Can-West Development Ltd. v. Parmar

2019 BCSC 1573 Can-West Development Ltd. v. Parmar

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Can-West Development Ltd. v. Parmar, 2019 BCSC 1573 Date: 20190918 Docket: S177387 Registry: Vancouver Between: Can-West Development Ltd. Plaintiff And Devinder Singh Parmar and Anju Parmar Defendants Before: The Honourable Madam Justice Choi Reasons for Judgment Counsel for the Plaintiff: W. McLachlan Counsel for the Defendants: M. Williams C. Wallace C. Leung Place and Date of Trial/Hearing: Vancouver, B.C. September 17-21, 24-28, 2018 October 15-19 and 30-31, 2018 November 1-2, 2018 December 5-7 and 21, 2018 March 8, 2019 September 10, 2019 Place and Date of Judgment: Vancouver, B.C. September 18, 2019 Table of Contents Introduction. 4 Background. 4 Issues. 10 Law.. 11 Fundamental Principles of Contract Law. 11 Contractual Interpretation. 12 Credibility. 15 Position of the Parties. 16 Contract Analysis. 19 Is There a Contract?. 19 Did the Parties Intend to Contract?. 19 Did the Parties Agree on the Contract's Essential Terms?. 19 Did the Parties Agree on Additional Terms?. 25 Specifications and Number of Items. 25 Deficiencies Analysis. 28 Admissibility of ConEcon Report 28 Discussion. 30 Ankon Report 34 Aviva. 34 Claimed Deficiencies. 35 Did Can-West Breach the Contract?. 35 Are any Damages Owed for Can-West's Breach?. 36 a) Exterior 38 b) Construction of the Units. 39 c) Appliances and Associated Systems. 41 Milani:

Mechanical Issues. 43 d) Miscellaneous. 44 e) Survey, Engineering, Utility, and Bylaw Infraction Fees. 48 f) Goods Purchased by the Parmars. 50 g) Oil Tank. 50 h) Delay Penalty. 51 i) Lock Repair 53 j) Summary. 53 Is Can-West Entitled to Damages for Breach of Contract?. 53 Mr. Ranauta's Personal Liability. 54 Costs. 55 Introduction [1] Each party seeks damages on the basis that the other breached the residential construction contract at the heart of this dispute. The plaintiff and defendant by counterclaim, Can-West Development Ltd. ("Can-West"), is a property developer that built a duplex, an infill house, and a three-car garage at 5475, 5477, and 5479 Wales Street, Vancouver, BC ("Wales Street") for Ms. and Mr. Parmar. The Parmars are the homeowner defendants and plaintiffs by counterclaim. [2] Can-West seeks an order for the outstanding amount of $351,530 owed by the Parmars for the construction. The Parmars oppose the order, largely on the basis that the construction was deficient. The Parmars seek an order for $217,968 to compensate for said deficiencies in their counterclaim. The Parmars named Mr. Ranauta, the sole shareholder, director, and officer of Can-West, personally as a defendant in their counterclaim. Unless otherwise indicated, any reference to Mr. Ranauta in this judgment refers to his role as the directing mind of Can-West, not to him in his personal

capacity. [3] The parties disagree on a number of issues surrounding the construction project, most notably the terms and form of the contract they entered into. Broadly speaking, these issues include whether their contractual relationship is largely governed by written or oral agreement, whether the parties contracted for Can-West to build only a duplex on the property or a duplex and an infill house, and whether various deficiencies exist and if so, if they have been repaired. Background [4] The Parmars purchased Wales Street in September 2009 with the intention of redeveloping the property. After the purchase, the Parmars continued to live at a residence elsewhere in Vancouver and rented the existing Wales Street house to tenants. [5] In 2013, Ms. Parmar began contacting land surveyors, architects, and general contractors to conduct research and obtain quotes for the redevelopment project. [6] The parties became acquainted in early 2014. In February of 2014, Ms. Parmar attended Mr. Ranauta's home to discuss the possibility of hiring Can-West to build the project. [7] About a week later, the parties had a second meeting. At the third meeting in March, a fill-in-the-blanks, tick-the-box, six-page contract was signed. The document is dated March 4, 2014, although it was signed by the parties on March 7, 2014 ("March 4 Document"). The document is a standard form contract used

regularly by Can-West. Mr. Ranauta recorded the project's particulars on the form in his handwriting. [8] The March 4 Document set out the following details, among other things: a) the building project is for 5100 square feet; b) the base cost is $150 per square feet plus GST; c) the workmanship, material, and quality is to be similar or better than at 5740 Hyde Street, Burnaby, BC; d) the completion date is to be 150 days after demolition of the old house; e) a late penalty of $100 per day applies until the unconditional occupancy permit is obtained; f) any deficiencies identified by the homeowner will be repaired at the builder's expense or the funds may be held back by the homeowner for the cost or repair; g) the total cost is $803,250 plus GST; and h) the four draws are payable at the following times: i. initial deposit: $10,000; ii. roof installed: $237,641.66; iii. ready to paint: $237,641.66; iv. before final occupancy: $237,641.68; and v. 55 days after the occupancy permit has been issued: $80,325 (holdback of 10%) will be released to the builder. [9] Three versions of the March 4 Document were produced at trial, all of which are nearly identical. The difference lies on the last two pages of each version. The first version does not include any handwriting on these pages. The other two versions record handwritten changes by Mr. Ranauta respecting extra costs for upgraded

items and to record the dates and amounts for payments to be made, along with the parties' signatures. [10] The third and last version of the March 4 Document is the one all parties referred to during the trial. I will refer to this version as the March 4 Document throughout these reasons, which is not disputed. I reproduce the first page here. The areas that are underlined and italicized along with the "✓" symbol represent Mr. Ranauta's handwriting on the form.

NEW HOME CONSTRUCTION CONTACT SITE: 5477 WALES ST sqft to build 5100 level(s) house Date: 4/03/14 __ Cars Garage with __doors __Single or __Double THE UNDERSIGNED AGREE: An Agreement is being made between the Builder CAN WEST DEVELOPMENT LTD (Builder) and Property Owner DEVINDER SINGH PARMAR/ ANJU PARMAR (House Owner) In regards to a Construction Contract in which the Builder is to construct a new house on the subject site address located at 5477 WALES ST (civic address) and the Legal Description is LOT 26 NORTH ½ of BLOCK DL LOT 394 PID 010-647-368 Total cost of the construction is $150 $ PER S/F PLUS GST. The new house will be built in accordance to the Municipal Building Code. The workmanship, materials & quality of tire new construction are to be similar or better than those of the House at 5740 HYDE ST. BURNABY BC which was built by the same Builder previously. This New Construction is regulated by the City By-Laws and the Approved Drawing from the City Planning Department, in accordance with the specifications and details of the working drawing prepared by: ______________ THE SPECIFICATIONS ARE: 1. FRONT ENTRANCE (✓) Builder to install Front Door: □ White Double Steel, ☑ Double F/G and color-painted, with □ No Light, □ Two Lights, □ Four Lights. ( ) Builder to install foyer floor covering with: □ Standard Granite tiles □ Ceramic Tiles.

2. EXTERIOR WALL COVERAGE (✓) Builder to install plywood as exterior sheathing, plywood or 1x10 (re-cycled from foundation forming) sheathing for the Garage. ( ) Builder to install acrylic stucco on the outside walls. Culture stone on lower 1/2 front.

3. PLUMBING & HEATING FIXTURES (✓) Builder to install Radiant In-Floor Hot Water Heating System with 2 Zones. ( ) Builder to install 50 liters Gas Fired Hot Water Tank. (✓) Builder to install Washer and Dryer hook-up with Laundry Tub. ( ) Builder to install two (2) outside Ball Valve Water Taps. (✓) Builder to install □ No Jacuzzi, ☑ Jacuzzi, □ Air-Jet, Soaker Tub in Master En-suite. (✓) Builder to supply and to install Builders' Delta or American Standard faucet fixtures and all related water valves in all Bath, Kitchen, Boiler & Laundry room MUST BE BALL VALVES type. [11] Relevant excerpts from pages four through six of the March 4 Document are reproduced below: DEFICIENCIES WALK-THROUGH If the builder fails to repair the deficiencies prior to the ''Completion Date," the homeowner will withhold in his possession an amount equivalent of the cost for repairing those deficiencies from the cost of Construction, until all the deficiencies in the deficiencies list are completed by the Builder. If the homeowner satisfies with the completion repairing of the deficiencies, there will not be any holdback for deficiencies upon "Completion Date." BUILDER'S LIEN HOLD-BACK The homeowner will hold back from the cost of construction as a Builder's Lien Holdback an amount equal to 10% of the value of the improvements for 55 days after date of issuance of unconditional Municipal / City Occupancy Permit. The homeowner will place the Holdback in an interest bearing trust account with the conveyancer with interest accruing to the benefit of the Builder. Improvements are valued at $____.

COST The construction cost will include, but no [sic] limited to, all costs and expenses associated to the construction of the improvement such as survey fee, design fee, engineering fee, building permit fee, materials and labour, and the applicable Good and Services Tax etc. Soil Test fees and the related Engineering fees are Extra. Builder and Homeowner agree the cost and payment schedule as following: Construction Cost: $ 765,000.00 PLUS: Upgraded items * $ 38250.00 GST TOTAL Construction Cost $ 803250.00 GST included * Extra cost applies to upgraded items. Payment Schedule:

DRAW AMOUNT

PAYMENT DATE

AMOUNT DRAWN

RECEIVED

BY BUILDER Draw #1 Initial Deposit 10,000.00 130,000+117641.66=247641.66 Draw #2 Roof installed 237641.66 15/03/16 [Signature] Total 247641.66 Draw #3 Ready to paint 237641.66 /04/16 16/05/16 14/12/16 100,000 + 100,000 + 37641.66 Draw #4 (BEFORE) Final occupancy 237641.68 1/2/17 [Initials] 100,000 [Initials] Holdback 10% Holdback 80325.00 Total Contract Price 803250.00 NOTE: The 10% Hold Back in the amount of $ 80325.00 will be released to the builder 55 days after the Occupancy Permit has been issued. Witness [Signature] Name Jagjewan Ranauta 07/03/14 Date

BUILDER [Signature] Name Jagjewan Singh Ranauta Witness [Signature] Name Devinder Singh 07/03/14 Date

HOME OWNER [Signature] Name Devinder Singh Parmar Witness [Signature] Name Anju Parmar 07/03/14 Date

HOME OWNER ([Signature] Name Anju Parmar [12] At the third meeting, another document virtually identical to the March 4 Document, but separate from the three versions of the contract I have already mentioned, was signed ("Alternate March 4 Document"). The Alternate March 4 Document stipulated the cost per square feet at $175, rather than $150, and the total cost at $937,125, rather than $803,250. The payment schedule showed larger draw amounts payable to the builder and a larger holdback. This version was provided to the bank so that the Parmars could obtain a larger mortgage. There is a dispute over who suggested the Alternate March 4 Document. [13] The Parmars provided Mr. Ranauta with the initial $10,000 deposit at the third meeting. In the fall of 2015, the Parmars applied for a construction mortgage and provided the bank with the Alternate March 4 Document. The Parmars obtained $1,248,000 in financing. The project started in March 2016, and on April 2, 2016, the demolition and excavation of the original Wales Street house was completed. Can-West built a side-by-side three-storey duplex, an infill house, and a three-car garage on the property. An infill house is similar to a laneway house except that an infill house is registered on its own title. Thus, the construction resulted in three properties, the two portions of the duplex and the infill house, all registered

separately with the Land Title Office. They can all be sold independently. [14] The final occupancy permit was obtained on May 30, 2017. On June 8, 2017, a walk-through of the premises occurred. The Parmars hired Mr. Chris Thompson of Haystack Home Inspections to participate in the walk-through and advise them of any deficiencies; he provided a report on June 9, 2017, identifying hundreds. [15] Can-West set out to remedy the deficiencies following the walk-through. It asserts that it repaired all items that it believed to be deficient. The Parmars argue that Can-West did not complete all repairs. They argue that some deficiencies were not addressed at all and others were not repaired satisfactorily. At a second walk-through on June 22, 2017, Ms. Parmar and Mr. Ranauta disagreed on the remaining payment, which was still owing under the March 4 Document. Ms. Parmar refused to pay the final balance, and Mr. Ranauta refused to provide the keys to the premises without full payment. Mr. Ranauta left without returning the keys such that a locksmith had to be retained. Can-West proceeded to file a builder's lien on the property and this action on August 8, 2017. Issues [16] The issues arising from these facts are as follows: a) Is there a contract? i. Did the parties intend to contract? ii. Did the parties agree on the contract's essential terms? iii. After entering into the March 4

Document, how did the parties give effect to the terms? b) What is the proper interpretation of the contract? i. Is the contract ambiguous? c) Should portions of the ConEcon report be excluded? d) Did either party breach the contract? i. Were there any deficiencies not repaired by Can-West? ii. Was the Parmars' refusal to pay Can-West a breach of contract? e) Are they any damages flowing from the breach? f) Is Mr. Ranauta to be held personally liable? Law [17] I will start with some general principles of contract law and interpretation that set up the framework for the issues I must decide. Fundamental Principles of Contract Law [18] A contract is a legally recognized agreement between two or more persons which gives rise to an obligation that may be enforced in the courts: G.H.L. Fridman, The Law of Contract in Canada, 5th ed (Toronto: Thomson Reuters 2006) at 5. It is an agreement created by the unconditional acceptance of an offer involving a set of terms between parties that intend to create mutual and reciprocal rights and duties. A contract may be constituted in writing, orally, and/or by conduct. [19] Madam Justice Dickson, then of this Court, summarized the basic principles of contract formation in Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2009 BCSC 1303 at paras. 321-323: [321] Courts strive to uphold contractual obligations solemnly and freely

undertaken. They do not, however, impose them upon parties who have not reached agreement on all essential terms: Catalyst Paper Corp. v. Companhia de Navegacao Norsul, 2008 BCCA 336. [322] For parties to be bound in a contractual relationship there must be a manifest meeting of the minds. They must express themselves outwardly in a manner that indicates both an intention to be bound and reasonably certain mutually agreed terms: Klemke Mining Corporation v. Shell Canada Limited, 2007 ABQB 176, affirmed 2008 ABCA 257 (CanLII). [323] These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner. They apply whether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof. The key question in all cases is whether an agreement has been reached on all essential terms, regardless of its form: Catalyst Paper Corp. supra; Periscan Financial Services Inc. v. 519090 B.C. Ltd., 2007 BCSC 707; Leong & Associates Actuaries & Consultants Inc. v. Watt, 2003 BCSC 1885. [20] Madam Justice Dickson continued, explaining the requisite "meeting of the minds" or intention to create legal relations, at paras. 324-325: [324] The test for determining the intention to create legal relations is objective. It is explained by G.H.L. Fridman in The Law of Contract, 5th ed. (Toronto: Thomson

Carswell, 2006) as follows: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is not concerned with the parties' intentions but with their manifested intentions. It is not whether or not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of the agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. [325] The objective test serves the main purpose of contract law: to protect reasonable expectations created by promises. Accordingly, "the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an enquiry into the actual state of mind of the promisor, but on how the promisor's conduct would strike a reasonable person in the position of the promisee": S.M. Waddams, The Law of Contracts, 5th ed. (Toronto: Canada Law Book, 2005), cited in Hammerton v. MGM Ford-Lincoln Sales Ltd., 2007 BCCA 188. Contractual Interpretation [21] The Supreme Court of Canada case of Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

[Sattva] is the leading authority on contractual interpretation. At paras. 47-50, the Court provides: 47 the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine "the intent of the parties and the scope of their understanding" (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744 (S.C.C.), at para. 27 per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways), 2010 SCC 4, [2010] 1 S.C.R. 69 (S.C.C.), at paras. 64-65 per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning 48 The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement 50 Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of

contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix. [Emphasis added.] [22] The court must consider the contract in its proper context when interpreting its terms. First, a provision is not to be read in isolation, but in the context of the contract as a whole: Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways), 2010 SCC 4 [Tercon] at para.

64. Second, the court must consider the surrounding circumstances that gave rise to the contract. Sattva clarified the treatment of surrounding circumstances at paras. 57-58: [57] While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62). [58] The nature of the evidence that can be relied upon under the rubric of "surrounding circumstances" will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been

within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man" (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact. [23] Sattva clearly states that contractual interpretation is no longer limited to the "four corners" of a written contract. As put in McMillan v. Altastream Power Systems Inc., 2018 BCSC 1298 at para. 62, "the contract should be informed by the surrounding factual matrix". While the relevant surrounding circumstances will differ according to the case, there are limits to what should be considered. As I stated in McMillan: [62] The negotiations between the parties should not be considered, other than for the limited purposes that the parties were in negotiations and the reasons for those negotiations: Langley Lo-Cost Builders Ltd. v. 747835 B.C. Ltd., 2000 BCCA 365; Athwal v. Black Top Cabs Ltd., 2012 BCCA 107 at para.

43. Likewise, the subjective intentions of the parties in making the contract should not be considered: Eli Lilly & Co. v. Novopharm Ltd., 1998 2 S.C.R. 129 at para. 54. [63] The subsequent conduct of the parties is relevant to the interpretation of a contract only so much as it is required to resolve ambiguity in the contract. As stated in Canadian National Railway v. Canadian Pacific Ltd. (1978), 95 D.L.R. (3d) 242 (B.C.C.A.) at 262, aff'd [1979] 2 S.C.R. 668: In Canada the rule with respect to subsequent conduct is that if, after considering the agreement itself, including the particular words used in their immediate context and in the context of the agreement as a whole, there remain two reasonable alternative interpretations, then certain additional evidence may be both admitted and taken to have legal relevance if that additional evidence will help to determine which of the two reasonable alternative interpretations is the correct one. [24] Ambiguity arises if the contract is reasonably susceptible of more than one meaning, as provided in McMillan at para.

64. I continued to provide: [64] The Manitoba Court of Appeal summarized the definition of ambiguity in Elias v. Western Financial Group Inc., 2017 MBCA 110: [78] Another issue that is raised by this appeal is the law respecting ambiguity of contractual provisions. It must be emphasized that a contractual provision can be difficult to construe without being ambiguous (see Moore Realty Inc v Manitoba Motor League, 2003 MBCA 71 at para 25). [79] True legal ambiguity occurs where a phrase is "reasonably susceptible of more than one meaning" (Hi-Tech Group Inc v Sears Canada Inc, 2001 CarswellOnt 9 at para 18 (CA)). Ambiguous wording has also been described as one with a "double or devious meaning, that is to say, one word or one expression or a series of expressions capable on its face or in its application of two or more meanings" (Moore Realty at para 25). [65] The Ontario Court of Appeal recently reviewed the use of subsequent conduct as part of the factual matrix, considering the dangers of its use, and the limitations that should be recognized when it is required to resolve an ambiguity: Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912 at paras. 39-56. Summarizing this review, the court stated: [56] In summary, evidence of the parties' subsequent conduct is admissible to assist in contractual interpretation only if a court concludes, after considering the contract's written

text and its factual matrix, that the contract is ambiguous. The court may then make retrospectant use of the evidence, giving it appropriate weight having regard to the extent to which its inherent dangers are mitigated in the circumstances of the case at hand, to infer the parties' intentions at the time of the contract's execution. [66] Our Court of Appeal recently affirmed these principles in Wade v. Duck, 2018 BCCA 176. [Emphasis in original.] Credibility [25] Can-West argues this case centres largely on the parties' credibility, which will inform the facts I must find, rather than contractual legal principles. [26] I disagree that principles of contract law are secondary in this dispute, but before analyzing the contract issues, I will turn to some general principles of law respecting credibility. It is necessary to comment on the reliability and credibility of the two main witnesses, that being Mr. Ranauta and Ms. Parmar, because much of the evidence is in dispute. [27] In the oft-quoted case of Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C.C.A.), our Court of Appeal emphasized that the credibility of interested witnesses cannot be assessed primarily by their demeanour. The trier of fact must examine the consistency of the witness's evidence with the surrounding probabilities and conditions. [28] In assessing credibility, Madam Justice Dillon held at para. 187 of

Bradshaw v. Stenner, 2010 BCSC 1398: [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a 'stand alone' basis, followed by an analysis of whether the witness' story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version of events is the most consistent with the "preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions" (Overseas Investments (1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [29] Neither Mr. Ranauta nor Ms. Parmar were ideal witnesses. Both wanted to argue their case at times instead of answering the questions put to them by counsel. Both were not forthcoming about points that ought to have been conceded. Mr. Ranauta gave evidence that meandered and was inconsistent with other testimony he provided without resolving the contradictions. He gave direct testimony for over two days, and much of it was elicited by leading questions. [30] Neither Mr.

Ranauta nor Ms. Parmar's first language is English. Both were proficient enough in the English language to provide testimony, although Ms. Parmar had a much better command of the English language. Ms. Parmar presented as a self-assured, take-charge person who did not accept authority without question. [31] While there are portions of Ms. Parmar's evidence I do not accept, I accept more of Ms. Parmar's testimony than Mr. Ranauta's. I will address the reasons for this finding later in these reasons. Position of the Parties [32] Can-West argues the March 4 Document is not the operating contract and pleads that document only contemplated a side-by-side duplex. Conversely, Can-West also argues that this was the contract, but it was later amended orally to include the infill house and a higher price. Can-West bears the onus of proving that essential terms of the initial contract were amended or other contracts were formed and are operative after the March 4 Document. [33] Can-West's notice of civil claim pleads that the March 4 Document was signed "for the initial intended construction" to build "residential structures and a three car garage." The parties "agreed to an oral amendment to the written contract, whereby three residential structures a side by side duplex, and one unit of infill housing and a three car garage would be constructed on the property." In oral argument,

Can-West submits the governing agreement is oral, which incorporated portions of the March 4 Document, and was based on "the City of Vancouver bylaws, the approved drawings from the City of Vancouver, and the Building Code". [34] The terms of such an agreement, according to Can-West, are as follows: a) the project would include a duplex, an infill house, and a triple garage; b) the total square footage would be 5,513 square feet; c) the cost would be $150 per square foot plus GST; d) construction was to be in accordance with the specifications and details of the working drawings approved by the City of Vancouver, as well as the City bylaws; e) the specifications at paras. 1-20 of the March 4 Document were only applicable to the duplex, not the infill house; f) the completion date and penalty clause were no longer part of any contract between the parties. Alternatively, the completion date and penalty clause provisions applied only to the duplex; and g) the Parmars would cover various additional expenses incurred by Can-West totalling $56,734.28. [35] In total, Can-West argues the agreed upon cost of the project is $925,032. [36] The Parmars generally assert that the March 4 Document is the governing contract. Their response to the notice of civil claim denies the oral amendments as argued by Can-West and pleads "the only amendment or additional work that was required of

Can-West after the execution of the Contract was related to a buried oil tank." The oil tank issue was recorded on the March 4 Document in Mr. Ranauta's handwriting and added $18,690 in extra costs. The Parmars also claim that other terms were agreed to verbally prior to the execution of the March 4 Document, which were not reflected in the March 4 Document. The pre-March 4 Document items are as follows: a) tile flooring that mimics the look of hardwood flooring in all three units; b) intercom units for the front door of all three units, with one upstairs substation and one downstairs substation; and c) pot lights at the exterior soffit around both the duplex and secondary dwelling. [37] Additionally, the Parmars claim that Can-West orally agreed during the construction to patch a retaining wall. [38] In essence, both parties argue some portions of the March 4 Document are still operative. The Parmars argue the entire March 4 Document is operative, but that the pre-March 4 Document items were not recorded in the March 4 Document, nor was the subsequent agreement about the retaining wall. My understanding of Can-West's argument is that the March 4 Document is a contract between the parties, but only relates to the duplex and garage, and that the infill house and other extras were agreed to orally in subsequent amendments to the March 4 Document or in entirely new oral

contracts. Contract Analysis Is There a Contract? [39] By the end of the trial, the parties agreed that there was, in fact, a contract. However, in order to determine its parameters, I will perform a full contract formation analysis given counsel's disparate positions on the content and form of the contract and the parties' conflicting evidence. Did the Parties Intend to Contract? [40] The first question is whether an objective reasonable bystander would understand that the parties intended to contract and the terms of such a contract. [41] Mr. Ranauta and Ms. Parmar met twice in February 2014 and then on March 4, 2014. Mr. Parmar attended the second and third meetings. The purpose of the meetings was to explore the possibility of working together, with the parties discussing the project and seeing an example of Mr. Ranauta's work, that being his own home. [42] The parties signed the March 4 Document, which contemplates the square footage, features, timeline, and price of a building project at Wales Street. [43] I find the parties intended to contract. Did the Parties Agree on the Contract's Essential Terms? [44] The essential elements of a building contract are the parties, the subject matter, the time for performance, and the price. There is no enforceable contract if the parties failed to agree on any one of these elements: Fame Construction Ltd. v. 430863 B.C. Ltd. (1997),

30 B.C.L.R. (3d) 68 (S.C.) at para. 47. [45] In Infinity Steel Inc. v. B & C Steel Erectors Inc., 2009 BCSC 1053 at para. 40, the court confirms that the price of a construction contract is essential. There, the court referred to Canada v. CAE Ind. Ltd. (1985), [1986] 1 F.C. 129 (C.A.), which cited May and Butcher, Ltd. v. R., [1929] All E.R. Rep. 679 (H.L.) at 682 with approval: It has been a well-recognised principle of contract law for many years that an agreement between two parties to enter into an oral agreement by which some critical part of the contract matter is left to be determined is no contract at all. Justice Metzger concluded in Infinity Steel Inc. that he was unable to determine the nature of the agreement between the two parties as the agreement lacked the essential and critical term of price. [46] Many of the essential terms of the contract here are hotly disputed. [47] There was no dispute between the parties that Can-West would build a garage. I will, therefore, not address the garage except to the extent necessary to find facts or make rulings. [48] The Parmars largely rely on the March 4 Document and argue that the parties agreed to the following from the beginning of their contractual relationship: a) Can-West would build a duplex and a secondary dwelling for the Parmars; b) Can-West would build a garage, the size of which had yet to be determined, but

would be in accordance with the City of Vancouver bylaws for the Parmars; c) the square footage of the floor area, which excludes the garage, would be 5,100 square feet; d) the workmanship, material, and quality was to be similar or better than at 5740 Hyde Street, Burnaby, BC, although the defendants only saw this house in its drywall stage; and e) the price of the project would be $150 per square foot plus GST, totalling $803,250 plus GST. [49] The March 4 Document also stated the project would be completed within 150 days of the old house on the property being demolished. [50] Can-West agrees that the parties agreed to essential terms, but that all of the essential terms were not agreed to when the March 4 Document was signed and most significantly, that they subsequently agreed upon increased square footage and upgrades, which raised the price. [51] Can-West argues the March 4 Document only contemplated the duplex, referring to the use of the word "house" in the contract, and there were substantial oral amendments at a later stage to include a secondary dwelling, which also changed the price, specifications, and time for performance. Can-West argues that the parties contracted to have the project be 5,513 square feet, which at a price of $150 per square foot plus GST totals $868,298. This price does not include additional expenses for upgrades, which Can-West argues it

incurred on the defendants' behalf totalling $56,734. Can-West argues that the total price under the contracts equals $925,032. [52] The core issue here is whether the parties agreed that Can-West would build a duplex and secondary dwelling at the outset, or whether the project evolved to include a secondary dwelling. This question significantly impacts the price and is central to the project. In my view, it is an essential term. [53] The Parmars seriously dispute that the March 4 Document, which they argue is the existing contract between the parties with some minor subsequent amendments, was largely replaced by any new oral agreement as argued by Can-West. [54] The March 4 Document refers to a 5,100 square-foot house on the first page. The word "house" is part of Can-West's template. Mr. Ranauta filled in the address, the square footage of 5,100, and the date. SITE: 5477 WALES ST sqft to build 5100 level(s) house Date: 4/03/14 __ Cars Garage with __doors __Single or __Double [55] A fundamental precept of contractual interpretation is that the words of one provision must not be read in isolation, but should, instead, be considered in harmony with the rest of the contract and in light of its purpose and commercial context: Tercon at para.

64. I must consider the March 4 Document in context of the entire factual matrix: Sattva at para. 50. [56] For the reasons that follow, I accept that Can-West knew the Parmars wanted to build a duplex and a secondary dwelling from the beginning. [57] Ms. Parmar told Mr. Ranauta at their initial meeting that she was looking to build a primary house and a secondary house. Ms. Parmar commissioned a land survey from Lyon, Flynn and Collins in October 2013, a few months before she met Mr. Ranauta. The plan prepared at that time includes a main building and a "laneway envelope". There is no dispute that Ms. Parmar provided this plan survey to Mr. Ranauta at one of their meetings prior to the execution of the March 4 Document. [58] I accept that the construction of a duplex and a secondary dwelling was a focus for the Parmars, and I accept Ms. Parmar's evidence that she advised Mr. Ranauta of this configuration. I also accept that one of the reasons why the Parmars specifically purchased Wales Street was because it was in an area that would be zoned for infill houses. All parties, therefore, knew that the Parmars wanted a duplex and a secondary dwelling from the outset. [59] In the event I am in error that these surrounding circumstances are determinative in settling the issue of whether the March 4 Document contemplated a secondary dwelling, I find that the term "house" in the

contract is ambiguous. Given the ambiguity, I will consider the parties' subsequent conduct to examine the extrinsic evidence. [60] Shortly after the March 4 Document was signed, Mr. Ranauta forwarded the Lyon, Flynn and Collins plan survey to an architect, Mr. Tej Singh of Simplex Home designs. Soon after, Mr. Singh provided a plan for a side-by-side duplex. Mr. Ranauta argues this plan confirms his evidence that a duplex was all that was contemplated by the parties when the March 4 Document was executed. [61] In April 2014, however, Mr. Singh prepared another drawing, a duplex and an infill house. Mr. Singh testified that the earlier drawing provided to Mr. Ranauta was not prepared for the Wales Street project, but provided as a sample only of what might be possible on the site. Mr. Singh was unequivocal that Mr. Ranauta instructed him at the outset that the site would include a duplex and a secondary dwelling. Mr. Singh provided the duplex plan, prepared for another project, solely for exploratory purposes, so the parties could consider what the main building might entail. He specifically testified that the scope of work included the infill house. [62] Can-West's argument on this point is contrary to Mr. Ranauta's own evidence that he attempted on numerous occasions to execute another written agreement with the Parmars as construction was progressing, but they repeatedly

refused. Can-West's opening argument in this trial states, "Mr. Ranauta will give evidence that the construction cost for a similar home in the 2016 timeline would be $200 per square foot, however the parties never reached any amended agreement, despite Mr. Ranauta's efforts." Can-West continued to build the project throughout, including the infill house. Ms. Parmar testified that Mr. Ranauta did not invoice her during the construction and did not ask for any monies beyond the amounts specified in the March 4 Document. [63] On Mr. Ranauta's own evidence, it is clear that there was no meeting of the minds respecting any new oral amendments or contracts respecting a secondary dwelling. I cannot find that the parties intended to enter into a new binding agreement that largely replaced the March 4 Document, as argued by Mr. Ranauta, or significant oral amendments that changed essential terms of the contract. [64] Consequently, I find that the scope of the March 4 Document included both a duplex and an infill house. [65] I am satisfied that the parties agreed to essential terms for the Wales Street project in the March 4 Document, which is the contract that governs their relationship. I find that these terms were not subsequently orally amended, which the exception of some agreed-to upgrades that I will address. These terms are as follows: a) the project was to include a duplex, an

infill house, and a garage; b) the cost was $150 per square feet plus GST; c) the workmanship, material, and quality was to be similar or better than at 5740 Hyde Street, Burnaby, BC; d) the total price was $803,250 plus GST; e) construction was to be completed 150 days after the demolition of the old house; f) if the construction was not complete within 150 days of demolition, there was a penalty of $100 per day until the unconditional occupancy permit is obtained; and g) where applicable, the parties would expressly agree to additional costs for any upgrades. [66] I further find that the square footage of 5,100 listed on the March 4 Document was an approximation that represented the parties' intention to build to the maximum allowable living space limit for the property per the City of Vancouver's zoning bylaws. The maximum was 5,096 square feet. The total price of $803,250 plus GST at $150 per square foot is equivalent to approximately 5,355 square feet. The bylaws also require that a garage be built for a property of that size and that its square footage does not count towards living space. I find that the square footage of the garage was determined at a later date. I do not consider the garage's square footage to be an essential term. [67] No evidence was led as to the standard of construction at 5740 Hyde Street. I understand that it was a house also built by Can-West. However, it is an implied term in building contracts that the work be done in a "good and workmanlike manner, in accordance with ordinary and reasonable standards": Strata Plan K855 v. Big White Mountain Mart Ltd., 2016 BCSC 862 at para. 10, citing Hutchinson v. Mathias, [1943] 1 W.W.R. 451 (B.C.S.C.); D'Amore v. Pulford, 2006 BCCA 416 at para.

4. I find that such an implied term existed here. Did the Parties Agree on Additional Terms? [68] While the essential terms of a contract must be certain, "there are enforceable contracts in which some matters are left to be determined in the future": Le Soleil Hotel & Suites Ltd. at para.

340. Given the nature of residential construction projects, it was inevitable that the parties would have to reach agreement on a number of details as the Wales Street project progressed. In reaching these agreements, I find that the parties were giving effect to the existing terms of the contract. [69] I will proceed to discuss a number of additional, non-essential terms that are in dispute between the parties. Specifications and Number of Items [70] The Parmars argue that it was an implied term in the contract that Can-West would cover all costs of the hydro and gas bills at Wales Street over the course of construction. The parties agree that this was never discussed. The Parmars did not present evidence that such arrangements are so common in building contracts that it would be an implied term. I decline to find that this was part of the contract. [71] Some items in dispute in the March 4 Document include some of the specifications and the numbers of items in each category that were to be supplied. [72] The March 4 Document lists twenty different specifications in the first four pages. The categories are as follows: 1. FRONT ENTRANCE 2. EXTERIOR WALL COVERAGE 3. PLUMBING & HEATING FIXTURES 4. BATHROOMS 5. VACUUM SYSTEM 6. ALARM SYSTEM 7. INTERCOM SYSTEM 8. UTILITIES 9. SKYLITES 10. WINDOW SEATINGS 11. KITCHENS 12. FIREPLACES 13. FLOORING 14. HAND RAILING per Building

Code 15. CROWN MOULDINGS, DOOR & WINDOW CASINGS 16. INTERIOR WALLS 17. LIGHTING FIXTURES 18. GARAGE DOORS 19. ROOF COVERAGE 20. LANDSCAPING [73] The parties dispute some of these items, including the light fixtures at #17: 17. LIGHTING FIXTURES (✓) The value of the lighting fixtures in dining room, stairway, and that in the nook area is to be not more than $ 1500 which includes all taxes. ( ) There will be __ recessed lighting upstairs. (✓) There will be TWO motion sensor lightings: one front door, one outside main kitchen, one garage side and one each for the side-yard walkways. [74] Can-West argues that the $1,500 refers to a maximum dollar amount for all lights in the project. The Parmars interpret the $1,500 as the maximum figure for lighting in each unit, so that the maximum allowable lighting covered under the contract is $4,500 for three units. [75] The March 4 Document is largely a standard form template. The template refers to some of the specifications in the singular. The intercom system at #7 is referred to as follows: 7. INTERCOM SYSTEM (✓) Builder to install ☑ Black & white video monitor with intercom unit for the front door. □ Regular intercom speaker unit in the kitchen upstairs connected to the out-side of front entrance. ☑ Door-bells - 3 on back doors (1 upstairs-independent from the video monitor, and 2 downstairs). [76] The Parmars argue that the

contract could not make sense if Can-West installed an intercom system into only one front door. Similarly, they point to "kitchens," at #11, as being meaningless if the term only referred to the kitchen in one of the units. There is reference to "secondary kitchens" in the contract as well: 11. KITCHENS (✓) Builder to install garburator to kitchen sink upstairs. ( ) Builder to install rough-in hook-ups to dishwasher upstairs. (✓) Dishwasher machine, □ will □ will not be supplied and □ will □ will not ✓ be installed by the builder. ( ) Builder not to install dishwasher to the kitchen upstairs, but instead, Builder to install matching cabinet and door for the space where the dishwasher supposed to be. (✓) Builder to install WOOD quality of MAPLE colour finishing of kitchen cabinets doors for the main kitchen, the colour of which is to match the colour for the hardwood floor upstairs. (✓) Builder to install CORE/GRANITE counter-top to the main kitchen (approx. value 12 feet @ $ _/ft). ( ) Builder to install ceramic tiles back-splash below hood fan area & between upper and lower cabinets. (✓) Builder to install SAKURA/PACIFIC range hood fan with ductwork to the main kitchen. ( ) Builder to provide upper & lower cabinets, materials and labour to finish and to complete the ___ Secondary Kitchen facilitates [sic] in the future suites. ( ) The secondary kitchens to be completed

with the Melamine white doors and laminated courter tops: □ 10-12 feet Upper & Lower Cabinets, □ Double kitchen sinks, □ Power for Stoves. □ Power for range hood fans together with the __ brand range hood fans. □ Exhaust ductwork to outside (ductwork to be covered by matching cabinet wood board). □ White ceramic tiles back-splash below range hood fan and between upper and lower cabinets. □ Ceramic floor tiles for the downstairs living room, kitchen & hallway. [77] I agree that the March 4 Document specifications must refer to the specifications in each of the units because any other interpretation is not logical. When reading the contract as a whole, and taking into account the surrounding circumstances and that this project was for construction of three separate units, all that could be titled and sold separately, the only logical interpretation is for the specifications in the template to refer to each unit. Deficiencies Analysis Admissibility of ConEcon Report [78] Can-West and Mr. Ranauta tendered an expert report prepared by ConEcon Consultants, dated September 13, 2018. The ConEcon report responded to the report tendered by Ankon Consultants, dated June 21, 2018, on the deficiencies at Wales Street. The Parmars seek to have most of the ConEcon report, which was authored by Mr. Randip Bhandal, excluded. [79] The Parmars retained Mr. Thompson from Haystack Home Inspections to walk through the property on June 8, 2017. The March 4 Document provided for the walk-through as follows:

DEFICIENCIES WALK THROUGH 10 days prior to the "Completion Date," the homeowner will accompanied by a representative of the Builder walking through the house for deficiencies and will prepare a list of deficiencies discovered by the homeowner. The Builder at his expense, will complete or repair the items specified on the deficiency list, which is to agree upon, by the Builder and the homeowner, the quality of workmanship and materials used will be equal to or better than that of the surrounding construction. If the builder fails to repair the deficiencies prior to the ''Completion Date," the homeowner will withhold in his possession an amount equivalent of the cost or repairing those deficiencies from the cost of Construction, until all the deficiencies in the deficiencies list are completed by the Builder. If the homeowner satisfies with the completion repairing of the deficiencies, there will not be any holdback for deficiencies upon "Completion Date." [80] The Haystack Home Inspection report is 104 pages long and includes many detailed pictures. Mr. Ranauta testified that he repaired all items listed in the report that were within the scope of the work he was to perform. His evidence on many of the other items is that they were not deficient because they passed the City of Vancouver's inspection or were in compliance with the provincial Building Code. Mr. Ranauta did not

repair those items. [81] Ankon Consultants was asked to evaluate the repair costs of the deficiencies identified in the Haystack Home Inspection report. The Ankon report estimated the construction price for the deficiencies at $299,008. With other costs, such as permits, management fees and GST, the report estimated the total costs at $362,678. Of this amount, the Parmars' seek $200,381, including all fees and GST. [82] The ConEcon report concludes that there are few deficiencies and that they could be remediated at a cost of $26,785. Notably, the ConEcon report takes no issue that the repair cost estimates in the Ankon report are appropriate should I find that the items listed by Ankon are deficient. Mr. Bhandal testified that he did not dispute the amounts listed by Ankon. [83] The Parmars seek to exclude much of the ConEcon report for a number of reasons, including that it is largely argument in the guise of an expert report and makes findings of fact, which is the function of the trier of fact, not an expert witness. The Parmars do not seek to exclude the cost estimates or the parts that contain undisputed explanatory or background information. [84] The body of the ConEcon report is five pages in length plus a ten-page appendix, titled "Appendix A: Analysis of Deficiencies and Cost Estimates". Appendices B, C, D, E, F, and G are all copies of various documents, including

the March 4 Document, plans, the Haystack report, the Ankon report, and invoices. Appendix H is Mr. Bhandal's resume. Mr. Bhandal signed the ConEcon report and testified in court. Appendix I is titled "Site Photographs" and includes 18 photographs of Wales Street. [85] A summary of the framework for determining whether to admit expert evidence is set out in West Moberly First Nations v. British Columbia, 2018 BCSC 730 at paras. 129-134. In essence, the cases of R. v. Mohan, [1994] 2 S.C.R. 9; White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23 [White Burgess]; and R. v. Bingley, 2017 SCC 12 set out the gatekeeping analysis required of a trier of fact. [86] Mohan sets out the test for determining the admissibility of such evidence at 20. Admission depends on the application of four criteria: a) relevance; b) necessity in assisting the trier of fact; c) absence of any exclusionary rule; and d) a properly qualified expert. Even where otherwise admissible, a judge may determine that the probative value of expert evidence is outweighed by its prejudicial effect in a cost-benefit analysis and exclude it on that basis (Mohan at 20-21). White Burgess emphasized the expert's independence and impartiality as a threshold requirement (at paras. 34, 45). Bingley affirmed at para. 13 that "[t]he trial judge acts as gatekeeper to ensure that expert evidence enhances, rather

than distorts, the fact-finding process." Discussion [87] The ConEcon report, dated September 13, 2018, was signed by Mr. Bhandal and Mr. Ken Easley. Mr. Bhandal is a properly qualified expert. ConEcon was instructed by way of letter from Can-West's counsel to Mr. Bhandal dated August 16, 2018. The instruction letter included the following: There is a B.C. Supreme Court action pending between the property owners at 5477 Wales St., Vancouver, B.C. and Can-West Development Ltd. regarding the new construction of a side-by-side duplex and a 3 car garage with an infill home above the garage. One of the issues in dispute is the extent, if any, of deficiencies in Can-West's workmanship in constructing these dwellings. The home owners' lawyer has produced two reports outlining a number of construction deficiencies. I enclose copies of those reports for your review. We are requesting you to attend the above noted property and provide an expert's report with respect to the alleged deficiencies, making specific reference to the Defendants' allegations in the two enclosed reports. We have no doubt of your familiarity with the duties, obligations, and requirements of expert evidence in court proceedings. For your convenience I have provided you with a copy of Supreme Court Rule 11-2 Duty of Expert Witnesses and a copy of Supreme Court Civil Rule 11-6 Expert Reports. [88] The report

indicates: 1.0 PURPOSE OF THE REPORT Can-West Development Ltd., ["Can-West"] was the contractor and Mr. Devinder Singh Parmar and Ms. Anju Parmar are the Owners. Mr. Scott Armstrong of McLachlan Brown Anderson, Can-West's legal counsel has retained the services of ConEcon Consultants Inc. ["ConEcon"] to review the alleged deficiencies noted in the Defendant's deficiency reports so that we may provide an opinion on the following: 1.1 The extent, if any, of deficiencies in Can-West's workmanship in constructing these dwellings 1.2 Construction costs estimated in the Defendant's deficiency report 2.0 PROJECT OVERVIEW The Project is a two storey side by side duplex with basement and an infill house over three parking garages. The Gross Floor Area (GFA) of the Project is approximately 5,538 square feet including parking garages and the total Gross Livable Area (GLA) net of parking is 4,723 square feet. The GLA comprises of the duplex building at 3,991 square feet and the infill house at 732 square feet. 4.0 OPINION SUMMARY We have summarized Ankon's list of deficiencies, issues and estimates and based upon our review of the supporting documentation, site observations and discussions with Mr. Jagjewan Ranauta have completed and analysis of the noted deficiencies, issues and repair costs. In a meeting held in ConEcon's office on August 30, 2018 Mr. Ranauta confirmed that all qualified

deficiencies had been addressed by Can-West except for fence construction, [item 4.01] which had not been completed along the south property line which in Mr. Ranauta's opinion could not be completed because the existing fence was on the neighbor's property and could not be removed. Based upon the information provided by Mr. Ranauta and our review of the supporting documents in our opinion the value of qualified deficiencies which are pending calculates to $17,146. ln our opinion the value of qualified deficiencies which were repaired by Milani calculates to $1,058. This cost pertains to the replacement of a defective bathtub stopper, rewiring to heating thermostats and repair of gas leak. In our opinion these items would fall within the 2-year workmanship and materials warranty period as stipulated in the construction contract. [Emphasis in original.] [89] For the reasons that follow, I agree with the defendants that significant portions of the report ought to be excluded: a) Mr. Bhandal testified that he did not view the site. Two to three "associates" viewed the Wales Street property and took pictures. Those people were not identified by name, nor did they testify. The evidence Mr. Bhandal relied on from his associates is, therefore, hearsay. b) I cannot conclude that Mr. Bhandal was responsible for content of the report. The report was signed by Mr. Bhandal and Mr. Easley.

What role Mr. Easley played in the preparation of the report is not stated in the report. Mr. Easley was not qualified as an expert and did not testify. c) The pictures attached to the report were largely generic photographs of large areas inside or outside the Wales Street property. I conclude that Mr. Bhandal could not have identified much in the way of deficiencies based on reviewing the photographs. He therefore relied on the assessment of the unidentified associates who attended the site. d) Mr. Ranauta was interviewed by ConEcon on two occasions, once by Mr. Bhandal and once by others, who again were not named. What was discussed, precisely, on either occasion was not in evidence. It is clear that much of the report relies on facts and assumptions relayed by Mr. Ranauta. e) The report largely mirrors Mr. Ranauta's testimony and argument. Virtually, all items alleged to be deficient were concluded by ConEcon not to be so because: i. they met the Building Code or were approved by the City of Vancouver; ii. they were outside the scope of the contract between the parties; or iii. they were "verified as corrected by the contractor." [90] On cross-examination, Mr. Bhandal confirmed that ConEcon did not perform any independent assessment of the items which Mr. Ranauta told them he had repaired. [91] By way of example, the report indicated no problems with the doors because they

were "verified as corrected by the contractor." Chris O'Neill, an inspector from Aviva Insurance, testified that he found five doors with deficiencies and did not check any further doors because he could conclude at that point that the issue with the doors was not isolated. When questioned on cross-examination about the doors, Mr. Bhandal testified that although Mr. Ranauta advised ConEcon the doors had been fixed, his associates had actually checked the doors independently. He later conceded that perhaps the employees who viewed the site had not checked the doors thoroughly. [92] The ConEcon report reaches its conclusion that "Can-West's current liability is $26,785" by: a) interpreting the March 4 Document to make factual and legal conclusions about the agreed upon scope of work, which reduced Can-West's "liability"; b) accepting Mr. Ranauta's statements that he remediated the deficiencies without independent verification; and c) drawing the inference that the issuance of the occupancy permits means that there were no deficiencies falling under the ambit of the BC Building Code. [93] I find the portions of the ConEcon report the Parmars seek to exclude are of prejudicial effect and of effectively no probative value. This is in addition to the portions referring to the statements from unnamed associates invoking the exclusionary rule against hearsay. I, therefore, exclude the

sections of the report sought by the Parmars. The background and explanatory information is admissible, as are the appendices. I give little to no weight to the section titled "comments" on Appendix A for the reasons I have provided. Ankon Report [94] There were no admissibility challenges to the Ankon report, authored by qualified expert Mr. Anthony Craxton. There were some issues with the report, however, because the deficiencies listed were taken from the Haystack report before some of the deficiencies listed in that report were repaired by Can-West. [95] Mr. Craxton viewed the property twice and reviewed the claimed deficiencies personally. He testified that he generally found the Haystack report to be an accurate and reflective description of the state of Wales Street. He used the Haystack report as a basis for his opinion. Mr. Craxton adopted the colour coding system from the Haystack report, which I will refer to in these reasons as well. Green means that the item is performing as intended and is acceptable. Yellow refers to an item that is moderately deficient. Red is reserved for items that are significantly deficient or unsafe. [96] The report lists costs of $88,720 for items that are coded as yellow. The items in red are estimated at a cost of $23,441. Costs for mechanical issues reported by Milani, a plumbing, heating, and air conditioning company, come to $24,896.

The remaining categories, the most significant being "contract scope of work issues," total $161,951 in additional deficiency repair costs. With management fees, Mr. Craxton estimated the total deficiency cost before GST at $345,408. Aviva [97] Mr. Christopher O'Neill, an Aviva Canada employee, was called as a witness by Can-West. Aviva insures Wales Street under a new home warranty program, which is statutorily-required for new builds. Mr. O'Neill has much experience in the construction industry, operating his own construction company in the past for commercial and residential developments. He is a field inspector and was sent by Aviva to inspect Wales Street after the Parmars submitted an insurance claim. The Parmars commenced the claim just before the warranty was about to expire. [98] Mr. O'Neill went to Wales Street on September 5, 2018, for about four hours in total and spent approximately one to one-and-a-half hours in each unit. He was sent a list of items to review for each unit along with a brief description of the Parmars' complaints. Mr. O'Neill sent his report with his conclusions to an adjuster at Aviva. The adjuster's report was not completed at the time of the trial. Claimed Deficiencies [99] In closing argument, the Parmars provided an updated list of the deficiencies pursued in this litigation and their costs. The deficient items claimed fall into three

categories: repaired at the Parmars' expense, repaired poorly by Can-West, or remain unrepaired. The amounts sought equal $165,946 plus general requirements, costs to set up permits of $8,297, and $16,595 in management fees, plus GST for a total of $200,380. Did Can-West Breach the Contract? [100] The Parmars allege breach of contract. They allege many instances of poor workmanship, sub-quality finishing, and failure to install or build certain agreed-upon features. By my count, the Parmars claim they are owed damages for 49 different items that need to be installed, repaired, or replaced at Wales Street due to Can-West's breach. [101] As contracted for by the parties, Can-West did build a duplex, an infill house, and a garage at Wales Street. Can-West also repaired some of the issues brought to its attention by the Parmars after the June 2017 walk-throughs. However, the primary issue remains whether Can-West breached the implied term that it perform work in a "good and workmanlike manner, in accordance with ordinary and reasonable standards." As I have mentioned, the term in the contract that provided Can-West would build the Wales Street property to the same standard as the 5470 Hyde Street property is of little assistance, since I have no evidence before me as to what standard Hyde Street was built to. [102] Based on the evidence of the experts, the Parmars, and the Parmars'

witnesses, including Mr. Omid Farjampour, I am satisfied the Parmars have proven that Can-West breached the contract between them. Not all of Can-West's work was performed in a good and workmanlike manner. The Parmars did not receive what they bargained for from Can-West. [103] Examples of these breaches include that the boiler was not the appropriate size for the construction and leaked carbon monoxide; garburators were never installed as agreed to in the March 4 Document; the interiors doors stick and are difficult to open; and the fences and decks were not weather-protected. Photos Mr. Craxton took of the suites and included in his report show certain items that are clearly of poor quality, even to a layperson. [104] I will consider to what extent Can-West breached the contract and the damages that flow to the Parmars from its breach in the next section. [105] I will consider whether the Parmars breached the contract, as alleged by Can-West, in a subsequent section. Are any Damages Owed for Can-West's Breach? [106] As a general rule, a plaintiff who has purchased the services of a builder is entitled, as far as possible, to receive the product bargained for and is, therefore, entitled to compensation in damages representing the cost of correcting or completing any unfinished work or deficiencies, or in some cases, a set-off against any damages awarded under the contractor's

claim: 0867740 B.C. Ltd. v. Quails View Farm Inc., 2014 BCCA 252. [107] The court will first and foremost award damages which it feels is in line with the principle that such an award should, so far as money can do it, place the claimant in the same position they would have been in had the contract been performed: see Daniel Friedmann, "The Performance Interest in Contract Damages," (1995) 111 L.Q.R. 628 at 649-650. [108] However, the court may decline to assess damages based on the cost of performance if the cost of rectifying defective construction or completing unfinished work is unreasonable when compared to the diminution of value of the property due to the breach. In Serebrennikov v. Sawyer's Landing Investments 1 Ltd., 2010 BCSC 1276, Mr. Justice Goepel (then of this Court) provided at para. 39: [39] In this case, much of the abatement which the plaintiff seeks would involve expenditures out of all proportion to the benefit to be obtained. In this regard, I refer in particular to the replacement of the windows, the en suite bathtub, the patio, the exterior siding and the repainting of the interior. The cost to replace those items totals in excess of $30,000. That amount far outweighs any possible reduction in value arising from those items as they presently exist. It would not be reasonable as between the plaintiff and the defendant to award damages on such a

basis. [Emphasis added.] See also: Robert McAlpine Ltd. v. Byrne Glass Enterprises Limited (2001), 7 C.L.R. (3d) 155 (Ont. C.A.) and Procan Exploration Co. v. Golder Associates (Western Canada) Ltd. (1991), 6 B.C.A.C. 307. [109] I have taken these principles into account in assessing damages based on my factual findings. [110] For organizational ease, I will consider the alleged deficiencies as listed in the Ankon report under the following categories: a) exterior; b) construction of the units; c) appliances and associated systems; and d) miscellaneous. I will subsequently consider alleged deficiencies or issues that were not listed in the Ankon report, which include: e) survey, engineering, utility, and bylaw infraction fees; f) goods purchased by the Parmars; g) oil tank; h) delay penalty; and i) lock repair. I have considered the testimony of all of the witnesses in reaching my conclusions, along with Mr. Craxton's report. There was significant factual disagreement for many of these items. a) Exterior [111] The exterior encompasses the categories in the Haystack report listed under "grounds" and "decks, porches and balconies." The item numbering in the Haystack report was helpfully carried forward into the Ankon report. The Parmars complained of various exterior deficiencies, including the lawn sloping improperly, an unacceptable retaining wall, vegetation being in the wrong

place, poorly installed foundation damp proofing, and fences and gates that were of sub-par construction and were not stained or waterproofed. [112] Respecting the topography, Mr. Craxton testified the lawn should slope away from the buildings, which it does not at present. This results in poor drainage. He suggested a repair cost of $8,362. The topography item is claimed at $12,600 because the Parmars have already paid this amount to Dunbar Lawn and Gardens to remediate this item. This item was coded as red, meaning it is significantly deficient, by Mr. Thompson in the Haystack report. Mr. Craxton agrees. I award $8,362 for this item. [113] The parties discussed the south retaining wall on the property in the plans. Mr. Ranauta advised the Parmars that he could not construct a new one because the existing wall was on the neighbour's property. Ms. Parmar testified that Mr. Ranauta agreed to patch it, which he failed to do. Ankon coded this item as red. The Parmars are claiming $482, which I decline to award given that I accept Mr. Ranauta's evidence that the retaining wall is on a separate property. [114] The Parmars argued that Mr. Ranauta placed vegetation improperly around the perimeter of their house and claim $276 for it to be moved. Mr. Craxton agreed that it was deficient, noting that this could cause issues with grass saturation. I decline to make this award. [115] With

respect to the damp proofing, Mr. Craxton testified that much of it is not above ground as it should be. Damp proofing prevents water from penetrating the foundation. The damp proofing repair is claimed at $4,039, which I accept. [116] Mr. Craxton conceded that he did not physically put his hand on each handrail and fence to check to see if all were loose or problematic. The ones he checked were of poor workmanship and were not stained for weather protection. Although Mr. Craxton estimated the cost for repairing the fences and gates at $14,396, which included the cost of entirely replacing parts of the fence, the Parmars are claiming only $2,350 to weather protect the gates, and the north and back fences. I accept this as deficient and award $2,350 to remediate the lack of weather protection. [117] The Parmars claim $26,776 in damages to repair their outdoor rear deck. They submit that parts of the deck, including the stairs, are not properly waterproofed; the stairs are lacking traction strips; and screws are loose or missing for the stairs and guard rails. Mr. Craxton testified that these items are all deficient. In his opinion, the entire deck and stairs must be replaced, with the new construction properly weather protected. [118] The Parmars further submit that oriented strand board or "OSB" was used to build the deck. Mr. Craxton provided in his report that OSB is not

recommended for outdoor, unprotected use. [119] I do accept that the deck was not appropriately waterproofed, that the stairs and guard rails were not entirely sturdy, and that these deficiencies fall below the "good and workman-like" standard expected of Mr. Ranauta. I am not satisfied that it will need to be replaced entirely, having considered the whole of the evidence, but accept that it will need to be weather-protected and made more sturdy. I award $5,000 for this item. b) Construction of the Units [120] This category encompasses the following headings in the Ankon report: roofs and ceilings; interior and exterior walls; flooring, stairs and railings; doors, windows, closets and cabinets; and basement/foundation. [121] The Parmars claim Mr. Ranauta failed to install edge supports and underlays in building the roof. Mr. Thompson marked this as deficient in the Haystack report. Mr. Ranauta testified that he subsequently fixed the missing edge support and roof underlay. Neither Mr. Thompson nor Mr. Craxton checked the roof substrate after Mr. Ranauta said that Can-West repaired the item. Mr. Craxton conceded that he did not get up on a ladder and check the roof. He relied on the Haystack report and took his own photographs. I accept Mr. Ranauta's testimony and find the Parmars have not proven this deficiency, which was claimed at $6,891, plus $552 for insulation on the roof

area. [122] Mr. Craxton identified 50-100 "nail pops" through the drywall. He recommended that all fasteners that have popped be re-driven, the holes filled, and the walls sanded and repainted. He provided photos of two examples in his report. The Parmars seek the cost estimated by Mr. Craxton for these repairs, $5,762 for the ceiling nail pops and $15,102 for the interior wall nail pops. When Mr. O'Neill viewed the suites, he could not see the nail pops while standing five feet back from the wall, his typical viewing conditions. He testified that he asked Ms. Parmar to show him some of the nail pops in one of the duplex units and she then asked the tenant to show them to him. The tenant "didn't know". [123] I accept Mr. Craxton's evidence that he identified numerous nail pops upon his review of the property and that allowing such pops is an example of deficient workmanship. He stated he could see them "all over the place." However, given that Mr. O'Neill, the tenant, and Ms. Parmar could not readily identify nail pops in at least one of the suites, I find that this is a relatively minor cosmetic deficiency. [124] It would not be reasonable for me to award $20,864 to rectify all of the nail pops. They are aesthetic, they do not impact the safety or structure of the home, and I find the total cost of repair eclipses the impact the nail pops have on the suites or any diminution

in value they cause. I award $5,000 for this item to repair the nail pops of particular issue. [125] The Parmars seek $772 to seal the baseboards in the washrooms. Mr. Craxton agreed that this was a deficiency. Sealing baseboards makes them more durable and protects against water damage, amongst other things. Given that bathrooms typically deal with more moisture than other rooms in a house and taking Mr. Craxton's evidence into account, I find the failure to seal the baseboards is a deficiency. I award $772 for this item. [126] The Parmars seek remediation for their interior and exterior doors. Mr. O'Neill testified that he identified five interior doors that were rubbing, sticking, or had loose handles, and did not check the rest. Aviva requires the builder to review all doors in that instance. Mr. Craxton testified on his review, many of the interior doors, including kitchen cabinetry and closet doors, had issues with latching, sticking, or weather-stripping. Mr. Craxton also testified that the garage door's reverse function does not work per the Haystack report. Mr. O'Neill testified it only "self-closes" two or three times out of five. While Mr. Ranauta testified that he fixed the sensor, Ms. Parmar's testimony is that it continues not to work. I accept the doors are deficient. The Parmars are entitled to the $1,900 they seek to remediate the doors. [127] The Parmars claim

the sill plate bolts for their foundation were not finished properly. They are not flush to the concrete and were left sharp, which presents a safety risk. With respect to the nails protruding from the basement foundation concrete, Mr. Ranauta claims that he remedied them. Mr. Craxton testified that most of the nails were removed, but not all. I have reviewed the pictures from this area of the property and accept Mr. Craxton's categorization of this item as deficient and the sill plate bolts as a safety issue. I award the Parmars the $1,558 sought for this work. c) Appliances and Associated Systems [128] This category will cover the following headings from the Ankon report: appliances; plumbing; heating and cooling systems; and mechanical - Milani reported issues. [129] On the issue of appliances, the parties agree that Can-West did not install garburators in any of the units. This item is claimed at $758, and I accept that these were to be installed as they are specifically set out in the March 4 Document. The Parmars complain of excessive vibrations in the range hood and seek $191. Mr. O'Neill testified to hearing excessive vibrations in the range hood. I accept this item as a deficiency. [130] They also seek a variety of items such as a drip pan and water alarm for the washing machine, and hose clamps rather than tape for the dryer ducting at a cost of $363. Mr. Craxton

identified these items and categorized them as yellow, meaning moderately deficient items. The Parmars have not proven that these items are below the standard required. I do not accept these items. [131] With respect to plumbing, the Parmars seek $1,034 for a frost-protected exterior faucet and $1,103 for sprinkler cages on interior fire sprinkler heads. There is no dispute that the exterior faucet is not frost protected. Mr. O'Neill testified that the standard required is either the faucet must be frost protected or there must be a shut-off valve. Mr. Craxton agreed that the faucets should be frost protected. Mr. O'Neill and Ms. Parmar cannot locate the shut-off valve. On a balance of probabilities, I find that there was no shut-off valve and this item is a deficiency. [132] Mr. Thompson observed that there were no interior sprinkler cages when he performed his inspection and so requested that Mr. Ranauta install them. Mr. Ranauta testified that he did so, but Mr. O'Neill testified that he saw no sprinkler cages when he performed his inspection after the fact. Ms. Parmar confirmed that there are no sprinkler cages. Mr. Craxton noted that this is of particular issue in low level areas. Given that Mr. O'Neill reviewed the house on behalf of his employer, an insurance company, I accept that he would have been checking the house carefully and had no reason to misrepresent his

observations to the court. I, therefore, find there is a lack of interior sprinkler cages in the suites. I award the Parmars $2,137 to remediate the plumbing issues. [133] The Parmars claim $524 to replace a basement exhaust fan and $169 to remedy the vent pipes for the infill heat recovery ventilation ("HRV") system. Mr. O'Neill testified that the fan makes an unusual noise; Ms. Parmar testified the noise continues. Mr. O'Neill testified that the vent pipes were taped into place, which is improper. Mr. Thompson testified that the HRV system should be installed in the garage rather than the suite so that the sensor can accurately measure the suite for the residents. Mr. Craxton agreed with Mr. O'Neill and Mr. Thompson. Mr. Ranauta testified that he installed the pipes with clamps rather than tape. I accept this item and award the Parmars $693. Milani: Mechanical Issues [134] The Parmars first hired Milani on October 25, 2017, complaining they could not get enough heat to the top floor of the duplex, that it took time for the hot water to reach that floor, and that they smelled gas. Mr. Omid Farjampour, a senior technician in heating and plumbing with the company, was dispatched to Wales Street. Mr. Farjampour investigated their complaints. Mr. Farjampour called the office to explain the problems he observed, and the manager provided cost estimates for repairs. [135] Mr.

Farjampour was also dispatched to Wales Street on November 21, 2017, for heating-related complaints and on June 13, 2018, because a boiler was leaking. [136] Other technicians were sent out from Milani on November 10, 2017, because a bathtub stopper was detached, and on June 8, 2018, because a boiler's drain was leaking. [137] In total, the Parmars paid Milani approximately $1,368 for these calls. [138] Mr. Farjampour was subpoenaed to testify by the Parmars. I found him to be a forthright, calm, credible, and reliable witness. He did not know any of the parties prior to his service call to the Parmars and only knew them on a professional basis. He was paid hourly for his work; his compensation is not based on commissions or any services sold to customers. He had seven years of experience in plumbing and gas work in the United Kingdom before moving to the Vancouver area to accept a position with Milani. [139] The invoices estimate that the cost to fix the heating problem, which is connected to the boiler, is between $5,000 and $15,000 for each of the duplex units. The estimated cost to replace the hot water tank in the infill house is between $1,900 and $3,000. The Parmars have not yet made these repairs. [140] The Ankon report accepted Milani recommendations and costs. Mr. Craxton testified that he would defer to Milani's expertise and cost estimates regarding the plumbing at

Wales Street. Mr. Craxton listed the cost of all Milani-reported issues, including those not yet repaired, as $24,896. [141] The Parmars claim $22,185 for these issues, which is on the low- to mid-end of the cost estimates Milani provided and includes reimbursement for two of the service calls. [142] I accept Mr. Farjampour's diagnoses of the myriad plumbing and heating problems at Wales Street and his estimates. The estimates for repair were adopted by Mr. Craxton and Mr. Bhandal. [143] The Parmars are entitled to $22,185 for deficiencies relating to their heating systems, hot water heater, and bathtub stopper as identified by Milani. d) Miscellaneous [144] The bulk of the damages sought by the Parmars fall into this miscellaneous category. I will cover whether the individual items were contracted for implicitly or explicitly and issues from site inspections in this section. [145] The Parmars seek $6,232 as a credit for the Jacuzzi tubs that were to be placed in the bathrooms. They were not installed because the bathrooms were too small. I accept that the parties agreed Jacuzzi tubs were to be installed in master ensuite bathrooms per the March 4 Document. Mr. Ranauta testified that they could not be installed because the bathroom spaces were too small, which I accept, but I agree that the Parmars should be credited for this item. Given that alternatives were installed instead

of the Jacuzzi tubs, I award half of their claim amount, $3,116, to acknowledge the breach. [146] The parties agree that Can-West did not install the rough-in central vacuum system in the infill house. Can-West argues that it was not required to because it was not in the scope of contract. This is presumably because it argues that the March 4 Document, which indicates the "Builder to install rough-in central vacuum system," only covered the duplex. The Parmars seek $2,216 for this item. I agree that the March 4 Document explicitly states this item will be included and that given my earlier findings, this applies also to the infill house. [147] The Parmars seek $7,002 for video intercom systems. The parties disagree whether Can-West installed the systems in all three units. Mr. Ranauta says yes; Ms. Parmar and Mr. Craxton testified there is no monitor in the infill house. Mr. Ranauta ticked the item that indicates "Black and white video monitor with intercom unit for the front door" in the March 4 Document. Ms. Parmar also testified that while Mr. Ranauta only installed video monitors downstairs in the duplex units, he promised to install video monitors both upstairs and downstairs. Mr. Ranauta denies this promise. [148] The defendants rely on his answer of "whatever they like, we installed" in response to questions asked about promises he made, as amounting to a bargain. I did

not understand Mr. Ranauta to mean that he agreed to all of Ms. Parmar's requests during the construction, given his tone during that testimony. [149] I am unable to find that the objective reasonable bystander would have thought these parties agreed that Mr. Ranauta would install monitors upstairs and downstairs in the duplex. I understand that Ms. Parmar wanted such monitors, but I do not find that it was an agreed-upon contractual term based on the limited evidence before me. The March 4 Document states that the system would be installed at the front door only. Can-West's failure to install the upstairs monitors was not a contractual breach. [150] I accept it was a deficiency that a video monitor was not installed in the infill house. I award $4,000 for this item. [151] The Parmars seek $11,201 for installation of cable and telephone outlets in all rooms and additional water metre installation. Only one water metre was installed for all three units. Can-West argues that it is the City of Vancouver's responsibility to properly install water metres. The defendants argue that it was Can-West who was responsible for dealing with the City of Vancouver during construction, and therefore it is its responsibility to rectify that mistake. Mr. Craxton agrees. With respect to the cable and telephone outlets, the March 4 Document clearly indicated that Can-West was to install telephone

and cable outlets in all rooms. Can-West did not do so in the infill house. I accept that Mr. Ranauta subsequently installed a telephone for the infill house, but that wiring was left on the outside of the siding rather than being done inside the walls. [152] I accept that these items are deficient and award the Parmars $11,201 for remediation. [153] The Parmars seek a credit for the absence of the skylights that were clearly contemplated in the March 4 Document. They seek $2,349. There was a clear dispute in the facts over this item. Mr. Ranauta testified that the parties agreed not to install the skylights because if they were installed, there would not be enough room for the chandeliers Ms. Parmar wanted. Ms. Parmar said the skylights were removed from the building plan without her knowledge and when she asked Mr. Ranauta about them, he stated there would not be enough room to install them because of the chandeliers. Ms. Parmar testified the chandeliers were installed in a different location than the area where the skylights were to be installed. [154] I accept Ms. Parmar's evidence that it was important to her to bring more natural light into the house, that she was upset when the skylights were no longer on the plans, and that she did not agree to their removal. Therefore, I accept that Mr. Ranauta breached the contract by failing to install the skylights and award the

Parmars $2,349. [155] The Parmars seek $11,857 for the installation of wood-like tile flooring in the kitchen and living areas of all three units. Ms. Parmar testified that this was an oral term that was agreed to at the second meeting, before the March 4 Document was presented. Can-West denies that this was agreed to. Given the ambiguity of the potential term, I have considered the parties' subsequent conduct. [156] Can-West installed the wood-like tile in the defendants' unit, being 5479 Wales Street, but not in the other two, after Ms. Parmar went with Mr. Ranauta to pick it out. This indicates that the parties agreed to at least some wood-like tile being installed at the property. I accept that it was the intention of the parties at the time they entered into the March 4 Document to be bound by this term and so award $11,857 for this item. [157] The Parmars seek $4,851 because Can-West did not install oak or maple hand railings and spindles on the staircases as explicitly set out in the March 4 Document, but installed metal spindles instead. I accept this item to be a deficiency. It is clearly not what the parties contracted for. [158] The Parmars seek $992 because the March 4 Document requires motion sensor lights be installed at the "front door, outside the main kitchen, garage side and one for each of the side yard walkways." Fixed lights were instead installed at the

front and back of the duplex and garage. I accept this is a deficiency. [159] The Parmars seek $3,297 for pot lights that they say were meant to be installed in the soffit under the eaves, around the exterior of the units. These are not included in the March 4 Document. Ms. Parmar testified that she requested these at the second meeting with Mr. Ranauta, prior to the March 4 Document. Mr. Ranauta disputes that the parties agreed to such pot lights. Ms. Parmar was on the job site regularly, if not daily. She agreed on cross-examination that she did not raise the issue of the pot lights with Mr. Ranauta during the construction. Mr. O'Neill testified that such soffit lights are against the Building Code and would be removed by the City of Vancouver in any event. [160] On the evidence before me, I am unable to find that the parties agreed to this term. Further, even if I were to award the monies the Parmars seek for this item, they would not be able to remedy this alleged deficiency since it is contrary to the Building Code. [161] The Parmars seek $3,014 to fix a water leak near their boiler with an unknown source. Mr. Craxton characterized it as ongoing and quite serious. With Mr. Craxton's endorsement, they also seek $2,536 to install a drain near the garage opening, since the asphalt slopes down towards the garage and allows water in during heavy storms. Given the expert

testimony and the evidence presented on these points, I am satisfied that these items are deficient and are in need of repair. [162] The March 4 Document clearly contemplates the installation of a garbage enclosure. Mr. Ranauta says he did install such an enclosure. I accept the testimony of Ms. Parmar, who has lived at the property, and Mr. Craxton, who completed a thorough inspection of the property, that such an enclosure does not exist. I was presented with no photographic evidence to support that such an enclosure was built. I award $1,681 to build this item. e) Survey, Engineering, Utility, and Bylaw Infraction Fees [163] The Parmars seek $19,159 in this category, with the most expensive item being $11,780 to cover a water connection and installation fee. I decline to award damages for the Lyon Flynn & Collins survey Ms. Parmar commissioned, since she hired the professional land surveyors before she hired Can-West and because a subsequent survey was needed anyways. I have already declined to find that the parties agreed Can-West would bear the cost of the property's hydro and gas bills over the course of construction. [164] The Parmars seek a credit for payment they made to Voltas Engineering for plumbing and design consulting. The March 4 Document contains the following: The construction cost will include, but no [sic] limited to, all costs and expenses associated to the

construction of the improvement such as survey fee, design fee, [and] engineering fee ... Soil test fees are fees and the relating Engineering fees are Extra. [Emphasis added.] [165] Mr. Ranauta testified that the included engineering fees in the March 4 Document were "only [for] structural engineering, not all engineering." Mr. Ranauta did not have an answer for why this was not specified in the March 4 Document if that was, in fact, the case. I find such a reading of this clause to be illogical. Engineering costs, except for those relating to soil test fees, were included in the total construction costs. I award the Parmars $2,100 for this item. [166] The City of Vancouver sent a bill to the Parmars dated March 21, 2017, for water connection and installation fees totalling $11,780. The defendants paid the bill and seek credit for this invoice. Mr. Ranauta contends that this invoice is outside of the scope of his obligations under the contract because he had already paid for the water connection and other fees to the City when the building permit was obtained. [167] Late in the construction, it was determined that the water connection that was installed was only for the duplex, not for the duplex and the infill house. Mr. Ranauta alleges the City then asked for another water line, but that was not in the plan. He gave evidence that he had a specific conversation with the

defendants regarding the need for them to pay the additional $11,780 for the water connection, which they did. [168] Ms. Parmar testified that she understood Mr. Ranauta would credit her for the water connection, which she paid at City Hall with Mr. Ranauta. [169] While I accept that the additional water connection was required, I am not satisfied on the balance of probabilities that the Parmars understood it to be a cost Can-West would bear. Ms. Parmar paid the fee on her own credit card with Mr. Ranauta present. It arose fairly late into their build, close to the completion date, when the relationship between the parties was already quite tense. I, therefore, decline to award damages for the water connection and installation fees. [170] The Parmars claim additional reimbursement for a $250 water bylaw infraction fee related to a sprinkler. I decline to award this item. f) Goods Purchased by the Parmars [171] The Parmars seek credit for the total construction cost for items they purchased personally. These include tile for a marble mosaic and shower doors. [172] Ms. Parmar wished to pick out her own tile, and Mr. Ranauta agreed to credit her. The Parmars seek $1,098, but Mr. Ranauta said he would only credit up to $2 per square foot for tile, which was his price, so if she picked tile that was more expensive, the defendants would have to pay the excess. I accept that Mr.

Ranauta was not willing to write a "blank cheque" on items purchased by the defendants. The marble mosaic tile purchased by the defendants cost $4 per square foot. I award the Parmars $550 for this item. [173] Mr. Ranauta said he would give the defendants credit because they selected their own shower doors. He agreed to four doors at $150 each for a total of $600. Mr. Ranauta was only speaking about the duplex, as his position was that the infill house was not part of the contract between the parties. I have found otherwise. The Parmars seek $974 for the doors and $560 for their installation, which they paid to a handyman. The construction costs for a new build clearly include shower doors and their installation, as laid out in the March 4 Document. I accept that the Parmars should be credited $1,534 for this item. g) Oil Tank [174] There is no dispute that Ms. Parmar provided a cheque to Mr. Ranauta in the amount of $18,690 for the removal of an unexpected oil tank. This payment is recorded on the March 4 Document in Mr. Ranauta's handwriting as an "extra cost." The dispute is around whether the oil tank actually existed and if it did, whether it cost as much to remove as Can-West charged the Parmars. [175] Prior to demolition, Mr. Ranauta testified that none of the parties knew whether an underground oil tank existed on the property. During excavation, an oil tank was

discovered under the slab of the old house. The cleanup and removal requires a permit, which takes a few days to obtain from the City. Mr. Ranauta telephoned Ms. Parmar to advise her of the issue in the evening. He testified that she did not want to wait for a permit and asked him to just start the process. [176] Mr. Ranauta arranged for the oil tank removal. Mr. Ranauta entered a text message into evidence, dated March 31, 2016. The screenshot of the text message came from Mr. Kuljeet Multani's phone and depicted a text sent to him from the plaintiff that read "5477 Wales." Mr. Multani is the operator of Jewel Mini Excavating Ltd. Mr. Multani's evidence was that the text message was sent to provide him with the address after Mr. Ranauta called to ask him to excavate an oil tank at Wales Street. Mr. Multani testified that he proceeded to do so. The removal and cleanup work was done by Cedar Grove Excavating Ltd. and by Jewel Mini Excavating Ltd. [177] Ms. Parmar was not on the site. When she later came to the property on the same day as the alleged removal, she did not smell oil or see the oil tank. [178] The Cedar Grove Excavating invoice is dated May 27, 2016, and is for $49,000, including GST for work including excavating the oil tank at the property. The Jewel Mini Excavation invoice indicates a date of May 30, 2016, and a cost for oil tank removal of $1,400. The customer

is listed as Can-West, but there is no job address filled in. [179] Mr. Ranauta testified that he negotiated an "all-in" agreement with Cedar Grove Excavating for various parts of the excavation work, including for the oil tank. The essence of Ms. Parmar's evidence rebutting Mr. Ranauta's is that she did not see the oil tank with her own eyes. I accept the evidence of Mr. Ranauta and Mr. Multani. In the absence of any contrary evidence, I accept Mr. Ranauta's explanation for the agreement he made with Cedar Grove Excavating to arrive at the cost of removing the oil tank. The defendants' claim for a credit of $18,690 for the oil tank is dismissed. h) Delay Penalty [180] The third-to-last page of the March 4 Document contains the following term:

COMPLETION DATE It is a fundamental term of this Contract that the Builder must have finished all work, and delivered to the Home Owner by the "Completion Date" an unconditional Municipal/City occupancy Certificate or other evidence satisfactory to the Home Owner that construction is completed. The completion date agreed to be 150 days after the demolition of the old house/excavation of the subject site. The demolition of the old house/excavation of the subject site is agreed to be within 14 days after the conveyance of the title of the said property to the homeowner. [181] Mr. Ranauta testified, and the engineering inspection letter confirms, that the demolition and excavation of Wales Street was completed by April 2, 2016. Mr. Ranauta testified that the completion date was, therefore, meant to be August 30, 2016. The Parmars did not achieve occupancy status for Wales Street, per a City-issued permit, for 273 more days, that being until May 30, 2017. They, therefore, argue that they are entitled to the delay penalty of $100 per day, or $27,300. [182] In his closing submissions, Mr. Ranauta argues that the "150 day completion window after demolition applied only to the side-by-side duplex, not what was built" and that the "build was commercial [so the] penalty did not apply." [183] I have found that the parties contracted for a duplex and an infill house. Notwithstanding it is

nonsensical that building the infill house along with the duplex would almost triple the completion window, the delay penalty clause in the March 4 Document is clear. The term was not amended after the March 4 Document was signed. Regardless of the fact that I do not agree the build was commercial, its classification as commercial or otherwise has no bearing on the delay penalty clause. [184] The March 4 Document was provided to the Parmars by Mr. Ranauta. From his testimony that he used it regularly with clients, I infer that he was well aware of the clause. He does not dispute that the completion date was set for August 30, 2016, nor that the Parmars did not achieve occupancy until May 30, 2017. Besides arguing that he built more than what was contracted for, which I do not accept, he did not provide sufficient evidence to support that the clause should not be enforced. I, therefore, find that the penalty applies and the Parmars are entitled to $27,300 for the construction delays. i) Lock Repair [185] When Ms. Parmar refused to pay Can-West the final installment after learning of the construction's major deficiencies, Mr. Ranauta refused to hand over the keys. I find that he did so as an agent of Can-West. The Parmars paid $871 to have the locks replaced so they could access their property. I accept that this cost ought to be borne by Can-West. j) Summary [186] The Parmars

are entitled to $137,250 in damages and delay penalties from Can-West for breach of contract. Is Can-West Entitled to Damages for Breach of Contract? [187] The Parmars contracted with Can-West for a duplex and an infill house to be built on their property at a total cost of $803,250 plus GST. As I dismissed their claim for credit for their oil tank payment, I have not considered it in this section. The Parmars have paid Can-West $585,282 for the build thus far. This leaves a difference of $217,968 plus GST, which Ms. Parmar concedes is still owing. [188] Mr. Ranauta argues that the total cost is $925,032, due to unsubstantiated oral amendments, and that the total owing is $351,530. [189] Can-West cannot claim damages for reliance over and above the cost for which they contracted. The most Can-West could, therefore, recover is $217,968 plus GST. [190] The Parmars did not receive exactly what they contracted for, that being a project built to the good and workmanlike standard to which they were entitled, but they did receive a duplex, an infill house, and a garage on their Wales Street property. The property is livable. The Parmars withheld the last remaining payment to Can-West due to various deficiencies that I have found exist or existed at the relevant time. [191] Can-West is entitled to the balance owed to it by the Parmars for the full performance of the contract, minus the

amount it owes to the Parmars to correct the accepted deficiencies. The balance of these determinations results in the Parmars having to pay Can-West $80,718 plus GST for partial fulfilment of the contract. Mr. Ranauta's Personal Liability [192] The Parmars seek orders against Mr. Ranauta personally for damages of breach of contract, negligence, and/or wrongful conversion. [193] In the absence of findings of fraud, deceit, or dishonesty, it is rare to find cases where corporate employees or officers are found personally liable for actions ostensibly carried out under a corporate name. Officers of "limited liability companies are protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained of their own": XY, LLC v. Zhu, 2013 BCCA 352 at para. 60, citing ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 129 D.L.R. (4th) 711 (Ont. C.A.). [194] None of Mr. Ranauta's conduct, alleged or accepted, falls within the listed categories. I do not find that he was fraudulent, deceitful, or dishonest over the course of construction. There were clearly a number of miscommunications between him and Ms. Parmar, along with some rising tension, but I am not satisfied that he acted in any sort of way that justifies a finding against him personally. [195] As provided above, I find that he failed to hand the keys over to Ms. Parmar as an agent of Can-West. There is not enough of a basis to find otherwise. I am not satisfied that he committed the tort of conversion. [196] I dismiss the claims against Mr. Ranauta. Costs [197] If a costs hearing is required, the parties should contact Scheduling within 30 days to schedule the date. "Choi J."