0838436 B.C. LTD. CLAIMANT AND: TERASEN GAS INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MacCARTHY Appearing for the Claimant: Russell Jackson, an offer of the company Appearing for the Defendant: Jason Eardley, an officer of the company Place of Hearing: Nanaimo , B.C. Date of Judgment: September 14, 2011 [ 1 ] THE COURT: These are my oral, 2011 BCPC 264

Citation: 0838436 BC Ltd. v. Terasen Gas Ltd. Date: 20110914 2011 BCPC 0264 File No: C58877 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: 0838436 B.C. LTD. CLAIMANT AND: TERASEN GAS INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MacCARTHY Appearing for the Claimant: Russell Jackson, an offer of the company Appearing for the Defendant: Jason Eardley, an officer of the company Place of Hearing: Nanaimo , B.C. Date of Judgment: September 14, 2011 [ 1 ] THE COURT: These are my oral reasons for judgment in File C58877, Nanaimo Registry, between 0838436 B.C.

Ltd. ("Claimant") and Terasen Gas Inc. ("Defendant"). [ 2 ] This matter came on for hearing before me by way of a trial on April 28th, 2011, and June 22nd, 2011.

INTRODUCTION [ 3 ] The Claimant's claim is against the Defendant for its alleged negligent misrepresentation concerning the location of its natural gas mains that it or its predecessors had installed and presently maintain within certain areas of the Town of Ladysmith, Vancouver Island, British Columbia. [ 4 ] The Claimant alleges that the installed gas mains were not in locations specified by the Defendant to the Claimant, and as a result, they have suffered damages for which the Defendant is responsible. [ 5 ] The Defendant disputes the negligence and denies that the Claimant has suffered any injury, loss, damage, or expense.

BACKGROUND [ 6 ] The Defendant, which now carries on business as FortisBC, is a private utility. As part of its business, it distributes natural gas to consumers on Vancouver Island and elsewhere. As part of its distribution system, it owns and maintains a natural gas main that was installed in the Town of Ladysmith around 1992 pursuant to a permit issued by that municipality. [ 7 ] The Claimant is the owner of property at 16 High Street, in the Town of Ladysmith (the "High Street Property") that was under redevelopment pursuant to certain municipal approvals granted to it.

As part of that redevelopment process, the Claimant was required, at its own expense, to install storm drains, catch basins, and sanitary sewer lines in locations specified and approved by the Town of

Ladysmith in order to service the High Street Property. [ 8 ] These installation locations were on municipal laneways behind various properties, including the High Street Property, and on public roadways. The Defendant also maintains some of its natural gas mains in these same municipal laneways and public roadways. [ 9 ] The Claimant arranged for the required excavation and drain installation work to be performed by an associated company of the Claimant known as Russell J.

Holdings Ltd. which, together with the Claimant, is controlled by Russell Jackson. [ 10 ] Larry Kinnersley, an experienced and long-time employee of Russell J. Holdings Ltd., was authorized and instructed by the Claimant on its behalf to obtain information regarding the location of the Defendant's gas mains in the vicinity where the required excavation and installations were to occur. [ 11 ] Mr. Kinnersley was familiar with the required procedures to obtain location information before proceeding with excavating near utility works. He called the BC One Call information line.

It receives requests for this type of information on behalf of the Defendant and a large number of other utilities that maintain underground or buried works throughout British Columbia. [ 12 ] In his call, Mr. Kinnersley described the location where the intended excavation was to occur. He requested information on that location of all utilities in the proposed excavation area.

In doing so, he was seeking location information and a location diagram for the Defendant's natural gas mains in this proposed excavation area. [ 13 ] He testified that he specified to the BC One Call telephone representative that he was going to be excavating and installing a storm sewer in the alleyway running behind Esplanade Avenue from Buller Street (the "Esplanade Alley") to the alley running behind premises on High Street (the "High Street Alley"). [ 14 ] Mr.

Kinnersley was very knowledgeable about this area of Ladysmith, having done other work in the vicinity, and he knew the location of important property line pins from which the gas main location was apparently referenced. [ 15 ] In response to this call, the Claimant's contractor, Russell J. Holdings Ltd., received an information package from the Defendant which, among other things, included a diagram which showed the location of the gas mains in the vicinity around the High Street Property and which covered the area where the excavation was to occur.

This information package was entered as Exhibit 1 (the "Information Package"). [ 16 ] This Information Package also contained important information about gas line locations, the permit requirements, the applicable gas safety regulations and occupational health and safety regulations, and other information under headings such as "What to do if you hit and rupture a gas line" and "Understanding your gas line location information." [ 17 ] According to the evidence provided by the Defendant's representative, inclusion of much of this information is a requirement of the BC Gas Safety Authority.

It is noteworthy that the front page of the Information Package entitled "Your BC One Call Ticket" and which shows an original call date of 4/2/2009, that is, April 2nd, 2009, under the heading "Comments," references only "At/From" the civic address of the High Street Property. Although there is a reference area for insertion of the "Address To" and "Nearest Intersecting Street" and "Second Intersecting Street," these are not completed.

Under the heading "Additional Dig Information," the following has been inserted: "PUB/PRIV; PROP-RD/ALLEY/REAR." [ 18 ] Based on the evidence of Darrin Crozier, a distribution manager with the Defendant, this information indicates that excavation will occur on "Public/Private Properties" at the front of the High Street Property and in the alley behind the High Street Property. He was unable to offer an explanation of what the word rear was intended to add or describe. He says that nothing references the Esplanade Alley.

The specified "Type of Work" is specified as "storm sewer," and the depth is noted as 1.2 (metres). [ 19 ] Under the heading "Work Being Done For", the “Town of Ladysmith” has been noted. [ 20 ] The Information Package indicated that there was no record of gas service for the High Street Property. The Information Package contained no gas service records concerning adjacent properties.

Such records would identify and locate the customer service lines running off the gas main in the proposed excavation areas. [ 21 ] This Information Package is produced and provided by the Defendant, as the parties to this action agree, because it is required by the laws of the province of British Columbia to obtain it before excavating. [ 22 ] The Defendant further acknowledges that they intend that persons seeking and receiving an Information Package like this will utilize it and that it is prudent for them to do so. [ 23 ] The Claimant's contractor believed that the Information Package contained all the information that was requested by Mr.

Kinnersley and which was required by them from the Defendant for the planned excavation. [ 24 ] The Defendant contends that what was requested of them was provided but that the Information Package does not contain other important information that would have been provided if Mr. Kinnersley had correctly and specifically indicated that the Claimant's contractor would be undertaking excavation and installation behind the High Street Property in the High Street Alley and down the Esplanade Alley towards Buller Street. This would have resulted in the delivery of additional information to the Claimant.

They would have received from the Defendant the gas service records for the properties along the intended route. These would show the location of the various service connections in this area. [ 25 ] The Defendant bases its conclusion that Mr. Kinnersley did not fully indicate where the excavation and installations were to occur on the fact that this information would have then appeared under the heading "Additional Dig Information." [ 26 ] The Claimant contends that if an error occurred in properly detailing their request, it was the error of either the BC One Call

operator, being an agent for the Defendant, or the Defendant itself. [ 27 ] It is noteworthy that the diagram of the gas mains forming part of the Information Package contains the following notation and disclaimer: ATTENTION : DO NOT RELY ON THIS INFORMATION ALONE! You must manually dig to locate gas lines before using excavation equipment. All locations shown are approximate only. Gas lines built after the date listed below, are not included in this information package. Terasen Gas will not accept responsibility for errors or omissions. Depth of gas line not available due to possible change of grade.

Record information provided is specific to location of original request from BC One Call. Date completed: April 6, 2009. [ 28 ] As a further precaution before proceeding with the excavation and installation, Mr. Kinnersley arranged for an on-site meeting with a representative of the Defendant. This on-site meeting occurred on or about May 6, 2009, with a representative of the Defendant whose name was not known to Mr. Kinnersley. [ 29 ] Mr.

Kinnersley was concerned about the size of the Defendant's gas main and requested the Defendant's representative to use a yellow paint spray bomb on the pavement to mark the location of the gas main both in the High Street Alley and continuing down the Esplanade Alley (such markings hereinafter referred to as the "Ground Location Markings"). The Defendant's representative did so. [ 30 ] Thereafter, under the direction of Mr. Kinnersley, who was overseeing and undertaking the work on behalf of the Claimant and Russell J.

Holdings Ltd., the excavation work, installation, and backfill of the sanitary sewer line began. They commenced in the High Street Alley without incident on May 6, 2009, using the information obtained from the Defendant. Precautions were taken by Mr. Kinnersley and his crew to hand dig for the purpose of locating the gas main. This is a required procedure, according to the Information Package. [ 31 ] In the Esplanade Alley, they noted that the gas main was deviating slightly from the location noted by the Ground Location Markings that had been painted on by the Defendant's representative.

This slight deviation did not raise any major concerns in the mind of Mr. Kinnersley or any other representative of the Claimant. However, on May 7, 2009, Mr. Kinnersley observed a problem. They had excavated, installed, and backfilled about 40 feet of pipe in the Esplanade Alley between High Street and Buller Street. However, they also had laid bare a part of the gas main.

It was in a location that was at significant variance to the layout diagram that had been received from the Defendant as part of the Information Package and was also at a significant variance to the location identified by the Ground Location Markings. [ 32 ] This variation in the location of the gas main proved to be even more problematic when it was discovered that the variation continued such that the actual location of the gas main was as much as one and a half metres to two metres towards the middle of the Esplanade Alley and away from the identified supposed location of the gas main depicted on the diagram and by the Ground Location Markings. [ 33 ] The result was that the gas main was encroaching into the area where the authorities for the Town of Ladysmith had specified that the sanitary drains and storm sewer catch basins and manholes were to be located. [ 34 ] A gas service discovered for premises at 628 Esplanade was exactly where the manhole was to be located, according to the requirements of the Town of Ladysmith.

There was no record of this service on the diagram or in the Information Package that had been provided to the Claimant's contractor by the Defendant. [ 35 ] The Claimant's representative then placed a call to a marketing department representative of the Defendant. That marketing representative then requested Grant McCallum, a distribution service agent for the Defendant who was working in that vicinity on another job, to attend at the site of the excavation. He did so and met with Mr.

Jackson as a representative of the Claimant. [ 36 ] Other than the Information Package in the possession of the Claimant and its representatives, Mr. McCallum did not have any access to gas main or gas service location information. [ 37 ] Mr. McCallum observed the excavation and the exposed gas line.

Much of their discussion surrounded the discovery of the service to 628 Esplanade and the fact that it did not appear in the Information Package documentation and that this service was in conflict with the proposed manhole location. [ 38 ] Based solely on his own observations and without attempting to ascertain the actual location of any property lines or complete any measurements, Mr.

McCallum formed the impression that the gas main in the Esplanade Alley appeared to be in the specified area shown on the location diagram being one and a half metres measured from the property line of 11 Buller Street fronting the Esplanade Alley. He acknowledged that from his past experience, one cannot rely upon siting of such things as fences in order to conclude where the property line is actually located. [ 39 ] Mr. McCallum was not aware of what information had actually been requested by Mr. Kinnersley.

He did make a comment that he was surprised that the gas service location information was not in the possession of the Claimant. Mr. McCallum was able to use his equipment to place additional paint markings to show the actual location of the unexposed gas main. [ 40 ] It then became very evident that its location was in the pathway of the proposed sewer lines. [ 41 ] The Claimant's excavators had already cut much of the pavement down the Esplanade Alley towards Buller Street based on the Ground Location Markings. Several changes in plan had to be made.

The location of the catch basin and sanitary sewer line had to be changed with the reluctant approval of the representatives of the Town of Ladysmith, who attended on-site when the problems became apparent. [ 42 ] The fact that the deviation of the location of the gas main from its supposed location as originally identified by the Ground

Location Markings brought it much closer in proximity to the area designated by the Town of Ladysmith for the sewer installation. It also raised understandable safety concerns and required changes to the intended method of excavation in order to comply with the gas safety regulations. [ 43 ] The Town of Ladysmith therefore required the Claimant's contractor to complete about 80 percent of the remaining trenching to a depth of six to eight feet to be hand dug rather than completed with the use of a mini excavator machine.

It also impacted on the ability to use the mini excavator for backfilling to prevent damage to the gas main. [ 44 ] The use of the mini excavator would have been available to the Claimant's contractor had the gas main been in the location of the Ground Location Markings. [ 45 ] Based on the Claimant's evidence presented by Mr. Jackson, the expected time required for two workers (including Mr. Kinnersley) using the machine to complete the required excavation, installation, and backfilling would have been about three working days and cost about $4,000. This is based upon a labourer's hourly rate of $25 and Mr.

Kinnersley's hourly rate of $35 and the hourly machine charge-out rate of the machine and operator of between $90 and $95.

In fact, the time it actually took to complete the work by hand and with some machine time for backfilling was between eight to nine working days and involved two workers and the mini excavator for an estimated cost of between $9,000 and $10,000. [ 46 ] In their notice of claim, the Claimant's break the extra costs down in the following manner: 40 hours excavator and operator at $90 per hour equalling $3,600; plus labour, 40 hours at $35 per hour equalling $1,400; totalling $5,000 plus GST of $250 equalling $5,250. [ 47 ] The Claimant also claims for an extra amount payable to the Town of Ladysmith on Invoice 1998 directed to Russell J.

Holdings Ltd. in the amount of $312.51 for additional services required from the Town of Ladysmith caused by the timing and extent of the extra work that had to be done. [ 48 ] The total amount of these charges and extra billings is $5,562.51. These extra billings are the responsibility of the Claimant, and this amount is due to its associated company, Russell J. Holdings Ltd. The evidence is that this associated company had other paid projects it would have been working on had the Claimant's job been completed in the estimated three days. [ 49 ] Mr.

Crozier had no personal involvement with this matter until he was directed by the Defendant to deal with the Claimant's action in this court. [ 50 ] In his evidence for the Defendant, Mr. Crozier stated that up to 2006, the Defendant's predecessor, Centra Gas, when called upon to provide location information, had a policy of going out and physically marking the location of their gas mains for the benefit of those parties engaged by developers and municipal authorities to excavate in the areas around gas mains.

This policy was apparently changed around 2006 by Terasen Gas and such on-site assistance was discontinued for cost reasons. The Defendant has no record that anybody had previously been dispatched to complete the Ground Location Markings for the gas main as initially requested by Mr. Kinnersley prior to any excavation taking place. [ 51 ] Mr. Crozier candidly admits that the record of that attendance may not have been properly completed or the record could have been lost. I accept Mr.

Kinnersley's evidence that a representative of the Defendant did in fact attend and mark what was supposed to be the location of the gas main on the ground by way of the Ground Location Markings before the commencement of excavation and that reliance was placed upon them prior to the commencement of the excavation and during the installation of the sewers and catch basins and manholes. [ 52 ] Based on his experience, Mr. Crozier indicates that it is "very, very unlikely" that a mistake was made on the part of either BC One Call or the Defendant in processing the Claimant's request for information.

He does admit that an error could have possibly occurred. [ 53 ] There is no evidence before me as to what steps the Defendant took after Mr. McCallum's on-site visit to determine whether the gas main was, in fact, in the area identified in the diagram attached to the Information Package. There is no evidence before me by way of survey plans or other construction plans that identifies the exact location of the property line of 11 Buller Street adjacent to the Esplanade Alley, which property line has been used to determine the 1.5 metre offset location of the gas main. [ 54 ] Mr.

Crozier was able to find what appears to be a survey pin near the intersection of the High Street Alley and the Esplanade Alley. He has used it for a rough determination of the location of the adjacent property line and for reaching his conclusion that the gas main is in the area shown on the diagram. [ 55 ] I also have evidence from the Claimant's witnesses that the pin is actually offset from the actual property line, which would mean that Mr.

Crozier's conclusions are incorrect. [ 56 ] Similarly, I do not have any survey plans or other construction plans showing the actual location of the gas mains as they relate to either the proposed or resulting location of the sewer lines and the excavation that was undertaken by the Claimant. [ 57 ] I therefore have to rely upon the knowledge, experience, and observations of those who were actually at the site during the excavation when the gas main and the customer service lines were discovered and who gave evidence at the trial of this matter.

POSITION OF THE CLAIMANT [ 58 ] The Claimant contends that their request for information to BC One Call was not properly processed by either the Defendant or its agent, BC One Call. The Claimant did not receive the full and complete accurate information which they intended to use and upon which they actually relied. They also say that the gas main location information initially provided by the unidentified representative of the Defendant who attended for the purposes of making the Ground Location Markings was in error. They contend that had the

information been accurate and complete, then arrangements could have been made with the Town of Ladysmith to relocate the stormsewers and its appurtenances in an area way from the Defendant's gas mains before excavation and installation had started. This wouldhave avoided the additional expense caused by the extra hand-digging and restrictions on the use of the mini excavator that became areality upon the unanticipated discovery of the actual location of the Defendant's gas main and service connection.

POSITION OF THE DEFENDANT [59] The Defendant contends that the Claimant got what they requested from BC One Call and did not request the correctinformation. Based on the observations made by Mr. Crozier and Mr. McCallum, they contend the gas main is in the correct locationand the problem is really based upon the proposed siting of the sewer system which was specified by the Town of Ladysmith. Theproblem of encountering the gas mains is therefore of the Claimant's own making or caused by errors made by others in thedetermination of the proposed siting of the sewer.

In any event, hand-digging in the proximity of the gas mains may have been necessaryin any event. [60] They further dispute the fact that there is any connection between the alleged damages and the information that was provided tothe Claimant. THE LAW [61] The extension of the tort of negligence to provide for a remedy for an alleged injured party who suffers pure economic loss is setout in the House of Lords decision of Hedley Byrne & Company Limited v. Heller & Partners Limited, [1964] A.C. 465. That caseestablishes the foundation for claims brought against an alleged wrongdoer for negligent misrepresentation.

These principles have beenadopted by Canadian courts. [62] In order to succeed, the alleged injured party must establish a prima facie duty of care owed to it by the alleged wrongdoer. Asnoted by Professor Philip H.

Osborne ("Osborne") in The Law of Torts (3rd Edition) 2007 (published by Irwin Law Inc.) at page 170: In negligent misrepresentation cases, the plaintiff must establish that the representor “ought reasonably to have foreseen that the plaintiff would rely on his representations and that reliance by the plaintiff, in thecircumstances, would be reasonable”. [63] The authority cited for this is the Supreme Court of Canada case in Hercules Management Ltd. v.

Ernst & Young, (SCC), [1997] 2 S.C.R. 165 at page 200 ("Hercules"). [64] Professor Osborne (supra, at page 171) further notes that Hercules establishes "a second branch of the test to determine if theprima facie duty creates sufficient concerns of indeterminate liability that it must be negated on the grounds of public policy." InHercules, the Supreme Court recognized that there are good public reasons for not allowing the party responsible for a negligentmisrepresentation to be held liable for the indeterminate losses incurred by an unidentifiable group of plaintiffs who utilize theinformation.

These indeterminacy factors may be sufficient to negate a prima facie duty of care. [65] In establishing a prima facie duty of care, a number of factors are to be considered, such as: the special expertise of the providerof the information; the formality or seriousness of the occasion giving rise to the provision of the information; if the information is givenby the negligent representor in response to a request from the injured party; the direct or financial benefit received by the negligentrepresentor; any disclaimers accompanying the information; and the availability of the information from other sources. [66] Once the prima facie duty of care is established, the alleged injured party must still establish: (

a) in providing the inaccurate information, that there has been a breach of the standard of care to which the representor mustcomply. That standard will be "the exercise of such reasonable care as the circumstances require to ensure that the representations madeare accurate and not misleading": see Queen v. Cognos Inc., (SCC), [1993] 1 S.C.R. 87 at 121 as noted by Osborne atpage 177; and (

b) that the alleged injured party actually relied upon the misrepresentation from the representor and that the alleged damagessuffered flowed from this reliance. [67] The alleged injured party is subject to a defence of contributory negligence, for example, by failing to prudently heed some"subsequent information or advice from a third party" or failing to make "some further inquiries before acting.

Contributory negligencewill also be available where the plaintiff has negligently exacerbated his losses or unreasonably failed to mitigate them.": see Osborne,supra, at page 178 and 179. [68] Recently, our Court of Appeal has examined the tort of negligent misrepresentation in Smith v. Landstar Properties Inc., 2011BCCA 44, a decision written by Chief Justice Finch on behalf of the court. At paragraphs 26-29, the chief justice says as follows: [26] In Queen v. Cognos Inc. at 110, Mr.

Justice Iacobucci identified the five requirements of a claim for negligent misrepresentation: The decisions of this Court cited above suggest five general requirements: (1) there must be a duty of care based on a "specialrelationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading;(3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonablemanner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense thatdamages resulted. [27] This formulation is helpful for identifying the necessary elements, but it must be remembered that negligent misrepresentation atits base is an action in negligence and shares the same analytical framework.

Each of the requirements listed above corresponds with the

requirements of a negligence action: duty of care, standard of care, causation and damage. [28] In Hercules Managements, Mr. Justice La Forest made it clear that the Anns test for a duty of care (Anns v. Merton LondonBorough Council, [1977] 2 All E.R. 492, now updated by Cooper v. Hobart, 2001 SCC 79 , [2001] 3 S.C.R. 537) applies incases of negligent misrepresentation.

He said the following at para. 22: The first branch of the Anns/Kamloops test demands an inquiry into whether there is a sufficiently close relationship between theplaintiff and the defendant that in the reasonable contemplation of the latter, carelessness on its part may cause damage to the former. The existence of such a relationship – which has come to be known as a relationship of "neighbourhood" or "proximity" – distinguishesthose circumstances in which the defendant owes a prima facie duty of care to the plaintiff from those where no such duty exists.

In thecontext of a negligent misrepresentation action, then, deciding whether or not a prima facie duty of care exists necessitates aninvestigation into whether the defendant-representor and the plaintiff-representee can be said to be in a relationship of proximity orneighbourhood. And at para. 24: To my mind, proximity can be seen to inhere between a defendant-representor and a plaintiff-representee when two criteria relating toreliance may be said to exist on the facts: (

a) the defendant ought reasonably to foresee that the plaintiff will rely on his or herrepresentation; and (

b) reliance by the plaintiff would, in the particular circumstances of the case, be reasonable. To use the termemployed by my colleague, Iacobucci J., in Cognos, supra, at p. 110, the plaintiff and the defendant can be said to be in a "specialrelationship" whenever these two factors inhere. [29] The key inquiries are whether reliance by the plaintiff was reasonably foreseeable by the defendant and whether that reliance bythe plaintiff was reasonable . . . [69] At paragraphs 30 and 31, the chief justice goes on to say as follows: [30] At para. 43 of Hercules Managements, Mr. Justice La Forest cited with approval five indicia of reasonable reliance identified byProfessor Bruce Feldthusen:

(1) The defendant had a direct or indirect financial interest in the transaction in respect of which the representation was made.

(2) The defendant was a professional or someone who possessed special skill, judgment, or knowledge.

(3) The advice or information was provided in the course of the defendant’s business.

(4) The information or advice was given deliberately, and not on a social occasion.

(5) The information or advice was given in response to a specific enquiry or request. While these five indicia are not a strict test of reasonable reliance, they help distinguish cases where reliance is reasonable from thosewhere it is not . . . [31] The second stage of the Anns test considers whether there are policy considerations that negative the prima facie duty of careestablished at the first stage. ANALYSIS [70] On the evidence before me, and based upon the authorities noted above, the prima facie duty of the Defendant to the Claimanthas been established.

I find that there is a special relationship between the representor-Defendant and the Claimant who was therepresentee through its contractor, Russell J. Holdings Ltd. The Defendant provided information as to the location of its gas mains to theClaimant both by way of the Information Package and by way of the Ground Location Markings which were provided by theDefendant's representative to Mr.

Kinnersley prior to excavation. [71] The Defendant intended that the Claimant and its contractor would rely upon this information to undertake its work in a mannerthat would prevent serious damage to the natural gas lines and which could cause a hazardous situation and result in loss and expenses tothe Defendants. Based on the evidence that I have heard, I have concluded that this important information was apparently not availablefrom another source. [72] Here, there is reasonable reliance by the Claimant and its contractor on the information that was provided.

The Claimant and itscontractor did not solely rely on the diagram provided to them. Therefore, the Defendant cannot then rely upon the disclaimer containedin the diagram to provide inaccurate information. In any event, the disclaimer does not apply to the Ground Location Markings. Theduty of care cannot be negated in this situation because of issues of indeterminacy as to the use of the information and the damages thatmay be sustained by its use. [73] The statements as to the location of the gas mains were made to and used by the parties that were seeking and were provided withthe information.

No other policy considerations have been advanced by the Defendant that would negative the prima facie duty of carein this case. [74] The Information Package prepared and delivered by the Defendant was not as complete as it should have been based upon therequest made by Mr. Kinnersley to BC One Call.

I accept his evidence that what he requested and what he should have received was fulland complete information showing the location of natural gas mains and gas service connections for the High Street Alley and theEsplanade Alley. [75] On the basis of the evidence before me, both the diagram attached to the Information Package and the Ground Location

Markings did not accurately portray the actual location of the gas main in the Esplanade Alley. It seems highly unlikely that having issued the permit for the installation of the gas main to be one and a half metres off the property line of 11 Buller Street adjacent to the Esplanade Alley, the Town of Ladysmith would then designate the same area for the installation of its storm drain and sewer system.

The more logical conclusion is that there was an error in the original installation of the gas mains or in recording their offset from the 11 Buller Street property line adjacent to the Esplanade Alley. [ 76 ] All of the evidence before me leads to the conclusion that the Defendant did not use reasonable care to ensure that the representations as to the location were accurate and were not misleading. They were both inaccurate and misleading.

Therefore, the Defendant was negligent and has breached the appropriate standard of care. [ 77 ] The Claimant and its contractor relied upon this inaccurate and misleading information. They had no other choice as to the source of this information other than from the Defendant.

The Claimant took reasonable steps to verify the information that they received from the Defendant by following the procedures outlined in the Information Package and by specifically obtaining and using the Ground Location Markings from the Defendant's representative. [ 78 ] But for its reliance on this inaccurate and misleading information, the Claimant would not have incurred the additional time and expense that it did in order to complete the required work. I accept that it received inaccurate information at the outset.

I accept that had it received accurate information at the outset, steps could have been taken by the Claimant in conjunction with the Town of Ladysmith to change the location design of the sewers and drains and would thereby have avoided the extra work that was required. [ 79 ] The extra work and time requirements have not seriously been challenged by the Defendant. The estimates of the damages claimed by the Claimant are reasonable in the circumstances. The damages suffered by the Claimant are also reasonably foreseeable in the circumstances.

CONCLUSION [ 80 ] Accordingly, based on all of the foregoing, the Claimant will be entitled to a judgment against the Defendant in the amount of its claim of $5,562.51, plus its filing fees of $156, plus its service fee of $20, plus applicable court-order interest calculated from May 15th, 2009. There will be a payment order accordingly. [ 81 ] I am going to pause for a moment. There is a representative of the Defendant here.

I take it that a brief period of time will be required in order to provide funds to the Claimant; is that correct? [ 82 ] UNIDENTIFIED SPEAKER: Yes, that's correct. [ 83 ] THE COURT: All right. Would it be reasonable to expect that it could be completed by the end of September 2011, by the last day of this month? [ 84 ] UNIDENTIFIED SPEAKER: That would be -- that would be correct. Our company takes a while to get payment out for different things. Could we get a month, possibly? [ 85 ] THE COURT: Mr.

Jackson? [ 86 ] RUSSELL JACKSON: I'm fine with that. [ 87 ] THE COURT: All right. [ 88 ] UNIDENTIFIED SPEAKER: Our head office is in Surrey, so it takes -- you know. [ 89 ] THE COURT: Yes, it's a long way to Surrey. We will make the payment due by the 17th day of October 2011. [ 90 ] All right. So that concludes my reasons for judgment. (REASONS CONCLUDED)