Victoria, Cooperage Place: Sellers lose leaky condo repair refund to buyers



Hutka v. Aitchison et al,


2006 BCSC 1169

Date: 20060731
Docket: 06-1258
Registry: Victoria



Victoria, Cooperage Place: Sellers lose leaky condo repair refund to buyers



Hutka v. Aitchison et al,


2006 BCSC 1169

Date: 20060731
Docket: 06-1258
Registry: Victoria



Glen Hutka and Olga Hutka



Kenneth Wayne Aitchison, Carole Joan Aitchison,
Strata Corporation 1889 and Proline Management Ltd.


Before: The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

Counsel for the Petitioners:

R. P. Warburton

Counsel for the Respondents Kenneth Wayne Aitchison and Carole Joan Aitchison:

H. J. Rusk

Date and Place of Trial/Hearing:

July 18, 2006


Victoria, B.C.


[1]                The interesting question on this application is one of entitlement to a partial refund of a special assessment.  That special assessment was paid by the previous owner of a strata lot, into a fund, to repair a defective condominium building.  The previous owner sold the strata lot to the current owner.  After the sale completed, the refund issued.  Both parties claim entitlement.  The petitioners' claim sounds in contract.  The respondents' claim sounds in the equitable remedy of unjust enrichment.


[2]                Prior to 31 August 2004, the respondents owned strata lot 32 in a condominium building.  The envelope in that building suffered premature failure.  The strata corporation imposed a special levy on the owners of the strata lots in the building to fund rectification and litigation.  Individual assessments were calculated by unit entitlement.  The respondents, as owners of strata lot 32, paid $60,135.01 into that fund on a date not identified in the evidence.

[3]                By a contract of purchase and sale dated 16 June 2004, the respondents agreed to sell, and the petitioners agreed to buy, strata lot 32, with completion and possession dates of 1 September 2004.  On that latter date, the respondents' transfer of their fee simple interest in strata lot 32, to the petitioners, was registered in the Land Title Office at Victoria.

[4]                By mid-July 2005, the rectification and litigation, for which the fund had been established, had been concluded.  The strata corporation was left with an excess of money.  It resolved to refund the excess to the owners.  The amount attributable to strata lot 32 is $17,758.03.


[5]                It appears to be common ground that there is nothing express in the contract between the parties addressing the contingencies inherent in the special fund.[1]  As current owners of the strata lot, the petitioners have a prima facie entitlement to the refund.

[6]                The Form B, Information Certificate, dated 23 August 2004, records, among other information, the following:

(d)        Any amount that the owner of the strata lot described above is obligated to pay in the future for a special levy that has already been approved .................................................................$0.00


(f)         Amount in the contingency reserve fund minus any expenditures which have already been approved but not yet taken from the fund .............................................$81,937.03 as of July 31, 2004


(j)         Is the strata corporation party to any court proceedings or arbitration, and/or are there any judgments or orders against the strata corporation?

                          No            X       Yes - Litigation is currently proceeding against a number of defendants for certain water penetration issues.

[7]                I find that by omitting any reference to a future special levy, or the contingency reserve fund, the parties, by their contract, implicitly allocated the risk of contingencies of the litigation.  Thus, any adjustment to the contingency reserve fund, either by increase through a future special levy, or decrease, by a refund, was a risk allocated to the purchaser.


[8]                The remedy of unjust enrichment, the remedy sought by the respondents, is dependent upon proof of three elements:

1.         an enrichment;

2.         a corresponding deprivation; and,

3.         an absence of juristic reason for the enrichment.[2]

[9]                The respondents say that if the refund is paid to the petitioners, then the petitioners will be enriched at the respondents' corresponding deprivation, for no juristic reason.

[10]            The first element mentioned above is probably satisfied.  Receipt of money is conventionally taken as an enrichment.

[11]            On the second element mentioned above, I find it instructive to refer to the comments of Southin, J.A. in Scott v. Noble:[3]

The learned judge in his reasons found that there was an enrichment of the defendants from the plaintiff's labour but no corresponding deprivation because the plaintiff was an employee who received the salary bargained for.  If the learned judge was using the word "enrichment" in its dictionary sense, I agree with him that there was an enrichment.  The interesting question of whether the term "enrichment" in the formula "unjust enrichment" is a term of art with some ingredient added to the dictionary meaning may wait for another day.  However, even if using the word "deprivation" in its ordinary dictionary sense means that there can be said to have been a deprivation, here it was justified by the simple juristic reason of a contract of employment which was observed by the employers.  [my underlining]

[12]            That interesting point was not argued before me.  Accordingly, I assume, without deciding, that the second element is satisfied:  there would be a corresponding deprivation.

[13]            The third element, the absence of juristic reason, has received further explanation by the Supreme Court of Canada in Garland v. Consumers' Gas Co..[4]

[14]            "... The proper approach to the juristic reason analysis", said Mr. Justice Iacobucci, "is in two parts":

... First, the plaintiff must show that no juristic reason from an established category exists to deny recovery.  ... The established categories that can constitute juristic reasons include a contract ..., a disposition of law ..., a donative intent ..., and other valid common law, equitable or statutory obligations ...  If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.  [Authorities omitted; the underlining is mine]

[15]            In the case at hand, there is a contract.  That contract has been performed by the petitioners.  There is no "element of injustice or want of commercial good conscience".[5]  Accordingly, this case falls within an established category and I do not consider the second part of the analysis.

[16]            The parties were free to contract as they would.  In Dewar v. Brooks,[6] the parties to a real estate transaction, in circumstances similar to those in this case, addressed specifically, the allocation of risk.  The task of the Court in Dewar was to interpret the parties' contract.  I see my task in this case to be similar, even though in the absence of an express term.

[17]            There is a comment in Restitution,[7] which commends itself to me:

The law of contract is designed to recognize and protect rights created by agreement.  By agreement, as long as such agreement does not offend the law by being obtained fraudulently or under duress, for example, or is in some other way susceptible to attack, one party may enrich the other, even, it may be added, unjustly.


[18]            The petitioners will have the relief prayed for in their petition.  I declare that they are entitled to the common property and common assets of Strata Corporation No. 1889, including the proceeds of litigation as a tenant in common in a share equal to the unit entitlement of Strata Lot 32, District Lot 119, Esquimalt District, Strata Plan 1889 divided by the total unit entitlement of all the strata lots.

[19]            I further order that Strata Corporation No. 1889 and/or its property manager, Proline Management Ltd., pay all money held by it to the credit of Strata Lot 32 to the petitioners.

[20]            The petitioners will have their costs against the respondents Aitchison only.

“R.D. Wilson, J.”
The Honourable Mr. Justice R.D. Wilson

[1]           I am constantly perplexed by counsel's senseless practice of encumbering their material with illogical documentation.  To a vexing degree, the exhibits attached to Mr. Johnston's affidavit are unreadable.  Fortunately, by not putting in issue the content of that documentation, counsel have spared me the inconvenience of adjourning this matter until proper material is placed before the court.

[2]           Pettkus v. Becker, [1980] 2 S.C.R. 834, at page 848.

[3]           (1995), 99 B.C.L.R. (2d) 137 (B.C.C.A.), at page 143, paragraph 17.

[4]           [2004] 1 S.C.R. 629, at pages 648 to 652, paragraphs 38 to 47.

[5]           See:  Cherrington v. Mayhew's Perma-Plants Ltd. (1990), 45 B.C.L.R. (2d) 374 (B.C.C.A.); Atlas Cabinets and Furniture Ltd. v. Nat. Trust Co. (1990), 45 B.C.L.R. (2d) 99 (B.C.C.A.).

[6]           2004 BCPC 84 (B.C. Prov. Ct.)

[7]           Restitution, Fridman and McLeod, Carswell 1982, at page 247.

Leaky condo developer Michael Audain appointed to BC Arts Council

Board Member Biography
Mr. Michael J. Audain
Biography and Memberships

Michael Audain is Chairman of Polygon Homes Ltd., one of British Columbia's leading home builders. He has overseen the development of over 15,000 homes in the Greater Vancouver and Seattle areas since joining the Polygon group of companies in 1980. Mr. Audain was educated at the University of British Columbia and the London School of Economics and Political Science. He serves as immediate past Chairman of the Business Council of British Columbia, a past President of the Urban Development Institute, and is a member of the Canadian Council of Chief Executives. An active supporter of the arts, Mr. Audain is a past President of the Vancouver Art Gallery, and currently Chair of the Vancouver Art Gallery Foundation and the Audain Foundation for the Visual Arts in British Columbia. He was honoured in 2004 with The Council for Business and the Arts in Canada's prestigious Edmund C. Bovey Awards for leadership in the arts. Mr. Audain was also awarded the Queen's Golden Jubilee Medal in 2002.

Current Board Membership Appointed
BC Arts Council 31 July 2006



BC Arts Council

As part of its ongoing commitment to funding the arts and cultural events in British Columbia, the government has established the BC Arts Council as an independent body for the purpose of providing support for arts and culture in BC, providing persons and organizations with the opportunity to participate in the arts and culture in BC, and providing an open, accountable and neutrally administered process for managing funding.

The Board...


The Council consists of 15 members appointed by the Lieutenant-Governor in Council. The Council includes members who represent the diversity of the BC arts community. Members should be knowledgeable and objective, in order to be able to make a constructive contribution to cooperative decision-making. The Council should also include persons who are articulate advocates of the arts and of culture in general.

Click here for biographies of all Members
Current Members
Name: By order: Position: Expiry:
Armstrong, Christopher OIC 563/05, July 31, 2005 Member July 31, 2007
Audain, Michael J. OIC 419/06, July 31, 2006 Member July 31, 2008
Danzo, Jane McLeod OIC 418/06, June 13, 2006 Member June 13, 2007
Eggleton, John OIC 563/05, July 31, 2005 Member July 31, 2007
Ferreras, Salvador OIC 563/05, July 31, 2005 Member July 31, 2008
Kelsey, Graham OIC 419/06, July 31, 2006 Member July 31, 2008
Lee, Alma OIC 563/05, July 31, 2005 Vice Chair July 31, 2008
MacRitchie, Wendy Elizabeth OIC 418/06, June 13, 2006 Member June 13, 2007
Nicolson, Marianne OIC 563/05, July 31, 2005 Member July 31, 2007
Ross, David N. OIC 563/05, July 31, 2005 Member July 31, 2008
Scott, Brian J. OIC 419/06, July 31, 2006 Member July 31, 2007
Shumka, Donald M. OIC 563/05, July 31, 2005 Chair July 31, 2008
12 current members.

The mandate of the BC Arts Council is to develop arts and cultural activity throughout the province and to convene independent advisory committees to review and evaluate applications and programs.

What's Involved

The Council meets four to six times per year, with each meeting lasting for one to two days. Up to four days per year will be required of members for representation at various events and some travel within BC will be required. There is a total time commitment of at least 16 days, including travel and preparation time.

For More Information...

British Columbia Arts Council
PO Box 9819 Stn Prov Govt
Victoria, BC V8W 9W3

Tel. 250 356-1718
Fax: 250 387-4099

Mr. Swift purchases a leaky rotten mouldy house in Burnaby; loses suit against vendors



Swift v. Kung and Kung et al,

2006 BCSC 1123

Date: 20060724
Docket: S046574
Registry: Vancouver


Lawrence Dean Swift



Tin Lok Kung, Sau Lee Chue Kung and
Aardvark Building Inspection Services Ltd.


Before: The Honourable Madam Justice M.A. Humphries

Reasons for Judgment

Counsel for the plaintiff

D.C. Creighton
J. Rohrich

Counsel for the defendants

J.P. Hamilton
S. Cabal A/S

Date and Place of Trial/Hearing:

May 8 %u2013 12; 15, 2006

Vancouver, B.C.

[1] In the spring of 2002, Mr. Swift purchased a house on Dundas Street in the Municipality of Burnaby, B.C., from the defendants, Mr. and Mrs. Kung. He alleges it was damaged throughout by mould, something he discovered only after taking possession.

[2] Mr. Swift sued the inspector whom he hired to inspect the house prior to purchase, but discontinued the action against him. Counsel advised the court this was because the inspection company is no longer in existence. Only the vendors, the Kungs, were defendants at trial. Mr. Swift has sued them in negligent misrepresentation and fraudulent misrepresentation.


[3] In the spring of 2002, Mr. Swift and his wife, who was expecting their second child, wished to buy a house near Mrs. Swift%u2019s mother%u2019s home in East Vancouver. They looked at a number of houses in their price range, which they hoped to keep below $275,000 for tax purposes.

[4] They looked at approximately twelve homes, including the Kungs%u2019 house. The Kungs%u2019 house was built in 1957, and has a basement and a main floor and a stucco exterior. The house is 900 square feet per floor. A large third bedroom was added to the house at some point prior to the Kungs%u2019 ownership of the property. It forms an addition at the back of the house. At the time of the sale, the house was assessed at $26,500 and the property at $201,000.

[5] In 2002, Mr. Swift was a property manager for the Scottsdale Shopping Centre. His father was a construction contractor and he had considerable experience in construction himself through helping his father. Mr. Swift now runs his own business as a contractor.

[6] On April 7, 2002, Mr. Swift put in an offer on the Kungs%u2019 house of $274, 000, subject to inspection.

[7] Following the initial visit, Mr. Swift came to the house to obtain signatures from the Kungs to allow him to inspect all the relevant plans for the house at the municipal hall. During this visit, Mr. Swift told Mr. Kung he had noticed the floor was slightly sloped but he could fix it, and he planned to remove the wall between the kitchen and the living room. Mr. Kung testified he was very impressed by this.

[8] On April 11, 2002, Mr. Swift came to the Kung%u2019s residence with the inspector he had retained. Mr. Swift%u2019s father and two friends, both with construction experience, accompanied them. Mr. Swift and the inspector spent three unobstructed hours at the Kung home, inspecting it and making a video record of the home. Mr. Swift accompanied the inspector through the entire inspection. Mr. Kung was present for the entire time, sitting in the living room with his realtor. He testified that neither the plaintiff nor the inspector asked him any questions during the entire inspection.

[9] The inspector later provided an eight-page report setting out his observations and recommendations. Mr. Swift testified the video recording was later lost during renovations.

[10] Mr. Swift said he noticed cracks in the stucco, as well as fairly extensive staining from mildew on the outside of the stucco, particularly under the windows, but in his opinion, the house just needed a good pressure wash.

[11] As a result of Mr. Swift%u2019s dissatisfaction with a particular pipe in the basement, the Kungs agreed to an abatement of $1,500 from the purchase price.

[12] Mr. Swift removed the %u201Csubjects%u201D on April 15, 2002 and the sale completed. The possession date was to be July 18, 2002 but was moved to July 13, 2002 at the request of the Kungs.

[13] Mr. Swift testified that he had arranged to take three weeks holidays, intending to remove an interior wall, renovate the kitchen and get the house ready for his family to move into. His wife had had the new baby in June and she and the children moved into her mother%u2019s house while the renovations were being done.

[14] Mr. Swift arrived at the house on the day he was to take possession and received the keys from the Kungs%u2019 assistant realtor. He entered the house and was immediately struck by a strong smell of mould. He traced this smell to the large back bedroom that had been built as an extension to the original house. He noticed mould on the drywall up from the baseboards. He pulled off a couple of the baseboards and noticed more mould behind them. He smashed a few holes in the drywall to see how extensive the problem was and realized there was mould on the wood and in the insulation as well.

[15] Mr. Swift called the Kung%u2019s realtor. Mr. Swift said the realtor suggested he paint over the mould. Mr. Swift called a restoration company, On-Side Restorations, who sent out a representative, Audrey Delin, who told him it would cost $10,000 to remove the mould and suggested he do it himself. Ms. Delin testified that she tested some locations in the house for moisture and discovered readings of 47%, when 18% is the cut-off for safety.

[16] Eventually, extensive mould was discovered under the carpet leading down to the basement, and under the valances in the living room and front bedroom. Since Mr. Swift was taking apart these rooms, he decided to remove the bathroom window as well, because he did not want a window in the bathroom. When the window was pulled out, the exterior wall fell in. The bathroom had been renovated and looked fairly new, but lumber under the plastic tub wall and dry wall was filled with mould and was very rotten. New lumber had been nailed on top of the rotten lumber to allow the surface materials to be secured.


Case Studies, Spinnaker West: Window washing fiasco

July 25, 2006

TO: Helga Hennsler-Harris, Owner, Strata Lot 6, Strata Plan LMS 497

RE: Window washing fiasco

Thanks for taking the time to leave your condo on a very hot and dry Saturday morning (July 22, 2006) in order to visit the scene in the alley and discuss the Spinnaker West window washing fiasco.

Ann Hedley, the Strata Property Manager from Realacorp, issued a window washing notice to the owners of Spinnaker West.

Mary Kagami, the owner of Strata Lot 3, immediately called Realacorp to ensure that her windows would be washed.

Sharon, and then Ann, both from Realacorp, told Mary that washing her windows “was not in the contract”.

Mary contacted Gary Hamilton the owner of Strata Lot 4 and a Strata Council member.

Gary told Mary to contact Clive Boulton the owner of Strata Lot 5 and the Strata Council President.

Mary sent an email to Clive.

Clive did not respond to Mary. (Apparently Clive is on vacation until the end of July.)

When the window washers (two men) arrived on Saturday morning, Mary went to the alley and asked if they were going to wash her windows.

The window washers said “No”.

Mary returned to her leaky rotten condo.

Mary saw that dirty water was running down from the windows above her unit – from Clive’s dirty windows and from your dirty windows.

The dirty water from the upper windows and north wall was creating a dirty mess on Mary’s windows.

The dirty water from your windows combined with the dirty water from Clive’s windows was also flooding the north deck at Mary’s condo causing the previously dry needles to float on about one inch of water and to plug the drain.

Mary called me.

Mary returned to the alley to discuss the situation with the window washer washing your windows.

I arrived in time to hear the window washer tell Mary that there was nothing he could do about it; that it wasn’t his fault; that he had a job to do; and that he was just doing his job - washing the upper windows; and that he would not clean Mary’s windows, even though he was making a mess of her windows.

I agreed with the window washer’s statements that there was nothing he could do about his instructions from the window washer boss who had left the scene and who got his instructions from Ann Headley of Realacorp and who was, in turn, instructed by the Strata Council of the Strata Corporation to wash your windows and to not wash Mary’s windows.

I suggested to the window washer that we would have to turn off the water because he, the window washer washing your windows, was making a very dirty mess of Mary’s windows, which he said he would not wash.

The window washer stopped washing your windows, turned the water off and disconnected the hose from the hose bib on the BC Cosmetologists Association building (Strata Lot 1).

I asked the window washer to inspect the mess he had made of Mary’s windows so that he would know that Mary had a valid complaint.

The window washer entered Mary’s leaky rotten condo and inspected Mary’s flooded north deck and her windows that had been messed up by the dirty water falling from your windows as he cleaned your windows by tucker pole in accordance with the instructions provided by the Strata Council via Ann Hedley the Strata Property Manager who holds a temporary license to provide strata management services and who has not yet completed the course and examination required by the Real Estate Council of BC for licensing to provide strata management services.

You then appeared on the scene in the north alley in an agitated state.

You demanded to know why the window washer had stopped washing your north windows.

You and I engaged in a spirited, but rather civilized, rational conversation.

You inspected Mary’s flooded north deck and windows by accepting Mary’s invitation to enter Mary’s leaky rotten condo.

You commented that the mess on Mary’s windows was due to the needles from the “pine tree” which had fallen on the deck.

I corrected “pine” to “fir”.

I agreed with your statement that the responsibility for cleaning the fir needles from the deck was Mary’s.

Mary and I have cleaned up the needles several times, especially during each rainy season.

However, I pointed out that the needles often plug the drain, causing water to accumulate on the deck and water to splash on Mary’s windows.

I have personally unplugged the drains several times during the rainy season (September through June).

The Strata Corporation has been informed of the deficiency in drain size, several times over the years, but nothing has been done about it.

You observed for yourself how the dirty water from your windows drained from the deck to the alley once I pushed the blocking needles through the small drainpipe with a custom made improvised utensil carefully crafted from one of Mary’s wire coat hangers.

You offered to clean Mary’s windows yourself, so that the window washer could finish cleaning your windows on Saturday.

Mary objected.

Mary did not want you cleaning her windows, even though she cannot do them herself because of her continuing problem with her arm following her stroke.

I pointed out to you that it was absurd for Mary to pay her unit entitlement proportionate share of the cost of cleaning your windows and the windows of other condos at Spinnaker West, year-after-year, when the other owners of the Strata Corporation would not pay for Mary’s windows to be cleaned, even though cleaning your windows dirtied Mary’s windows - whether the deck was free of needles or not - and, incidentally, provided more water on the north deck and the south deck to seep into Mary’s leaky rotten condo causing further damage to her interior walls and floors.

Mary accepted, in good faith, your sincere offer that you would undertake an effort to get the Strata Corporation to clean Mary’s windows, just like Mary had requested prior to the window washing fiasco on Saturday.

Accordingly, Mary gave permission for the window washer to make a mess of her windows on Saturday while finishing the cleaning of your windows based on your promise that the Strata Corporation would clean her windows “as soon as possible”.

We realize, of course, that you alone cannot bind the Strata Corporation to fulfill your promise, and that the matter would have to be taken up at “the next meeting”, and that the contract for window washing services would have to be modified.

Unfortunately, the window washer, who remained quite polite throughout, had coiled his hoses in preparation for leaving and would not start the window washing job again, leaving your windows partially washed.

You stated that the window washer would have to come back to finish your windows and the other “inaccessible” windows, including Mary’s windows.

I trust your windows and Mary’s windows will be cleaned “as soon as possible”.

Dr. James Balderson, Ph.D., Q.S.

COLCO: The Coalition of Leaky Condo Owners

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