misleading because the walkway includes several posts that are not depicted in the strata drawings.

[ 58 ] I am not sure what more the Rodes expected of LLW to indicate the presence of a walkway on the third floor of block A. The double doors on the elevator would have pedestrians exiting the elevator to block A stepping into mid-air if there was not a walkway. [ 59 ] The real issue is the addition of the pedestrian bridge outside of the Rode’s kitchen, leading to the installation of the privacy glass and framing.

However, the contract of purchase and sale specifically anticipates changes to the Newport development required by municipal authorities, and the pedestrian bridge was required by the City of White Rock and associated emergency services to permit pedestrian traffic between block A and B without having to wait for the elevator to arrive on the third floor of the Newport. [ 60 ] On the basis of all of the foregoing, I find that the Rodes knew of the change to eight foot ceiling heights in the Newport, as well as the presence of the third floor walkway in block A well before they made the informed decision to complete the purchase of their condominium in the Newport project.

Accordingly, I find that Mr. VanWoerkom’s opinion that the Rodes overpaid for their condominium in the amount of $40,000 was a fully informed decision, that the Rodes chose to complete with the knowledge that they were now buying a condominium with only eight foot ceilings, and that there was going to be a walkway on the third floor of block A. [ 61 ] Lastly, on this point regarding the ceiling heights, the Rodes have produced a diagram of their condominium highlighting the areas of their condominium where the ceiling height is considerably less than eight feet.

In fact in some locations, according to the Rodes, the ceiling height in their condominium is only seven feet one inch. [ 62 ] The percentage of this lowered ceiling height amounts to something like 25 percent to 30 percent of the living space in their condominium, according to the Rodes. [ 63 ] The Rode’s argument regarding this significantly reduced ceiling height in their condominium is not persuasive. For example, the reduced ceiling height in their calculation includes the bulk-heads above their kitchen cabinets which has no effect on the value of their condominium or the living space in their condominium.

If the bulk-heads were not there, then the Rodes would have a foot or so of space between the top of their kitchen cabinets and the eight foot ceilings. That foot of space would not enhance the living space in their condominium, although I suppose they could store things on top of their kitchen cabinets and then use a ladder to retrieve those items when necessary. [ 64 ] Other areas within their condominium where the Rodes complain the ceiling height is closer to seven feet than eight feet include dropped ceilings to accommodate heating and plumbing within the Newport.

These dropped ceilings are found in the hallways, closets, and bathrooms of the Rode’s condominium. [ 65 ] In my view, the Rode’s complaints about the relatively high percentage of the square footage of their condominium where the ceiling height falls well below eight feet is both fully answered by LLW and justified in the terms of the contract of purchase and sale. [ 66 ] In short, the Rodes initially thought they were going to purchase a retirement condominium with nine foot ceilings and no third floor walkway in block A, but instead proceeded, fully informed, to purchase a condominium with only eight foot ceilings and a small pedestrian bridge outside of their kitchen window. [ 67 ] Under the circumstances, I find that the Rodes have not established their claim against LLW based upon the evidence they tendered in this trial that they overpaid for their retirement condominium by $40.000.

The Rodes closed on the purchase of their condominium fully informed as to the significant and material changes to the two design features they complain of in this case. In light of that informed decision, as Mr. VanWoerkom stated in his evidence, there was no point in engaging him to prepare his “As Is” versus his “As Promised” property appraisals for the Rodes. B. Mr. Doolan’s Evidence [ 68 ] Based upon the foregoing analysis, I do not need to spend much time reviewing Mr. Doolan’s evidence. [ 69 ] Mr.

Doolan was a very impressive witness, but also an experienced expert giving evidence as to property appraisals in both the residential and commercial context. [ 70 ] Mr. Doolan has been called and qualified as an expert property appraiser on many occasions in British Columbian court cases. [ 71 ] Mr. Doolan testified as to flaws in Mr. VanWoerkom’s appraisals of the Rode’s condominium, both “As Is” and “As Promised”. [ 72 ] In short, Mr. Doolan disagrees with Mr. VanWoerkom’s choice of comparable condominium sales included in his appraisals, and says that Mr.

VanWoerkom failed to include in his analysis the sale of a condominium in the Newport development directly across from the Rodes’ condominium, which would be the closest comparable sale of any that could have been referred to by Mr. VanWoerkom. [ 73 ] In the end, Mr. Doolan’s evidence was directed to a critical review of Mr. VanWoerkom’s analysis of the alleged loss to the Rodes in paying for their condo as delivered by LLW on July 31, 2017. [ 74 ] I agree with Mr. Doolan’s criticism of Mr.

VanWoerkom’s selection of comparable condominium sales, or more particularly his assessment of the price adjustments he made when comparing the Rode’s condominium with the three condominium sales he used in his appraisals. [ 75 ] At page 12 of his critique of Mr. VanWoerkom’s appraisals, Mr. Doolan includes photographs of the views from two of the comparable condominiums that Mr. VanWoerkom described as either “similar” or “inferior” to the view from the Rode’s balcony.

Regardless of whether the privacy glass and framing is present, no truly objective and independent appraiser could ever conclude that the views from comparable condominium #1 and #2 relied upon by Mr. VanWoerkom were either similar to or inferior to the view from the Rode’s balcony. Based upon the photographs of comparable condominium #1 and #2 Mr. Doolan included in his critique of

Mr. VanWoerkom’s appraisals, I find that the views from those comparable condominiums are vastly superior to the Rodes’ view from their balcony. I make that finding regardless of the presence of the privacy glass and framing for the glass. [ 76 ] In addition, Mr. Doolan testified that there are so many variables that need to be considered when appraising property values, to place a value on the reduced ceiling height due to bulk-heads and plumbing and heating ventilation requirements in a condominium building such as the Newport is not possible. As well, Mr.

Doolan testified that placing a diminished value on the presence of the third floor walkway was not possible. [ 77 ] I accept, without reservation, the views of Mr. Doolan in this case. He testified carefully and thoughtfully. He accepted challenges to his opinion and resisted those challenges with well-reasoned responses. Mr. VanWoerkom’s response to a challenge that the views from the comparable sales he chose for his appraisals were markedly better than the view from the Rode’s balcony was that the MLS photographs were taken by professionals to enhance the view corridors of the comparable condominiums.

While it may be true that the photographs were taken by professionals, the old adage “a picture is worth a thousand words” is a full response to Mr. VanWoerkom’s evidence and selection of comparable condominium sales included in his property appraisals. THE DEFICIENCY ISSUE [ 78 ] I do not propose to spend much time on this issue. [ 79 ] Prior to completing the purchase of their condominium, the Rodes participated in a walk-through of their unit to identify any deficiencies that needed to be fixed by LLW.

The deficiency walk-through was conducted by Peter Zheng on behalf of LLW. [ 80 ] The result of the deficiency walk-through was a list of things that the Rodes wanted fixed before they completed the purchase of their condominium. On the list of “deficiencies” is the ceiling height of their condominium and the presence of the third floor walkway between block A and B at the Newport. [ 81 ] LLW argues that the two issues at the heart of this dispute do not amount to “deficiencies”.

I agree. [ 82 ] Both the ceiling height and walkway issues are not the same as a door knob that does not work, or an electrical problem that needs to be rectified. The issues at the heart of this dispute are design changes and not deficiencies. Accordingly, if anything in this case turns on the classification of the ceiling height and walkway issues as deficiencies or design changes, I find that the those issues are design changes and they are not deficiencies.

CONCLUSION [ 83 ] For the reasons set out above, I conclude that the Rodes have not established, on a balance of probabilities, that they have suffered any loss as a result of their condominium purchase from LLW in the Newport development. [ 84 ] Accordingly, I dismiss the Rode’s claim and award LLW its costs and expenses to defend this claim by the Rodes. __________________________________________________ The Honourable Regional Administrative Judge R.N.

Hamilton Provincial Court of British Columbia CORRIGENDUM – Released December 16, 2019 In the Reasons for Judgement dated November 29, 2019, the following changes have been made: [1] At paragraphs 6, 67, and 75, Mr. VanWoerkom’s name has been changed to the correct spelling. __________________________________________________ The Honourable Regional Administrative Judge R.N. Hamilton Provincial Court of British Columbia