Wang v. Dhillon et al Date:, 2013 BCPC 351

Citation: Wang v. Dhillon et al Date: 20131115 2013 BCPC 0351 File No: C7316 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JINHUAN WANG CLAIMANT AND: AMRJIT SINGH DHILLON, SWINDER KAUR DHILLON, GURPREET KAUR DHILLON, INDERJIT SINGH DHILLON, DEVINDER KAUR DHILLON DEFENDANTS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Claimant: No Appearance Counsel for the Defendants, Inderjit and Devinder Dhillon: K. Oliver

Counsel for the Defendants, A.S. Dhillon, S.K. Dhillon, G.K. Dhillon : No Appearance Place of Hearing: Port Coquitlam , B.C. Date of Hearing: September 17, 2010, October 1, 2013 and November 15, 2013 Date of Judgment: November 15, 2013 [ 1 ] THE COURT: The claimant, Ms. Wang, purchased a 17-acre blueberry farm from A. Dhillon and S. Dhillon, pursuant to a Contract of Purchase and Sale made on April 11th, 2005. [ 2 ] According to Mr. Bob Dhillon, a brother of one of the vendors, the property is located on the border between Port Coquitlam and Port Moody.

Its municipal address is 325 Laurier Avenue, Port Coquitlam, British Columbia. The purchase price was some $888,800. [ 3 ] The above Contract provided among other things that the purchaser, Ms. Wang, was acquiring a fridge, stove, washer, and dryer.

The original completion date of May 30th was changed to June 15th, 2005 with an initial possession date of May 31st later changed to June 16th, 2005. [ 4 ] The Contract contained an addendum dated April 11th, 2005 which contained a term "in case buyer wants vacant possession seller warrants that all the equipment and garbage will be removed from the property". [ 5 ] A further addendum to the Contract was entered into on May 18th, 2005 and extended the completion date to July 29th, 2005 and containing a new term, "The seller agrees to put two trailers on the property".

No date by which this was to be done is set out nor is the type of trailer described beyond the statement that they were to be similar to the one sitting on the very end of the property on the north side. [ 6 ] The requirement that the vendor would remove all the equipment and garbage from the property was repeated. These added provisions were clearly of benefit to the purchaser, Ms. Wang who was at all material times represented in this transaction by a real estate agent in Richmond, one Mr. Danny Dhami. These subject clauses were removed by the purchaser on July 29th, 2005. [ 7 ] On August 21st, 2006, Ms.

Wang commenced this action alleging that the vendors of the property did not put the two trailers on the property and did not remove the garbage therefrom. She claimed damages of $10,000 for the two trailers and $9,500 as a fee for clearing garbage for a total claim excluding costs of some $19,500. [ 8 ] The defendants have filed various replies including to the claimant's amended notice of claim filed on March 21st, 2007 wherein the description of the defendants in the action was changed by her to expressly refer to five individuals: 1. Firstly, Amrjit Dhillon.

I note that this defendant is married to Swinder Dhillon. 2. Swinder Dhillon, who is Amerjit's wife. 3. Gurpreet Dhillon. She is Bob Dhillon's wife. 4. Inderjit Dhillon who is a younger brother of Amrjit and Bob. 5. Devinder Dhillon who is Inderjit's wife. [ 9 ] All of these defendants are described as "sellers" of the property.

In their replies they generally deny the allegations made by the claimant but strangely do not allege they delivered the two trailers and cleaned up the garbage, in essence performing the contract they made with the claimant. [ 10 ] I should state at the outset that the conditions in the Contract of Purchase and Sale said not to be performed are vague. Nowhere are the nouns "garbage" and "equipment" described, for example, "garbage" could mean and include old pieces of lumber to some persons, but not to everyone. A chicken coop in poor condition might be seen by some to be garbage, but not to a farmer. [ 11 ] A

schedule of what exactly was to be removed by the defendants might have been added to either of the addenda for clarity's sake or even a site plan or diagram showing what was to be removed. This was not done. Photos might have been taken and attached thereto depicting exactly what was to be removed.

This also was not done nor were any photos taken as at say April 11th, 2005 when the contract was entered into showing the state of the premises and on say August 1st, 2005 shortly after the plaintiff took possession thereby permitting the Court to have a before and after view if you will of the state of the premises and presence or absence of garbage thereon. [ 12 ] The trial commenced before me on September 17th, 2010 and finally concluded on October 3rd, 2013 with argument.

The trial time was prolonged because a settlement was said to have been made but not performed by all defendants and in the result the trial continued before me. Nothing turns on this fact in my view. [ 13 ] Mr. Oliver, then acting for the defendants, explained in his brief opening remarks that the two trailers had been delivered to the property and that the reason for the delay in closing on the sale was the claimant's insistence that it be cleaned up before she would close the transaction. [ 14 ] Mr. Fan testified for the claimant.

He said he first met the claimant at a Home Depot store after August 2005 and later visited

her property. He could not recall the date of his first visit, approximately one year later between June and September 2006 on three occasions for one hour each. He helped clean up the claimant's property and garbage thereon. Most garbage was in a pile. There were two or three piles of garbage, mostly rotten wood. He described seeing a rusted old fridge, a broken toilet bowl, rotten wood with nails, maybe four or five empty paint containers and at least three big tires with weeds growing through their centres. It looked like it had been there a long time.

He did the three hours of work for free. [ 15 ] It is unclear exactly what work he did in his clean-up efforts. He said he clearly recalled the toilet bowl, fridge, tires and rotten wood, but otherwise seemed to suggest his memory of events four years earlier in time was unclear. [ 16 ] On cross-examination, he could only state he met Ms. Wang between 2005 and 2006, whatever that means. He recalled the property had one house on it when he was there located immediately to the east of an old north-south road on the western border of the property.

There was no dispute in the evidence that on sale the property had two houses, one white and one blue in colour. I understand the white house was located closer to the southern boundary of the property and that it was demolished in the year 2008. The blue house was located closer to the western boundary of the property and the claimant lived there initially after the purchase. [ 17 ] I conclude when Mr. Fan first visited the property this must have been after some form of demolition had been done on it. He believed he attended on the property in the month of June. [ 18 ] Mr. Qiu testified for the claimant.

Somehow he had managed to be in the courtroom while Mr. Fan testified. He was aged 75 and was the claimant's husband. He moved into the property on August 3rd, 2005 with his wife and said he had remained there to date. He said he had never seen two trailers on the property but recalled a few piles of garbage containing a lot of broken, old tires, a broken fridge and stove, various broken auto parts, a lot of plastic containers, a lot of broken plastic items, and some broken pieces of wood. There were also broken fans for raising chickens and broken pieces of wood inside the chicken coop.

Blackberry bushes were growing in this area. He said there were five piles of garbage located both to the east and south of the home they lived in as described by Mr. Fan. Three of the five piles of garbage had weeds growing up on top of them. He estimated they had paid about $15,000 to clean up the garbage they found on the property. This included: 1. Bar Nine Trucking $2,349.80, an invoice dated September 6th, 2005. I note the invoice describes one machine move $160.00 and then 24 hours of labour at $85.00 an hour. There is no description on the invoice as to what the labour was for. 2. $324.00 to Mr.

Hao, apparently dated 25/06/2006, some 11 months later. There is no invoice, only a cheque stub with a reference "36 hours" and no note as to what the hours were for. The cheque was issued by two friends of the claimant to Mr. Hao and the claimant's husband said he had reimbursed them and said the charge was for garbage clean-up but did not state when the work was done. 3. Four cheques for Mr. Hao, namely, (a) $327.50 dated 31/03/2006; (b) $264.95 dated 28/02/2006; (c) $423.00 dated 04/05/2006; and (d) $433.38 dated 1/06/2006, the four totalling some $1,448.83. These documents are all very unclear.

All these four cheques were issued by the same friends of the claimant and the claimant's husband said he reimbursed them for these monies. The work was for cleaning up garbage. [ 19 ] No documents were filed as to items 2 and 3 above showing how and when Mr. Qiu reimbursed his wife's two friends for the money nor was any explanation given as to why they paid Mr. Hao in the first instance. [ 20 ] He testified that their original mortgage application was not approved. This was the reason for the extension of the completion date.

It was not to allow for the clean-up of the garbage as per the above Contract amendment. Yet in cross-examination he said the new first mortgage was signed on May 16th, 2005, the date on p 6, the addendum to the Contract of Purchase and Sale. [ 21 ] The claimant's Exhibit binder at Tab 2 contains a

summary of other clean-up expenses, most of which were not referred to by Mr. Qiu in his direct evidence. [ 22 ] In cross-examination, Mr. Qiu testified that the machine referred to in the Bar Nine Trucking invoice was some sort of excavator to pick up something or for the removal of garbage. It was not used to demolish the old house at the front of the property. The 24 hours of work was done much before September 6th, 2005 on September 4th, 5th and 6th while he was present at the farm. The excavator only removed part of the garbage from one of the five piles. [ 23 ] Exhibit 3 contains an invoice from Mr.

Bin Disposal dated September 6/2005 for $567.10 for one 40-yard bin. I understand his evidence to be that he had paid this invoice and said that the bin was used for some of the garbage and removal. He said he did not demolish the old house on the front or south side of the property between September 4th and 6th, 2005 as they were not allowed to do so. They had to await the City issuing a demolition permit which was granted after July 16th, 2008. A copy of the same was not filed in evidence at the trial. [ 24 ] When asked about the reference to the trailer in the above addendum condition, Mr.

Qiu said when he looked at the property – he did not say when – there was a trailer on the north side but outside his property on Lincoln Avenue but then in virtually the same breath he said he did not know where the property line was. He said he had never seen any trailers on his form. [ 25 ] When cross-examined on precisely what work the excavator did in the 24 hours over three days, he said it removed only a portion of a 10 foot by 20 foot by 4 to 5 foot tall pile of garbage referred to as number 6 on Exhibit 2, a topical view of the property.

This strikes me as a very excessive amount of time on a 1,000 cubic foot pile of garbage. [ 26 ] He explained that the friends who initially paid Mr. Hao lived on the property in the old house; I understood on the western boundary. [ 27 ] At the beginning following the purchase he testified that he lived in Richmond but said they, being he and the claimant, frequently visited 325 Laurier Avenue. They moved to it in July of 2006. Prior to this the above two friends paid Mr. Hao to clean up

garbage as he and his spouse were not then living on the property and Mr. Qiu had no cheques but the friends did. I find this odd. Mr. Qiu testified that he was a professor of electronics in China. He and his wife had just paid $888,800 for 17 acres of land but yet he says he had no cheques. [ 28 ] As well, I found Mr. Qiu's evidence as to when he was on the property in direct as to when he moved onto the property somewhat inconsistent with this evidence in cross-examination; August 3rd, 2005 versus July 2006.

He denied the old fridge and stove came out of either of the two existing homes. [ 29 ] In his reply evidence he testified they had applied for a demolition permit for the home on the south side of the property on or about July 6th, 2008. City inspectors came out and refused to issue one until garbage in pile number 6 was first removed.

He said they removed no garbage between July 6th and 16th, 2008 when the demolition permit was issued. [ 30 ] This evidence does not make sense in light of his earlier evidence that in September 2005 Bar Nine Trucking had worked for three eight-hour days on only garbage pile number 6 with a 40-cubic yard bin being filled. In addition, Exhibit 6 is a demolition permit issued for 325 Laurier Avenue for an existing building on June 22nd, 2007, a year earlier. [ 31 ] In answer to certain questions from the Court he said that on August 15th, 2005 or thereabouts Mr.

Bob Dhillon came out to the property to review the garbage situation. His wife, Ms. Wang, was present as was their realtor Danny Dhami. They took Bob around and showed him the garbage they wanted removed including pile number 6 which had weeds on top of it. He said Bob Dhillon did not agree this was garbage and did not agree to pay for its removal. Mr. Qiu said eventually Bob agreed to pay the costs of removal of some garbage found in four piles numbered 4, 5, 6 and 7 on Exhibit 2, but did not say how much. [ 32 ] In closing argument made on October 3rd, Ms.

Wang said Bob then had agreed to pay her $2,500 immediately but never did so. [ 33 ] In answer to certain further questions from the Court Mr. Qiu said he and the claimant first saw the property with their agent at the beginning of April 2005 and there were then piles of garbage on it. They never met with the vendors to discuss what garbage was to be removed including after the addendum term was put in place as part of the Contract of Purchase and Sale. No demolition was done on the property from August 3rd, 2005 to July 16th, 2008. The white home on the south side was then demolished by a Mr.

Lee and his son July26th to 31st, 2008. [ 34 ] Mr. Zhao Hao testified. He knew the claimant and her husband and had visited 325 Laurier Avenue two to three times before they bought it in 2005 and saw a lot of garbage on the property. He could not say how much was there; it was all around the place including rotten wood. He recalled it was piled up like a mountain of garbage covered with shrubs and thorns.

He observed a Caucasian person with an excavator remove garbage and at the time both houses were then standing on the property. [ 35 ] He recalled visiting the property eight to ten times after the claimant purchased it. He saw a bin being filled with garbage by the excavator after the claimant moved in but still there was garbage on the property. [ 36 ] In cross-examination he admitted he had no knowledge as to where the property lines were on 325 Laurier Avenue. He did not see the claimant demolish any building while the garbage clean-up was ongoing a short period of time after they moved in.

He only saw the excavator cleaning up garbage not demolishing buildings. [ 37 ] In answer to certain questions from the Court, he explained that after the claimant purchased the property he had done some renovation work for her, the first being about 30 days after she took possession, for a continuous period of four to five days. He was there about eight hours each day.

He said -- I felt somewhat contrary to his earlier evidence -- that he saw the excavator working on her property and he could not recall when exactly approximately two months after his initial four to five day work stint which would place it in the month of November 2005, contrary to the Bar Nine Trucking Invoice dated September 6th, 2005. [ 38 ] The claimant testified. She took possession of 325 Laurier in August 2005 and saw no difference in the state of garbage on the property before as against after this date. Her garbage clean-up commenced about one month later.

She complained to her real estate agent many times about the garbage situation. The garbage was not all cleaned up in 2005 as she did not have enough money. A further second clean-up was done in 2006. She applied for a demolition permit for the smaller home in the summer of 2007 and received it in September 2008 and did not demolish this home until after she received the permit. I note this evidence is contrary to the plain wording on Exhibit 6.

She said she received a letter from the City of Port Coquitlam dated August 22nd, 2008 to her lawyer which states: Subject: Demolition Permit for 325 Laurier Avenue BP008675-Port Coquitlam As per our recent conversation regarding the above property, I visited the site prior to July 16th, 2008 and found a large pile of garbage on site and therefore could not finalize the demolition permit for the second dwelling. Should you have any questions please contact the Building Division of the Development Services Department at (604) 927-5275.

Signed: Stephen Chee, Building Inspector [ 39 ] I note Exhibit 7 refers to a demolition permit for a second building.

They then cleaned up the garbage and then the City issued the demolition permit for them to demolish the house. [ 40 ] As to the two trailers, she said no one called her to state they had been delivered and from August 3rd, 2005 to the date she testified in court no one called her or left a message that they were going to deliver a trailer or trailers to her. [ 41 ] Contrary to her husband's evidence she testified that she did not see anyone on behalf of the vendors come to her property after August 3rd, 2005 to review the garbage situation. She did agree she had in essence asked her agent to invite Mr.

Dhillon to visit. The agent came about three weeks after she moved in. She could not recall when; he came a lot. She agreed she spoke to her agent about the trailer and garbage situations but did not speak directly to the Dhillons about these situations.

[ 42 ] She testified as to the clean-up costs. No part of the Bar Nine Trucking invoice related to demolition costs, only garbage clean- up. No part of the Mr. Bin Disposal invoice related to demolition; again only for garbage clean-up. None of the five cheques paid to Mr. Hao related to demolition work. They all related to garbage clean-up work. [ 43 ] I note at no time did Mr. Hao say he did any garbage clean-up work for Ms. Wang. Rather he said he was a renovator and had attended at her property certainly in 2005 to do renovation work for her. He was 60 years of age at the trial. [ 44 ] Ms. Wang gave no further direct evidence with respect to these items on the

schedule in the claimant's document book at Tab 2 filed at trial or a similar typewritten

schedule never marked as an Exhibit or proven in evidence at trial totalling some $23,678.16 as compared to the above Tab 2

summary in the amount of $10,595.23. [ 45 ] On cross-examination she said one could bring trailers onto 325 Laurier on the north side off Lincoln Avenue. In essence this would be the way to do it. She said one of the buildings on the property when she took possession of it was a collapsed chicken shed which she took down after a few months. She said it was garbage when she took possession of the property as it was then collapsed by which she clarified really meant half only was not totally collapsed and half was merely lopsided. She felt it could not be used.

She denied the garbage she complained of resulted from the demolition of an old white house on the property, the one located or on or near the southern boundary or the chicken coop. [ 46 ] On October 1st, 2013 in her concluding cross-examination, she said among the garbage she had earlier referred to was "equipments used to raise chickens". This is the only equipment any witness called by the claimant referred to in testimony using this noun.

This day, she reverted to describing the chicken coop as already collapsed, notwithstanding her earlier evidence that it was still standing. [ 47 ] This latter evidence must be seen as a form of exaggeration on the claimant's part as to the precise state of this building on her taking possession of the property. In addition, it discloses that to the claimant the term "garbage" can include an older structure potentially one in need of repair but still standing.

She said all the garbage she had paid to remove after August 3rd, 2005 was garbage already on the property and implicit in her evidence was within the addendum clause in issue. She admitted she considered the old building which was demolished in 2008 to be garbage as well as the woods therein were all rotten. [ 48 ] She said the old appliances, a fridge, stove and washing machine were outside the two houses and did not come from the white home demolished in 2008 which she had inspected prior to purchase in 2005 and found nothing in it.

No appliances had been removed, at least the fridge and stove, when the tenants were moved out. She said she only later purchased the appliances for the blue house. It had none when she moved in. They were gone. She testified when she purchased the property she had not requested or asked that the fridge, stove, washer and dryer be included. These items were written in by her agent without her knowledge. When shown p 5 of the Contract of Purchase and Sale, she appeared to reverse course and said they had asked for these items in the blue house if in good condition and that they were not.

She said only the blue house had appliances inside. This evidence seems in direct contradiction to her evidence that on purchase the appliances were all gone from both houses. Finally on point she said they removed these appliances from the blue house as they were not in good condition. [ 49 ] Amrjit and Bob Dhillon testified for the defendants. Amrjit said two trailers were purchased from Falcon Pacific Development

(1992) Ltd. on June 10th, 2005 for some $4,580 and delivered to Lincoln Avenue said to be a private road on 325 Laurier on June 10th by one Parmjit Thiara, a worker then in the employ of his brother Bob. He understood that the agent, Mr. Dhami, was supposed to tell the claimant the trailers had been left this day but could not say he had done so. The Dhillons did not so advise the claimant. [ 50 ] The chicken coop was standing when the claimant purchased the property and had been there for years.

Both the white and blue houses had families living in them at the time of the sale and both homes had working stoves, fridges, washers and dryers therein. When the tenants left, all appliances were left in place. [ 51 ] The farm owners were himself, Gurpreet, Swinder, Inderjit and Devinder, not Bob Dhillon. Amrjit lived close by to 325 Laurier Avenue and recalled being on the property twice before the claimant took possession including lastly in the early summer. The chicken coop was still standing.

He did not see any old appliances outside on the land, for example, old building parts, old used electronic items, or old tires. Blackberry bushes as always were growing everywhere. Every summer they would try to clear them and in one month they would return. [ 52 ] Bob Dhillon testified. He said he was directly involved in the sale of 325 Laurier Avenue on behalf of the owners with Mr. Dhami. [ 53 ] He was there on a daily basis as he lived very close by.

He confirmed both the white and blue houses on sale contained functioning appliances. [ 54 ] He agreed there were some construction materials in the barn and said he had donated them to his driver, one Tim, who cleaned up this barn by July 29th, 2005 leaving nothing behind. [ 55 ] He recalled Ms. Wang's realtor prior to the completion date threatened not to complete unless a clean-up was done. In the result, he hired one Gary of P.N. Rubbish Removal and his truck and a crew of three people on June 13th, 2005 to do a clean-up and remove all garbage and debris on site and paid him $1,000.

This invoice was filed by the defendants at trial. He was there on the property at the time and pointed out to Gary what he was to take including a few old tires, approximately six in number, and pieces of PVC pipe. He believed Gary had taken about three loads of rubbish away to the dump. [ 56 ] He testified that Mr. Dhami was on the property after Gary had done his work on June 13th and appeared satisfied with the clean-up. Bob understood Mr. Dhami was there on Ms. Wang's behalf to inspect the clean-up and that he would be reporting to her.

He was not aware that she had ever inspected 325 Laurier after Gary's clean-up and prior to the completion of the sale. He said there was no equipment on the property save possibly the feeding and watering devices hanging from the ceiling of the chicken coop which had been used by the tenants right up to their departure.

[ 57 ] He used to walk by the property daily -- Monday to Friday-- for exercise and noticed after Ms. Wang took possession of the property there were some appliances outside the houses. He had not removed them as they were part of her purchase. He said these appliances were all inside the two houses prior to the sale and in use by the tenants. [ 58 ] On June 11th, 2005 he said he was on the property and the two trailers his brother had testified about were on the claimant's property this day. He recalled Mr.

Dhami had attended at 325 Laurier on June 11th specifically at his request and specifically to confirm that the two trailers had been delivered and so acknowledged to him this day that that had occurred. He saw them there for almost a year and then one day they were gone, he knows not where. From Bob Dhillon's recollection of this transaction, Ms. Wang would not close the deal until the vendors performed their conditions. He denied in cross-examination that Mr. Dhami had asked him two months after the deal completed for two trailers and to clean up the garbage.

Discussion [ 59 ] It is trite law to state that the Court cannot make an agreement for the parties. They must reach a clear, comprehensible agreement themselves with certain terms for it to be enforceable. The meaning of the terms in a contract must be capable of being determined with a reasonable degree of certainty. Where they fail to express themselves in their agreement in such a fashion that their intentions cannot be comprehended by the Court when the alleged agreement is sought to be enforced, the agreement fails for lack of certainty of terms.

It is not an enforceable agreement (see The Law of Contracts , John D. McCamus, 2005 p. 91 et seq. ). [ 60 ] One aspect of uncertainty occurs where a term is so vague or imprecise that the Court cannot give a meaning to it which it can comfortably enforce (see McCamus at p. 104 et seq. ). [ 61 ] I am not of the view that the trailer condition in the addenda is in any way vague. There seems to be agreement in this case that there was in the summer of 2005 a 28-foot trailer parked on or near the north boundary of 325 Laurier Avenue, there for all to see.

Exhibit 4 as I understand the claimant's evidence is a photo of this trailer. [ 62 ] The only dispute is as to whether the defendants did what they agreed to do and put two trailers on the property. The defendants' evidence given by Bob Dhillon on point as to the purchase of two trailers was not really challenged by Ms. Wang in her cross-examination or at all. Nor is it suggested that the two trailers purchased on June 10th, 2005 were not similar to the one parked on the north end of 325 Laurier Avenue. [ 63 ] Mr.

Dhillon says they were delivered the same day to a narrow strip of land bordering Lincoln Avenue at the top of the old Blackberry Road 325 Laurier Avenue and that Mr. Dhami confirmed that they were there next day on the claimant's behalf. [ 64 ] Mr. Dhami was the claimant's agent. She did not call him at trial to testify. In my view, she bears the onus of proving the non- delivery of the two trailers and in such event the corresponding breach of the Contract of Purchase and Sale alleged on the balance of probabilities in order to recover the damages she claims in her action. The onus is not on Mr.

Dhillon to prove he made the delivery. [ 65 ] She says she never saw them. Her witnesses say the same thing. These witnesses of course were at the property at different times. In my view, some of them might not really be focussing on what was parked at the north end of the property in the summer of 2005 for example Mr. Hao who did certain renovation work for her in September of that year and thereafter. [ 66 ] The essence of the claimant's evidence is that Mr. Dhillon and his brother are being untruthful when they say in essence that they dropped off the two trailers in issue on June 10th, 2005 and that Mr.

Dhami saw this occurring. I do note that they did remove the subject clauses on July 29th, 2009. If the conditions in the agreement were not by then fulfilled by the vendors one wonders why they closed the transaction at this time. Hence I have two different stories on point. [ 67 ] Credibility becomes an important issue in this case. Who do I believe? Ms. Wang and her witnesses or the two Dhillon brothers? If I believe the Dhillon brothers it would be difficult to accept as accurate the claimant's position that the two trailers were not delivered to the property.

Credibility thus is an issue of some importance in this case. [ 68 ] In assessing credibility the Court can consider various factors including those set out in the well-known case of R. v. Parent , 2000 BCPC 11 a judgment of Her Honour Judge Ann Rounthwaite who said this in paras. 4 and 5 of her reasons: [4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 1. The witness' ability to observe the events, record them in memory, recall and describe them accurately, 2. The external consistency of the evidence.

Is the testimony consistent with other, independent evidence, which is accepted? 3. Its internal consistency. Does the witness' evidence change during direct examination and cross-examination? 4. The existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. The "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. Motives to lie or mislead the court: bias, prejudice, or advantage.

To consider the obvious possible motive of every accused person to avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive when assessing an accused's testimony. 7. The attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual and cultural factors, which may affect demeanour.

Because of the danger of misinterpreting demeanour, I would not rely on this factor alone.

[69] As to the fifth point above, the "sense" of the evidence, she also used the term "ring of truth" and still other judges have usedthe term "air of reality" to describe this indicium. [70] Our Court of Appeal in the well-known case of Farynha v. Chorny, (BC CA), [1952] 2 D.L.R. 354 said thisas to the sense of a witness's evidence: [11] The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. [71] I found Messrs. Amrjit and Bob Dhillon gave their evidence on this point in a clear unchallenged way. Neither was shaken incross-examination on point or on any piece of evidence they gave. [72] As to Ms.

Wang, I find that she had a tendency to exaggerate some of her evidence, for example, the nature and extent of thegarbage found on the property. As to her various witnesses, I have grave doubts that they would have noticed these trailers at all andwere in a position really to say that now some eight years later they were not delivered earlier in time.

Surely the presence or absence ofthese two trailers was not of any concern to them when they were on the property doing their various jobs, for example, clean-up orrenovation work. [73] It is important to recall that if the two trailers were delivered by the contract completion date thereafter they were the claimant'sproperty and if, for example, they were moved without her authority or even stolen, that this would not be the responsibility of thedefendants in this action and would not result in a breach of the Contract of Purchase and Sale relating to the property. [74] I find I place great reliance on the fact that the claimant completed the purchase and removed the various subject clauses.

I amnot satisfied that she has proven on the balance of probabilities in this case especially in the face of the defendants' really uncontradictedevidence on point that the defendants failed to deliver the two trailers and thereby breached the Contract relating to the purchase and saleof the property. In the result, this claim advanced in the action is dismissed. [75] I turn now to her claims for damages for breach of the contractual term requiring the defendant vendors to "remove all garbageand equipment from the property".

Neither term as I have said is defined nor in any way particularized in the contract, for example, evenwith the use of an adjective such as "hen house" equipment or "construction" equipment or "blueberry growing" equipment. I have asense from Ms.

Wang's evidence that some of the items she felt the defendants ought to have removed, for example, the old chicken coopeither as garbage or garbage with, for example, hen watering equipment, the defendants believed to be old but still usable. [76] In other words, the parties were not really ad idem as to what items were to be taken away by the defendants in the course oftheir performance of the contract. Garbage can mean or include refuse, debris, detritus, junk, litter, rubbish, scraps, trash or waste (seeOxford Paperback Dictionary and Thesaurus, 1997 ed. published by Oxford University Press).

In truth, many of these synonyms are asvague as the term "garbage" itself. [77] What ought to have occurred in this case is that at the time the negotiations for the purchase and sale were ongoing, Mr. Qiu,the claimant's husband, ought to have met with Bob Dhillon or one of the vendors on the property and just as he did at trial, prepare adiagram of the various garbage piles he wanted removed possibly on a diagram like Exhibit 1 or 2 offered at trial which both he and Mr.Dhillon then initialled and which was appended to the Contract of Purchase and Sale.

Better yet, someone might then have taken photosof the alleged piles that the claimant wanted removed and now asserts the defendants had agreed to remove and appended thosephotographs to the Contract so that the document would have certainty. Again, this was not done. [78] I am of the view that insofar as the above clause dealing with garbage removal is said to have been breached that the claimanthas failed to prove on the balance of probabilities that it was sufficiently certain in its meaning to be enforceable by this Court.

I find thatwithout the above appendices, for example, its meaning is not so clear or certain that it is an enforceable contractual provision. [79] Ms. Wang seemed to be of the view at trial that it required the defendants to remove an old hen house but she could not quiterecall whether it had all fallen down or not. This would not in my view be garbage at all. I accept Mr. Dhillon's evidence that it wasbeing used by their tenants prior to the sale. [80] Ms Wang also gave evidence that there were a number of old appliances on the property. The Dhillons did not agree with thistestimony.

They seemed to say all appliances were inside the two houses on sale and worked and there were none on the land itself. Clearly, Ms. Wang did not agree all worked and replaced some. I cannot accept her evidence over that given by the Dhillons on point. This is but one example where the evidence of the claimant and the defendants is in conflict. There are others. [81] In the result, even if the clause was clear and enforceable, there is a dispute as to what garbage was actually there. Again, theclaimant bears the onus of proof.

She might have offered at trial to prove if the garbage was, some photographs of the state of theproperty on sale being an example. This she neglected to do. This claim is therefore not made out and is also dismissed. [82] The defendants have been successful in their defence in this action. They will recover any costs and expenses they incurred asper Rule 20(2) of the Civil Rules of this Court.

If the parties cannot agree on what costs the defendants are entitled to, this determinationis referred to the Registrar of this Honourable Court and they will be determined by the Registrar of this Court pursuant to the provisionsof Rule 20(4). (ORAL REASONS FOR JUDGMENT CONCLUDED)