Owen-Jones v. Vasir

2019 BCSC 2002 Owen-Jones v. Vasir

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Owen-Jones v. Vasir, 2019 BCSC 2002 Date: 20191122 Docket: S187342 Registry: New Westminster Between: Bert Owen-Jones Plaintiff And Kulwant Singh Vasir Defendant And Bertram Glyndwr Didier Owen-Jones aka Bert Owen-Jones, Colonial Pacific Realty Ltd. dba RE/MAX Colonial Pacific Realty and the said RE/MAX Colonial Pacific Realty and Ryan Blue Defendants by way of Counterclaim Before: The Honourable Mr. Justice Ball Reasons for Judgment Counsel for the Plaintiff: S. Alimirzaee The Defendant, appearing in person: K. S. Vasir Counsel for the Defendants Colonial Pacific Realty Ltd. dba RE/MAX Colonial Pacific Realty and the said RE/MAX Colonial Pacific Realty and Ryan Blue: C. J. A. Johnston Place and Date of Trial/Hearing: New Westminster, B.C. October 7-9, 2019 Place and Date of Judgment: New Westminster, B.C. November 22, 2019 Introduction [1] This case concerns a claim by the plaintiff, Bert Owen-Jones, for damages for the breach of a contract by the defendant, Kulwant Singh Vasir, for the purchase of real property including forfeiture of a deposit in the amount of $20,000; reduced value of the property on resale; additional costs for taxes, utilities and financing charges; and loss of rental income from August 1, 2016, until March 2017. [2] The defendant disputes the claims above, although the defendant agrees that he entered

into a contract of Purchase and Sale of the lands and premises ("the contract") situated at 8749 112 Street, Delta, British Columbia, more particularly known and described as: PID 006-466-796, Lot 1310 District Lot 440 Group 2, New Westminster District, Plan 49751 ("the Property") for a price of $675,000.00 on or about May 6, 2016 on the terms and conditions contained in the contract. [3] In his Response to Civil Claim, the defendant named Colonial Pacific Realty Ltd., Re/Max Colonial Pacific Realty and a licensed real estate representative thereof named "Ryan Blue" as defendants. The Claim [4] Both the defendant and Mr. Blue gave evidence in this trial. They each agreed that in May 2016, prior to the presentation of the offer to purchase made by the defendant, Mr. Vasir asked Mr. Blue at the outset to act as his agent to complete the contract. Both agreed that Mr. Blue refused to act as agent for Mr. Vasir because Mr. Blue was representing only the vendor in the contract. [5] In the course of inspecting the Property with Mr. Vasir, Mr. Blue told him there had been a report of an incident on the Property involving an allegation concerning a marijuana grow operation ("the incident"), but there had been no proceedings brought against the tenant. Mr. Blue indicated that Mr. Vasir was not concerned about this reported incident because he intended to only live in the Property for a

brief period of time and then demolish the home on the Property to build a new 5000 square foot home. [6] Mr. Vasir agreed in cross-examination that he thought he knew before he removed subject clauses that there had been a marijuana grow operation on the Property. Notwithstanding that knowledge, he decided to proceed with the sale and purchase of the Property on May 19, 2016 by accepting the Subject Removal Clause and paying the $20,000 deposit. [7] In June of 2016, Mr. Vasir made documented attempts to assign the contract to any interested party. He publicly advertised the contract. Further, on or about June 2, 2016, Mr. Vasir approached Mr. Blue and requested that Mr. Blue represent Mr. Vasir in his attempt to sell or assign the contract to a third party. On June 3, 2016, Mr. Blue confirmed in writing to Mr. Vasir that Mr. Blue would not represent Mr. Vasir to assign the contract. [8] The date fixed for the completion of the contract was originally August 31, 2016. The defendant failed to complete on that date and the completion date was extended first to October 27, 2016 and later to November 14, 2106. Mr. Vasir refused to complete on November 14, 2016 or at any date thereafter. This litigation followed. [9] The original Subject Removal Clause date was May 16, 2016, and Mr. Vasir asked for and was granted an extension to May 19, 2016. The evidence is clear that Mr. Vasir

was aware of the incident on or before May 16, 2016, which is the date of a Freedom of Information and Protection of Privacy Request in which the defendant stated "I am buying a house 8749 - 112 Street, Delta. City Hall told me there was Growing Marijuana in Past. I need full information. Please provide." [10] While there was no proof that a marijuana grow operation was on the Property at any time, Mr. Owen-Jones testified that as a result of the incident at the Property in December of 2008, significant physical damage had been done to the Property. He testified that Delta municipal authorities required that the Property be renovated. Mr. Owen-Jones paid a contractor to perform this renovation. Mr. Owen-Jones testified that after the renovation and an inspection by municipal authorities were completed, an Occupancy Permit was issued which, pursuant to s. 16 of the Delta Building/Plumbing Bylaw No. 6060, 2002, authorized occupancy of the Property (Ex. 6). Mr. Owen-Jones also testified that he had never seen any evidence of a marijuana grow operation on the Property. No contradictory evidence was given before this court. [11] There was no evidence called with respect to advice given by City Hall to the defendant, and the evidence of the defendant was that contrary to the statement aforesaid, the City of Delta refused to provide any advice about the growing of marijuana. In other

words, the defendant's statement that City Hall told him there was a marijuana grow operation at the Property is untrue. [12] The defendant confirmed during cross-examination that he had worked as a real estate agent in India for about 15 years prior to immigrating to Canada in 1980. After his immigration, he had purchased or attempted to purchase at lease six properties in Canada. [13] In light of the above circumstances, the only conclusion available to me is that the defendant is liable to the plaintiff for his breach of the contract. The Counterclaim [14] The counterclaim by the defendant against the realtors in this case was a claim alleged in negligence wherein the defendant was obliged to prove on a balance of probabilities that the defendants by way of counterclaim, (henceforth referred to as "the realtors") owed a duty of care to the defendant, that the alleged duty was breached by some act of the realtors, such as a false statement, and the defendant relied upon such a statement to its detriment, causing a loss. [15] The requirements for negligent misrepresentation were helpfully set out in Cardwell v. Perthen, 2006 BCSC 333 at para. 135, aff'd 2007 BCCA 313 as follows: (1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the

representor must have acted negligently in making said representation; (4) the representee must have relied, in a reasonable manner, on the said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. [16] In the contract under the title "agency disclosure", the defendant noted the provision of the contract which stated "A. The seller has an agency relationship with Ryan Blue, who is licensed in relation to Re/Max Colonial Pacific Realty." [17] The defendant, however, failed to note that the following paragraph in the contract provided "B. The Buyer has an agency relationship with no agency who is licensed in relation to no agency." In other words, the defendant did not have a relationship of agency with Mr. Blue or any of the other defendants designated in the Response to Civil Claim. [18] On the evidence before this court, the defendant has not proven any duty of care, based on a special, contractual or other relationship, was owed by the realtors to the defendant. The realtors had expressly and in writing advised they were not acting for the defendant. [19] Further, apart from bald statements made by the defendant about the truthfulness of any statement made by the realtors, there was no proof of any particular statement which was false or misleading. The defendant suggested that the realtors were

the makers of statements in the contract or the Property Disclosure Statement. That suggestion is in direct conflict with the contents of the two exhibits referred to which are signed only by the plaintiff and the defendant, the only parties thereto. There being no statement made by the realtors in relation to this transaction which could form the basis of a claim in negligence, there was no statement that the defendant can be said to have relied upon. [20] As a result of the findings aforesaid, the claim of the defendant against the realtors is hereby dismissed with costs payable by the defendant to the realtors forthwith after assessment pursuant to Appendix "B" of the Supreme Court Civil Rules, B.C. Reg. 168/2009, at Scale B as a matter of ordinary difficulty. Forfeiture of the Deposit [21] The plaintiff has proven that Mr. Vasir was in fundamental breach of the contract by failing to complete the sale and pay the purchase price. The next issue to be determined is the appropriate remedy for that failure. The leading case in this area is Tang v. Zhang, 2013 BCCA 52 where the Court of Appeal set out the general principles in relation to deposits: 30 In conclusion, I suggest that the following general principles may be stated with regard to deposits in the present context: 1. On a general level, the question of whether a deposit or other payment made to a seller in advance of

the completion of a purchase is forfeited to the seller upon the buyer's repudiation of the contract, is a matter of contractual intention; 2. Where the parties use the word "deposit" to describe such a payment, that word should in the absence of a contrary provision be given its normal meaning in law; 3. A true deposit is an ancient invention of the law designed to motivate contracting parties to carry through with their bargains. Consistent with its purpose, a deposit is generally forfeited by a buyer who repudiates the contract, and is not dependant on proof of damages by the other party. If the contract is performed, the deposit is applied to the purchase price; 4. The deposit constitutes an exception to the usual rule that a sum subject to forfeiture on the breach of a contract is an unlawful penalty unless it represents a genuine pre-estimate of damages. However, where the deposit is of such an amount that the seller's retention of it would be penal or unconscionable, the court may relieve against forfeiture, as codified by the Law and Equity Act; 5. A contractual term that a deposit will be forfeited "on account of damages" on the buyer's failure to complete does not alter the nature of a deposit, but may be construed to mean that if damages are proven, the deposit will be applied against ("on account of") them. If no damages are shown, the deposit is nevertheless

forfeitable, subject always to the expression of a contrary intention. [22] It is important to note that a vendor does not need to prove damages for the deposit to be forfeited. [23] The clause relating to the deposit in the Tang case was virtually identical to clause 12 of the contract, which stipulates that in the event that the purchaser fails to pay the balance of the purchase payment, the amount paid by the buyer "will be non-refundable and absolutely forfeited to the seller in accordance with the Real Estate Services Act, on account of damages, without prejudice to the Seller's other remedies. [24] Applying the principles set out in Tang to the evidence at bar, I declare the deposit together with any accrued interest thereon forfeited to the plaintiff. RE/MAX Colonial Pacific Realty is to release the deposit, and accrued interest, if any, forthwith to the plaintiff. Damages [25] By letter dated November 4, 2016, counsel for the plaintiff advised Mr. Vasir that the vendor was reinstating time to be of the essence and that the contract of purchase and sale in relation to 8749 112 Street, Delta, B.C. would be completed on November 14, 2016 . On November 15, 2016, counsel for the plaintiff advised Mr. Vasir that the plaintiff was ready, willing and able to complete the transaction on the revised completion date of November 14, 2016. The letter confirmed that Mr. Vasir had

failed to complete the sale on or before that completion date. In the same letter, Mr. Vasir was notified that the plaintiff had terminated the contract. [26] Subsequent to the termination of the contract, the Property was listed for sale and eventually sold on or about April 17, 2017 for the sum of $650,000 resulting in a loss to the plaintiff of $25,000. The second sale was completed on May 1, 2017. [27] Subtracting the $20,000 deposit paid from the difference in the sale prices, damages are awarded in the amount of $5000. During the period from August 1, 2016 to April 30, 2017, Mr. Owen-Jones lost rental income from the lands in the amount of $1850 per month for a total of $16,650. In addition he also paid taxes, utilities and financing charges in the amount of $2,270.26. Mr. Vasir did not call evidence concerning any of the claims detailed for lost rental income, taxes, utilities or financing charges, nor did he submit arguments opposing these claims. The plaintiff's evidence in support of those claims was accepted by this court. [28] As a result, Mr. Owen-Jones is awarded net damages of $43,920.26 together with costs and interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c.

79. Costs will be pursuant to Appendix "B" of the Supreme Court Civil Rules at Scale B as a matter of ordinary difficulty, payable forthwith after assessment. "Ball J."