Date Issued: October 4, 2022

File: SC-2021-009176

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ross v. Woodbridge NW (Yorkson) Ltd., 2022 BCCRT 1087

Between:

ALLAN ROSS

Applicant

And:

WOODBRIDGE NW (YORKSON) LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This small claims dispute is about alleged deficiencies in a newly constructed home.

2.      The applicant, Allan Ross, purchased a townhouse from the respondent developer, Woodbridge NW (Yorkson) Ltd. (Woodbridge). The townhouse is part of a strata corporation, and Mr. Ross purchased it as a “presale” before construction began. Mr. Ross says that after he moved in, he discovered several deficiencies, which he says Woodbridge has refused to fix. Mr. Ross claims $5,000, including: $724.50 for gutters and downspouts, $1,610 for an insulated garage door, $856.13 for missing fence sections and staining, $396.90 for insect screens, $539.70 for a gas BBQ outlet box, and $1,300 for electric vehicle (EV) circuitry installation. Mr. Ross has expressly abandoned his claim to any amount over the Civil Resolution Tribunal (CRT) small claims monetary limit of $5,000.

3.      Woodbridge says the parties’ contract did not include window screens, a BBQ outlet box, insulated garage door, or finished EV charging circuitry, so it was not obligated to install these items. Woodbridge denies any deficiency with the fencing. Woodbridge also says it reasonably decided not to install certain gutters and downspouts based on its consultation with the architect.

4.      Mr. Ross is self-represented. Woodbridge is represented by its owner, James Billingsley.

JURISDICTION AND PROCEDURE

5.      These are the CRT’s formal written reasons. The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

7.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Preliminary issues

9.      Mr. Ross undisputedly took possession of his townhouse on December 5, 2018, but he says in the Dispute Notice that he became aware of the alleged deficiencies in “December 2019 onward”. Mr. Ross did not otherwise explain the delay or how he discovered his potential claims, and neither party raised a limitation issue. However, given my conclusions below, I decided it was unnecessary to consider whether Mr. Ross’ claims are out of time.

10.   I also note that Mr. Ross admits some of his claims relate to the strata’s common property (CP). Under the Strata Property Act, the strata corporation is responsible for managing and maintaining CP, which would include bringing an action for deficiencies to CP. Mr. Ross relies on the BC Court of Appeal decision in Hamilton v. Ball, 2006 BCCA 243, which he interprets as saying an owner can sue a third party for damage to CP that “pertains” to their strata lot.

11.   I do not entirely agree with Mr. Ross’ interpretation of the Hamilton decision. I find it says an owner can sue for only their proportionate share of CP where a third party causes damage to that property. The evidence shows that Mr. Ross’ unit entitlement gives him a 2.16% share of the strata’s CP. Further, neither party provided a copy of the strata plan that was filed at the Land Title Office, so I cannot determine which of Mr. Ross’ claims relate to CP. However, given I have not found in Mr. Ross’ favour on any of his claims below, I decided it was unnecessary to address his standing (legal right) to bring claims about CP deficiencies.

12.   In the Dispute Notice, Mr. Ross also claimed for a missing smoke detector. In submissions, he advised that Woodbridge has since fixed the smoke alarm, so I find it is no longer at issue, and I have not addressed it below.

ISSUE

13.   The issue in this dispute is whether Woodbridge breached the parties’ contract or was negligent in its construction of Mr. Ross’ townhouse, such that Woodbridge must compensate him for the claimed deficiencies.

EVIDENCE AND ANALYSIS

14.   In a civil proceeding like this one, the applicant Mr. Ross must prove his claims on a balance of probabilities (meaning “more likely than not”). I have read all of the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

15.   It is undisputed that Mr. Ross entered into a pre-sale agreement with Woodbridge on May 14, 2017, to purchase a townhouse in a new strata development. Mr. Ross says that when deciding to purchase the townhouse, he relied on floor plans, marketing materials, the architectural plans approved by the municipality, and a small-scale model of the townhouse complex on display at the sales office.

16.   The parties’ May 14, 2017 Offer to Purchase and Agreement of Sale (contract) included the following relevant provisions:

a.    Paragraph 10 set out specific items that were included in the purchase price, including certain appliances, window coverings on exterior windows, and 2 garage door openers.

b.    Paragraph 13 said the purchaser (Mr. Ross) acknowledged receiving a copy of the May 5, 2017 disclosure statement, which I find was incorporated into the parties’ contract by reference.

c.    Paragraph 16 was what is known as “an entire agreement clause”. It stated that the purchaser agreed that any representations or warranties made outside the contract by Woodbridge or anyone on its behalf, did not form part of the contract and did not bind the parties. It specifically included representations arising from any sales brochures, models, websites, showroom displays, or other marketing materials provided to the purchaser.

17.   Mr. Ross says that after he took possession of his townhouse in December 2018, he found several defects with his home that he says Woodbridge is obligated to fix. I will discuss each alleged deficiency below.

Gutters and downspouts

18.   It is undisputed that the architectural building plans approved by the municipality included some gutters and downspouts that Woodbridge did not install. Specifically, Mr. Ross says the third level sloped roof above his main entry and a roof for a built-out wall on the side of the building are missing gutters and downspouts. He alleges that this has resulted in erosion around his townhouse from water runoff. Mr. Ross argues that the architect must have included the gutters and downspouts in their building plan for a reason, so to omit them was “absurd”.

19.   Woodbridge says it made the decision not to install some of the planned gutters and downspouts in consultation with the development’s architect, FAI. Woodbridge provided a June 1, 2020 letter from FAI to the municipality about the missing gutters and downspouts. FAI stated in the letter that it omitted gutters on some built-out walls and small roof areas because most precipitation was collected by the main roofs, which overhang and cover the built-out roofs.

20.   I find Mr. Ross is alleging that Woodbridge was negligent in failing to install certain gutters and downspouts outside his townhouse. To prove negligence, Mr. Ross must establish that Woodbridge owed him a duty of care, that it breached the standard of care, and that he sustained foreseeable damage caused by its breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

21.   I accept that Woodbridge owed Mr. Ross a duty of care in building the townhouse that Mr. Ross had purchased. The issue is the applicable standard of care. Generally, in claims of professional negligence, expert evidence is required to prove the professional’s standard of care and that the professional’s conduct fell below that standard. I find that expert evidence is required to establish the applicable standard of care for a developer in deciding where to install gutters and downspouts on a 3-storey townhouse. Mr. Ross has not provided any such expert evidence here.

22.   In the absence of any expert evidence from Mr. Ross establishing that Woodbridge’s decision to omit the gutters and downspouts around his unit breached the standard of care, I find he has not proven Woodbridge was negligent.

23.   Given this finding, it is unnecessary for me to address Mr. Ross’ allegation that the missing gutters and downspouts have caused erosion damage. However, even if I had found Woodbridge breached the standard of care, I would have found the cause of any erosion around Mr. Ross’ townhouse is unproven on the evidence before me.

24.   For these reasons, I dismiss Mr. Ross’ claims as they relate to missing gutters and downspouts.

Garage door and insect screens

25.   It is undisputed that the approved architectural building plans included a windows and doors schedule that stated the garage door would be insulated, and that all windows and sliding glass doors would have insect screens. It is also undisputed that Woodbridge installed an uninsulated door on Mr. Ross’ garage (and on every other garage in the strata), and that it installed no insect screens. I infer it is Mr. Ross’ position that Woodbridge was contractually obligated to install the doors and window screens as specified in the architectural plans.

26.   Woodbridge says that the references to an insulated garage door and insect screens in the architectural plans were simply errors that should have been corrected. It says it never intended to install either of these items. In support of its position, Woodbridge provided evidence showing it obtained a March 2017 quote for uninsulated garage doors. It also says that if insect screens were included, they would be detailed in paragraph 10 of the parties’ contract. I accept this submission, as I find screens are similar to interior window coverings, which are included items in the parties’ contract.

27.   I find there is nothing in the parties’ contract or the disclosure statement that says Woodbridge must install an insulated garage door or insect screens on the windows. Notably, paragraph 10 of the parties’ contract does not say either item is specifically included. Overall, I accept that the architectural plans referred to these items in error, as I find it is consistent with the other evidence before me. I find Woodbridge is not bound by such errors in the plans. So, I find that Woodbridge did not breach the parties’ contract by failing to install an insulated garage door and insect screens.

28.   Further, while Mr. Ross did not specifically argue negligence, he submits that his energy consumption is consistently higher than average due to having an uninsulated garage door. Woodbridge argues that the garage ceiling is insulated, and that Mr. Ross’ “irregular” electrical consumption is likely due to other reasons.

29.   I find that whether installing an insulated garage door was necessary to meet the applicable standard of care of a developer in these circumstances requires expert evidence. Again, there is no expert evidence before me on this issue. Therefore, I find Mr. Ross has not established that Woodbridge was negligent, and I find it unnecessary to address the parties’ arguments about Mr. Ross’ energy consumption.

30.   For all these reasons, I dismiss Mr. Ross’ claims as they relate to his garage door and the lack of insect screens.

Fence sections and staining

31.   Mr. Ross says that Woodbridge failed to install fencing to enclose his front yard, as described in the feature sheet and model home displayed in the sales office. I find the entire agreement clause in paragraph 16 of the parties’ contract expressly precludes him from relying on those materials to bring a claim for misrepresentation. There is also nothing in the parties’ contract or the disclosure statement that says Woodbridge must install a fence around Mr. Ross’ yard, so I find Mr. Ross has not established a breach of contract.

32.   Mr. Ross also argues that the lack of fencing is a breach of the applicable municipal bylaw. I disagree. The relevant bylaw says that except where specifically modified in a development permit, a low picket fence must be provided along the boundary of a multiple family lot next to a boulevard. Here, the approved landscape plan stated that front yards on the boulevard would be enclosed with shrubs, which Woodbridge undisputedly installed. So, I find no breach the municipal bylaws.

33.   The evidence shows that Woodbridge did install limited fencing and a gate in the yards around Mr. Ross’ townhouse. The landscape plan undisputedly stated that 2 coats of stain would be applied to the fence, but Mr. Ross says only one coat was applied, which he says did not adequately cover the wood.

34.   Woodbridge denies it applied only one coat of stain. It provided a statement from the contractor who stained the fences, confirming that even though the product it used required only one coat, it followed the stain supplier’s recommendation to spray on the first coat and brush on a second coat before the first coat dried, so that it complied with the obligation in the landscape plan to apply 2 coats.

35.   I find that I cannot determine from Mr. Ross’ photos whether the fences have one or 2 coats of stain applied. So, I am essentially left with an evidentiary tie, with Mr. Ross saying there was only one coat, and Woodbridge saying there were 2 coats applied. Given that Mr. Ross bears the burden of proving his claims, I find he failed to do so.

36.   I note Mr. Ross also says the gate posts were of inferior quality, as the plans reference 6”x6” posts, but Woodbridge installed 4”x4” posts. The parties’ contract provides at paragraph 23(d) that Woodbridge may substitute other material for that provided in the plans without notice provided the submitted material is of equal or better quality. I find that just because the posts are slightly smaller than indicated in the plans is insufficient to prove they are of inferior quality. In the absence of expert evidence that the fence posts provided are of lesser quality, I find Mr. Ross has not proven Woodbridge breached the parties’ contract in providing smaller gate posts.

37.   For all the above reasons, I dismiss Mr. Ross’ claims as they relate to the fencing and staining.

BBQ outlet box

38.   Mr. Ross says that the approved building plans show Woodbridge was obligated to install a BBQ outlet box with a shut off on his balcony, but instead he says there is only a capped pipe sticking out of the wall, without a shut off and regulator. He says the exposed pipe is dangerous and that gas appliances are required by the BC Building Code to have a shutoff.

39.   Woodbridge says the plans Mr. Ross refers to are mechanical plans, not the approved architectural plans, which I find is supported by the mechanical plans in evidence. These plans show the location for a “1/2” gas quick connection for BBQ c/w shut off” on the deck of Mr. Ross’ townhouse. They also state the drawings were made “prior to pricing/construction”, which I infer means they are not final plans. Overall, I find the mechanical plans alone are insufficient to establish that Woodbridge was obligated to install a BBQ outlet box with a shut off and regulator.

40.   Woodbridge also provided a copy of its marketing materials, which stated the homes would be “roughed-in” for an outdoor gas BBQ connection. So, Woodbridge says it installed capped gas pipes for purchasers to finish themselves, if desired. Woodbridge argues it was not obligated to install more because a finished BBQ connection was not an included item in paragraph 10 of the parties’ contract.

41.   I agree with Woodbridge. I find there is nothing in the parties’ contract or the disclosure statement that says Woodbridge must install a BBQ outlet box with a shut off. Mr. Ross provided no evidence to support his allegation that the pipe is dangerous or in violation of the BC Building Code, so I find those allegations unproven. I dismiss Mr. Ross’ claims as they relate to the BBQ connection.

EV circuitry

42.   Mr. Ross alleges that Woodbridge did not install proper electrical components for EV charging set up. He acknowledges that the approved building plans say: “provide rough-in EV charging, confirm with owner exact requirements”. Mr. Ross argues that Woodbridge did not ask what he required, and the wiring provided is sufficient only for a 110V 20-amp receptacle when most EV owners require 220V 30-amp wiring to charge their car. So, his claim is for the cost to upgrade the wiring provided.

43.   I find the reference to the “owner” in the building plans was a reference to Woodbridge, as the development’s owner developer, not a reference to a first purchaser such as Mr. Ross. Therefore, I find the plans did not obligate Woodbridge to consult with Mr. Ross about what type of wiring he preferred for EV charging. I find there is nothing in the parties’ contract or the disclosure statement that required Woodbridge to consult with Mr. Ross about his EV charging requirements or provide him with wiring to his specifications. I also accept Woodbridge’s submission that when it was designing the project in 2016 and 2017, installing Tier 1 charging (110V 20-amp) was reasonable.

44.   Overall, I find Mr. Ross has not established that Woodbridge provided inadequate EV charging circuitry. I dismiss Mr. Ross’ claims.

CRT fees and dispute-related expenses

45.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. As Mr. Ross was unsuccessful, I dismiss his claim for CRT fees and $19.95 in dispute-related expenses.

46.   Woodbridge did not pay any CRT fees. While Woodbridge made a claim in an unspecified amount for its time spent and legal fees, it did not provide any evidence or submissions in support of its claim. So, I dismiss it as unproven.

ORDER

47.   I dismiss Mr. Ross’ claims, Woodbridge’s claim for dispute-related expenses, and this dispute.