IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         This is an archetypical case of buyer’s remorse. On May 31, 2019, the Claimants, Emmeline Van Geemen and Kevin Van Geemen, purchased a residential property located at 4294 Hanet Road, Prince George, British Columbia. It was a 43 year-old residence on two and one-half acres on the banks of the upper Fraser River. The Claimants say the seller, Eric Stevenson, misrepresented the condition of the Residence when he sold it to them. Specifically, they complain that Eric Stevenson failed to disclose a bat colony that had taken up roost in the cathedral ceilings. The Claimants had no issue with the bats who lived peacefully outside in their bat houses, but recoiled from sharing their inside space with the flying mammals.

[2]         The Claimants do not allege fraud, but contend that Eric Stevenson was negligent in failing to take reasonable care in his efforts to evict the bats from inside the Residence. The Claimants argue that Eric Stevenson knew or ought to have known his efforts in this regard were inadequate and this lack of attentiveness created a substantial danger to the health and safety of its occupants, present and future. The Defendant says he used his best efforts to prevent the bats from penetrating the building envelope and never saw a bat inside the Residence.

[3]         The Claimants called the following witnesses:

[4]         The Defendant called the following witnesses:

[5]         The parties introduced the following documents which were marked as exhibits at trial:

[6]         The Claimants and Eric Stevenson provided Court with closing submissions and the following authorities:

[7]         I have read all the cases and thank the parties for bringing them to my attention. The Claimants have framed their caused of action as the common law tort of negligent misrepresentation, although they could also have pled breach of contract. I note that the cases from the Court of Quebec are decided in relation to Article 1726 of the Civil Code of Quebec. The cases from the Manitoba Court of Appeal and Saskatchewan Court of Queen’s Bench deal principally with the tort of fraudulent misrepresentation. This Court is bound by the decisions of the Supreme Court of Canada and British Columbia superior courts. Nixon v. MacIver, 2016 BCCA 8, is the governing authority in this province on the tort of negligent misrepresentation arising in the context of a contract for the purchase and sale of a residence incorporating by reference a disclosure statement. This is the case before me.

[8]         Eric Henry Stevenson (“Eric Stevenson” or the “Defendant”) is a heavy duty mechanic who lives and works on Vancouver Island. His partner is Hannah Clare Watler (“Hannah Watler”).

[9]         In December 2014, Eric Stevenson purchased the lands and premises situated at 4294 Hanet Road, Prince George, British Columbia, legally known and described as: Lot 21, District Lot 808, Cariboo Land District, Plan PGP 20832; PID: 003-871-321 (the “Property”). Eric Stevenson acquired the Property in a Court-ordered sale after the bank had foreclosed on its mortgage. He paid the full listing price for the property and did not obtain a professional house inspection. Thus, Eric Stevenson learned very little of the Property’s antecedents.

[10]      The Property was the first time Eric Stevenson lived in a home he owned. Previously he lived in a rental unit in Prince George, BC, and elsewhere.

[11]      The residence (the “Residence”) situated on the Property was built in the mid-1970s and architecturally interesting. It has a basement and two upper floors. It was panelled inside and out with cedar. The main floor is comprised of a living room, dining area, and embryonic kitchen. The next level consists of two “mid-level bedrooms.” Eric Stevenson created a third bedroom by relocating the laundry facilities to the basement. The upper floor includes the master bedroom, ensuite bathroom, a hallway, foyer and sunroom.

[12]      Eric Stevenson moved onto the Property in early 2015. His partner, Hannah Watler, joined him in May 2015. They say the Property was a “spectacular place to live” situated on a large beautiful lot on the upper Fraser River within the municipal boundaries of the City of Prince George, BC.

[13]      Although it had been well built, the Residence was unfinished, neglected and rundown. It required a lot of work but was still liveable. The Residence was originally constructed with a cedar shake roof which leaked profusely. Consequently, the cedar panelling and fibreglass insulation were heavily stained from water damage. Five years prior to Eric Stevenson acquiring the Property, the previous owners replaced the shake roof with a metal one.

[14]      At some point the previous owners stopped paying their mortgage and abandoned the Residence. When Eric Stevenson moved in, he had to purge it of field mice. He succeeded in doing so fairly quickly with the assistance of his cat and mouse traps. Thereafter, the mice lived outdoors.

[15]      Over the ensuing years Eric Stevenson repaired and upgraded the Residence. He considered himself a “Do-it-Yourself” carpenter and undertook most of these renovations himself with the assistance of his father and brother. When the task was beyond his skill set, Eric Stevenson hired professional tradespeople.

[16]      Eric Stevenson’s improvements to the interior of the Residence include the following:

[17]      Eric Stevenson also made significant improvements to the outside of the Residence and Property, including:

[18]      Eric Stevenson worked on the house continuously for four and one-half years. Hannah Watler testified he spent all of his free time maintaining and renovating the Residence. Emmeline Van Geemen glibly characterizes Eric Stevenson’s improvements as “cosmetic” - “lipstick on a gorilla” - slapped on to flip the Property for a quick buck. I find her derision unwarranted. Clearly, the Residence was a “fixer upper”. Although Eric Stevenson had invested much time, labour and money repairing and renovating the Residence, by the spring of 2019, there was still much work to be done.

[19]      When Eric Stevenson acquired the Property there were two bat houses attached high on the rear wall of the residence. The reasons for these accessories became evident in the late spring when the Property was teeming with mosquitos. Bats have a voracious appetite for flying insects.

[20]      Initially, Eric Stevenson knew very little about bats. When he moved into the Residence in 2015, he had no reason to suspect that any bats had entered or inhabited the Residence. He noticed the bats arrive in late spring, after the mosquito hatch, and then migrate south in the late summer or early fall. The bats roosted in their bat houses and feasted on the swarms of mosquitos which infested the Property. Eric Stevenson and Hannah Watler lived harmoniously with the bats and regarded them as an ecological asset.

[21]      In the fall of 2016, Eric Stevenson decided to replace the exterior siding on the south side of the sunroom which had cupped and curled. He was concerned the siding was so damaged it would no longer protect the Residence from the elements. The exterior walls had a unique assembly. From the inside out they consisted of: (1) the interior wall; (2) plywood; (3) tar paper; (4) spray Styrofoam; (5) strapping; and (6) exterior cedar siding.

[22]      While engaged in this project, Eric Stevenson discovered what he suspected was old and dried guano inside the exterior siding. There was not a significant amount and he did not encounter any bats. From what he observed, Eric Stevenson believed that at some time in the past the bats had roosted in the gaps in the spray foam immediately behind the exterior siding. Eric Stevenson did not see any opening which would allow the bats to penetrate the interior walls. He cleaned up the guano with a shop vacuum and replaced the sun-damaged siding. Thereafter, Eric Stevenson routinely inspected the exterior of the Residence for any openings or access points and sealed them with foam and mortar.

[23]      In his efforts to prevent the infiltration of rain water, Eric Stevenson removed and replaced the most weathered portions of the exterior cladding. This included the siding on the sunroom, along the upper roof, and around the electrical panel. He found no evidence of bat activity beyond the guano he uncovered in the fall of 2016 when replacing the sunroom siding.

[24]      Sometimes Eric Stevenson would monitor bat activity at dusk. He never detected any sign of the bats entering or inhabiting the Residence. On the contrary, he observed the bats tucked inside their designer bat houses and the guano which fell onto the roof of the lean-to below.

[25]      In the fall of 2017, Eric Stevenson turned his attention to the master bedroom, and its ensuite bathroom, which he described as “gross”. The ensuite was dated. It still had its original linoleum, all of the tiles were chipped and there was no trim. As the ceiling and walls were heavily water-stained, Eric Stevenson wanted to inspect the integrity of the insulation. To that end, he removed most of the cedar ceiling boards in the master bedroom revealing a plastic vapour barrier covering the fibreglass insulation installed between the trusses on the underside of the roof. The insulation was badly discoloured from the ingress of water before the shake tile roof was replaced.

[26]      In the course of removing the cedar planking from the master bedroom, Eric Stevenson uncovered a handful of desiccated guano. He inspected the vapour barrier and roof insulation, and satisfied himself there was no recent indoor bat activity. He vacuumed up the guano and threw it on yard. He considered it benign.

[27]      Although a few of the cedar boards Eric Stevenson removed from the ceiling were stained with guano, 95 percent of them were “completely fine.” Eric Stevenson used the clean boards for trim and the stained ones for kindling. Eric Stevenson did not consider the guano a health hazard because he believed it was non-toxic and made excellent fertilizer.

[28]      Eric Stevenson suspected the guano he found in the ceiling of the master bedroom was from bats which had gained access to the interior via the attic. He crawled through the attic with a black light to investigate his theory. He carefully searched for entry or exit points, paying particular attention to the ends of the gable and trusses. He pulled back the edges of the insulation and vapour barrier and inspected the roof cavity. These investigations produced no further evidence of bat activity. Eric Stevenson concluded the guano he found in the ceiling was old and there were no bats currently living inside the Residence.

[29]      The handful of dried guano in the master bedroom ceiling in 2017 was the last time Eric Stevenson observed any signs of indoor bat activity. Neither he nor Hannah Watler ever saw a bat inside the Residence; they never saw a bat enter or exit the Residence. They never heard or saw anything to suggest bats were roosting in the ceiling. Their cat and dog never behaved in any way to indicate there were bats inside the Residence. Yet, in “Got Bats?,” the authors state that predation by house cats is the primary cause of bat mortalities reported to the BC Community Bat Program:

[30]      Eric Stevenson never finished or occupied the master bedroom suite before selling the Property in May 2019. It remained a “dead space”, used primarily to wash the dog in the ensuite bathtub. As they had a choice of three finished bedrooms Eric Stevenson and Hannah Watler did not regard renovating the master bedroom a priority. Still, Eric Stevenson would go into the room from time-to-time to inspect the plumbing to ensure it was not leaking.

[31]      Despite having worked continuously on or about the Residence for four and one-half years, Eric Stevenson only encountered what he assumed were signs of bats having infiltrated the building envelope on two occasions: (a) in the fall of 2016 when he replaced the exterior siding on the sunroom and; (b) in the summer of 2017 when he removed the cedar planks from the ceiling of the master bedroom. He says he did his best to remediate and monitor the situation, and in the subsequent years had “zero problems” with bats.

[32]      In 2015, 2016, and 2017, Eric Stevenson observed the bats returning to the Property between late May and mid-June. The bats only appeared once the mosquitos hatched. He says that in 2018, there were significantly fewer mosquitos on the Property than in previous years. Eric Stevenson attributed this anomaly to the City’s larvicide program and to his removing a swathe of bush in close proximity to the Residence. Whatever the reason, there was a low mosquito density on the Property in the summer of 2018, and hence, few if any bats.

[33]      In 2018 and 2019, Hannah Watler was working on a Master’s degree in social work at University of Northern British Columbia. She spent three to five hours per day on her studies, using the sunroom as her office and worksite. The sunroom is on the same level as the master bedroom. Hannah Watler sometimes worked into the evening. She never saw or heard anything to cause her to believe there were bats inside the Residence.

[34]      Hannah Watler’s close friend and colleague, Patricia Alverado, visited Hannah Watler at the residence at least ten times, mostly in summer. She never heard or observed anything to suggest the Residence was infested with bats.

[35]      In September 2018, Hannah Watler began working with the Vancouver Island Health Authority and she and Eric Stevenson decided to relocate to the Island. In late April 2019, they decided to sell the Property. It was a difficult decision because they loved living on the Property. Also, Eric Stevenson enjoyed his current job in Prince George.

[36]      On April 26, 2019, Eric Stevenson listed the Property for sale with Ari Carleton, a realtor with Remax City Centre Realty in Prince George. It was posted on the MLS website on April 29, 2019. Eric Stevenson had listed the property for $369,000. In settling on this amount Eric Stevenson took into consideration the fact the Residence was unfinished and obviously needed work. The listing described the Residence as follows:

[37]      The MLS listing included photographs of the Property and Residence, including one of the unfinished master suite.

[38]      Eric Stevenson left the ceiling of the master suite uncovered so the purchasers could clearly see the state of the vapour barrier and stained insulation. In the yard, he left behind a stack of cedar planks he had removed from the master bedroom ceiling, including a few bearing guano stains.

[39]      As part of the real estate listing, the Eric Stevenson signed a Property Disclosure Statement (“PDS”) on April 26, 2019. The PDS includes an information page which does not form part of the disclosure statement. On Page 1, the PDS states:

[40]      On April 26, 2019, Eric Stevenson responded “no” to the following questions

[41]      The PDS also included the following statement on page 3:

[42]      The MLS listing attracted a number of interested buyers, including the Claimants, Emmeline Van Geemen and Kevin Van Geemen. Emmeline Van Geemen is 34 years old, a licenced practical nurse and community volunteer. Kevin Van Geemen is a commercial truck driver.

[43]      In 2018 Emmeline Van Geemen and Kevin Van Geemen lived in rental accommodations in Prince George, BC. At the time, they had no children. In 2019 they began looking to purchase their first home. The Claimant hired Tim Higham, a realtor with ReMax in Prince George, to help them find the right property and to handle its purchase. They viewed ten or more houses, but none were remotely suitable. Emmeline Van Geemen saw the MLS listing for the Property shortly after it appeared online in late April 2019. The Claimants arranged to view the Property on May 1, 2019. When they arrived other interested buyers were already viewing the Property.

[44]      The Claimants were smitten by the Residence and its isolated location on the banks of the upper Fraser River. Emmeline Van Geemen found the Property stunning. Kevin Van Geemen said he was “shaken” when he first viewed the Property. Having a river in his front yard was a dream of his ever since he learned “you could have a river in your front yard.”

[45]      Emmeline Van Geemen described the Residence as “old and dated – very dated.” The mechanical systems, although functional, were “slightly derelict.” The Residence was “not dirty, but not clean”, at least to her standards. Although much of it had been newly renovated, the basement and the master bedroom remained unfinished. The ceiling in master bedroom was exposed; the ensuite “gutted.” The Claimants noticed the insulation and vapour barrier in the master bedroom were heavily stained and in some areas, shredded. Emmeline Van Geemen testified, “They were not hiding it at all.” As the Residence was sparsely furnished the Claimants’ view of the floor, walls and ceiling was largely unobstructed. Obviously, they could not see what lay behind the walls or the enclosed portions of the ceiling.

[46]      Despite its shortcomings, the Claimants thought the Residence was “beautiful.” They made an offer to purchase the Property for $364,500, subject to: (a) financing; (b) inspections; (c) receiving and approving a water potability test; (d) inspection of the quantity and quality of the water supply; (e) inspection of the waste water treatment system; and (f) receipt of the property disclosure statement. The Claimants had until May 15, 2019, to remove the “subject to clauses” in the contract of purchase and sale.

[47]      The Claimants did not put into evidence the Contract of Purchase and Sale. They did however, mark the PDS as part of Exhibit 3.

[48]      Jody Hunter inspected the property on May 9, 2019, between 8:30 a.m. and 11:30 a.m. and produced the Inspection Report marked Exhibit 2. She indicated at the time of her inspection, the Residence was occupied and furnished, and the buyer (Kevin Van Geemen) was present at the end of the inspection. Her report was damming. Jody Hunter pointed out a plethora of deficiencies to the Residence which could be expensive to repair or investigate, or conditions that required further evaluation before an assessment could be made. Jody Hunter met with Kevin Van Geemen on the Property and pointed out all of the deficiencies she had identified. She provided the Claimants with her written Inspection Report later that evening. Her “non-exhaustive” list of deficiencies and recommendations include:

[49]      Jody Hunter could not inspect all of the plumbing because she thought the water supply was turned off to the basement bathroom fixtures, laundry tub and master bathroom which were under renovations. Accordingly, she did not test the laundry facilities and dishwasher. Jody Hunter’s inspection of the Residence was further limited by her inability to: (a) reach the highest section of roofing: (b) inspect areas concealed by walls and ceilings; and (c) access the roof space.

[50]      On November 11, 2019, Jody Hunter stated in her correspondence to the Claimants:

[51]      The Claimants carefully reviewed Jody Hunter’s Inspection Report and digested its dire news. They opted to follow Jody Hunter’s advice and retained a number of professionals and trades people to inspect the Property, including:

[52]      Eric Stevenson agreed to extend the time in which the Claimants had to remove the subject clauses to May 16, 2019, to accommodate Blockbuster’s inspection of the waste water system. Eric Stevenson also authorized some invasive testing both inside the Residence and outside in the yard. Ultimately, the Claimants did not remove or test any sample of the stained insulation. Eric Stevenson refused to extend the subject to financing date to allow the Claimants time to negotiate a “purchase plus” mortgage to finance the repairs and improvements they sought necessary or desirable.

[53]      The Claimants wanted to conduct even more inspections than they could arrange in the time permitting. This included retaining an electrician and building envelope specialist and conducting a water potability test. Eric Stevenson balked at giving the Claimants further access to the property just three days before the possession date to take a water sample. By that time, the Claimants had already removed the subject clauses and Eric Stevenson and Hannah Watler were readying themselves to surrender possession of their home.

[54]      The Claimants said that upon receiving the Inspection Report, they would have “backed out”, but for the encouragement they received from the people who inspected the Residence. Emmeline Van Geemen said, “Everyone had good news for us.” They assured the Claimants the roof looked intact and the stains were dry. The consultants opined the pervasive staining throughout the Residence was the result of water ingress prior to the shake tile roof having been replaced with a metal one.

[55]      The Claimants reservation about proceeding with the purchase was assuaged by the “overwhelming positive things” people had to say about the Residence. Still, the Claimants estimated there was $30,000 to $40,000 worth of work that needed to be done. This amount covered urgent repairs alone and did not include the cost of upgrades or improvements. The Claimants sought to negotiate a reduction in the purchase price. Eric Stevenson was not prepared to reduce the price more than $5,000 because he had already factored the deficiencies into the original MLS list price. But for the deficiencies, Eric Stevenson would have listed the Property for $500,000, not $369,000. His realtor, Ari Carleton testified that had the master bedroom been renovated, the Property would have listed to $20,000 to $30,000 more.

[56]      Before removing the subject clauses on the Contract of Purchase and Sale, the Property had been viewed, assessed and inspected by a host of people, including a building inspector, an engineer, realtors, trades people, friends, and of course, the buyers and sellers themselves. All of these people, except the plumbers, went into the master bedroom. Before the possession date the Claimants had been on the property four or five times; Tim Higham had been there twice, and Ari Carleton, six to ten times. Eric Stevenson lived in the Residence continuously and Hannah Watler, intermittently. No one observed any sign of a bat infestation inside the Residence.

[57]      Ultimately, the Claimants removed the subject clauses and completed the purchase of the Property for $10,000 less than the list price. They took possession on May 31, 2019.

[58]      Eric Stevenson lived at and worked on the Residence until he surrendered its possession to the Claimants on May 31, 2019. Prior to relinquishing the keys, Hannah Watler did one final walk through the Residence to say goodbye to her home of several years. She did so in the company of her friend, Patricia Alverado. None of Eric Stevenson, Hannah Watler nor Patricia Alverado heard or saw any sign of bat activity inside the Residence. Hannah Watler even left the new owners a note with helpful information about the Residence and Property and the neighbourhood. She told them about the leaky cold-water valve in the laundry sink in the basement.

[59]      May 31, 2019, was a particularly hot spring day and the mosquitos were out in full force. Emmeline Van Geemen says that she had no idea how bad they were prior to taking possession of the Property, because at the time of the inspections, the mosquitos had not hatched.

[60]      The day they moved in the Claimants noticed a sprinkle of small black droppings on the floor in southeast corner of the master bedroom by the wall under the peaked roof. They thought it was mouse feces and put down traps and invited their cat into the room.

[61]      I pause to note that in “Got Bats?” the authors state that whereas mouse droppings are scattered, bat guano form piles. Guano crumble when crushed into tiny, dry flecks and contain shiny bits of insect exoskeletons whereas mouse droppings have vegetative matter and do not crumble.

[62]      Two of Emmeline Van Gleemen’s friends toured the Residence shortly after the Claimants took possession. In the late morning of May 31, 2019, Linda Stewart accompanied Emmeline Van Geemen to the Residence. When she entered the master bedroom she noticed what she thought was “mouse poop” on the floor. She did not notice it in any other room.

[63]      Erin Waye drove from Edmonton to Prince George to share with the Claimants the exciting first days in their new home. She also saw the black droppings in the master bedroom because the Claimants warned her to watch her step. Emmeline Van Geemen testified that six people helped move the Claimants into the Residence. All received a tour; all saw the small black droppings in the master bedroom; all agreed the Claimants’ little rescue cat could take care of the problem. Although the windows were tightly shut, no one detected anything particularly malodorous. The house did not smell of animal waste or even cleaning agents.

[64]      At the end of the day on May 31, 2019, the Claimants hosted a barbeque for their helpers. Emmeline Van Geemen did not see any bats and Erin Waye saw one. Kevin Van Geemen says he went for a walk with his friend Nat at dusk, who pointed some bats flying over-head. The Claimants were not concerned. They thought bats ate a lot of bugs, were good for the ecosystem, and “very cool”.

[65]      The Claimants’ enthral with the Residence unravelled as the lived with the reality of its defects, including:

[66]      Near the end of June 2019, Kevin Van Geemen removed one of the ceiling boards in the ensuite bathroom. Feces rained down on him. The Claimants still believed they had a mouse problem, although they never actually saw a mouse in the residence and their cats did not catch any.

[67]      In early July, the Claimants hired Eric Moore of Eric Reno’s to install an electric fireplace and chandelier in the master bedroom. He started this project on or about July 8, 2019. His first task was to replace the cedar tongue-and-groove planking on the intended feature wall with fire-retardant drywall. When removing the cedar boards, Eric Moore found what he identified as rodent feces in the walls. He thought deer mice had moved in and were running amuck. He alerted the Claimants to the problem.

[68]      The Claimants had enough of the mysterious mice which would never show themselves and deftly eluded the traps and cats. They arranged for Timothy Garvin of 1st Defence Pest Control to deal with the pests. Timothy Garvin attended at the Residence in mid July 2019. Upon arriving and learning the droppings were on the upper floors. Timothy Garvin told the Claimants they did not have a mouse problem, they had a bat problem.

[69]      Timothy Garvin warned Emmeline Van Geemen as to the perils of bats inside the Residence. He told her bats could carry rabies and their guano was toxic. He persuaded the Claimants that guano was akin to asbestos in that it was not dangerous until disturbed. They learned guano can contain fungal spores which cause histoplasmosis, a species of lung infection. Tim Garvin gave the Claimants some advice on evicting bats and offered to perform this service for $225 per hour. He quoted a total of $5,775 for remediating the master bedroom alone.

[70]      Eric Moore overheard Timothy Garvin’s discussions with Emmeline Van Geemen. Although he knew nothing of bats, Eric Moore was an experienced carpenter and level one building inspector. He offered to carry out the remediation and exclusion work for $75 per hour, which was a third of Timothy Garvin’s rate. The Claimants accepted Eric Moore’s offer and diverted his attention from the installation of the fireplace to remedying the bat problem.

[71]      Eric Moore and the Claimants proceeded with the remediation project on the premise that bats and guano inside a Residence posed a grave danger to human beings and pets. Specifically, they feared that live bats could infect them with rabies, which is lethal, and guano could carry fungal spores which cause histoplasmosis.

[72]      The Claimants began educating themselves about bats. They obtained the “Got Bats?” handbook online. They contacted the BC Conservation Services, and learned that bats are a protected species under the Wildlife Act. The officers cautioned the Claimants against harming the bats, but could offer no assistance in rehoming them. The Claimants sought advice and direction from the BC Community Bat Program, a network of community bat projects established in 2014 in partnership with the Ministry of Environment. The goal of this provincial “Got Bats?” network is to:

[73]      The BC Community Bat Program is concerned that a number of bat species are vulnerable to extirpation. A female bat has only one pup per year which has only a 50 percent chance of surviving its first winter. Bat populations are being decimated by habitat loss, wind turbines, restricted distribution, susceptibility to white-nose syndrome, and predation. Hence it is illegal to kill, poison, trap, exterminate, or harass bats or evict them from their roost during the maternity season from May 1 to September 1.

[74]      In July 2019, Eric Moore removed the cedar panelling from the ceiling in the master bedroom. He uncovered various concentrations of guano and urine. At first the Claimants wanted to refinish and reinstall the cedar boards, but it became too expensive to pay Eric Moore $75 per hour to do so. Although the Claimants loved the cedar ceiling, it became less costly to simply tear out the boards and replace them with gyprock.

[75]      Eric Moore said that on one occasion when removing the insulation above the vapour barrier, a bat flew out. He was surprised to see it and wondered why it was there, as the rest of the colony had already migrated to its winter habitat. I gather the bats were generally confined to the space between the roof and insulation and could not access the human living area.

[76]      One evening the Claimants went outside the Residence at dusk. They turned off every electronic device in the Residence. They could hear the bats before they saw them. They observed a “swarm of bats spewing out from the gutters” of the house in a wave from the peak of the sunroom roof. They counted 85 in total. Although it was too dark to photograph or videotape the bats, the Claimants concluded they emerged from the southeast roof area of the sunroom where the soffit and gutters meet. The Claimants went on to identify two secondary exits from which the odd bat emerged.

[77]      The Claimants believed the bats had penetrated the building envelope and had nested in the ceiling above the insulation and vapour barrier. Still, they never saw any live bats inside the Residence. As discussed, Eric Moore saw only the one live bat in the house, although he did discover the carcass of a mummified bat amid the guano. The Claimants mailed the mummified bat carcass to the BC Bat Community, but never learned its species. Emmeline Van Geemen describes the bat as incredibly light, as though it were hollow.

[78]      The Claimants and Eric Moore embarked on a mission to dislodge the bats. In 2019, after the bats migrated south in early August, the Claimants began the exclusionary work necessary to seal the Residence to prevent their return. The remediation work took five months. Eric Moore testified the project proceeded slowly because the Claimants were having difficulty paying him in a timely manner.

[79]      The Claimants followed the recommendations of “Got Bats?” on evicting and excluding the bats. This project is labour intensive because bats are extremely small. They can squeeze through spaces as small as 5 mm (¼”). Moreover, bats can be very persistent in finding alternate routes into buildings once their primary routes are blocked off: “Got Bats?” p. 14.

[80]      The Claimants’ remediation work included:

[81]      The Claimants estimate their expense for remediating the bat problem was $33,036.19 allocated as follows:

[82]      The Claimants discovered the stack of cedar boards Eric Stevenson had left them. Some of the boards showed what Emmeline Van Geemen believed to be guano staining. She said “it felt malicious” and made her want to take action. The Claimants did not keep the cedar boards, but rather hosed them off and gave them away.

[83]      On January 17, 2020, the Claimants filed a Notice of Claim against Eric Stevenson in the amount of $33,332.19, inclusive of filing fees and service fees. The Claimants say they were denied the right to enjoy their new home because of “his bats” – “his” meaning Eric Stevenson’s. The Claimants say they suffered financially, emotionally, and physically from the moment they took possession of the Residence until the bats had been “professionally removed.” Their financial strain and emotional suffering persists.

[84]      On February 12, 2020, Eric Stevenson filed a Reply disputing the Notice of Claim in its entirety.

[85]      Although he does not contest the Claimants found guano in the ceiling, Eric Stevenson says the real reason they tore it apart was to replace the old stained fibreglass insulation with new foam insulation pursuant to Tomas Horalek’s recommendations. When they ran out of money, the Claimants had Eric Moore remove and replace the cedar ceiling boards with gyprock. The costs the Claimants say they incurred were far in excess of what was reasonable or necessary to remediate the bat problem.

[86]      Eric Stevenson argues the Claimants are seeking reimbursement for renovations undertaken to improve the Residence to a state well beyond that which they bargained for. In essence, he argues the sums the Claimants seek would constitute a windfall or betterment. Specifically, the Claimants have, (a) replaced the old discoloured insulation with a new and superior product; (b) installed a ceiling in the master bedroom where there was none; and (c) replaced the old water-stained cedar with new gyprock.

[87]      In Roberts v. Hutton, 2013 BCSC 640 (CanLII), Justice Davies noted that generally, damages for negligent misrepresentation in a residential real estate transaction reflect any difference between the price a successful claimant actually paid for the property and that which should have been paid if the impugned representations were true. Damages for the investigation, replacement or repair of the items in issue are applicable to breaches of warranty, rather than negligent misrepresentation. Also see:  Beacock v Moreno, 2019 BCSC 955 (CanLII), citing Zorzi v. Barker, 1957 CanLII 284 (BC CA) and Sorensen v. Kaye Holdings Ltd. (1979), 1979 CanLII 621 (BC CA). Of course, any issue as to the measure of damages is only triggered if the Court allows the claim.

[88]      Both parties in these proceedings were self-represented. They did a commendable job in assembling their evidence and presenting their case. Occasionally, they attempted to adduce inadmissible evidence, which I will ignore. The court does not expect self-represented litigants to be familiar with all the exigencies of the rules of evidence. Although these rules are sometimes abridged in small claims litigation, they still govern the admissibility of evidence. For this reason, it is necessary to consider the relevant sections of the Small Claims Act and the Small Claims Rules.

[89]      Sections 2 and 16 of the Small Claims Act, RSBC 1996 c. 430 provide as follows:

[90]      Rule 10 of the Small Claims Rules provides in part as follows:

[91]      Although the rules of evidence are often applied in a flexible manner in small claims proceedings, they still play a critical role in protecting procedural fairness: Recently, in Izzard v. Hopkins, 2021, BCPC 35 (CanLII), Judge J. P. MacCarthy states:

[92]      The evidentiary issues which caused me some consternation in this case was the use and misuse of opinion evidence. Typically, only properly qualified experts may provide opinion evidence, and only about matters of fact, not about legal issues: R. v. Graat, 1982, CanLII 33 (SCC). In J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308, leave to SCC ref’d 2018 CanLII 11146, Justice D. Smith, on behalf of the appellate court, reiterated the test established by the Supreme Court of Canada for admissibility of an expert’s opinion as follows:

[93]      Each party sought to call an expert witness. On October 23, 2020, at a Pre-Trial Conference, Judge Keyes made a consent order permitting the parties to tender expert evidence at trial by way of written reports and interrogatories.

[94]      The Claimants have provided the Inspection Report of Jody Hunter of J. Hunter, together with her curriculum vitae and answers to interrogatories: Exhibits 2 and 11. Jody Hunter is a home inspector operating a business “J. Hunter Inspection Services Ltd.” in Prince George, BC. Jody Hunter is licenced with Consumer Protection BC. I accepted Jody Hunter as an expert qualified to provide opinion evidence on visible residential home inspections. I accepted into evidence the Inspection Report dated May 9, 2019, and marked Exhibit 2 in these proceedings.

[95]      Eric Stevenson tendered a report of Riley Waytes on bats in British Columbia, together with his curriculum vitae and answers to interrogatories posed by the Claimants. I accepted Riley Waytes as an expert qualified to provide evidence on the terrestrial ecology of bats in British Columbia. As he did not attend at or inspect the Residence, I do not accept his opinions specific to the bats habituating on the Property.

[96]      Both parties also tendered into evidence Craig J., M Sarell and S. Holroyd’s, 2014 handbook, “Got Bats BC Community Bat Project Frequently Asked Questions,” featured on BC Bats website. I found this source material relevant, credible, and trustworthy, and admitted it into evidence pursuant to Rule 16 of the Small Claims Rules. It is, however, simply a guide on managing bats in buildings not a legislative pronouncement.

[97]      The realtors involved in the purchase sale of the Property were Tim Higham and Ari Carleton, both of whom testified at trial. They too were also asked to provide opinions on various issues in their direct evidence or cross-examination. Some of those opinions I found helpful, others, not so much. I do accept as significant the fact that neither realtor noticed any sign of a bat infestation when they attended at the residence in the spring of 2019.

[98]      The opinion evidence I found most troubling was from Eric Moore, who admitted he knew nothing of bats, and Timothy Garvin, who did not attend court or testify at trial.

[99]      I accept Eric Moore tackled the remediation project from the perspective that bats are inherently dangerous creatures and their guano is potentially lethal if disturbed. This perspective informed his view the Residence had to be stripped of any inside materials with which the bats made contact. He considered these materials contaminated and treated them as biohazardous waste.

[100]   Although I accept this was his belief, it is not one shared by the learned authors of “Got Bats?” who state that health concerns associated with bats in buildings is a general misconception of many landowners. They opine the first and best option for the bats is to allow them to remain in their existing roost and prevent bat-human contact by ensuring that all openings between the bat roost site and human living quarters are properly sealed. Homeowners are entitled to bat-proof the human living space by providing interior seals at any time of the year. “Got Bats?” goes on to state:

[101]   The Claimants have also tendered a letter from Tim Garvin dated August 22, 2019. The letter identifies Tim Garvin as a “Senior Technician” of “1st Defence Pest Centred Services.” Tim Garvin purports to offer opinion evidence as to the existence and pre-existence of a bat colony in the insulation between the roof of the Residence and the cedar panel ceiling. Tim Garvin did not testify at trial; he did not provide a curriculum vitae; he did not respond to interrogatories. Tim Garvin came to the Property sometime in July 2019, as a result of the Claimants discovering what they thought were mice droppings in the interior wall of the master bedroom. Tim Garvin told Emmeline Van Geemen that given their location, the droppings were bat guano. He provided the Claimants with an estimate of what he would charge to remediate the problem. There is no suggestion Tim Garvin investigated further at this initial meeting, and as a result, never charged the Claimants for his time. Ultimately, the Claimants retained Eric Moore to carry out certain renovations and remediation work.

[102]   Tim Garvin returned to the Property on August 22, 2019, at the Claimants’ request. The Claimants retained him to provide an opinion letter date which states:

[103]   Tim Garvin estimated his cost to clean out the bat feces, urine, insulation removal and anti-bacterial solution treatment was $3000 + $150 GST = $3,150. He quoted $2,500 + $125 GST + $2,635 for the exclusion work. And this was only for the master bedroom. Tim Garvin’s letter goes on to state:

[104]   I cannot accept Tim Garvin as an expert witness. The Court has not been provided with sufficient evidence as to Tim Garvin’s education, training, or experience with bats. He declined to attend court in these proceedings - for good reason. People who work in pest control could spend untold hours in court if they allow themselves to become entangled in lawsuits arising from infestations. Tim Garvin’s letter also suggests that he undertook an extensive investigation of the Residence which is not supported by the evidence at trial. Consequently, I do not know if Tim Garvin’s opinion is based on his own observations or investigations, or something the Claimants told him. Nevertheless, I do accept Tim Gavin:

[105]   I also accept the Claimants acted on Tim Garvin’s advice.

[106]   The legal framework for proving the tort of negligent misrepresentation was articulated by the Supreme Court of Canada in Queen v. Cognos Inc., 1993 CanLII 146 (SCC). The Supreme Court of Canada set out the five constituent elements for establishing liability in a negligent misrepresentation claim:

[107]   In British Columbia, caveat emptor is the principle governing the liability of sellers for defects in property they have sold. Buyers must satisfy themselves of the condition of the property before the sale closes. A problem they discover after closing is their problem. Buyers of real property have an obligation to perform their own due diligence before purchasing a property and must make appropriate inquiries and investigations themselves. In Nixon v. MacIver, 2016 BCCA 8, Justice D. Smith for the unanimous court provides a description of the circumstances when liability would befall a seller in a real estate transaction:

[108]   The reasonable reliance component distinguishes the test for negligent misrepresentation from that of fraudulent misrepresentation. In Hamilton v. Callaway, 2016 BCCA 189 at para. 51, Justice MacKenzie explained:

[109]   The Court of Appeal in Nixon also summarized the law relating to property disclosure statements: [Citations Omitted]:

[110]   In sum, latent defects are defects that are not discoverable through a reasonable inspection or reasonable inquiries. If portions of the property or building must be removed to find the defect, it likely qualifies as latent. Unless a latent defect renders the property unfit for habitation or dangerous, sellers do not have a duty to disclose latent defects to prospective buyers.

[111]   Sellers only have a duty to disclose current actual knowledge of such latent defects and that knowledge does not have to be correct: Nixon v. MacIver. Because a defect is relatively easy to discover after purchase does not necessarily establish that the seller was aware of the deficiency and concealed or misrepresented it: Weller v. Gordon, [2001] O.J. No 1277.

[112]   Although the Claimants originally pleaded fraud, they withdrew that allegation on June 8, 2021, the first day of trial. The Claimants amended their Notice of Claim to simply allege “the seller did not disclose a pre-existing bat infestation in the house.” The Claimants assert that the doctrine of non-innocent or negligent misrepresentation applies. They argue a prior bat infestation is a latent defect because bats return each year to the same roost site. In this case their roost site was behind the ceiling boards, vapour barrier and insulation and hence not discoverable through a reasonable inspection. Because they can carry rabies and their guano histoplasma fungus, bats can render a residence dangerous or uninhabitable.

[113]   In particular, the Claimants submit:

[114]   As an alternative, the buyers could seek damages for breach of contract as the PDS was incorporated into the contract of purchase and sale. The Claimants did not argue this point and did not tender the contract into evidence. I am satisfied this case can be justly decided on the issue of negligent misrepresentation.

[115]   The Defendant says that when he completed and signed the PDS, he reasonably believed he had remediated the bat problem. Neither he nor Hannah Watler ever saw a bat inside the Residence. The last time he observed any sign of indoor bat activity was in the fall of 2017, and even then, it was a small amount of guano he considered old. He carefully inspected the Residence, inside and out. He did not regard this handful of stale guano indicative of a “bat infestation”. None of the people who attended at the Residence prior to May 31, 2019, observed any signs of a bat infestation, including the Defendant.

[116]   The Defendant says that the representations or statements in the PDS reflect his honest beliefs at the time he completed the document up until the time of closing, and claims based on them must fail.

[117]   The Claimants bear the legal and evidentiary burden of proving their case on a balance of probabilities. This means the evidence, in its totality, must be sufficiently clear, convincing and cogent: F.H. v. McDougall, 2008 SCR 41.

[118]   In determining whether the Claimants have met this burden, I have to assess the reliability and credibility of the witnesses. I am mindful of Faryna v. Chorny, 1951 CanLII 252 (BC CA), in which O’Halloran J.A cautions, “The law does not clothe trial judge with a divine insight into the hearts and minds of the witnesses.” He goes on to state,

[119]   I find that all the witnesses who appeared before me had ability to observe, recall and recount the events to which they were testifying with varying degrees of accuracy and precision. Generally, I find all of the witnesses who appeared before me in this matter were attempting to tell the truth.

[120]   With respect to the Defendant’s witnesses, Emmeline Van Geemen argued vigorously that I should not find Eric Stevenson credible witness because:

[121]   The Claimants argue that because Eric Stevenson did not follow the “Got Bats?” recommended procedure for evicting bats from buildings, the bats would inevitably return to their roost inside the Residence. Specifically, they say Eric Stevenson:

[122]   I do not share the Claimants’ disparaging view of Eric Stevenson’s credibility. Specifically:

[123]   As in 1893569 Alberta Ltd. v. Maryon case, it is apparent that the Claimants and Defendant have different standards when it comes to house maintenance. I say this because not only did the Claimants exercise extraordinary vigilance in inspecting the Property prior to removing the subject clauses, they continued this vigilance after taking possession. For example, even after closing, they tested the water, conducted an energy audit, and inspected the linoleum tiles for asbestos. Eric Stevenson was a DIY carpenter who only hired tradespeople when the task was beyond his skill set.

[124]   Even if I were to share the Claimants’ distrust of Eric Stevenson’s version of events, which I do not, his evidence is corroborated by his spouse, Hannah Watler. Ms. Watler spent hours in the sunroom and never heard or saw anything to suggest there were bats roosting in the ceiling at any time. Her friend, Patricia Alverado corroborates Hannah Watler’s evidence.

[125]   I am satisfied the Eric Stevenson, having completed and signed the PDS, owed the Claimants a duty of care.

[126]   The PDS asks the vendor to disclose any infestations by pests or rodents. Bats are neither. So even if Eric Stevenson was aware of a bat colony roosting in the ceiling, which I do not find, he did not answer untruthfully to that question on the PDS. Unlike rodents, bats do not have teeth that allow them to gnaw through building materials. The primary nuisance of bats inside a building is the noise, smell or guano.

[127]   Although not everyone views bats as unwanted house guests, I accept a sizable bat colony roosting in the ceiling constitutes a latent defect. A latent defect is one not readily apparent to the purchaser during ordinary inspection of the property they propose to buy. In this case, because the bats were confined above the ceiling envelope, there was no visual, auditory or olfactory indicators of their presence until the Claimants removed the cedar planks. Thus, the Claimants were not alerted to the need to investigate the existence of bats roosting in the ceiling.

[128]   Eric Stevenson did not disclose any latent defects. The Claimants do not suggest he had actual knowledge of the bats roosting in the ceiling of the Residence prior to closing the sale on May 31, 2019. The Claimants surmise the bats roosting in the ceiling were members of a longstanding intergenerational colony which returned year after year. I have no admissible evidence from which I can draw such a conclusion. In this regard, the matter before me is distinguishable from the circumstances in Sauvageau. The only evidence I have of historical indoor bat activity is that proffered by the Defendant.

[129]   The Claimants do not suggest Eric Stevenson intended to conceal the existence of an indoor bat colony. In other words, there is no fraud. What the Claimants allege is that Eric Stevenson failed to exercise reasonable care in the circumstances to ensure the accuracy of his representations that he was unaware of any infestations or latent defects. Eric Stevenson admits to having found a small amount of guano 2016 and again in 2017. He believed his remediation efforts were successful because he never saw any further evidence of bat activity inside the Residence. His evidence is corroborated by Hannah Watler and not contradicted by any other witness. All the law demands is that Eric Stevenson be truthful in his subjective opinion there was no “bat infestation” in the Residence.

[130]   Although I accept the Claimants found guano in the ceiling of the Residence in July 2019, I have no admissible expert evidence on the size and age of the bat colony. I do not know if the guano was produced by a larger recently-established colony or a small long-established one. In this regard, the matter before me is entirely distinguishable from Sauvageau. In that case, the seller had been battling the bat infestation every summer for 13 years. Eric Stevenson’s uncontroverted evidence is that he found a small amount of bat guano within the exterior wall once in 2016 and in the ceiling of the master bedroom once in 2017. He testified that he believed his remediation efforts were effective and had no cause to believe that bats had established a roost in the ceiling of the Residence. I believe him.

[131]   I do not find Eric Stevenson acted negligently in representing in the PDS he was unaware of any infestation or unrepaired damage by insects or rodents or that he was unware of any defects which would render the Residence dangerous or potentially dangerous to the occupants or unfit for habitation. Accordingly, I need not decide whether the Claimants relied on Eric Stevenson’s representations or the experts they hired to inspect the property prior to removing the subject clauses.

[132]   The Claimants have failed to prove their claim on a balance of probabilities. I therefore dismiss claim against the Defendant in its entirety.

[133]   The Defendant is entitled to recover expenses against the Claimants in accordance with Rule 20(2)(a), (b) and (c). I direct the Registrar of the Prince George Provincial Court to determine the amount of allowable expenses which will be payable immediately thereafter.