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The Court of Appeal for British Columbia dismissed Fairchild’s appeal, finding no error in the trial judge’s conclusion that the parties lacked consensus on the indemnity start date.
The adjudicator found the written lease governed and the tenant failed to prove an oral amendment or estoppel to reduce rent; however the tenant proved sufficient defects in heating and related services between October 2016 and March 2017 to warrant a monthly abatement of $250, resulting in a total abatement of $1,500 and a net award to the landlord of $4,025.22.
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The motion to strike the third party statement of claim was dismissed because it was not plain and obvious that the claim disclosed no cause of action; the court must assume pleaded facts are true, the scope and elements of a municipality's cause of action against councillors are uncertain and novel, factual development and municipal input are required, and existing authority is insufficient to decide the issue on pleadings alone.
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The Court agreed with the motion judge that the lease amending agreement was a duly constituted and executed agreement that stands alone and rejected the appellant's claim of an unconditional obligation under the October 1, 2003 proposed letter; accordingly the appeal was dismissed and costs awarded to the respondent.
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The court held the Gold Commissioner could reserve and use a proviso to amend placer leases for inaccurate survey plans, but the amendment was set aside for lack of procedural fairness.
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