Atwal v., 2021 BCPC 243

Citation: Atwal v. 1022299 BC Ltd. 2021 BCPC 243 Date: 20210826 File No: C-86233 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: RAVINDER ATWAL AND RAYMOND ATWAL CLAIMANTS AND: 1022299 B.C. LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Appearing for the Claimants: Self-Represented Counsel for the Defendant: R.S. Deol Place of Hearing: Surrey , B.C. Dates of Hearing: March 31, 2021; June 9, 2021 Date of Judgment: August 26, 2021 INTRODUCTION

[ 1 ] The Claimants, Ravinder and Raymond Atwal, bring this action against the Defendant, 1022299 B.C. Ltd., in fraudulent misrepresentation and breach of contract. [ 2 ] The Claimants allege that the Defendant’s representative, Mr.

Inderdeep Mann, and its legal counsel, Binpal & Associates, (“Binpal”) made certain false representations, based on which the Claimants purchased from the Defendant a building lot, with a civic address of 8205 Harvest Road, Chilliwack, B.C. (“Lot 34”) in a real estate development (the “Subdivision”) in Chilliwack, British Columbia, and suffered a loss. [ 3 ] The Claimants allege that according to the Contract (defined below), the closing of Lot 34 should have occurred on September 22, 2020, which is 30 days from the substantial completion of Lot 34, rather than when it closed on December 20, 2018.

They allege that by “forcing” them to close prior to substantial completion, and the City of Chilliwack (the “City”) accepting and processing building permits, the Defendant offloaded its carrying costs onto the Claimants. As a result, the Claimants say, they suffered a loss by carrying the lot and paying interest charges and property taxes from April 1, 2019 (since they agreed to the delay to this date) to September 22, 2020. [ 4 ] The Claimants seek to recover from the Defendant the sum of $17,195.67, comprising their carrying costs (interest and property taxes) relating to Lot 34 and court costs.

I will explain later the slight discrepancy in this amount. [ 5 ] The Defendant denies the Claimants’ allegations. It submits that the Claimants have not proven the elements of their cause of action in fraudulent misrepresentation or breach of contract. In particular, the Defendant submits that the Claimants have not suffered any loss from the purchase of Lot 34, but rather they have profited from the purchase and resale of Lot 34, to the tune of $80,000.

The Defendant seeks to have the Claimants’ action dismissed. [ 6 ] The primary issue in this case is whether or not the Defendant made the alleged representations to the Claimants, knowing that they were false. [ 7 ] I will first set out the rather lengthy and complicated background in this case, which is essential to the understanding of the parties’ dispute. BACKGROUND [ 8 ] The Claimants are husband and wife, who describe themselves as businesspersons. Mr.

Atwal works in the healthcare field. [ 9 ] The Defendant is a corporation incorporated under the laws of British Columbia, with a registered and records office address in the City of Surrey, British Columbia. [ 10 ] The transactions at issue took place during the period April 2016 and September 22, 2020 (the “Relevant Period”). [ 11 ] Mr. Rajinder Singh Mann, and his sons Sukh Mann and Inderdeep Mann (also known as Inder Mann), have been in the real estate development business (the “Mann Group”) for many years. [ 12 ] During the Relevant Period, Mr. Sukh Mann was the sole director of the Defendant and Mr.

Inder Mann (“Mr. Mann”) was in charge of the day-to-day operations of the Subdivision. At the time of the trial, Mr. Mann was the President of the Mann Group. [ 13 ] Mr. Riko Soesanto was the Project Manager for the Subdivision, and he reported to Mr. Mann. [ 14 ] Prior to April 2016, the Defendant had entered into an agreement with another numbered company that owned a large parcel of land located at 8250 Nixon Road, Chilliwack, British Columbia (the “Nixon Road Property”).

Pursuant to this agreement, the numbered company was to develop the Nixon Road Property into a 51-lot residential subdivision to be known as “Falls Ridge,” which was the Subdivision. However, the numbered company ran into financial difficulties and was unable to carry through with the Subdivision. As a result, the Defendant took over the Nixon Road Property from the numbered company midstream and proceeded with the Subdivision, including entering into various agreements and obtaining financing. Mr.

Mann indicated that this was an “uphill challenge.” [ 15 ] At some point in 2017, the Defendant became the registered owner of the Nixon Road Property. [ 16 ] The Defendant was one of a number of other developers involved in developing their respective properties along Nixon Road. [ 17 ] There were three main agreements that the Defendant had to enter into to proceed with the Subdivision.

The first was the Water Booster Station Development Agreement, dated for reference October 30, 2017 (the “Water Booster Station Agreement”); the second was the Nixon Road Reconstruction Development Agreement, dated for reference July 16, 2018, relating to off-site services (the “Off- site Agreement”); and the third was the On-Site Servicing Agreement, dated August 24, 2018 (the “On-site Agreement”). [ 18 ] Civic Utilities Ltd., doing business as Civic Consultants (“Civic”), were the engineers of record for the developers who were party to the Water Booster Station Agreement and the Off-site Agreement. Mr.

Lorne Davidson was the engineer representing Civic. The Water Booster Station Agreement [ 19 ] In order for the developers to proceed with the development of their respective properties, the City required that there be an adequate water supply system in place, necessitating the construction and installation of a water booster station and all attendant water mains, electrical work and other works in accordance with certain specifications (the “Water Booster Station”).

Therefore, the developers, Civic, the City, and certain other parties entered into the Water Booster Station Agreement. [ 20 ] Paragraph 1 of this Agreement states as follows: The Developers agree to cooperate with each other in the design, construction and installation of the Water Booster Station so as to allow

the development of their respective Development Properties to proceed, understanding that none of the Development Properties could be developed without the Water Booster Station, and that only those Developers who participate in the construction and installation of the Water Booster Station will be entitled to have it benefit their Development Property. [ 21 ] As required under paragraph 6 of this Agreement, the Defendant posted $504,991, being its share of the total estimated cost of the Water Booster Station of $1,713,009.

The Off-site Agreement [ 22 ] In order for the developers to proceed with the development of their respective properties, the City required the portion of Nixon Road fronting the developers’ properties to be constructed in accordance with certain plans and specifications.

Therefore, the developers, Civic, the City, and certain other parties entered into the Off-site Agreement. [ 23 ] Paragraph 1 of this Agreement states as follows: The Developers agree to cooperate with each other as a group for the purpose of efficiency in the design, construction and installation of the Works so as to allow the development of their respective Development Properties to proceed, understanding that only those Developers who participate in the construction and installation of their individual Developer’s Portion of the Works . . . will be entitled to have the Works benefit their Development Property . . . [ 24 ] As required under paragraph 7 of this Agreement, the Defendant posted $1,545,178.93, being its share of the total estimated cost of the off-site works (the “Off-site Works”) of $5,126,226.52.

This cost covered various items, including sanitary sewer, drainage, water works, trench rock, roadworks, curb and gutter, sidewalk, pre-ducting crossings, retaining walls, streetlights, hydro, Telus, and Shaw. The On-site Agreement [ 25 ] The On-site Agreement was between the City and the Defendant. This Agreement required the Defendant to construct certain works, as specified in Appendices B and C to the Agreement (the “On-site Works”).

The On-site Works included items such as hydro, Telus, and Fortis, which were complete by that time, and a list of remaining items, including a retaining wall (which is a source of contention in this case). [ 26 ] As required under paragraph 22 of this Agreement, the Defendant posted security in the amount of $1,703,896.51.

The Contract between the Claimants and the Defendant [ 27 ] The Claimants entered into a Contract of Purchase and Sale (the “Contract”) with the Defendant, dated April 11, 2016, for the purchase of Lots 34 and 42 of the Subdivision, at a purchase price of $535,000, which was later increased to $575,000, by an Addendum to the Contract, dated September 6, 2017. [ 28 ] The total purchase price of $575,000 was allocated between Lots 34 and 42 as follows: $295,000 to Lot 34 and $280,000 to Lot 42. [ 29 ] The critical term in the Contract (the “Closing Condition”), the

interpretation of which is in dispute, reads as follows: 3. TERMS AND CONDITIONS: The purchase and sale of the Property includes the following conditions: SUBDIVISION PLAN ATTACHED AS

SCHEDULE “A” COMPLETION, POSSESSION AND ADJUSTMENT DATES TO BE 30 DAYS AFTER CITY OF CHILLIWACK ACCEPTING AND PROCESSING BUILDING PERMIT. [ 30 ] Other relevant terms of the Contract are as follows: 8. VIEWED: The Property and all included items will be in substantially the same condition at the Possession Date as when viewed by the Buyer on April 08, 2016. 18.

REPRESENTATIONS AND WARRANTIES: There are no representations, warranties, guarantees, promises or agreements other than those set out in this Contract and the representations contained in the Property Disclosure Statement if incorporated into and forming part of this Contract, all of which will survive the completion of the sale. (the “Exclusion Clause”) [ 31 ] The Claimants paid to the Defendant a deposit of $80,000 for both Lots 34 and 42, by way of a bank draft dated April 10, 2016. [ 32 ] By an Assignment of Contract of Purchase and Sale dated November 15, 2017, the Claimants assigned their interest in Lot 42 to Purdy Homes Ltd. for the total purchase price of $328,000, with the Claimants receiving an assignment fee (a profit) of $48,000. [ 33 ] By letter dated November 9, 2018 (the “Binpal Letter”), Binpal notified the Claimants as follows regarding the closing of Lot 34: We write further to this matter and further to the notice of completion previously delivered with respect to the completion of the sale and purchase of the above noted Property [referring to Lot 34].

We draw your attention to the terms and conditions of the applicable contract of purchase and sale (“Contract”). Specifically, it is a fundamental term of the Contract that completion must occur within 30 days of notice being delivered by the Seller that the City of Chilliwack will accept and process building permit applications. This condition is quite clear in its intent in that completion must occur

once the Buyer has been notified by the Seller that the City will accept and process building permit applications. It is not a condition of the Contract that the City must also confirm that it will issue building permits. It is common knowledge and practice that a municipality will begin the process of accepting and processing building permit applications with the intent that such building permits will be issued ultimately once substantial completion of servicing has occurred. It is not a requirement of the Contract that the City confirms in advance of completion that it will issue building permits.

However, it is anticipated that all substantial servicing issues will have been concluded by the time the City is in a position to issue permits. Although this is not a requirement of the Contract, the Seller has asked us to confirm that the primary remaining servicing issues relate to completion of lot grading and completion of construction of a retaining wall. This work is well under way and will be concluded as expeditiously as possible.

In light of certain changes requested by other developers in the vicinity concerning the booster station, the City has requested additional bonding from the Seller by posting security in an amount of $269,741.42. The Seller is making arrangements for this additional bonding requirement to be fulfilled well in advance of the issuance of building permits. We hereby confirm that the City is accepting and processing building permits at this time.

The Seller as a matter of curtesy is hereby delivering a further notice of completion by providing the Buyer with 30 days written notice under the Contract that completion must occur on December 10, 2018, or sooner, if the Buyer so elects, with time to be of the essence (“Completion Date”). No further extensions to the Completion Date will be given.

In the event that the Buyer fails to comply with this completion notice and fails to complete the purchase as per the Contract on the stated Completion Date, the Seller will consider this to be a repudiation of the Contract, will forfeit all deposits paid under the Contract and will reserve all of its other rights and remedies to seek damages.

Please advise our office if you require any additional information in order to prepare applicable closing documents. [ 34 ] The purchase of Lot 34 completed on December 20, 2018 (the “Completion Date”), as noted on the Buyers’ [the Claimants’] Statement of Adjustments, even though Mr. Atwal kept referring to the Completion Date as December 18, 2018 (being the date the Claimants signed the closing documents). [ 35 ] Within two months of the purchase of Lot 34, the Claimants listed it for sale at $398,000 ($103,000 more than its original purchase price of $295,000).

They entered into a Multiple Listing Contract for the period February 20, 2019 to July 31, 2019. [ 36 ] The substantial completion of the Water Booster Station was July 16, 2020. [ 37 ] The substantial completion of the Nixon Road was July 29, 2020. [ 38 ] The substantial completion of the on-site retaining wall was in or around August 2020. [ 39 ] The substantial completion of Lot 34 was August 22, 2020. [ 40 ] The Claimants eventually entered into a contract for the sale of Lot 34 in January 2021 for $378,000, and the sale completed in mid-March 2021.

They made a profit of about $83,000, less commissions and closing costs. THE ALLEGED FALSE REPRESENTATIONS [ 41 ] The Claimants point to the following communication from the Defendant as the false representations, upon which they base their claim: (

a) In April 2016, prior to the parties entering into the Contract, Mr. Mann told Mr. Atwal that the Claimants’ lots would be fully serviced, build-ready, and completed by the Spring of 2018 (the “April 2016 Representation”); (

b) The following statement from the Binpal Letter confirming that the City was accepting and processing building permits as at November 9, 2018 (the “November 9, 2018 Representation”): We hereby confirm that the City is accepting and processing building permits at this time. (

c) The following statement from Mr. Mann to Mr. Atwal in his email dated November 14, 2018, at 11:54 a.m. (the “November 14, 2018 Representation”): Your lot will be ready all services works will all be completed within the next few months, latest April. City is 10 weeks out plus design on permits. LEGAL PRINCIPLES [ 42 ] In Canadian jurisprudence, the tort of civil fraud has been variously called common law fraud, deceit or fraudulent misrepresentation. [ 43 ] There is a distillation of the relevant legal principles regarding the tort of civil fraud in the recent case of Satnam Education Foundation v.

MB Dream Construction & Supplies Ltd. , 2020 BCSC 1089 (“ Satnam ”) , on which the Claimants rely. These principles are at paras. 26 to 34: [26] In Bruno Appliance and Furniture, Inc. v. Hryniak , 2014 SCC 8 , at para. 21 , the Supreme Court states that the tort of civil fraud has four elements:

a) a false representation made by the defendant;

b) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge orrecklessness);

c) the false representation caused the plaintiff to act; and

d) the plaintiff's actions resulted in a loss. [27] This list was adopted by the Court Appeal in Century Services Inc. v. LeRoy, 2015 BCCA 120, at para. 24. [28] The law also requires that the misrepresentor intend that the victim act on the false representation: Wang v. Shao, 2019 BCCA130, at para. 24. There, Newbury J.A., for the Court, stated: [24] The trial judge then turned to Ms. Shao's claim of fraudulent misrepresentation. It is trite law that fraudulent misrepresentationinvolves the following elements that must be proven by the claimant: (

a) the wrongdoer must make a representation of fact to the victim; (

b) the representation must be false in fact; (

c) the party making the representation must have known the representation was false at the time it was made; (

d) the misrepresentor must have intended the victim act on the representation; and (

e) the victim must have been induced to enter into the contract in reliance upon it. (Derry v. Peek [1889] UKHL1, 14 App. Cas. 337 (H.L.); see also Islip v. Coldmatic Refrigeration of Canada Ltd. 2002 BCCA 255 atpara. 11.) [Emphasis added in original.] [29] See also Catalyst Pulp and Paper Sales Inc. v. Universal Paper Export Company Ltd., 2009 BCCA 307, at para. 57. [30] The false representation must be one of fact. However, a statement of future intention is a statement of fact: Punto e PastaManufacturing Inc. v. Henderson Development (Canada) Ltd., 2009 BCSC 37, at para. 146.

There, Slade J. applied Sanghera v. DangerFigure Centre (Burnaby) Ltd. (c.o.b. Orient Retreat), 2007 BCSC 1308, [Sanghera] as follows: [146] A statement of future intention, if falsely made, may constitute fraud. In Sanghera v. Danger Figure Centre (Burnaby) Ltd. (c.o.b.Orient Retreat), 2007 BCSC 1308, Garson J. explained the circumstances in which a statement of future intention may be treated as afraudulent misrepresentation. She said, at paras. 11-13: [11] A statement of future intention, if false, can be treated as a fraudulent misrepresentation.

Waddams in The Law of Contract, 5thed. (Toronto: Canada Law Book, 2005) says at para. 418 (footnotes omitted): [A]lthough a promise as to the future conduct of the promisor or a third party is not a misrepresentation, it has been held that such apromise implies a statement that the present intention of the promisor is to carry out the promise, or that the promisor's belief is that thethird party will act as stated, and this statement of fact, if false, can be treated as a misrepresentation. [12] For example, in International Casualty Co. v.

Thomson (1913), (SCC), 48 S.C.R. 167 (SCC), the plaintiffcontracted to buy shares in an insurance company on condition that within a fixed time the company would be in business in Vancouverand the plaintiff would be made the medical examiner of the company for that city. When this did not happen, it was held that thecontract could be rescinded for fraudulent misrepresentation.

Fitzpatrick C.J. said at p. 171: The existence or non-existence of that intention is a fact, and, if [the plaintiff] signed the application and parted with his cheques andnotes on the faith of the statements made with respect to it, his position is the same as if he acted on a representation of the existence ofany other fact. [13] Bowen L.J. puts it most vividly in Edgington v. Fitzmaurice (1885), 29 Ch.D. 459 at 483 (C.A.): ...the state of a man's mind is as much a fact as the state of his digestion.

It is true that it is very difficult to prove what the state of man'smind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man'smind is, therefore, a misstatement of fact. [31] A fraudulent misrepresentation of fact can be made orally, or in writing, or by conduct intended to induce the representee tobelieve the existence of a non-existent fact: Sanghera, at para. 10. [32] In Sanghera, Garson J. provided the following concise

summary: 15 In

summary, the applicable legal principles provide that an oral fraudulent misrepresentation can be used to nullify a written contracteven if the written contract contains a clause stipulating that no terms other than those in the written contract are to be considered. Whena fraudulent representation is made to induce the other party to enter the contract, the contract cannot then be used as protection for thefraudulent party.

Moreover, although parol evidence is generally not admissible to contradict the terms of a written contract, in the caseof fraudulent misrepresentations parol evidence is not used to determine the terms of the contract, rather, it is used to determine theintentions of the parties and why they entered into the contract. This deals with the validity of the contract as a whole. An oral statementas to future intentions may also be found to be a fraudulent misrepresentation if the defendant is proven to have falsely stated his futureintention.

[33] The representee must demonstrate that the false representation induced it to enter into the contract. However, the representationneed not be the only factor or even the most important factor that led to the making of the contract. It is sufficient if the representation isonly one of several factors contributing to the decision to enter into the contract: Battrum v. MacKenzie, 2010 BCSC 1285 [Battrum], atparas. 24-25. [34] Half-truths may be the same as lies.

An incomplete statement can be as misleading as a false one: Battrum, at para. 10, citing S.M.Waddams, The Law of Contracts, 5th ed. (Toronto: Canadian Law Book Inc., 1999). [44] In support of its position, the Defendant referred me to Knight v. White, 2014 BCPC 226 (“Knight”). In this case, the courtdiscussed the elements of a fraudulent misrepresentation at para. 101 and a negligent misrepresentation at para. 108. The court also setout the burden of proof in civil cases, at para. 70: [70] The burden of proof in a civil case rests with the Claimants to prove their case on a balance of probabilities.

The SupremeCourt of Canada in F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 at paragraph 49, states: [I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. EVIDENCE [45] Mr. Atwal and Mr. Craig Thomas Wickham, Assistant Manager of Land Development and the Deputy Approving Officer for theCity of Chilliwack, testified on behalf of the Claimants. [46] Mr.

Mann testified on behalf of the Defendant. [47] Various documents, including numerous emails amongst individuals involved in the Subdivision, were entered into evidence. CREDIBILITY OF THE WITNESSES [48] Overall, I had no major concerns with any of Mr. Wickham, Mr. Atwal or Mr. Mann as credible witnesses. There were someinconsistencies among their evidence, which I will discuss later. I am of the view that the inconsistencies, for the most part, relate to thewitnesses’

interpretation accorded to the various pieces of communication, rather than any one of them being intentionally dishonest ordistortive in their testimony. [49] I do not accept Mr. Atwal’s characterization that Mr. Mann was “lying,” and his submission that Mr. Mann lacked credibility.Nor am I persuaded by the Defendant’s challenges to Mr. Atwal’s credibility in referring to certain allegedly inappropriate conduct onthe part of Mr. Atwal relating to matters extraneous to this action. [50] I do note, however, that Mr.

Atwal tended to focus on irrelevant issues, and was at times argumentative in his zest to make acompelling argument in favour of the Claimants. He was also quick to misinterpret communication and jump to conclusions. There werenumerous examples of that. I will relate three such examples. [51] The first example is, in support of Mr. Atwal’s argument that he met with Mr.

Mann prior to the signing of the Contract on April11, 2016, he said: It is only logical and reasonable that I met with Inder [Mann] and discussed the lots, Lot 34 [and] 42, as there is no other logicalexplanation as to how a bank draft would have been made by the bank one day before April 11, 2016, which is the date of the Contractof Purchase and Sale. [52] I completely disagree with Mr. Atwal’s logic and deduction. Just because the bank draft was issued on April 10, 2016 (one daybefore the date of the Contract), that does not establish that Mr. Atwal met with Mr.

Mann prior to April 11, 2016, that they discussedLots 34 and 42, or that it was Mr. Mann who requested the draft. [53] The second example is, when Mr. Atwal said: The defendant admitted they did not even own the subject property at the time of the false misrepresentations nor at the time when theContract of Purchase and Sale was entered into, April 11, 2016. So how could Inder Mann have made promises and assurancesregarding a property they did not even own? [54] What is ironic about this argument is that the Claimants did something similar to what Mr. Atwal is accusing the Defendant ofdoing.

The Claimants assigned their contractual right to purchase Lot 42 on November 15, 2017 before acquiring title to Lot 42. Ofcourse, Mr. Mann explained in detail, the contracts of purchase and sale that the Defendant entered into for the lots in the Subdivisionwere not illegal, and that everything the Defendant did was on the advice of its legal counsel. [55] The third example is, in Mr. Atwal’s email to Mr. Mann, dated November 14, 2018, at 10:12 a.m., Mr. Atwal says in part: . . . the City . . . will not process/issue building permits until substantial completion.

So there is a dispute in our contract and language. [56] Mr. Atwal also says that Mr. Mann did not dispute any of this. This again is a misreading or misunderstanding of the City’sstance, compounded by Mr. Wickham’s inconsistent, or perhaps imprecise, use of words. I will discuss this in more detail below.However, at this point, I will add that Mr. Mann did, during his testimony, disagree with Mr. Atwal’s

interpretation that the City will not“process” building permits until substantial completion. [57] As I said, there were a number of other such examples. Where there is an inconsistency in the witnesses’ evidence, I prefer Mr.Mann’s evidence over Mr. Atwal’s or Mr. Wickham’s.

DISCUSSION [ 58 ] As the Claimants allege three separate instances of misrepresentation, I will discuss each of them separately. The April 2016 Representation [ 59 ] As noted earlier, the April 26 Representation is as follows: In April 2016, prior to the parties entering into the Contract, Mr. Mann told Mr. Atwal that the Claimants’ lots would be fully serviced, build-ready, and completed by the Spring of 2018. [ 60 ] Mr. Atwal testified that he learned about the sale of lots in the Subdivision through his friend, Mr. Bobby Grewal, who was an accountant. [ 61 ] Mr.

Atwal admitted that, in April 2016, he knew that the Nixon Road Property was just a large parcel of land, and the proposal was a “pre-sale,” in effect, of individual lots to be created in the future. [ 62 ] Mr. Atwal said that while the Contract does not specify that the lots had to be fully serviced before completion, that is what the Defendant told him and others who were interested in purchasing lots in the Subdivision. [ 63 ] When questioned on when and who made the April 2016 Representation, Mr. Atwal said that a day or two before the Contract was signed on April 11, 2016, he met with Mr. Mann at Mr.

Grewal’s office on 128 th Street, in Surrey, British Columbia, in their boardroom. He said there were a number of people in the boardroom, and he specifically asked Mr. Mann about the lots and when they would be ready. Mr. Mann told him that they would be ready “around the spring of 2018.” Mr. Atwal said Mr. Grewal and a few others were in the boardroom when this conversation took place. He was not sure whether any of the others heard this conversation, as the boardroom was not a quiet room. [ 64 ] When the Defendant’s counsel put to him that he could have had these terms put into the Contract, Mr.

Atwal said he did not think to do that, and that he accepted what Mr. Mann told him verbally. [ 65 ] Mr. Atwal admitted that he was familiar with the real estate standard form contract of purchase and sale, and was aware of the Exclusion Clause in the Contract. He said he bought two other properties before, but this was the first time he “ever bought lots that were not yet created.” [ 66 ] Mr.

Atwal admitted that the Claimants did not seek any legal advice on the Contract even though the Claimants were about to enter into a contract for slightly more than half a million dollars for two lots that had not yet been created. They also did not do any due diligence regarding the Subdivision or the Defendant as a developer of the Subdivision, other than speaking with Mr. Grewal and doing a google search. [ 67 ] Contrary to Mr. Atwal’s evidence, Mr. Mann testified that he never met Mr. Atwal at the time the parties entered into the Contract – in other words, in or around April 11, 2016. Mr.

Mann said his primary point of contact for the sale of lots in the Subdivision was Mr. Grewal. He said Mr. Grewal and his “group” purchased 15 lots in the Subdivision. Mr. Mann said he never saw Mr. Atwal prior to the day Mr. Mann testified at the trial. He reiterated that his dealings regarding the sale of lots in the Subdivision were always with Mr. Grewal. [ 68 ] When Mr. Atwal asked Mr. Mann: . . . when we met prior to April 11 th , you told me that the lots would be fully serviced, build-ready, and completed by the Spring of 2018, correct? Mr.

Mann responded: No. [ 69 ] Other than this diametrically opposite evidence, there is no evidence to establish that Mr. Mann attended at Mr. Grewal’s boardroom and made the April 2016 Representation to Mr. Atwal. [ 70 ] It is not uncommon for representatives of developers to make presentations to groups of people who may be interested in their project. Even if I conclude that it is more likely than not that Mr. Mann attended at Mr. Grewal’s office and spoke to Mr. Grewal’s “group,” based on the evidence before me, I am unable to conclude that Mr. Mann specifically spoke with Mr.

Atwal and made the April 2016 Representation to Mr. Atwal, as Mr. Atwal contends. [ 71 ] For the purposes of argument, even if I accept that Mr. Mann made the April 2016 Representation to Mr. Atwal, the question is, was that Representation factually false at the time he made it? I conclude that it was not for the following reasons: (

a) The evidence indicates that the Subdivision was at a preliminary stage in April 2016. The Defendant was put in a difficult position of having to take over the Subdivision from another failing company, and was thrust midstream into managing the logistics of the Subdivision, including securing financing. As Mr. Mann described, the Defendant was facing an “uphill challenge.” (

b) As is not uncommon with large real estate developments where “pre-sales” are secured before construction begins, the Defendant seems to have lined up potential purchasers for lots in the Subdivision by entering into contracts of purchase and sale, including the Contract with the Claimants. (

c) The evidence suggests that in April 2016, the Defendant – more likely than not – was not aware of the extent of the challenges the

Subdivision entailed, as the three main agreements Mr. Mann referred to, namely, the Water Booster Station Agreement (dated October 30, 2017), the Off-site Agreement (dated July 16, 2018), and the On-site Agreement (dated August 24, 2018) were all entered into more than one and a half years after the alleged April 2016 Representation. [ 72 ] Therefore, I find that the Defendant could not have known that the 2016 Representation was false at the time it is alleged to have been made, and there is no basis to find that the Defendant was reckless at that time as to its truth or falsity.

As I will discuss later, there is ample evidence to indicate that the Defendant was diligent throughout the Relevant Period in ensuring that the Subdivision progressed and completed as efficiently and expeditiously as possible in an effort to protect the interests of all concerned, including the various lot owners and the Defendant.

The November 9, 2018 Representation [ 73 ] As noted earlier, the November 9, 2018 Representation is the following statement from the Binpal Letter confirming that the City was accepting and processing building permits as at November 9, 2018: We hereby confirm that the City is accepting and processing building permits at this time. [ 74 ] Mr. Atwal testified that the Claimants did not seek legal advice on the contents of the Binpal Letter.

He said he understood the November 9, 2018 Representation to mean that the City “would accept the building permit but they would not process and then issue the building permit.” Clearly, this is a misinterpretation of the statement in the Binpal Letter. [ 75 ] Mr. Atwal does not dispute that, as at November 9, 2018, the City would “accept” building permit applications. However, the confusion arises in Mr.

Atwal understanding that, as at November 9, 2018, the City would not “process” building permit applications, contrary to the wording in the November 9, 2018 Representation. [ 76 ] There are many emails in evidence that were between Mr. Atwal, Mr. Wickham, and others regarding the City’s process for issuing building permits for the lots in the Subdivision. [ 77 ] There is no dispute that the process involves three steps, as noted in the following email exchange: Mr. Atwal to Mr.

Wickham, November 16, 2020, 3:51 p.m.: Hi Craig, Would it be accurate to say when it comes to building permits the process for the City is: 1) The city accepts a building permit application 2) The city processes the building permit application 3) The city issues the building permit (if all requirements are met) Mr. Wickham to Mr. Atwal, November 17, 2020, 8:57 a.m.: Correct. [ 78 ] However, in light of the following confusing communication, it is understandable why Mr.

Atwal perhaps understood that, as at the date of the November 9, 2018 Representation, the City would only accept, but not process or issue a building permit: Mr. Wickham to Mr. Atwal, October 23, 2018, 3:22 p.m.: Hi Raymond, Please see comments below from our Manager of Land Development from this afternoon: “This is a complicated development site with multiple issues. The grading is currently under way with material being used in the Nixon Road construction. The site is essentially a construction site.

I would not support issuing building permits at this time.” It would be in everyone’s best interest to not have active permits at this time due to the amount of material trucking going on as well as the status of completion of the development. I believe the lot that you had purchased may be impacted by the retaining wall installation by the developer. It would be best to wait until this is installed as well. Any questions please let me know. Mr. Wickham to Mr. Atwal, November 13, 2018, 10:41 a.m. (in response to Mr. Atwal’s email to Mr.

Wickam on November 12, 2018, at 10:21 a.m., enquiring whether the City’s October 23, 2018 position, as stated above, was still the same at November 12, 2018): Raymond, The City is in a position to accept building permit applications. In terms of issuing building permits, the project would have to be reasonably close to substantial completion and the lots be build-ready to ensure builders are not moving excessive material on or off the site and retaining walls required be constructed by the developer are completed.

As a note, turn-around time for building permits are approximately 10 weeks but with Christmas coming that often increases. Mr. Atwal to Mr. Wickham, November 13, 2018, 11:16 a.m.: Thank you again Craig Just to clarify, the 10 weeks approx. you refer to in your email below, that is the time the City takes approx. to process the building permit application and then issue the building permit, correct? (Given that the lot is safe, close to substantial completion, retaining walls constructed, etc.) Mr. Wickham to Mr. Atwal, November 13, 2018, 11:29 a.m.: Correct.

When making your application, please be reminded of the covenant on your property’s title that requires GeoWest Engineering’s approval for the home orientation and lot grading to ensure the build suits the topographical challenges of the lot. Their review is to be included in a complete building permit application. It would be best to engage them for comment on your lot prior to moving ahead with a home design. Mr. Atwal to Mr. Wickham, January 8, 2021, 8:05 a.m.: Hi Craig, Further to my email to you below of November 16, 2020 and your reply dated November 17, 2020.

You had sent me an email on September 15, 2020 indicating that the required retaining wall for my lot (lot 34 – 8205 Harvest Place) had been completed by the developer and that all required services were in and substantial completion had been reached. So as of September 15, 2020 or anytime thereafter (as the required retaining wall was now completed and all services were in, and substantial completion reached) the City was now in a position to process, and then issue a building permit for my lot, correct? Mr. Wickham to Mr. Atwal, January 8, 2021, 8:43 a.m.: That’s correct.

Substantial Completion was achieved on August 22, 2020 and we were then able to begin accepting, processing, and ultimately issuing building permits after that date. [ 79 ] Mr. Mann disagreed with what Mr. Wickham said in his January 8, 2021 email. Mr. Mann said if the City was not accepting, processing, and issuing building permits, a number of homes that had already been built on this Subdivision and sold off could not have happened. These were lots further ahead on the Subdivision lands, which did not require the on-site retaining wall to be built.

Only certain lots, including Lot 34, were impacted by the on-site retaining wall. [ 80 ] The language in these emails, particularly in Mr. Wickham’s emails, is confusing, in that it is not clear whether the reference to “accepting, processing and issuing” building permits was for Lot 34 or was generally for lots in the Subdivision. In Mr.

Wickham’s January 8, 2021 email, the words “Substantial Completion was achieved on August 22, 2020” clearly refers to Lot 34, but then his words “we were then able to begin accepting, processing, and ultimately issuing building permits after that date” appear to be a generalization of “permits” in plural for other lots as well. This wording is also inconsistent with Mr. Wickham’s earlier email of November 13, 2018, wherein he said: The City is in a position to accept building permit applications.

In terms of issuing building permits, the project would have to be reasonably close to substantial completion . . . [ 81 ] This earlier statement of Mr. Wickham appears to be consistent with what the Binpal Letter stated. [ 82 ] Mr. Mann testified that before sending out the Binpal Letter, Binpal reached out to the City to confirm that the City was “accepting and processing” building permits for lots in the Subdivision, and that based on that confirmation, they issued the Binpal Letter to the Claimants, and a similar letter to other purchasers of lots in the Subdivision. [ 83 ] Mr.

Atwal vehemently argued that Mr. Wickham was referring specifically to Lot 34 in his January 8, 2021 email, suggesting that it was only as of September 15, 2020 that the City was in a position to “process” and then issue a building permit for Lot 34. [ 84 ] As I said earlier, although the first part of Mr. Wickham’s January 8, 2021 email refers to Lot 34, the latter

part is confusing and internally inconsistent with his own evidence, and externally inconsistent with Mr. Mann’s evidence and the Binpal Letter. Therefore, I find that the latter part of Mr.

Wickham’s January 8, 2021 email is an incorrect statement. [ 85 ] What is evident from all of this communication is that, as at the date of the November 9, 2018 Representation, the City was in a position to accept and process building permit applications, but would issue building permits only for those lots that met all of the City’s requirements, including being “reasonably close to substantial completion.” [ 86 ] If the Claimants had submitted a building permit application to the City for Lot 34, I see no reason why the City would not have accepted their application, as the City was in a position to accept, and was accepting, building permit applications for other lots in the Subdivision. [ 87 ] If the Claimants’ building permit application had been complete, with all of the City’s prerequisites, I find that the City would have been in a position to process their application upon, or forthwith after, its receipt.

Certainly, the City would not have been in a position to issue the building permit for Lot 34, as it was not “substantially complete” in 2018. Of course, the issuance of the building

permit was not a requirement under the Closing Condition. [ 88 ] Therefore, I conclude that the Defendant did not breach the Contract. [ 89 ] On the evidence before me, I am not satisfied, on a balance of probabilities, that the November 9, 2018 Representation was factually false or that the Defendant made such Representation knowing that it was false. There is no evidence to suggest that the Defendant was reckless as to the truth or falsity of the Representation.

There is evidence to confirm that the Defendant relied on Binpal’s advice, and Binpal consulted with the City before issuing the Binpal Letter. [ 90 ] In addition to the Representation at issue, Binpal provided a status of the progress of the Subdivision in the Binpal Letter. Therefore, it cannot be said that the November 9, 2018 Representation was made with the intention that the Claimants would act upon it to their detriment. I reject the Claimants’ assertion that they were “forced” to complete based on the Binpal Letter.

It was open to the Claimants to have sought their own legal advice on the contents of the Binpal Letter. They did not do that. They exercised their freedom of choice, and proceeded to complete without legal advice. Regardless, as I will discuss later, their decision to complete was not detrimental to them. [ 91 ] Furthermore, in spite of the note in the Binpal Letter that no further extensions to the December 10, 2018 completion date will be given, the Defendant did make an exception in the Claimants case and allowed them to complete on December 20, 2018.

The Claimants benefited from a 10-day extension from the 30 days stipulated in the Contract. The November 14, 2018 Representation [ 92 ] As noted earlier, the November 14, 2018 Representation is the statement that Mr. Mann made to Mr. Atwal in his email dated November 14, 2018, at 11:54 a.m.: Your lot will be ready all services works will all be completed within the next few months, latest April. City is 10 weeks out plus design on permits. [ 93 ] Mr. Atwal testified that in light of this email from Mr. Mann, the Claimants were prepared to wait until April 2019 for Lot 34 to be completed.

However, the Claimants contend that Mr. Mann knew that Lot 34 would not be ready by April 2019, yet he led the Claimants to believe that it would be. [ 94 ] Mr. Mann testified that he had no intention or reason to mislead the Claimants. He said the Subdivision was extremely challenging because of the terrain, the length and nature of the Nixon Road, and the number of other developers involved. He said he was relying on the professionals who were involved with the Off-site and On-site Works in terms of keeping abreast and managing the progress of the various works.

The many emails in evidence support this. [ 95 ] Mr. Mann testified that the timelines he mentioned in the November 14, 2018 Representation were based on two pieces of information: (1) the reference to “10 weeks” was based on Mr. Wickham’s email of November 13, 2018; and (2) the information Mr. Mann received from Mr. Davidson regarding when the Off-site Works would be completed. Mr. Mann said at that time, that was his “best guestimate of when the timing would fall in place.” [ 96 ] Mr. Mann said the reference to “plus design” in Mr.

Wickham’s email of November 13, 2018 was with respect to the design of the on-site retaining walls. [ 97 ] Mr. Mann agreed with Mr. Wickham that this was a complicated development with multiple issues. Because of the slopes – “30 or 40 percent plus” – it was very difficult to service. He said it was one of the most difficult subdivisions he has ever dealt with. [ 98 ] Mr. Mann’s evidence regarding some of the challenges with the Subdivision is as follows: (

a) The City required the various developers to do the Off-site Works in order to proceed with the development of their respective properties along Nixon Road. Nixon Road was a very old, narrow, long road that required widening, and works such as sidewalks, paving, hydro, telephone, water, sanitary sewer, storm drains, and pavements. (

b) Mr. Mann categorically disagreed with Mr. Wickham’s evidence that each developer could have independently done the Off-site Works fronting their property. He explained that the Off-site Works in this development were complicated because of the servicing required – the pipes, sanitary, storm, hydro, telephone, and the like were not at the lot line; they were “miles” away. Furthermore, a water booster station had to be installed downstream because the developers did not have sufficient water pressure for their properties.

He said all of this would have cost millions – perhaps $10 million – and no bank would finance it. It “would not have made economic sense.” Furthermore, the logistics of working with all the developers, the City, Hydro, Telus, and other agencies to get rights-of-way and easements for the service connections would have been a painful process. He reiterated that it would have been impossible for one developer to do all this work on their own. I agree. (

c) As part of the On-site Works, the Defendant had to build two retaining walls, one very close to the sidewalk on Nixon Road (which impacted Lot 34), and another mid-way up the hill in the Subdivision. Another retaining wall also had to be built as part of the Off-site Works. (

d) The on-site retaining wall close to the Nixon Road could not be built before Timbro (the off-site contractor) finished its work. Mr. Mann explained that this was because the road was very narrow; multiple contractors were working on the road at the same time; the retaining wall would sit right at the property line; and if the retaining wall was put in first, and a change in any of the Off-site Works (such as to the grades or sidewalk) was required later, the City would require the on-site retaining wall to be “ripped out” and redone. This would have been a costly venture.

In addition, it was prudent to get the off-sites done first, and then put in the retaining wall so that it “butts up” right against where it is supposed to be.

(

e) The Defendant needed three to four weeks of uninterrupted time to work on the on-site retaining wall, as mentioned in an email from Mr. Soesanto to Mr. Davidson and Mr. Mann, with a copy to Mr. Wickham, dated May 11, 2019, 11:04 a.m.: Lorne, When we work on this retaining wall, we will need continuous work for three to four weeks depending on weather, this work is not something that we can start and stop. That is the main reason why we want Timbro to be done so we can work in that corner without any impact on the traffic in that area.

As per my discussion with Timbro last time once they finish the new road which is few meter away fro the current road we will use this area as our working area otherwise it will be very difficult for us to build the retaining wall. . . . [ 99 ] The evidence indicates that Mr. Mann was closely monitoring the progress of the various works. For example, on July 1, 2019, 11:01 a.m., he sent an email to Mr. Davidson: Are we still on target for completion of booster this month?

Roads by next month? [ 100 ] He said he did this mainly for two reasons: (1) to fulfill the Defendant’s obligations regarding the On-site Works; and (2) to get back the substantial amount of money the Defendant had posted with the City as security, which was costing the Defendant about 10%, as it was borrowed money. [ 101 ] Mr. Mann acknowledged that due to the many challenges with the Subdivision and the many moving parts with the Off-site Works, the Defendant was unable to complete all of the On-site Works by August 24, 2019, as required by paragraph 8 of the On-site Agreement. Mr.

Mann said the City was not strict about this deadline. [ 102 ] However, regarding the On-site Works that were completed, Mr. Mann confirmed what Mr. Soesanto said in his email to Mr. Atwal, on October 18, 2019, that all the on-site roads were paved in 2018, and all the curbing and street lights were completed in 2018, except the curb and gutter for the turnaround which were completed in early October 2019. [ 103 ] Mr. Atwal pointed out that the services to Lot 34 were not complete until much later than April 2019.

He said Lot 34 received hydro in December 2019 and water in July 2020. [ 104 ] In this respect, it is important to note that the infrastructure for some of the on-site services were complete well before April 2019. For example, by the time the On-Site Agreement was entered into on August 24, 2018, “Hydro, Telus and Fortis” are noted in Appendix ‘B’ to the On-Site Agreement as having been already completed. Additionally, according to the following email, the on-site water main and services to each lot up to Nixon Road had also been completed before November 20, 2018: From Mr. Davidson to Mr.

Soesanto, with a copy to Mr. Mann, dated November 20, 2018, 9:03 a.m.: As requested, this email is to confirm that the on-site water main, and services to each lot, has been installed up to Nixon road. The off site water main and the booster station to supply water to the on-site water main is being installed at the present time. [ 105 ] Mr.

Mann confirmed that by December 2019, all outstanding issues related to BC Hydro had been addressed and the Subdivision was “fully energized.” [ 106 ] The construction of the Water Booster Station involved other developers, and due to some challenges associated with it, its substantial completion did not occur until July 16, 2020. [ 107 ] The other source of delay regarding the substantial completion of Lot 34 was the on-site retaining wall that needed to be built adjacent to Nixon Road. [ 108 ] One of Mr.

Atwal’s main contentions was that the retaining wall design was not submitted to the City until October 21, 2019. Mr. Atwal referred to an email from Mr. Wickham to himself, dated November 24, 2020, at 12:03 p.m., in which Mr. Wickham says: . . . Our first complete retaining wall design submission by the geotechnical engineer of record was received on October 21, 2019. [ 109 ] In response to this, Mr. Mann explained that the retaining wall design process is a lengthy one. First, the Defendant has to get a survey and a permit.

Then, because of the slope, the geotechnical engineer has to determine where the wall should be placed to ensure stability of the lots for building. There would be back and forth communication among the geotechnical engineer, Mr. Soesanto, and the City. Nothing would be formally submitted to the City before everyone agreed on the design and how it would work. In this case, Mr. Mann said there were probably about 10 different redesigns because of the slope. [ 110 ] In other words, the Defendant was actively engaged in the design process in preparation for building the on-site retaining wall. [ 111 ] Mr.

Mann said as soon as the substantial completion of the Water Booster Station on July 16, 2020 and the Nixon Road on July 29, 2020 took place, the on-site retaining wall construction began, and it took about three to four weeks to complete. As noted earlier, according to Mr. Wickham, it was substantially completed by August 22, 2020. [ 112 ] In addition to the oral evidence, there are many emails in evidence regarding the challenges and the progress of the Off-site and On-site Works.

I do not doubt that the Defendant was actively engaged in fulfilling its obligations under the various agreements regarding the Off-site and On-site Works in the interest of all concerned. As Mr. Mann said, the Defendant had a motivating self-interest in completing the Subdivision as quickly as possible so that it could recover the large security deposits it had posted with the City. [ 113 ] On the evidence before me, I am not satisfied, on a balance of probabilities, that the November 14, 2018 Representation was factually false or that the Defendant made such Representation knowing that it was false.

There is no evidence to suggest that the Defendant was reckless as to the truth or falsity of the Representation. Mr. Mann relied on the information provided to him by the

professionals involved with the On-site and Off-site Works and the City in estimating the timelines.

I find that it was reasonable for him to have relied upon that information, as it came from reliable sources – the professionals who were involved in the trenches of the Subdivision, and the City. [ 114 ] As noted at para. 30, in Satnam , “[a] statement of future intention, if falsely made, may constitute fraud.” However, the general rule is that: [A]lthough a promise as to the future conduct of the promisor or a third party is not a misrepresentation, it has been held that such a promise implies a statement that the present intention of the promisor is to carry out the promise, . . . [ 115 ] Here, when Mr.

Mann said: Your lot will be ready all services works will all be completed within the next few months, latest April it was a statement of the Defendant’s future intention. [ 116 ] As I said, Mr. Mann made this statement based on information that was available to him at the time he made it. It indicated the Defendant’s intention at that time to complete all services and works relating to Lot 34 by April 2019. This statement of fact, in itself, is not a misrepresentation, unless it is found to be false.

I do not find it to be false, as there is ample evidence to indicate that the Defendant was diligently working towards fulfilling this intention. However, as I have discussed at length, the Defendant was faced with many challenges with the Subdivision, but it diligently followed through and eventually completed the Subdivision. [ 117 ] I find nothing fraudulent about the November 14, 2018 Representation. [ 118 ] I suspect that Mr.

Atwal was aware of the significant Off-site Works that were taking place at the same time as the On-site Works, although he seemed to downplay the extent of his knowledge. [ 119 ] When questioned about the extent of his knowledge of the various works, Mr. Atwal said he was only aware that the Water Booster Station had to be built to get water into the Subdivision. He referred to the email from Mr. Davidson to Mr. Soesanto, dated November 20, 2018, that I referenced earlier regarding the on-site water services.

However, the evidence indicates that, even prior to this communication, the Claimants were aware that the Subdivision was a complicated development with multiple issues, as noted earlier in Mr. Wickham’s email of October 23, 2018. [ 120 ] With respect to the on-site retaining wall, Mr. Mann said to Mr. Atwal: . . . Mr. Atwal, you are aware that this wall sits at the bottom, then you have a slope, and then you have another wall. If for some reason, you built this wall at the bottom before – and the off-sites were done up, you’d be ripping out the whole thing.

You can’t do it and there was no room to work on there, so you’re aware of these things. [ 121 ] Knowing there were challenges with the Subdivision, the Claimants completed the Contract, without making any effort to change or add any terms in their favour. They knew what they were getting into. [ 122 ] However, Mr. Atwal kept asking Mr.

Mann whether he agrees that it would have made more sense to have had the closing of the Contract when all of the services were in, the on-site retaining wall was built, and the City was “in a position to accept and process building permits as per the language of the Contract?” [ 123 ] Mr. Mann’s response was it would not have changed anything. He said the Defendant completed the on-site retaining wall as soon as the Off-site Works were substantially completed. He said it was not like the Defendant did nothing for months after the Off-site Works were completed.

He said the Defendant did what it was supposed to do, and all of its work was “bonded for” so no purchaser would be left hanging. [ 124 ] In my view, Mr. Atwal’s question is confused and futile at this point. The Contract does not specify any of the details he is now referring to. The Claimants were aware of the challenges with the Subdivision. It was open to the Claimants to have negotiated and included whatever terms they wanted in the Contract, but they did not.

As the court in Knight pointed out, at para. 92 , the concept of caveat emptor or “let the buyer beware” applies to real estate transactions in Canada, absent fraud. I have found no fraud in this case. [ 125 ] As I have discussed above, the City was in a position to accept and process building permit applications as at November 9, 2018 when the Binpal Letter was issued. Mr. Mann confirmed that Binpal reviewed the Contract, consulted with the City, and based on their professional opinion, sent out the Binpal Letter. Mr.

Mann said none of the other purchasers of lots in the Subdivision had any issues with their contracts and nobody brought legal challenges, except the Claimants. [ 126 ] When Mr. Atwal pointed to an email from Mr. Grewal, dated August 23, 2019, regarding some issues with the retaining wall, suggesting that other purchasers had issues with the retaining wall as well, Mr. Mann said, “nobody had an issue with this . . . they all made lots of money on this . . .You made lots of money on this lot.” [ 127 ] I note that Mr. Atwal did not deny that the Claimants made “lots of money” on their lots.

That being the case, how can the Claimants say they suffered a loss? Did the Claimants suffer a loss? [ 128 ] The Claimants seek to recover from the Defendant the sum of $17,195.67, comprising the following (although the following amounts only total $17,125.64): (

a) interest of $14,118.62 for the period April 1, 2019 to September 22, 2020;

(

b) property taxes of $1,316.56 for the period April 2019 to December 2019; (

c) property taxes of $1,394.46 for the period January 1, 2020 to September 22, 2020; (

d) court filing fee of $156; and (

e) service fee of $140. [ 129 ] Even the revised amount I have noted above is not entirely accurate if the property taxes are precisely calculated. It is not necessary to delve into these discrepancies in light of my conclusion. [ 130 ] Since I have concluded that the Defendant did not make any fraudulent misrepresentation to the Claimants, the Claimants could not have acted on any fraudulent misrepresentation on the part of the Defendant, and suffered a loss. [ 131 ] Mr.

Atwal admitted that the Claimants in fact made a profit of about $80,000 from the purchase and resale of Lot 34. [ 132 ] I agree with the Defendant’s submission that had it not been for the diligent efforts of the Defendant in managing the huge challenges with the Subdivision and seeing it to completion, the substantial profit the Claimants have reaped from this transaction would not have been possible. [ 133 ] I also agree with the Defendant’s submission that even if the Defendant is found to have made any fraudulent misrepresentation to the Claimants, the Claimants are not entitled to recover the carrying costs and court costs that they are claiming, because they have not suffered any loss from acting on any fraudulent misrepresentation on the part of the Defendant. [ 134 ] The evidence is abundantly clear that the Claimants had no intention of building on Lot 34, as they listed it for resale in February 2019, hardly two months after its completion on December 20, 2018.

It appears that they were not interested in obtaining a building permit. There is no evidence to suggest that they applied for one, even though the evidence indicates that Mr. Atwal was aware of the process for applying for one (as noted in an email from Mr. Soesanto and another email from Mr. Wickham). They could have applied for one if they had wanted to. In the end, I find that any delay on the part of the Defendant with respect to Lot 34 did not cause the Claimants to suffer any loss. CONCLUSION [ 135 ] A

summary of my conclusions is as follows: 1. the Defendant did not make the April 2016 Representation to the Claimants; 2. the November 9, 2018 and the November 14, 2018 Representations that the Defendant made to the Claimants were not factually false; 3. the Defendant did not make the November 9, 2018 and the November 14, 2018 Representations knowing that they were false, nor was the Defendant reckless as to their truth or falsity; 4. the Defendant did not make the November 9, 2018 and the November 14, 2018 Representations with the intention that the Claimants would act upon them to their detriment; 5. the Claimants did not suffer any loss; and 6. the Defendant did not breach the Contract.

ORDER [ 136 ] The Claimants’ action is dismissed. By the Court, _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia