IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

McGuire v. Kernel Construction & Development Ltd.,

 

2019 BCSC 58

Date: 20190121

Docket: S162113

Registry: New Westminster

Between:

Jean Irene McGuire

Plaintiff

And

Kernel Construction & Development Ltd.,

Gurinder Kaur Vasir, Susan Maria Grainger and

Royal LePage Brent Roberts Realty

Defendants

And

Jean Irene McGuire, Susan Maria Grainger

Royal LePage Brent Roberts Realty and Larry Leslie Black

Defendants by Counterclaim

Before: The Honourable Madam Justice Shergill

Reasons for Judgment

Counsel for the Plaintiff and

Defendants by Counterclaim Jean Irene McGuire and Larry Leslie Black:

S.D. Robertson

Representative for the Defendant, Kernel Construction and Development Ltd.:

K.S. Vasir

The Defendant, appearing in person:

G.K. Vasir

Counsel for Defendants and Defendants by Counterclaim, Royal LePage Brent Roberts Realty:

S. Twining

Place and Date of Trial:

 

New Westminster, B.C.

February 5-9 & May 28, 2018, 2018

Place and Date of Judgment:

New Westminster, B.C.

January 21, 2019


 

Table of Contents

I.       Overview.. 3

II.      Issues. 3

III.         Trial Proceedings. 3

IV.         Credibility. 4

V.     Background Facts. 5

VI.         The Claim.. 9

A.     Did the Purchaser Breach the Contract?. 10

B.     Did the Vendor Breach the Contract?. 11

1.      Fraudulent Misrepresentation. 11

a)      Vendor Knew the Representation was False. 12

b)      Vendor’s Intention. 13

c)      Inducement 14

i.        Materiality. 14

ii.       The Alleged UGST. 15

iii.      Negligent Misrepresentation. 16

2.      Caveat Emptor 18

3.      Conclusion. 20

C.     Forfeiture of the Deposit 20

VII.       Counterclaim Against MCGuire and Black. 21

VIII.      Counterclaim Against Grainger and Royal LePage. 22

A.     Fraudulent Misrepresentation. 22

1.      Existence of the UGST. 22

2.      The PDS. 23

B.     Negligent Misrepresentation. 23

1.      Failure to Warn. 23

2.      Duty of Care. 25

a)      Duty to Investigate. 25

b)      Duty to Obtain a Completed PDS. 27

c)      Duty to Include a Contractual Term Regarding the UGST. 28

3.      Other Allegations. 28

4.      Caveat Emptor 29

C.     Disposition. 29

IX.         Costs. 29


 

I.                 Overview

[1]             In this action, the plaintiff, Jean Irene McGuire, seeks forfeiture of a deposit of $30,000 (the “deposit”) paid by the purchaser in relation to a Contract of Purchase and Sale dated May 23, 2013 (the “Contract”). The Contract relates to the purchase and sale of property located at 15119 72nd Avenue, Surrey, BC (the “Property”). The deposit is currently held in trust by the defendant Royal LePage Brent Roberts Realty (“Royal LePage”).

[2]             By way of counterclaim, the defendants Kernel Construction & Development Ltd. (“Kernel”) and Gurinder Kaur Vasir (“Vasir”) (collectively, the “purchaser”) seek specific performance of the Contract against Ms. McGuire and Mr. Black, or alternatively: damages in lieu of specific performance, damages for breach of contract, or release of the deposit. They allege a fraudulent conveyance to Mr. Black.

[3]             The counterclaim advanced against the real estate agent Ms. Grainger and the brokerage Royal LePage (collectively referred to as the “realtor defendants”) seeks general damages and special damages for negligence, breach of agency agreement and breach of fiduciary duty.

[4]             Central to this dispute is the purchaser’s allegation that there exists an underground oil storage tank (“UGST”) on the Property which the plaintiff failed to disclose, thereby putting the plaintiff in fundamental breach of the Contract.  

II.               Issues

[5]             The following issues are raised in the claim:

1.     Was the Contract breached by the purchaser?

2.     If the purchaser breached the Contract, should the deposit be forfeited to the plaintiff?

III.             Trial Proceedings

[6]             The defendants Kernel and Vasir were both self-represented at the trial, though they did have legal representation at some earlier stages of the proceedings.

[7]             Mr. Kulwant Vasir is the principal of Kernel. He is also the husband of the defendant Vasir. Although Mr. Vasir was present throughout the trial, Ms. Vasir was in attendance only for the first two days of the trial, choosing instead to go shopping in India for her son’s upcoming wedding. Leave to have Mr. Vasir represent Ms. Vasir in her absence was refused.

[8]             Although Mr. Vasir and Ms. Vasir did make some use of an interpreter, the majority of their testimony was provided by them in English.

[9]             To ensure that this Court had the necessary facts to decide the issues in dispute, Mr. Vasir was permitted to adopt the facts alleged in his counterclaim.  

[10]         Mr. Vasir sought to have tendered into evidence a home inspection report prepared by Jaret Dutour of Tourent Inspections Inc. dated September 19, 2013 (the “home inspection report”). However, Mr. Vasir did not comply with any of the requirements of Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, regarding expert opinion evidence.  The full home inspection report was never served on the opposing parties and only one page was produced at trial. When the trial resumed in May 2018 for closing arguments, Mr. Vasir sought to have the full home inspection report tendered as expert opinion evidence. The request was refused.

IV.            Credibility

[11]         I am able to dispose of many of the issues in this litigation without regard to the parties’ competing versions of events. Many of the key facts in this case are not in dispute. Where there are factual disputes, they generally exist between Mr. Vasir on the one hand, and Ms. McGuire and Ms. Grainger on the other hand.

[12]         Ms. Grainger’s testimony was generally consistent with the documentary evidence in this case. I found it to be delivered in a forthright and direct manner. Where there is a material factual dispute between her evidence and that of Mr. Vasir, I have preferred the evidence of Ms. Grainger.

[13]         Neither Mr. Vasir nor Ms. McGuire were credible witnesses.  Mr. Vasir’s testimony was internally inconsistent, contradictory, vague, and frequently conflicted with the other evidence in this case. It often lacked an air of believability and I found it to be largely self-serving.

[14]         Ms. McGuire’s credibility was equally, if not more, troubling. Amongst other things, her conscious and deliberate decision to sign a false property disclosure statement brought into question her overall forthrightness in this litigation. She was vague when it suited her, and I found that her negative view of Mr. Vasir tended to colour her recall of events. Where there are factual disputes between Mr. Vasir and Ms. McGuire, which are material to the issues before me, I have relied on other corroborating evidence and the surrounding circumstances in arriving at my conclusions.

V.              Background Facts

[15]         The claims in this case flow from a failed completion of the sale of the Property. The Property consists of one acre of land containing a house built in the mid 1950’s, and a large workshop.

[16]         The plaintiff purchased the Property in 1988, and resided at the Property until the death of her husband in September 2012, whereupon she assumed full title to the Property. Shortly thereafter, Ms. McGuire decided to list the Property for sale through Brent Roberts, a licensed realtor with Royal LePage. Ms. McGuire signed a Multiple Listing Contract with Mr. Roberts on February 21, 2013. On March 25, 2013, Ms. McGuire signed a Property Disclosure Statement (the “PDS”).

[17]         Prior to emigrating to Canada, Mr. Vasir had been a real estate agent in India. Though he did not work as a real estate agent in Canada, he had experience in the purchase and sale of properties, prior to entering into the Contract with Ms. McGuire. Kernel was incorporated by Mr. Vasir on September 24, 2012, for the purpose of developing land. Mr. Vasir was looking for a lot with potential for development and sub-division. When he first became aware of the Property, his initial plan was to tear it down and sub-divide the land.

[18]         Ms. Grainger was licensed with Royal LePage, the brokerage that had the listing for the Property. She met with Mr. Vasir on April 28, 2013, and entered into a limited dual agency agreement (the “dual agency agreement”). Pursuant to the dual agency agreement, both Ms. McGuire and Mr. Vasir acknowledged and agreed that they each had an agency relationship with Ms. Grainger.

[19]         Also on April 28, 2013, using the services of Ms. Grainger, Mr. Vasir made an offer to purchase the Property for $740,000, secured by a $30,000 deposit to be paid within 24 hours of final subject removal by way of bank draft. He proposed a subject removal date of May 15, 2013, and a completion date of August 15, 2013.

[20]         After some back-and-forth negotiations, on May 8, 2013, an agreement was reached to sell the Property to Mr. Vasir for the sum of $770,000 (the “First Contract”). The First Contract was subject to financing, property inspection, and a feasibility study, with a subject removal date of May 30, 2013, and a completion date of August 30, 2013. An assignment clause was also added reserving the buyer’s right to assign the Contract to a third party without further notice to the sellers.

[21]         Sometime before May 23, 2013, Ms. Grainger visited the Property with Mr. Vasir. Both Ms. Grainger and Mr. Vasir noticed that an above ground oil storage tank was present on the Property next to the workshop. The uncontroverted evidence is that this above ground tank was used to heat the workshop.

[22]         On May 23, 2013, Ms. Grainger wrote up a new contract (referred to elsewhere as the Contract) on behalf of Kernel on the same terms as the accepted offer of May 8, 2013. Mr. Vasir signed the Contract on behalf of Kernel as the sole director of the company. The only change between the Contract and the First Contract was that Kernel’s name had been substituted for Mr. Vasir’s as buyer of the Property, and the date for subject removal was changed to June 5, 2013. Ms. McGuire signed the Contract on May 28, 2013.

[23]         Also on May 23, 2013, Mr. Vasir prepared an assignment of the Contract from Kernel to his wife, the defendant Gurinder Kaur Vasir (the “assignment”). Ms. Vasir testified that she accepted the assignment and that Mr. Vasir was at all times the authorized agent for Ms. Vasir in connection with the purchase of the Property. However, Ms. McGuire was never advised that the assignment had been made.

[24]         Mr. Vasir received the PDS from Ms. Grainger on June 2, 2013. Although Mr. Vasir raised concerns with Ms. Grainger about pages one and two of the PDS being crossed out, he did not ask Ms. Grainger to have the plaintiff answer all of the questions on the form. Mr. Vasir testified that he believed that the PDS was “fake”. Had he known that the seller had not lived on the Property for five months instead of five years, he says he would have insisted that the rest of the PDS be completed. He signed the PDS on June 5, 2013.

[25]         Also on June 5, 2013, Mr. Vasir removed all of the subjects with the exception of the subject to financing clause, which was extended by agreement of the parties to June 10, 2013. Mr. Vasir did not obtain a property inspection or feasibility study prior to removing these subjects on June 5, 2013. He testified that he did not care about the inspection as he was going to develop the Property.

[26]         On June 10, 2013, Mr. Vasir paid a $30,000 deposit and also removed the subject to financing condition. Ms. Vasir testified that the deposit money came out of a bank account held jointly between her and her husband. On the same date, Mr. Vasir signed a further addendum extending the completion date from August 30, 2013 to September 30, 2013, and the possession date from August 31, 2013 to October 1, 2013.

[27]         Mr. Vasir visited the Property a number of times prior to and subsequent to removal of the subjects. On September 19, 2013, Mr. Vasir obtained a home inspection report. Mr. Vasir came to believe that there was a UGST present on the Property since the 1950’s.

[28]         On Friday, September 27, 2013, Mr. Vasir and Ms. Vasir went to the TD Bank to sign a conditional mortgage agreement for financing for the Property in the amount of $577,500.

[29]         Shortly before the closing, Mr. Vasir met with his notary, Tarlok Sablok, to review the closing documents. He was made aware that the balance required to complete the purchase was $178,892.18.

[30]         On Saturday, September 28, 2013, Mr. Vasir obtained two bank drafts payable to Sablok and Associates, in trust, totalling $139,000. There was a shortfall of approximately $40,000.

[31]         On September 29, 2013, Mr. Vasir and Ms. Vasir attended at the Property. There they met Ms. McGuire and Mr. Black. Mr. Vasir stated that they wished to measure the Property for a fence. There is some dispute as to whether Mr. Vasir asked Ms. McGuire for an extension of the completion date (Mr. Vasir denies this). He did not ask about any UGST during this visit, stating that this was a concern that he had “in his head”. Mr. Vasir did ask Ms. McGuire about the septic tank.

[32]         Later on September 29, 2013, Mr. Vasir wrote (on behalf of Kernel) to Ms. Grainger and Mr. Roberts outlining three concerns about the Property:

1.     there were signs of oil leakage when he visited the Property on September 29, 2013;

2.     when he measured the Property, it was shorter than what was described; and

3.     the PDS was not clear and was “hiding many things”.

[33]         Mr. Vasir asked for an extension of the completion date pending resolution of these matters, or alternatively, cancellation of the deal and immediate release of his $30,000 deposit.

[34]         Mr. Vasir did not pay the full amount of the purchase price to Mr. Sablok on the completion date. Mr. Vasir says that he had the money but that he told Mr. Sablok that he was holding this amount back until the issue regarding the UGST was resolved. Mr. Sablok did not corroborate this evidence. Given my concerns about Mr. Vasir’s credibility, I do not accept his evidence that he had the money available to complete the purchase.

[35]         On September 30, 2013, Mr. Sablok wrote to the plaintiff’s notary, Stuart Clendening, advising him that he had been instructed “not to complete the transaction until such time the Purchaser has satisfied themselves [sic] of the following concerns”:

- discrepancy in the dimensions of the subject property

- the environmental impact of the oil spill on the subject property[.]

[36]         The sale did not complete and Ms. Grainger removed the Property from the market on October 28, 2013. Mr. Vasir’s deposit was not released.

[37]         In January 2014, Ms. McGuire transferred a one percent interest in the Property to Mr. Black for financing reasons.

[38]         In May 2014, Mr. Vasir made inquiries with FortisBC which led him to conclude that the Property had been heated by a UGST prior to 1981. Around the same time period, he conducted some internet research on UGSTs, their effects, and their removal.

[39]         Ms. McGuire commenced this action by way of Notice of Civil Claim filed June 20, 2014, seeking release of the deposit. On September 30, 2014, the defendants filed a counterclaim seeking return of the deposit and damages for breach of contract.

[40]         On April 27, 2016, Mr. Vasir attended at City Hall and made some inquiries about the Property. He made a request for a building records search, and obtained documentation which he believed confirmed that a UGST was present on the Property. His research led him to make further inquiries at the Surrey Fire Department and FortisBC. He concluded that the UGST had not been removed.  

[41]         The counterclaim was amended on September 23, 2016, to include a claim for specific performance, breach of contract and breach of fiduciary duty against the real estate agents and a claim for fraudulent conveyance of the Property to Mr. Black.

VI.            The Claim

[42]         The central issue in this case is which of the parties (vendor or purchaser) breached a fundamental term of the Contract, thereby entitling the other party to the remedies sought. The first question, however, is whether a contract was formed.

[43]         The essential terms of a contract for the sale of land are the parties, the property and the price: First City Investments Ltd. v. Fraser Arms Hotel Ltd. (1979), 13 B.C.L.R. 107 (C.A.). The parties may agree to additional essential terms to meet their needs.

[44]         The party alleging the existence of a contract bears the onus of establishing on a balance of probabilities that the contract was formed: Birdi v. Luch, 2016 BCSC 1361 at para. 51, citing with approval Coal Harbour Properties Partnership v. Liu, 2005 BCSC 873 at para. 32, aff’d 2006 BCCA 385.

[45]         Based on the evidence, I have no difficulty concluding that a valid contract was formed between the plaintiff, Jean McGuire, and the defendant, Kernel. The terms of the Contract were clear with respect to the parties, property and price. By virtue of the Contract, Ms. McGuire was obligated to sell the Property to Kernel for a purchase price of $770,000. The completion date for the Contract was September 30, 2013.

[46]         I turn now to whether there was a breach of the Contract by the purchaser.

A.              Did the Purchaser Breach the Contract?

[47]         Clause 12 of the Contract provides that time is of the essence:

12. TIME: Time will be of the essence hereof, and unless the balance of the cash payment is paid and such formal agreements to pay the balance as may be necessary is entered into on or before the Completion Date, the Seller may, at the Seller’s option, terminate this Contract, and, in such event, the amount paid by the Buyer will be non-refundable and absolutely forfeited to the Seller in accordance with the Real Estate Services Act, on account of damages, without prejudice to the Seller’s other remedies.

[48]         It is common ground that the purchaser did not complete the sale on September 30, 2013, as required by the Contract. Mr. Vasir admitted in cross-examination that he was aware the Contract was binding after removal of the subjects, and that he was obliged to complete it on September 30, 2013.

[49]         However, by way of letter dated September 30, 2013, Mr. Sablok advised Mr. Clendening that the purchaser had instructed him not to complete the transaction due to various concerns that had arisen about the Property.

[50]         In Genesis Tower Ltd. v. Cheung, 2002 BCCA 582 at para. 18 [Genesis], the Court held that a fundamental breach occurs when the other party is deprived of the intended benefit of the contract, such that the “underlying nature and purpose of the contract” is affected. Failure to pay the purchase price by the requisite date constitutes a fundamental breach.

[51]         The plaintiff agrees that Kernel’s breach may be excused if it is established that Ms. McGuire was in fundamental breach of the Contract in advance of the purchaser’s failure to tender the purchase price. I turn then to this question.

B.              Did the Vendor Breach the Contract?

[52]         In the Amended Response to Civil Claim, the purchaser alleges two breaches of the Contract by the plaintiff:

1.     misrepresentation in the PDS; and

2.     intentionally failing to disclose a material latent defect, namely a UGST.

[53]         A third alleged breach relating to the discrepancy in the dimensions of the Property was raised during the trial but was not seriously pursued by Mr. Vasir in his closing submissions, nor was it pleaded in the counterclaim. In any event, there is no evidence to substantiate that such a breach occurred. No records of the measurements taken by Mr. Vasir were produced at trial and no professional survey of the Property was undertaken by Mr. Vasir.

1.               Fraudulent Misrepresentation

[54]         It is common ground that the statement in the PDS that the vendor had not lived on the Property for five years was false.

[55]         The questions on the first two pages of the PDS (relating to the land, services and building) were crossed out and not answered by the plaintiff. On the third and last page of the PDS, under a section for “additional comments and/or explanations”, there were two statements. The first statement was that the seller “has not lived in the house for the past 5 years” (the “false statement”), and the second was that the Property “has never been used as a marijuana grow operation”. Ms. McGuire attested to the truth of both statements. Although the statement that the seller had not lived on the Property for five years was incorrect, (Ms. McGuire testified that it should have read “5 months”), Ms. McGuire did not consider the error to be significant as the rest of the PDS was crossed out. Ms. McGuire signed the PDS, though she said she pointed out the error to the office assistant at Mr. Roberts’ office. However, the mistake was never corrected.

[56]         Mr. Vasir alleges that the false statement was made intentionally by Ms. McGuire as she did not want to “answer the question regarding the oil tank and some other question regarding the Property.” He argues that he was induced into entering into the Contract as a result of this fraudulent statement.

[57]         In order to succeed on a claim for fraudulent misrepresentation, the purchaser must establish the following elements as summarized in Wang v. Shao, 2018 BCSC 377 at para. 196 [Wang]:

1)   the vendor made a representation of fact to the purchaser;

2)   the representation was false in fact;

3)   the vendor knew the representation was false when it was made, or made the false representation recklessly, not knowing if it was true or false;

4)   the vendor intended the purchaser to act on the representation;

5)   the purchaser was induced to enter into contract in reliance upon the false representation and thereby suffered a detriment.

[58]         The plaintiff bears the burden of proving that he has suffered a loss or detriment in reliance on the false representation: 415703 B.C. Ltd. v. JEL Investments Ltd., 2010 BCSC 202 at para. 97 [JEL]. Further, there must be clear and convincing proof of the elements of fraud including the mental element: JEL at para. 98, citing Anderson v. British Columbia (Securities Commission), 2004 BCCA 7 at para. 29.

a)              Vendor Knew the Representation was False

[59]         The first three elements of the test in Wang are met. Ms. McGuire admits that the factual statement in the PDS, that she had not lived on the Property for five years, was false. She also admits that she was aware that the PDS contained a false statement at the time that she signed the PDS. However, Ms. McGuire blames the error on Mr. Roberts’ staff who she says drafted the document and who she notified of the error after signing the PDS.

b)              Vendor’s Intention

[60]         Ms. McGuire denies that she intended anyone to rely on the false statement in the PDS. This denial is not supported by the evidence. I find that Ms. McGuire was aware that her completed PDS would be relied on by the buyer.

[61]         At page 3 of the PDS, immediately below section 5 (which contains the false statement) and immediately above Ms. McGuire’s signature, the following is stated:

The seller states that the information provided is true, based on the seller’s current actual knowledge as of the date on page 1. Any important changes to this information made known to the seller will be disclosed by the seller to the buyer prior to closing. The seller acknowledges receipt of a copy of this property disclosure statement and agrees that a copy may be given to a prospective buyer.

[62]         This is the same clause that was contained in the PDS at issue in Hamilton v. Callaway, 2016 BCCA 189 (para. 14).

[63]         The evidence establishes that Ms. McGuire intended that her representation that she had not lived on the Property for five years would be relied upon by the purchaser. It is evident from her testimony that she turned her mind to the potential impact of the false statement, testifying that although she was aware that there was a mistake on page three, “it did not seem too significant because all the other questions were crossed out.”

[64]         In her affidavit made March 8, 2016, Ms. McGuire provides more insight into her reasons for signing the false statement:

8.         …As per the comments section, the property was never used as a marijuana grow operation. However, the comment that I had not lived in the home was inaccurate. I was unsure why the real estate agent wanted me to sign the Property Disclosure Statement as it was, however I went ahead with it. I do not recall any issues being raised by the Purchasers. Further, Mr. Vasir was aware that I resided at the Property as he had attended there on multiple occasions.

[65]         It would have been very simple for Ms. McGuire to correct the mistake herself by simply crossing out “years” and changing it to “months”. However, Ms. McGuire chose not to do so, because she believed that her real estate agent wanted her to sign the false statement. Ms. McGuire’s decision to sign the false statement was thus intentional and tactical.

[66]         Though I conclude that Ms. McGuire intended the purchaser to act on her false statement, it was only for the limited purpose of causing a prospective buyer to refrain from asking her to complete pages 1 and 2 of the PDS. The evidence does not establish that Ms. McGuire intended Mr. Vasir to enter into the Contract as a result of her misrepresentation, nor do I find that it induced him to do so.

c)              Inducement

[67]         Mr. Vasir argues that Ms. McGuire’s alleged failure to disclose a material latent defect (a UGST) induced him into entering into the Contract. Had he been made aware of the existence of a UGST on the Property, he says that he would have insisted that it be removed before entering into the Contract.

[68]         Mr. Vasir’s argument that Ms. McGuire’s misrepresentation induced him to enter into the Contract is predicated on his view that: (a) there was a UGST on the Property; (b) Ms. McGuire was aware of the existence of a UGST on the Property; and (c) Ms. McGuire crossed out pages 1 and 2 and lied about the length of time that she had not lived on the Property as she did not wish to disclose the existence of the UGST. As will be seen below, this argument is flawed in many respects.

i.                 Materiality

[69]         In Nielson v. Lam, 2010 BCSC 1702 at para. 79 [Nielson], Madam Justice Brown held that a party alleging a fraudulent misrepresentation bears the burden of proving that the representation is one of a “material fact”. Materiality is determined objectively: Genesis at paras. 15-17.

[70]         The misrepresentation made by Ms. McGuire was that she had not lived on the Property for five years. Mr. Vasir has tendered no evidence as to how the length of time that Ms. McGuire was resident on the Property was a material fact. Further, Mr. Vasir’s position that he considered the PDS a “fake” document is inconsistent with his assertion that he relied on Ms. McGuire’s misrepresentation about how long she had lived on the Property to induce him to enter into the Contract.

[71]         When Mr. Vasir received the PDS from Ms. Grainger on June 2, 2013, with pages 1 and 2 crossed out, he had several options – reject the PDS and refuse to remove the subjects; ask for additional disclosure before signing it; or sign the PDS as it was presented to him. Mr. Vasir chose the latter.

[72]         Mr. Vasir testified that he did not ask Ms. Grainger to have the plaintiff answer all of the questions on the form because Mr. Vasir believed Ms. McGuire’s representation that she had not lived on the Property for five years. I accept, for the purposes of this argument, Mr. Vasir’s testimony that he would have insisted that Ms. McGuire complete pages 1 and 2 of the PDS had he known that she had only been living away from the Property for five months. However, I am unable to conclude that her misrepresentation was material to Mr. Vasir’s decision to enter into the Contract.

[73]         Notably, the PDS was delivered three days before the end of the contingency period. Six weeks had transpired during which Mr. Vasir attended at the Property and conducted his own due diligence. It was only on the last day of the contingency period that Mr. Vasir raised with Ms. Grainger his concerns about the lack of disclosure in the PDS. His claim that he was induced into entering into the Contract based on his 11th hour review of a PDS that provided no useful information about the Property, rather than his own due diligence during the preceding six weeks, is not credible.

ii.               The Alleged UGST

[74]         Mr. Vasir’s entire argument hinges on the existence of a UGST. However, Mr. Vasir has failed to establish that there ever was a UGST on the Property. The records from the City of Surrey, which were admitted as business records, and on which Mr. Vasir relies to prove that a UGST was installed in the late 1950’s, are inconclusive. The records suggest that an oil permit was obtained for the Property in 1959. However, handwritten notes produced by Mr. Vasir from an unknown person at the City of Surrey indicate that the author was not sure whether the permit was in relation to a UGST or an above ground storage tank. No witness was called from the City of Surrey to explain the records. Similarly, the home inspector’s report (which was inadmissible as expert opinion evidence) seems to rely on the inconclusive municipal records as proof of the existence of a UGST.   

[75]         Even if Mr. Vasir had proved the existence of a UGST on the Property, there is no evidence that it was present in 2013, or importantly, that Ms. McGuire was aware of its existence. Nor am I able to find that she ought to have been aware of its existence such that she had a duty to disclose it to the purchaser. As the court noted in Callaway at para. 43 (citing Nixon v. MacIver, 2016 BCCA 8 [Nixon]), “a property disclosure statement obligates a vendor to honestly disclose his or her knowledge, not to warrant that knowledge was actually correct”.

[76]         There is also no evidence that Ms. McGuire made any representations with respect to whether or not there was a UGST on the Property. Question 1B of the PDS (at page 1) asked whether the seller was aware of any past or present UGST(s) on the premises. The entire page, as noted earlier, was crossed out. Ms. McGuire testified, and I accept, that had she been required to answer that question, her answer would have been “no”. Even bearing in mind my concerns about Ms. McGuire’s credibility, the evidence does not support a finding that Ms. McGuire was aware (or ought to have been aware) that there was a UGST on the Property. When she and her husband purchased the Property in 1988, the house was heated by gas and hooked up to the city sewer system.

iii.             Negligent Misrepresentation

[77]         Negligent misrepresentation, though not specifically pled, was argued by the parties.  

[78]         In Nielson at paras. 103-104, Madam Justice Brown noted the five elements set out in Queen v. Cognos Inc., [1993] 1 S.C.R. 87 (and applied in British Columbia in Cardwell v. Perthen, 2006 BCSC 333 at para. 135, aff’d 2007 BCCA 313), for establishing negligent misrepresentation:

1)              there must be a duty of care based on a "special relationship" 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 representation;

4)              the representee must have relied, in a reasonable manner, on the said negligent misrepresentation; and

5)              the reliance must have been detrimental to the representee in the sense that damages resulted.

[79]         In noting the distinction between negligent and fraudulent misrepresentation claims, the Court noted at para. 51 in Callaway that:

…negligent misrepresentation requires the purchaser to have reasonably relied on the misrepresentation, whereas fraudulent misrepresentation requires only that the purchaser was induced to enter the contract in reliance upon the representation [emphasis in original].

[80]         On the evidence before me, the first three elements in the Cognos test are established. However, this claim fails on the fourth element, in that I do not find that the purchaser reasonably relied on the misrepresentation.

[81]         There is no evidence to support a finding that Mr. Vasir relied to his detriment on the misrepresentation about Ms. McGuire not living on the Property for five years. However, even if Mr. Vasir was to establish that he did rely on the representation that Ms. McGuire had not lived at the Property for five years, his reliance was not reasonable.

[82]         Just as page 3 of the PDS enjoins the seller to ensure that “the information provided is true, based on the seller’s current actual knowledge”, it reminds the purchaser to conduct his or her own due diligence, as follows:

The prudent buyer will use this property disclosure statement as the starting point for the buyer’s own inquiries.

The buyer is urged to carefully inspect the Premises and, if desired, to have the Premises inspected by a licensed inspection service of the buyer’s choice.

[Emphasis in original.]

[83]         Rather than inducing Mr. Vasir to enter into the Contract, if anything, Ms. McGuire’s refusal to make any disclosures about the Property should have alerted Mr. Vasir to the importance of conducting his own timely inspection of the Property if the condition of the Property was important to him. In his cross-examination, Mr. Vasir acknowledged that the PDS told him basically nothing about the Property.

[84]         In the face of a PDS that disclosed nothing, Mr. Vasir’s decision to remove the “subject to inspection” condition without the benefit of an inspection was unreasonable. The facts in the case at bar are similar to Smith v. Reder, 2005 BCSC 635 [Smith]. In Smith, the defendant vendor had completely struck out the PDS. The plaintiff, though entitled under the contract to perform inspections, chose not to do so until the completion date was imminent. When the vendor refused the purchaser’s request for an extension to complete the inspections, the purchaser argued that the delay was attributable to the vendor’s non-disclosure. Mr. Justice Silverman held as follows:

[40]   In all the circumstances of this case, the defendant was under no duty to disclose anything beyond what he did disclose.  Rather, the duty in this case was on the plaintiff to inform herself, if necessary, but to complete on time in any event, or risk the consequence of not being granted an extension.

[85]         Mr. Vasir took the important step of including a “subject to inspection” clause in the Contract. Inexplicably, he chose not to conduct any inspection of the Property prior to removing this subject on June 5, 2013. While the timing of his subject removal coincides with his acceptance of the PDS on June 5, 2013, I am unable to make the leap that Mr. Vasir is asking this court to make, i.e., that the misrepresentation of five years versus five months led Mr. Vasir to believe that he did not need to do an inspection of the Property prior to removing the subject clause.

2.               Caveat Emptor

[86]         I also agree with the plaintiff that the doctrine of caveat emptor operates to bar the purchaser’s claims with respect to any breaches related to the alleged UGST, even if they were established.

[87]         As Mr. Justice Pearlman noted in Wang at para. 141, “[s]ubject to certain exceptions, including fraud and failure to disclose a latent defect of which the vendor is aware, the doctrine of caveat emptor applies to real estate transactions in British Columbia”. He went on at para. 142 to quote from McCluskie v. Reynolds (1998), 65 B.C.L.R. (3d) 191 at para. 53 (S.C.), where the Court summarized the circumstances in which caveat emptor does not operate to deny a purchaser recovery:

In conclusion on this point, the authorities with which I have been presented suggest that the doctrine of caveat emptor will not operate to deny the plaintiff’s recovery in the following situations:

1. where the vendor fraudulently misrepresents or conceals;

2. where the vendor knows of a latent defect rendering the house unfit for human habitation;

3. where the vendor is reckless as to the truth or falsity of statements relating to the fitness of the house for habitation;

4. where the vendor has breached his duty to disclose a latent defect which renders the premises dangerous.

[88]         Importantly, “if a defect does not render a property dangerous or uninhabitable, caveat emptor applies regardless of whether the defect in question is patent or latent”: Wang at para. 171 citing Nixon at para. 47.

[89]         In this case, the purchaser has failed to lead evidence to overcome the doctrine of caveat emptor, for the following reasons:

1)    there is no evidence that Ms. McGuire fraudulently misrepresented or concealed the existence of a UGST;

2)    there is no evidence that Ms. McGuire was aware of the existence of a latent defect which rendered the Property unfit for human habitation;

3)    there is no evidence that Ms. McGuire made reckless statements regarding the fitness of the Property for human habitation; and

4)    there is no evidence of the existence of a latent defect (UGST) with the Property rendering the premises dangerous.

[90]         Whether or not Ms. McGuire had been residing on the Property for five years or five months, her misrepresentation of this fact was not a defect which rendered the house unfit for human habitation or rendered the premises dangerous. Nor did this misrepresentation relate to the physical or intrinsic qualities of the Property.

[91]         Thus, the claim also fails on the grounds of caveat emptor.

3.               Conclusion

[92]         Having regard to the totality of the evidence in this case, the purchaser has failed to establish that Ms. McGuire made any fraudulent or negligent misrepresentations, or in any other way fundamentally breached the Contract.

C.              Forfeiture of the Deposit

[93]         The plaintiff has proved that Kernel was in fundamental breach of the Contract by failing to complete the sale and pay the purchase price. I turn then to the remedy sought by the plaintiff.

[94]         In Tang v. Zhang, 2013 BCCA 52 at para. 30, the court set out the general principles in relation to deposits:

1.  On a general level, the question of whether a deposit or other payment made to a seller in advance of the completion of a purchase is forfeited to the seller upon the buyer’s repudiation of the contract, is a matter of contractual intention;

2. Where the parties use the word “deposit” to describe such a payment, that word should in the absence of a contrary provision be given its normal meaning in law;

3. A true deposit is an ancient invention of the law designed to motivate contracting parties to carry through with their bargains.  Consistent with its purpose, a deposit is generally forfeited by a buyer who repudiates the contract, and is not dependant on proof of damages by the other party.  If the contract is performed, the deposit is applied to the purchase price;

4. The deposit constitutes an exception to the usual rule that a sum subject to forfeiture on the breach of a contract is an unlawful penalty unless it represents a genuine pre-estimate of damages.  However, where the deposit is of such an amount that the seller’s retention of it would be penal or unconscionable, the court may relieve against forfeiture, as codified by the Law and Equity Act;

5. A contractual term that a deposit will be forfeited “on account of damages” on the buyer’s failure to complete does not alter the nature of a deposit, but may be construed to mean that if damages are proven, the deposit will be applied against (“on account of”) them.  If no damages are shown, the deposit is nevertheless forfeitable, subject always to the expression of a contrary intention.

[95]         Importantly, the vendor does not need to prove damages for the deposit to become forfeitable.

[96]         The clause relating to the deposit in Tang was virtually identical to clause 12 of the Contract, which stipulates that in the event that the purchaser fails to pay the balance of the cash payment, the amount paid by the Buyer “will be non-refundable and absolutely forfeited to the Seller in accordance with the Real Estate Services Act, on account of damages, without prejudice to the Seller’s other remedies.”

[97]         Applying the principles in Tang to the evidence in the case at bar, I declare the deposit (together with any accrued interest) forfeited to the plaintiff. Royal LePage is to release such funds to the plaintiff forthwith.

VII.          Counterclaim Against MCGuire and Black

[98]         The following issues are raised in the counterclaim against Jean McGuire:

1.     Did the plaintiff make a negligent or fraudulent misrepresentation on the PDS?

2.     Did the plaintiff fundamentally breach the Contract by intentionally failing to disclose a material latent defect, namely the existence of a UGST?

3.     Are the defendants Vasir and Kernel entitled to specific performance of the Contract, or alternatively, damages for breach of contract, or alternatively return of the deposit?

4.     Did the plaintiff fraudulently convey the Property to Mr. Black?

[99]         At trial, Mr. Vasir abandoned his claim for return of the deposit as an alternative remedy in lieu of specific performance.

[100]     For the reasons provided in the main action, the purchaser has failed to establish that Ms. McGuire was in fundamental breach of the Contract, or that she made any fraudulent or negligent misrepresentations. As such, there is no need for me to consider the remedies sought of specific performance or damages for breach of contract.

[101]     The allegation of fraudulent conveyance is based on the Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163. It is alleged that in January 2014, Ms. McGuire transferred an undivided 1/100 legal interest in the Property to Mr. Black for no consideration.

[102]     I accept the evidence of Mr. Black that he was put on title to the Property in recognition of the mortgage he took for the benefit of the Property. I also note that at the time that the transfer was made, there was no action commenced with respect to the Property.

[103]     The purchaser’s counterclaim against Ms. McGuire and Mr. Black is dismissed, including the claim for fraudulent conveyance.

VIII.        Counterclaim Against Grainger and Royal LePage

[104]     The following issues are raised in the counterclaim against Ms. Grainger and Royal LePage:

1.     Did Ms. Grainger and Royal LePage intentionally fail to disclose a UGST?

2.     Did Ms. Grainger and Royal LePage fraudulently misrepresent to the purchaser that the plaintiff had not lived on the Property for the past five years?

3.     Does the doctrine of caveat emptor defeat the purchaser’s claim against Ms. Grainger and Royal LePage?

4.     Did Ms. Grainger and Royal LePage breach their duty of care to the purchaser, i.e. were they negligent in their failure to warn the purchaser that the plaintiff was not making genuine representations on the PDS and of the risks of proceeding with the Contract in such circumstances?

A.              Fraudulent Misrepresentation

[105]     The claims against the realtor defendants are fraught with even more difficulty than the claims against Ms. McGuire.

1.               Existence of the UGST

[106]     The first allegation is that the realtor defendants intentionally failed to disclose the existence of a UGST on the Property. Given my finding that there is no admissible evidence that a UGST was present on the Property in 2013, this part of the purchaser’s claim must fail. The realtor defendants cannot be required to disclose the existence of something that has not been proven to exist.

2.               The PDS

[107]     I also do not find any merit in Mr. Vasir’s claim that Ms. Grainger and Royal LePage fraudulently misrepresented to him that the plaintiff had not lived on the Property for the past five years. There is no evidence that Ms. Grainger or Royal LePage were aware of the length of time that Ms. McGuire had lived on the Property. Even if this was established on the evidence, the claim must fail for the reasons outlined above, i.e., it does not meet the criteria outlined in Wang for fraudulent misrepresentation.

B.              Negligent Misrepresentation

[108]     The purchaser makes various allegations at para. 25 of Part 1 of the Amended Counterclaim, which fall within the claim of negligence.

1.               Failure to Warn

[109]     In Day v. Regional District of Central Okanagan, 2000 BCSC 1134 at para. 69, Mr. Justice Drossos noted the connection between failure to warn and the law of negligence. In order to succeed in such a claim, the following elements of negligence must be proved (adopted by Mr. Justice Drossos from Allen M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at 99):

(1)  the claimant must suffer some damage;

(2)  the damage suffered must be caused by the conduct of the defendant;

(3)  the defendant’s conduct must be negligent, that is, in breach of the standard of care set by the law;

(4)  there must be a duty recognized by the law to avoid this damage;

(5) the conduct of the defendant must be a proximate cause of the loss or, stated in another way, the damage should not be too remote a result of the defendant’s conduct; and

(6)  the conduct of the plaintiff should not be such as to bar recovery, that is the plaintiff must not be guilty of contributory negligence and must not voluntarily assume the risk.

[110]     As noted by the Court in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 108, “the tort of failure to warn requires evidence of a positive duty towards the plaintiff” and “[p]ositive duties in tort law are the exception rather than the rule”.

[111]     The first alleged failure to warn is in relation to Ms. Grainger failing to disclose that Ms. McGuire had made a false statement in the PDS. As noted earlier, there is no evidence that Ms. Grainger was aware of the length of time that Ms. McGuire had lived on the Property. Ms. Grainger had no contact with Ms. McGuire until after the deal had collapsed, and she was not responsible for the listing. There is no evidence that Ms. Grainger had reason to doubt the veracity of Ms. McGuire’s assertion that she had not lived on the Property for the past five years.

[112]     Mr. Twining does not challenge the veracity of Ms. McGuire’s statement that she told a clerk in Mr. Roberts’ office about the error. Accepting that as proven fact, I find that Royal LePage had a duty to correct the false statement that Ms. McGuire had not lived on the Property for five years. However, the other elements of negligence still need to be proved in order for the purchaser to succeed in this claim. As with the action against Ms. McGuire, there is no evidence that the transaction failed due to the false statement in the PDS about how long she had lived on the Property.

[113]     Even accepting Mr. Vasir’s evidence that he would have required Ms. McGuire to complete the PDS, there is no evidence that the outcome would have been different. As noted elsewhere, Ms. McGuire would have said that she did not know about a UGST. This would have left Mr. Vasir with the option of doing his own inspection, which he had already secured the right to do under the Contract and which he chose to do only after all the subjects had been removed, mere weeks before the closing date.

[114]     The claim that Ms. McGuire and Royal LePage failed to warn Mr. Vasir about the risks of proceeding with the Contract where the seller had not been living on the Property for five years must also fail. First, this is a specious allegation. It is Mr. Vasir’s position, and the uncontroverted evidence establishes, that Ms. McGuire had not lived on the Property for five months rather than five years. Thus, there would be no point in warning Mr. Vasir about the pitfalls of proceeding with a Contract where the seller had not lived on the Property for five years.

[115]     The third alleged failure to warn – that the plaintiff was not making genuine representations to the defendants about the condition of the Property and whether the plaintiff was living on the Property – is connected to the previous two failures to warn already discussed. In addition to the above concerns, it requires knowledge on the part of the realtor defendants. There is no evidence that they possessed such knowledge or should have possessed such knowledge, so this claim too must fail.

2.               Duty of Care

[116]     The balance of the claims in negligence also fail. 

a)              Duty to Investigate

[117]     The breach of the duty to investigate relates to the UGST issue and has been framed in fraud, though it has elements of negligence.

[118]     Counsel for the realtor defendants (Mr. Twining) provided the following useful summary of the principles that emerge from the case authorities regarding the scope of a real estate agent’s duty of care in relation to home deficiencies:

a.     A real estate agent has a duty to disclose all material facts known to him or her which could affect a reasonable purchaser’s willingness to enter into an agreement of purchase and sale;

Papoutsis v. Lacroix, 2009 BCSC 174 at para. 39;

Walls v. Ross, 2001 BCPC 187 at para. 75;

Gilchrist v. Centre City Real Estate Inc., 2003 BCPC 356 at para. 21;

Garnot v. Centre City Real Estate Inc., 2002 BCPC 720 at para. 36

b.     There is no general duty at law on a real estate agent to inspect the premises for soundness or to discover defects;

Gilchrist v. Centre City Real Estate Inc., 2003 BCPC 356 at para. 19

c.      A listing real estate agent’s duty to a purchaser is normally satisfied by making inquiries of the seller and other sources readily available to him or her, and in the absence of some reason to doubt the accuracy of the information thus obtained, it is not incumbent on the agent to inspect the premises or to independently verify what he or she has been told;

Gilchrist v. Centre City Real Estate Inc., 2003 BCPC 356 at para. 21;

Garnot v. Centre City Real Estate Inc., 2002 BCPC 720 at para. 36;

Paniccia v. Eckart, 2012 BCSC 1428 at para. 102 – 108;

Cosway v. Boorman’s Investment Co. Ltd., 2008 BCSC 206

d.     Absent expert evidence to the contrary, the courts have been unwilling to conclude that it is usual or customary for real estate agents to inquire into or check the electrical systems (or other mechanical systems) in houses they list or sell.

Paniccia v. Eckart, 2012 BCSC 1428 at para. 107

[119]     Mr. Roberts was the listing agent for the Property. He is not a defendant in these proceedings, though his real estate brokerage is.

[120]     Ms. Grainger signed a limited dual agency agreement in which she agreed to “disclose to the Buyer/Tenant defects about the physical condition of the Property known to the Designated Agent”. There is no evidence that Ms. Grainger had any contact with Ms. McGuire until after the deal collapsed.

[121]     There is no expert evidence before this court as to what the professional standard of care is for Ms. Grainger or Royal LePage in the context of a limited dual agency agreement.

[122]     In Krawchuck v. Scherbak, 2011 ONCA 352 at paras. 125 and 131 [Krawchuk], leave to appeal ref’d [2011] S.C.C.A. No. 319, Madam Justice Epstein (for the court) set out the following principles regarding when expert evidence is and is not required to establish the standard of care owed by a realtor to clients:

[125]      To avoid liability in negligence, a real estate agent must exercise the standard of care that would be expected of a reasonable and prudent agent in the same circumstances. This general standard, a question of law, will not vary between cases and there is no need for it to be established through the use of expert evidence: see Wong v. 407527 Ontario Ltd., [1999] O.J. No. 3373, 179 D.L.R. (4th) 38 (C.A.), at para. 23, Fellowes, McNeil v. Kansa General International Insurance Co., [2000] O.J. No. 3309, 138 O.A.C. 28 (C.A.), at para. 11. The translation of that standard into a particular set of obligations owed by a defendant in a given case, however, is a question of fact (Wong, at para. 23; Fellowes, at para. 11). External indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standard, may inform the standard. Where a debate arises as to how a reasonable agent would have conducted himself or herself, recourse should generally be made to expert evidence.

[131]      In Walls v. Ross, [2001] B.C.J. No. 1641, 2001 BCPC 187, at paras. 66-74, Stansfield A.C.J. offers a lengthy discussion of the circumstances in which expert evidence will be necessary to define the standard of care in the real estate professional context:

A review of the cases referred to in these reasons suggests that unless conduct is particularly egregious, the court likely requires expert evidence of the usual or customary standard in the real estate industry regarding:

a) the kind of information that must be checked or verified by realtors, where it has not been demonstrated that the realtor had cause to doubt the information;

b) a duty to take positive steps to confirm the nature, identity and extent of the property they advertise, including any duty to recommend a purchaser secure a plot plan or survey; and

c) a duty to recommend that the purchaser secure an inspection regarding the soundness of premises, including any structural defects.

[123]     Mr. Twining concedes that there are two recognized exceptions to the rule requiring expert evidence to establish usual or customary practices in a professional field: where the court is faced with non-technical matters or those of which an ordinary person may be expected to have knowledge; and where the impugned actions of the defendant are so egregious that it is obvious that their conduct has fallen short of the standard of care, regardless of whether the precise parameters of the standard are known: Krawchuk at paras. 132-135; and Bergen v. Guliker Estate, 2015 BCCA 283 at para. 131.  

[124]     I agree with counsel for the realtor defendants that a claim against the realtor defendants for failing to disclose the existence of a UGST cannot succeed without proof that there was a UGST on the Property at the time of the listing. Further, even if there was such evidence, the purchasers have not established that it was usual or customary for an agent or brokerage in the unique circumstances of this case (where the listing agent is not a defendant and the defendants are the designated agent and brokerage in a limited dual agency agreement) to have inquired into the existence of a UGST by reviewing the City records or other sources of “readily” available information.

b)              Duty to Obtain a Completed PDS

[125]     The real estate agent and brokerage cannot be held to a higher standard than the seller in this case. As noted earlier, the court held in Smith that there is no duty on the part of the seller to disclose anything in the PDS. Rather, the duty is on the buyer to inform himself: Smith at para. 40. If Mr. Vasir failed to inform himself in time prior to removing the conditions, he has only himself to blame.

c)              Duty to Include a Contractual Term Regarding the UGST

[126]     The purchaser also alleges that the realtor defendants failed to include a clause in the Contract to deal with the risk of a UGST being on the Property.

[127]     This claim must also fail. There is no expert evidence that it is usual or customary for a real estate agent to insert such a clause in a contract.  Further, even if such a duty did exist, there is no evidence that the realtor defendants should have been alert to the existence of a UGST. Both Mr. Roberts and Ms. Grainger testified that they understood that there was a natural gas service on the Property to heat the residence, and an above ground propane tank to heat the workshop building.

3.               Other Allegations

[128]     I turn now to the cornucopia of additional allegations made by Mr. Vasir against Ms. Grainger. In doing so, I note that they were not properly pled. However, given that Mr. Vasir and Kernel are self-represented, I have addressed them on their merits.

[129]     It is alleged that Ms. Grainger told Mr. Vasir that there was nothing wrong with the Property, i.e., that “everything was OK”. The evidence does not support a finding that such a representation was made. For reasons outlined earlier, I do not find Mr. Vasir’s testimony credible in this regard, and prefer the evidence of Ms. Grainger. In any event, I do not find that the representation, even if made, caused any loss to the purchaser.

[130]     Similarly, I do not believe Mr. Vasir’s allegation that Ms. Grainger told him that Ms. McGuire had not lived on the Property for the past five years.

[131]     Finally, I also dismiss Mr. Vasir’s allegation of misrepresentation in relation to the MLS listing concerning the age of the plaintiff’s home on the Property. The listing described the home as 999 years and the approximate age of construction as 9999. Mr. Roberts testified that such designations are used when the listing agent is selling an old home and is not aware of the home’s age. There is no evidence that Mr. Vasir reasonably relied on the designation of the home being 999 years old or constructed in the year 9999. It would have been obvious to a reasonable purchaser that those years were not a true reflection of the age of the home.

4.               Caveat Emptor

[132]     The earlier discussion on caveat emptor also has application to the counterclaim and serves to defeat any negligence claim even if it were established. 

C.              Disposition

[133]     The counterclaim against Ms. Grainger and Royal LePage is dismissed.

IX.            Costs

[134]     Costs ordinarily follow the event. However, if a party wishes to make submissions on the issue of costs, they may send written submissions up to a maximum of 10 pages in length, for the Court’s consideration. These should be submitted through Supreme Court Scheduling within 14 days of this Order.

“Shergill J.”