Port Moody, San Remo Drive Subdivision: California-style houses leaking and rotting; Judge declares building scheme obsolete



Bertamini et al v. Clark et al,


2007 BCSC 1090

Date: 20070720
Docket: S98935
Registry: New Westminster


Donald Frank Bertamini, Dawn Francis Bertamini,
Mable Ruth Hoyem, Flemming Fuglsang Nielsen,
Birgit Nielson, Jenny Margaret Norris,
Mark William Henry Norris, and Margaret Turley Whyte



Marcus Evan Clark, Liana Romona Clark,
Wilhelmina Josephine Martin and Silvana Pringle


Docket: S101566

Registry: New Westminster


Marcus Evan Clark, Liana Romona Clark,
Wilhelmina Josephine Martin and Silvana Pringle



Donald Frank Bertamini, Dawn Francis Bertamini,
Mable Ruth Hoyem, Flemming Fuglsang Nielsen,
Birgit Nielson, Jenny Margaret Norris,
Mark William Henry Norris, and
Margaret Turley Whyte and others


Before: The Honourable Mr. Justice Crawford

Reasons for Judgment

Counsel for the petitioners in action number S98935 and the respondents in action number S101566

A. Groves

Counsel for the petitioners in action number S101566 and the respondents in action number S98935

B.F. Schreiber

Date and Place of Trial/Hearing:

December 6 and7, 2006, January 11, 2007, and May 9, 2007,


New Westminster, B.C.

[1]                The San Remo Drive subdivision, located in Port Moody, B.C., has an internal conflict.  The houses are subject to building schemes and land use contracts, which provide various rules controlling the exterior appearance and the design and materials used on the subdivision homes.

[2]                Registration of building schemes is provided for in the Land Title Act R.S.B.C. 1996, c. 250, in s. 220 and 221.  It is recognized, however, that conditions change over time, and therefore s. 35(1) of the Property Law Act R.S.B.C. 1996, c. 337, permits applications to modify or cancel a building scheme or restrictive covenant on a number of grounds, only one of which need be established.  It is a discretionary matter.

[3]                Obsolescence is determined by consideration of the nature of the building scheme itself.  The question to ask is: “is it obsolete and is its original purpose still being served?”  A more recent turn of phrase asks: “is it still a practical benefit?”  It has been put this way as well: “has the character of the neighbourhood undergone so much change that further enforcement would impede the use of the land?”

[4]                The developer, H.A. Roberts Group, entered into a land use contract with the City in November 1976, which was eventually registered in March 1977.

[5]                On January 1, 1978 a statutory building scheme was registered.  The building scheme was registered against 39 of the 40 lots on San Remo Drive, Port Moody.  The houses in large part were built between 1977 and 1981.

[6]                The building scheme prohibits change to the exterior appearance of the buildings.

[7]                The Clarks are the group of owners who say most of the houses have been altered in their exterior appearance over the years and therefore the building scheme is no longer relevant or effective.

[8]                The Bertamini group of owners claim that the exterior appearance and design is such that it should be maintained, and there is no difficultly in doing so, therefore the building scheme is still current and not obsolete.

[9]                In November 1976, the H.A. Roberts Group subdivided the lands into 40 lots, and in 1977 construction began at the east end of the subdivision at number 535 San Remo Drive, Port Moody.

[10]            The building design can be described as having a “California character”.  Specifically, two designs were implemented called Del Largo and Catalina with wood stud construction, plywood sheathing with wood architectural features including wood scuppers, exposed timber rafters, stucco exterior, wooden balcony rails with lattice insert, balcony surfaces covered with tar membrane and wood decking, cedar shake roofing, and the like.

[11]            As one may anticipate, the California design has not faired well in the rains of British Columbia typical to the interior of the Burrard Inlet at Port Moody.  It may be shortly said that on all of the evidence it is plain that preserving the designs against water entry requires meticulous upkeep, otherwise water enters and the wood roots.

1.         The Land Use Contract

[12]            The developer entered into a land use contract with the City on November 15, 1976, which was registered in the Land Title Office on March 1, 1977.

[13]            The first land use contact provided, inter alia, as follows:

4.         The following terms and conditions shall apply to the said Development area:

(b)        Permitted Uses of Land, Buildings and Structures

            The following uses and no others shall be permitted:

Forty principal buildings as shown on Drawing Number P-1 for residential use with accessory off-street parking use.

(c)        Size, Shape, and Sitting of Buildings and Structures

All buildings and structures to be constructed on the said land shall conform to:

            Drawing Nos. P-1 and D-1 to D-10 inclusive

With respect to the size, shape and sitting of the buildings and structures.

(g)        Aesthetic Quality of Buildings and Structures

Exterior finishes shall be as shown and described on Drawing Nos. D-4, D-5, D-9, D-10, and as detailed in Schedule A-1.

(h)        Development and Landscaping of Site

(i)         Landscaping and grading details shall be constructed in conformity with Drawing Nos. L-1, L-2, L-3, and L-4, and shall be carried out and completed in accordance with the standard requirements of the Parks and Recreations Director.

(ii)        The installation of ten foot fenced walkway between properties in a location to the discretion of the City Engineer.

(iii)       The developer will be required, upon sale of lots adjacent to the walkway, to place a caveat on title that perpetual maintenance of fencing be the responsibility of the purchasers.

(iv)       That the fronts of the new lots to be created are to be landscaped to the satisfaction of the Parks and Recreation Director prior to occupancy.

(j)         maintenance of the Buildings and Structures

General maintenance of all buildings and structures shall be carried out under a regular programme to assure a continuing pleasing aesthetic appearance, and to provide for the safety of residents in a manner satisfactory to the City Building Inspector.

Should the Owner fail to maintain the said buildings and structures to the satisfaction of the City Building Inspector, the City may at its discretion, order its workmen and/or others to enter and effect such maintenance at the expense of the persons so defaulting and may further order that the charges for doing if unpaid by December 31st of the year of default, shall be added to and form part of the taxes payable in respect of these lands or real property taxes, as taxes in arrears.

(n)        Amendments

This land use contract may be amended for minor alteration to plans and specifications by mutual agreement of both parties.

[14]            It may be noted that the schedule to the land use contract contained a color schedule for the painting of the stucco, namely:

1.         Off White;

2.         Beige; and

3.         Tan.

[15]            Fascia boards and trellis members could be black stained, while infill grills and balcony railings could be mahogany, natural cedar, or another unknown color.

[16]            While the original site plans indicated 22 single family homes and 18 semi-detached single family homes, in fact 36 single family homes were built and 4 semi-detached family homes were built.  Various other changes were made during the course of construction which have not been the subject of comment, save for the point made by counsel that the land use contract was not observed in a number of different ways, i.e. by plan reversal, by change of style from Del Largo to Catalina and lack of installation of walkways.

2.         The Statutory Building Scheme

[17]            On January 6, 1978 the developer registered a statutory building scheme P1383 in the Land Title Office against 39 of the 40 lots, lot 203 being excepted.

[18]            The building scheme contained a schedule of restrictions prohibiting changes to the exterior appearance of the houses:

no principal dwelling building and no other building or structure erected on the lot shall be decorated, maintained, repaired or restored in such fashion as its exterior appearance is changed from the exterior appearance of such principal dwelling building when first completed….the use of same materials, paint and other furnishes utilized on the outside of the principal dwelling building shall be used as were originally used, or if the same are not then available, such other materials, paint and other finishes that are then available which most closely resemble the same shall be used.

3.         Changes 1977-1989

[19]            The Clarks note that there were many changes made in size and design, including a new detached Catalina style, additional windows, and the like.  In 1982 the owners of 487 obtained approval for a number of changes to the exterior of their house , including relocation of patio doors and windows, relocation of side windows and doors and a new roof deck wall and gutters, without attracting disfavour. The additional windows on the side of the house near the front permitted better views of Burrard Inlet and were approved by council.

4.         The Second Land Use Contract

[20]            Changes were made to the land use contract by letter from the City of Port Moody, on October 4, 1988.  In 1999 the City agreed with 20 of the 40 owners to amend the first land use contract.  The second land use contract was registered in 1989 against 20 of the 40 lots only.

[21]            In substance, the purpose of the second land use contract was to “regularize” all the exterior alterations that had been made since the buildings were first built and allow for construction of new property amenities.

5.         Changes 1989 – 2006

[22]            The Clark group noted the following changes occurring over this period:

1.         November 21, 1989: Number 477 put glass panels into the balcony;

2.         February 1993: Number 487 installed a garage window with new lintel;

3.         Undated: Number 491 repaired exterior walls which changed the exterior appearance;

4.         Undated: Number 471 removed a stucco parapet wall and replaced it with glass and metal railing as did the Clarks at 485;

5.         1996: Number 481 new occupants noted their garage doors, front steps, and front gate had been painted a different color, contrary to the building scheme;

6.         The original design and construction of sloped roofs used cedar shakes, but over time those were replaced by various owners with asphalt or duroid shingles or other materials which were noted in photographs of 16 of the San Remo Drive homes.

[23]            Further, by reference to the photographs filed in evidence, the Clark Group noted changes to the exterior appearance of the buildings on San Remo Drive, including

a)         Replacement of original cedar shakes on sloped roofs with asphalt or duroid shingles;

b)         Vinyl membrane over plywood sub flooring to replace tar and gravel surface on flat roofs and balcony decks;

c)         Brown metal frame windows replaced by windows with other coloured frames;

d)         Balcony doors changed from brown metal frame to different coloured frames;

e)         Balcony railings changed from wood with picket inserts or wooden stiles to glass-walled railings with metal frames;

f)          Exterior light fixtures changed with different style of lights;

g)         Doors and windows repaired or restored with flashings, awnings, or other overhang elements;

h)         Front doors on buildings replaced with doors of various styles and colours;

i)          Addition of glass overhangs and enclosures on several houses;

j)          Roof deck walls replaced with metal framed glass railings;

k)         Replacement of trim or casing around windows and doors;

l)          Removal of wood beams over balcony door or front entry;

m)        Changes to gates and stairways;

n)         Addition of windows;

o)         Addition of accessory buildings, window boxes, and doorways;

p)         Addition or expansion to principal building by addition or increase in floor area.

6.         Changes Made by the Bertamini Group

[24]            The Clark group noted the Bertamini group (who seek to retain the building scheme and land use contract provisions) have altered the appearance of a number of their own houses, namely 531, 533, 535, 539, and 481 San Remo Drive, Port Moody.  No argument was directed to me to the contrary and indeed most of the comments are borne out by the photographs filed as exhibits.  The changes are as follows:

a)         531 San Remo Drive:

i.          Installation of asphalt shingles;

ii.          Installation of marine style light at front entry with motion detector over garage;

iii.         Alteration of wood steps in natural colour cedar stain;

iv.         Glass block wall beside front door constructed to replace original wall;

v.         Parapet stucco wall on surface of deck replaced with metal sheeting.

b)         533 San Remo Drive:

i.          Installation of asphalt shingles;

ii.          Change of balcony railings from wood lattice insert to wood picket;

iii.         Change of exterior lighting by installation of marine style light over coach light balcony;

iv.         Installation of fibreglass patio overhang at rear of house;

v.         Additional window inserted in kitchen wall facing 535 San Remo Drive.

c)         535 San Remo Drive:

i.          White trim slider doors installed on both upper and main floor levels;

ii.          White trim replacement windows installed on both upper and main floor levels;

iii.         Replacement of existing exterior lights with white glass light fixtures installed on upper level balcony;

iv.         Metal glass overhang constructed over front deck area;

v.         Additional window inserted in exterior wall in kitchen facing rear yard.

d)         539 San Remo Drive:

i.          Installation of asphalt shingles;

ii.          Replacement of existing exterior lights with white glass light fixture to replace black canister style lights;

iii.         Stucco inner roof parapet walls replaced or covered with metal flashing;

iv.         Attachment of wood/fibreglass structure to rear exterior wall of home.

e)         489 San Remo Drive:

i.          Replacement of tar and gravel roof with torch-on membrane;

ii.          Balcony railings altered by replacement of wood and wood lattice insert with brown metal and glass panel;

iii.         Balcony surface covered with vinyl membrane;

iv.         White vinyl slider door replaced with brown metal frame slider door on balcony;

v.         Brown metal windows replaced by white vinyl frames on lower balcony and rear upper story;

vi.         Window trim on upper balcony painted white; 

vii.        Black canister style lights replaced with white glass fixture on balcony and motion sensor over garage;

viii.       Front entry door replaced with semi-circular window;

ix.         Wood beams removed over entryway;

x.         Burgundy striped awing over garage main door;

xi.         Wood beam overhang removed from balcony;

xii.        Metal and glass roof added to enclosed balcony space on first floor;

xiii.       Additional slider door and windows installed on balcony;

xiv.       Removal of portion of rear wall to extend window height.

7.         Clark Group Altered Exterior Appearances

[25]            The Clark group concede they have made changes to their homes exterior appearances.

[26]            Ms. Martin, who lives at 469 Sam Remo Drive, says the various owners over the years have installed three roofs on the house since it was originally built. Now she seeks to make further changes and without same the house will sustain immediate damage.  Ms. Martin has consulted with Richard Kadulski and obtained a report dated November 13, 2006: see Martin Affidavit Number 3, Exhibit A (Tab 29).

[27]            Mr. Kadulski opens with the following lines:

The house design in this group of homes is not sensitive to the climate.  Port Moody is one of the wettest regions in Greater Vancouver, with a rainfall that is almost double that on the south and west side of the GVRD (Vancouver airport precipitation is 1199 mm per year, while in Port Moody it is 1955 mm).


Simma Holt wins leaky condo case against realtor Ada Van Leeuwen

Citation: Holt v. Thompson et al
2006 BCSC 1059
Date: 20060706
Docket: S000964
Registry: Vancouver
Simma Holt
Sonja D. Thompson aka Sonja D. Fletcher, Coronation Real Estate Services
Ltd. dba Royal LePage Coronation West Realty and Ada Van Leeuwen
David Crawford and 541012 B.C. Ltd. dba Re/Max Sabre Realty Group
Third Party
Before: The Honourable Mr. Justice Curtis
Reasons for Judgment
Counsel for the Plaintiff Aseem P.S. Dosanjh
Counsel for Ada Van Leeuwen William E. Knutson, Q.C.
Date and Place of Trial: June 7-9, 2006
Vancouver, B.C.
Holt v. Thompson et al Page 2

[1] Simma Holt has sued her realtor Ada Van Leeuwen for damages for selling
her a leaky condo. Ms. Van Leeuwen is the only defendant against which the action
proceeded to trial.

[2] Simma Holt met Ada Van Leeuwen at a real estate kiosk in the Lougheed
Mall about October or November 1998.

[3] In the fall of 1998, Simma Holt was 76 years of age. She had sold her
townhouse in Arbutus Village in 1990 or 1991, invested the proceeds and was
renting a condominium but thinking of buying one of her own. Ms. Holt is a graduate
of the University of Manitoba. She worked as a journalist for the Vancouver Sun
from 1944 to 1974, served as a member of Parliament from 1974 to 1979 and has
written four published books, the last being published in 1981. At the time she was
(and still is) continuing with her career as a writer and wanted a small conveniently
located condominium from which she would travel and pursue her writing. She had
an income of about $60,000 a year.

[4] Ada Van Leeuwen, in the fall of 1998, was a realtor working for Royal
LePage. She had worked for Sears for 25 years, taken her real estate sales course
in 1992, and her agent’s course in 1994 at UBC, and had worked since that time in
real estate sales, mostly residential. She said she liked to limit herself to 20 to 25
clients a year.

[5] When Ms. Van Leeuwen saw Ms. Holt looking at the advertising at the kiosk,
she introduced herself and asked if she could be of help. Ms. Holt told her she had
been thinking about buying a condo but was in no rush. Ms. Van Leeuwen phoned
Holt v. Thompson et al Page 3
Ms. Holt a week later and they met at McDonald’s restaurant where she gave Ms.
Holt a set of real estate listings and told her if she wanted to see any to call. They
talked on the phone and arrangements were made to view some properties. Ms.
Van Leeuwen took Ms. Holt out to Coquitlam and Maple Ridge to look at some of the
possible areas.

[6] Ada Van Leeuwen said Simma Holt told her she had heard of problems with
some of the condos and in her evidence, Ms. Van Leeuwen said, “I assured her I
would not sell her a leaky condo.” She said she took Ms. Holt to look at some of the
problem condos which were covered with tarps. Simma Holt told her she could
afford to pay $80,000 to $100,000 or maybe $110,000.

[7] Subsequently, Ada Van Leeuwen took Simma Holt to look at condominiums
in New Port Village in Port Moody. Simma Holt loved the location and made an offer
of $109,000 on a condominium that was listed for $120,000, however, that offer was
rejected. Ada Van Leeuwen testified that Ms. Holt inquired about the Heritage
Grand condominiums across the street from New Port Village and she told her, “I
have heard rumours there is a problem”, but Ms. Holt insisted on looking at them.

[8] Ms. Van Leeuwen testified she called the property management for the
Heritage Grand and was advised that there were problems with buildings 4 and 5,
but that the New Home Warranty program and Richardsons, the builders, were
taking care of it. Ada Van Leeuwen arranged to show Simma Holt condominiums in
building number 3 of the Heritage Grand, and Simma liked unit 420 which she
eventually bought and is the subject of the present law suit.
Holt v. Thompson et al Page 4

[9] The list price on unit 420 was $114,000. An offer of $106,500 was presented
and $110,000 agreed upon, as evidenced by a written contract of sale and
purchased dated February 17, 1999.

[10] Schedule A to the accepted offer reads:
Seller to provide to the Buyer within 48 hours of acceptance of this
offer the by-laws, financial statements, minutes of the past two years’
Annual General Meetings, minutes of any Extraordinary General
Meetings held during the past two years, Strata Council Meeting
Minutes for the past two years, and any Engineering Reports relating
to the Strata complex.
Subject to the Buyer reading and approving the abovementioned
documents provided by the Seller, on or before Feb 22, 1999.
This condition is for the benefit of the Buyer.
The Seller warrants that the Seller is not aware of any circumstances
that could lead to special assessments being approved for remedial
work in the Strata Complex.

[11] The seller’s disclosure statement included the following:
21. Are you aware of any structural problems with any
of the buildings on the property? YES
26. Are you aware of any leakage or unrepaired damage? YES

[12] Ada Van Leeuwen put question marks beside these two answers. She
contacted the seller’s realtor and was advised that the questions were answered yes
because buildings 4 and 5 were on the property and had such problems. She told
Simma Holt that the disclosure statement applied to the whole property and because
Holt v. Thompson et al Page 5
buildings 4 and 5 were having problems the questions had been answered yes but
the problems were being taken care of.

[13] Several days later, Ada Van Leeuwen received a large binder of the minutes
of the Strata Corporation. She testified she telephoned Simma Holt who told her she
was very busy. Ms. Van Leeuwen testified it was not her usual practice to read the
strata minutes, but to leave that to the purchaser. In this case, she told Simma Holt
she would read the minutes and put yellow stickies on the important parts. Ada Van
Leeuwen said she read the whole of the minutes which took her four or five hours.

[14] When she took the minutes to Simma Holt marked with yellow stickies and
urged her to read them, Simma said, “I am very busy” and she told her there were
important things she had to read. Ms. Van Leeuwen agreed Simma Holt told her, “I
rely on you” to which she replied, “Yes you can do that but you have to read, you are
the one making the decision.”

[15] Ms. Van Leeuwen testified, “When I brought over the minutes I told Simma
buildings 1, 2 and 3 were under investigation but the property manager told me if a
problem was found as in 4 and 5, water ingress or structural damage, both would be
taken care of by Home Warranty and Richardsons (the builder).

[16] Ms. Van Leeuwen agreed that she was acting as Simma Holt’s agent
throughout the transaction and was responsible to protect her interests. She agreed
she told Simma Holt she would do her very best to find her the right property. She
also agreed that while it was not her usual practice to read the minutes, “… in this
Holt v. Thompson et al Page 6
case I knew it was very important.” She said, “I told her I would do anything to
protect her or find the right place.”

[17] Simma Holt agreed that Ada Van Leeuwen urged her to read the minutes and
that she did read them. She said all she noticed were problems between people.
She said Ada Van Leeuwen kept telling her everything was okay. She didn’t recall
parts of the minutes being flagged for her.

[18] What the minutes of the Strata Corporation reveal is significant. In particular,
the following is found:
Report on Water Ingress Problems at LMS 2188.
301 Maude Road Port Moody
Buildings four and five appear to have more severe water ingress than
buildings one, two and three, but all five buildings have some degree of
water ingress problems. The problem of too thin stucco prevails on all
buildings in the complex.
Consultants Ltd.
June 17, 1997.)
Strata Corporation LMS
2188 Annual General Meeting
February 1, 1999
-an owner asked about the status of the report being done by
the engineering firm. The firm has completed approximately 80% of
the work, but have been held back by the weather. They wish to have
access to a few of the top floor units on buildings 1, 2 or 3 and the
manager is arranging for this. Their report should be completed shortly
after this inspection. The manager also advised that New Home
Warranty indicated that they have set a deadline for the insurance
adjusters for Richardsons (February 28/99) and they have indicated
that they would be prepared to commence work shortly thereafter.

[19] When cross-examined about what she thought when she read the June 17,
1997 Aqua-Thermal report, Ada Van Leeuwen agreed the issue was not whether
Holt v. Thompson et al Page 7
building number 3 had a problem but what the extent of that problem was. She said,
“Yes of course but it would be repaired at no cost to the owners” and that is what
she told Simma Holt.

[20] On the 22nd of February 1999, Simma Holt signed a removal of subject clause
agreement. On the advice of Ada Van Leeuwen, a holdback of $10,000 was added
to the agreement. The holdback agreement provides in part as follows:
The Buyer acknowledges being advised that certain deficiencies may
need to be repaired for the strata complex which may result in the
approval of a special assessment or assessments as the contingency
fund may not be adequate to pay the total cost or it may be decided
not to deplete the contingency fund for such deficiencies. The Seller
agrees that the Buyer’s Solicitor, shall retain in trust the sum of
$10,000 (the “Holdback”). The Holdback shall be retained by the
Buyer’s solicitor as stakeholder, to off-set any special assessments to
repair the Work (as defined below), that are passed from the date
hereof to 12 months from the date of completion of this purchase and
sale (the “Holdback Period”).

The Holdback shall be applied to any work (the “Work”) in respect of
which a special assessment is passed during the Holdback Period,
regardless or whether or not the deficiencies have been currently




[21] Ada Van Leeuwen testified that she added the holdback as extra protection
for Simma Holt. She originally suggested $20,000 but the seller would not agree to
Holt v. Thompson et al Page 8
that and $10,000 was settled upon. Simma Holt testified that as far as she knew the
holdback was simply extra protection but she relied on Ms. Van Leeuwen to advise
her how to proceed.

[22] Simma Holt used a notary recommended by Ada Van Leeuwen to do the
conveyance. The notary obtained a Certificate of Strata Corporation dated April 27,
1999. That Certificate included the following:
g) The expenses of the Strata Corporation for the current fiscal
year are expected to exceed the expenses budgeted for the
fiscal year. A special assessment may be pending.

[23] Patricia Mclean, the property manager for the Heritage Grand testified that
she phoned the notary’s office to ask her if Ms. Holt was aware of a potential special
assessment. The Notice however refers to budgeted expenses not repair costs.
The notary did not testify. By the 27th of April 1999, Simma Holt was already legally
bound to complete the purchase.

[24] The closing date was May 1st, 1999. Simma Holt moved in May 3rd and
immediately left for a trip planned earlier. When she returned from her travels on
May 11th, she found under her door a Notice of an Extraordinary Meeting of the
Strata Corporation disclosing a proposed special assessment for water damage. In
the end, she paid special assessments of $31,280.08 and $9,384.02. An action
against the municipality recovered $16,136.14 for her with the result that she was
out of pocket $24,527.96. After the $10,000 holdback is applied, her loss was
$14,527.96. In addition, of course, there was the disruption caused by the repair
work which started in May 2000.
Holt v. Thompson et al Page 9

[25] On top of the financial and construction problems, Simma Holt testified she
had severe problems caused by the damp and mould in her unit. She said she never
really unpacked and lived in about 150 square feet of her condo. She encountered
coughing, breathing and eye problems that were so bad she often had to leave at
three or four in the morning and stay with friends or go to her property in
Washington. She tried working with a mask and could not. For a period of time she
rented an office downtown near the Burrard bridge which cost her $514.93 per
month. She also was short of money from paying the special assessment and fell
behind in her payments to Revenue Canada resulting in assessments and penalties
she estimated to be $17,000. She sold the condominium in 2004 for $180,000. She
summed up her experience as “I feel my life and my career were taken from me,
perhaps a death sentence, terrible cough, from the mould.”

[26] New Home Warranty went bankrupt in or about March 1999 and the builder
similarly failed such that no funds or assistance was available from either source.

[27] Ada Van Leeuwen testified she acted reasonably in not warning Simma Holt
not to complete because it was reasonable at the time to believe the New Home
Warranty program would cover the potential problems, although she agreed she was
not familiar with the terms of the New Home Warranty coverage.

[28] The position of Simma Holt is that she relied on Ada Van Leeuwen as her
realtor to protect her interest. Ada Van Leeuwen had told her she would not sell her
a leaky condo and that she was properly protected. The position of Ada Van
Leeuwen is that she had informed Simma Holt of the issues, took reasonable steps
Holt v. Thompson et al Page 10
to protect her interest and Simma Holt knowingly took the risk of buying the

[29] I find Ada Van Leeuwen failed in her duty to her client Simma Holt. She told
her she would not sell her a leaky condo and that is exactly what happened in
circumstances in which Ada Van Leeuwen either knew or ought to have known the
condominium had significant water ingress problems. Ada Van Leeuwen was well
aware of Simma Holt’s desire to rely on her judgement in the matter. I find it unlikely
that Ada Van Leeuwen fully discussed the specific concerns raised in the minutes
with Simma Holt. I am satisfied that if Simma Holt had properly appreciated those
issues, she would not have proceeded with the purchase. Having told Simma Holt
she would not sell her a leaky condo and would protect her interest, Ada Van
Leeuwen had a duty to make the specifics of the risk Simma Holt was undertaking
very clear to her, not just to urge her to read the minutes when she knew Simma
was very busy and not inclined to. Furthermore, Ada Van Leeuwen had decided that
it was safe to rely on the New Home Warranty program, yet she was unfamiliar with
its terms and did not fully explain the nature of this reliance or its risks to Simma
Holt. Ada Van Leeuwen told her the property manager had said that if the problems
were water ingress or structural damages, they would be taken care of by the builder
and New Home Warranty without discussing how reliable such representations
might be. I find Ada Van Leeuwen negligently misrepresented to Simma Holt the
state of the condominium being purchased, and that her interests were properly
protected when they were not. I also find that Simma Holt was reasonably relying on
the advice of Ada Van Leeuwen who had encouraged her to do so. I find Ada Van
Holt v. Thompson et al Page 11
Leeuwen liable for the damages caused to Simma Holt by her negligent

[30] I do not find the claims for renting the downtown office space to have been
proven to be caused by the defendant’s negligence. Simma Holt testified she chose
the location because she wanted to be near the library and needed a convenient
location to do interviews. Nor do I find the claim for tax penalties and interest
recoverable – there is no evidence why Simma Holt did not use some of her savings
to pay her taxes.

[31] The construction which started around May 2000 obviously caused significant
inconvenience. There is no medical evidence that Simma Holt’s health problems
were caused by the wet conditions and mould in her unit, in the absence of which I
am not persuaded that element of her claim has been proven. Simma Holt is
entitled to damages for inconvenience and difficulties caused by having purchased a
leaky condominium. I assess Simma Holt’s claim for general damages for
inconvenience and the disruption to her life proven to have been caused by the
purchase of a condominium she would not have purchased if properly informed at

[32] I find Ada Van Leeuwen liable to Simma Holt for the balance of the special
assessments not recovered, namely, $14,527.96 plus general damages in the
amount of $5,000.
Holt v. Thompson et al Page 12

[33] The parties may address the issues of costs.
“V. R. Curtis J.”