Seller in failed B.C. real estate transaction must cover buyer’s hotel, condo stays, court rules

The home on Barnet Road in Burnaby is shown in this 2017 photo from BC Assessment (bcassessment.ca)

A judge has ordered the sale of a Burnaby home for more than $275,000 less than the buyer and seller initially agreed upon, after the seller failed to install a “platform lift” as required under the contract between them.

The discount includes expenses the buyer incurred while staying at a downtown Vancouver hotel and in a Coal Harbour condo after the deal fell through.

Kit Yee Anita Chan sought to purchase Daljit Singh Dhaliwal’s house on Barnet Road because she was looking for a home with an elevator. Chan lives with her 90-year-old mother, who has “significant mobility issues,” according to B.C. Supreme Court Justice Eric V. Gottardi’s decision, which was issued last week.

The decision indicates that the house has an elevator that spans three floors, but there is also a short stairwell that connects the garage and the basement.

When Chan first went to see the property in May 2021, she inquired about the possibility of installing a lift on the stairwell to accommodate her mother’s wheelchair, the decision notes.

Chan’s initial offer to purchase the property, which is partially reproduced in the decision, included a clause requiring the seller to agree to install, “at their cost,” a “platform stairlift” or a “platform chair lift” before the completion date.

Dhaliwal’s counteroffer modified the clause, limiting the seller’s cost for installing the lift to $15,000, with any additional cost paid by the buyer. This version of the clause was included in the final contract of purchase and sale between the parties, according to Gottardi’s decision.

Closing delays

While the purchase was initially scheduled to be completed in October 2021, it was delayed multiple times because Chan was having trouble selling her previous home. The final extension was agreed to on Aug. 31, 2021, and pushed the closing date for the purchase to Dec. 30 of that year.

As the closing date approached, the decision indicates, the sellers had not yet installed the lift. On Nov. 2, 2021, they sought permission from the buyers to install a model that could not accommodate a person sitting in their wheelchair, which the buyers rejected, citing prior correspondence indicating that whatever lift was selected needed to be capable of lifting Chan’s mother and her chair.

Both parties worked to find a way to install a suitable lift before the closing date, but “no solution materialized until late December,” according to the decision.

Faced with this problem, the buyers attempted to delay the closing date again. The court decision reproduces several messages exchanged on the closing date, which show multiple proposed addenda that would have extended the contract. The sellers rejected these proposals, maintaining that if the sale wasn’t completed on the existing closing date, the sellers would consider the buyers to be in breach of the contract.

“The closing date came and went,” the decision reads. “The plaintiff did not tender the purchase price to the defendant. The defendant did not tender any title documents to the plaintiff. A week later, Jan. 6, 2022, the defendant, through counsel, purported to accept the plaintiff’s repudiation and terminated the contract.”

A few weeks later, Chan filed her lawsuit, alleging that it was Dhaliwal who had breached the contract by failing to install the lift, and seeking “specific performance” of the contract – meaning completion of the sale – plus damages.

Lift was ‘fundamental’ to contract

Dhaliwal filed a counterclaim, seeking damages for lost rental income allegedly caused by the failed sale.

He told the court that the revised lift clause was “too vague to be enforceable,” arguing that its use of the terms “platform stairlift” and “platform chair lift” to describe the desired device caused confusion about what was actually required.

Gottardi rejected this argument, noting that Chan had provided a brochure to the sellers' Realtor during the negotiation of the contract of purchase and sale, indicating the type of device that was needed.

“The brochure, while referencing a ‘platform lift,’ provides a precise definition of what a platform lift is; namely, a ‘fully powered device with an open cab designed to raise a wheelchair and its occupant in order to overcome a step or similar vertical barrier,’” Gottardi’s decision reads.

“From the perspective of an objective reasonable bystander, the parties’ manifested intentions were to have a lift installed at the house consistent with the precise model depicted in the brochure. Given the definition of a ‘platform lift’ that was included within the brochure, no reasonable person could have been mistaken about the nature of the lift sought.”

The judge likewise concluded that the failure to install such a lift was a breach of a “fundamental term” of the contract.

“From the outset, the defendant was informed that the platform lift was a ‘dealbreaker,’” the decision reads. “I find that the plaintiff clearly would not have entered into the contract but for the revised lift clause and had clearly made that fact known to the defendant.”

Gottardi also rejected other arguments Dhaliwal advanced, including a claim that Chan had “anticipatorily repudiated” the contract by threatening to “walk” if an addendum regarding the lift was not signed.

Accordingly, the judge found in Chan’s favour and dismissed Dhaliwal’s counterclaim.

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Expenses incurred

Having concluded that Dhaliwal breached the contract, Gottardi considered whether “specific performance” was the appropriate remedy in the case, and concluded it was.

The judge noted that Chan described multiple features of the property that made it “unique,” including its proximity to her friends and family, its proximity to SFU, its “mortgage-helper” rental suite, its water views and its elevator that would allow her mother to live in it with her.

“Ms. Chan testified that she had been interested in and looking for a suitable residence with an elevator, but that such properties were rare in the price range the plaintiff could afford,” the decision reads, noting that the defendants did not present any evidence of suitable alternative properties that would meet Chan’s needs.

“While the plaintiff’s evidence could have been better developed, I am satisfied that the plaintiff has proven that she looked for and was unable to find other properties in the Burnaby area that met the specific criteria they were looking for, in a price range they could afford.”

Because Chan had already sold her house when the deal fell through, she moved with her mother into the Parq Hotel in downtown Vancouver and stayed there for six months, at a cost of more than $100,000, according to the court decision.

The pair then moved into a short-term rental, and later a long-term rental, both of which were located in the same condo building on Cardero Street in Coal Harbour. The short-term rental cost more than $8,300 a month and the long-term rental was for $6,500 a month.

Chan argued that these and other expenses were the direct result of the sellers' breach of contract, and Gottardi agreed, on most counts.

“I am troubled by the plaintiff’s decision to move her family to a downtown hotel and to stay there for six months before finding a longer-term solution,” the decision reads. “The defendant, however, did not plead failure to mitigate, nor did he seek to amend his pleadings in this regard.”

In total, Chan sought more than $333,000 in damages stemming from the failed home purchase.

Gottardi reduced this amount to reflect what he determined would have been a reasonable approach to finding alternative housing.

“Leaving aside whether there were more reasonable hotel options available to her, I find that it was reasonable for the plaintiff to stay in a hotel for 60 days while searching for a substitute accommodation,” Gottardi’s decision reads.

“It follows that I find that it is reasonable and fair for the plaintiff to be compensated for the cost of a long-term rental in which to live until the conclusion of the legal proceedings. While the cost of the rental in Coal Harbour may be on the high end, I note that the plaintiff would have been well within her rights to rent a whole house as a replacement for what she had intended to buy. The cost of that type of rental in the Vancouver market would surely match or exceed the amount of her rental apartment.”

The judge calculated the total allowable housing costs as $264,089.56, reflecting $30,089.56 for 60 days at the Parq, plus $234,000 for rental expenses in Coal Harbour at $6,500 a month from the end of those 60 days up until the date of his judgment.

He further reduced the housing award by 10 per cent to reflect mortgage interest that Chan had not had to pay because the home purchase didn’t go through.

Gottardi allowed other expenses for home furnishings for the Coal Harbour condo, food deliveries during the Parq Hotel stay and storage of Chan’s belongings at facilities in Vancouver and Richmond.

In all, the total damages the judge awarded amounted to $272,835.93, which he noted Chan could withhold from the purchase price of Dhaliwal’s Burnaby home, along with the $15,000 that the sellers had agreed to pay for the platform lift, plus pre-judgment interest.

While Gottardi’s decision does not specify how much Chan initially agreed to pay for the home, it concludes that the new purchase price will be $1,992,164.07, “less any pre-judgment interest and 90 days of post-judgment interest.”

That figure implies an initially agreed upon price of $2,280,000. The home’s assessed value for 2025, according to BC Assessment, was $3,085,000.