2024 BCSC 193

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Gupta v. Gill,

2024 BCSC 193
Date: 20240207
2024 BCSC 193 (CanLII)

Docket: S244012
Registry: New Westminster
Between:
Manav Gupta
Plaintiff
And
Baljit Singh Gill and 1364236 B.C. Ltd.

Defendants
And
Ravi Gill, Diljot Kaur aka Diljot Mangat and City Realty Ltd. dba Remax City
Realty
Defendants by way of Counterclaim
Before: The Honourable Justice A. Ross
Reasons for Judgment
Counsel for the Plaintiff: S. Sheena-Nakai
Counsel for the Defendants: R. Mpania
Counsel for the Defendants by M.K. Sterns

Counterclaim:
Place and Date of Trial/Hearing: New Westminster, B.C.
November 16–17, 2023
Place and Date of Judgment: New Westminster, B.C.
February 7, 2024
Gupta v. Gill Page 2
Table of Contents
INTRODUCTION ....................................................................................................... 3
ISSUES ...................................................................................................................... 4
THE PARTIES, THE PROPERTY, AND THE RIGHTS OF WAY .............................. 5

FACTUAL BACKGROUND ....................................................................................... 7
SUITABILITY – THE LAW ...................................................................................... 14
POSITIONS OF THE PARTIES ............................................................................... 15
Baljit’s Position – Suitability .................................................................................. 15
The Plaintiff’s Position .......................................................................................... 18
The Property Disclosure Statement .................................................................. 20
The Representations ........................................................................................ 20
Baljit’s Affidavit and the Response to Demand for Particulars .......................... 21
Evidence from Examination for Discovery ........................................................ 22
Baljit’s Actions after Learning of the Unregistered Right of Way ....................... 23
FINDINGS ON SUITABILITY – VENDOR V. PURCHASER ................................... 24
SUITABILITY OF THE COUNTERCLAIM ............................................................... 26
FINDING ON SUITABILITY – COUNTERCLAIM AGAINST REALTORS .............. 33
BALJIT’S COUNTERCLAIM AGAINST THE PLAINTIFF ...................................... 35
THE PLAINTIFF’S CLAIM AGAINST 236BC LTD. ................................................. 35
DAMAGES............................................................................................................... 40
SUMMARY .............................................................................................................. 42
Introduction
[1] This matter proceeded by way of summary trial on November 16 and 17,
2023. There are two applications before me, both under Rule 9-7 of the Supreme
Court Civil Rules:

a) The plaintiff seeks judgment and assessment of damages.
b) The defendants by counterclaim seek dismissal of the counterclaim.
[2] The underpinning of the action is a real estate transaction that did not
complete. The plaintiff is the vendor. He claims damages against the defendant
purchaser for failure to complete the transaction. He calculates his damages based
on an appraisal of the property three months after the scheduled closing date.
[3] There are two defendants: an individual and a corporation. The individual
defendant says that there was a defect in the property: an unregistered right of way.
He alleges that the vendor knowingly withheld that information. On that basis, he
says that he was not bound by the agreement. He also counterclaims against the
plaintiff for the alleged misrepresentation and seeks the return of his deposit. In
addition, he counterclaims against his real estate agents in negligence.
[4] As explained below, the individual defendant assigned the purchase contract
to the corporate defendant. The corporate defendant then backed out of the
assignment agreement. The plaintiff seeks a remedy directly against the corporate
assignee.
[5] In this application, the following parties seek the following orders:
a) Pursuant to Rule 9-7, the plaintiff seeks judgment and assessment of his
damages against one or both defendants for their failure to complete the
conveyance of the property.
b) Also, pursuant to Rule 9-7, all of the defendants by counterclaim

(comprising Mr. Gupta and the real estate agents) seek dismissal of the
counterclaim against them.
c) The two defendants seek the dismissal of this application on the basis that

the matter is not suitable for determination on a summary trial basis.
[6] For the reasons set out below:
a) I find that some portions of this matter are suitable for determination at a
summary trial and I exercise my discretion to do so.
b) I grant judgment in favour of the plaintiff against the individual defendant.
c) I dismiss the plaintiff’s claim against the corporate defendant.
d) I dismiss the defendant’s counterclaim against the plaintiff.
e) I dismiss the defendants’ counterclaim against the real estate agents.
f) However, I decline to exercise my discretion to assess damages on this

application.
Issues
[7] In these reasons, I address the following issues:
a) Are the two applications suitable for resolution by summary trial?
b) Has the plaintiff established that the individual defendant, Mr. Baljit Gill,
breached the terms of the contract to sell the property?
c) Have the real estate agents established that Mr. Baljit Gill has failed to
establish that they were in breach of their professional duties to him?
d) Is the plaintiff entitled to relief against the assignee numbered company?

[8] My discussion below addresses a number of different claims and positions.

That variety has influenced my writing of these reasons. I have addressed
separately each of the issues below that relate to:
a) the vendor’s claim against the purchaser;

b) the vendor’s claim against the assignee of the contract;
c) the purchaser’s counterclaim against the vendor for the return of the
deposit; and
d) the purchaser’s counterclaim against his real estate agents.
[9] Although I have addressed the claims separately, my findings of fact overlap
between all issues. I also note that my findings on suitability mirror my findings on
the substantive issues. In other words, by determining that I can make the necessary
findings of fact, those same facts form the basis of my reasons on the substantive
issues.
The Parties, the Property, and the Rights of Way
[10] This litigation revolves around the failed sale of a property located at 1007
Sparks Dr., Keremeos, British Columbia (the “Property”). A motel operates on the
Property.
[11] There are two rights of way that may, or may not, affect the Property. It is
important to distinguish between them:
a) Registered on the title to the Property is a statutory right of way in favour

of FortisBC under Kamloops land title registration number KX158467 (the
“FortisBC Right of Way”).
b) An unregistered right of way that was discovered later in the narrative. The
second right of way exists on a document dated 1972 and entitled: “Plan
Showing Right of Way of Keremeos Irrigation District in District Lots 749 &
174” (the “Unregistered Right of Way”).
[12] The legal and practical significance of the Unregistered Right of Way is in
issue on this application.
[13] Because there are two parties named “Mr. Gill”, I refer to those two
individuals by their first names. I mean no disrespect by doing so. I refer to all others

using the slightly more respectful “Mr.” and “Ms.”.
[14] The parties involved in this case are:
a) Mr. Manav Gupta (“Mr. Gupta” or the plaintiff or the “vendor”), who is the
registered owner of the Property.
b) Mr. Gupta sold the Property to the defendant Mr. Baljit Gill (“Baljit”).
c) Later, Baljit assigned the contract to purchase the Property to 1364236

B.C. Ltd. (“236BC Ltd.”). The principal of 236BC Ltd. is Mr. Balhar Jagpal.
d) Baljit’s real estate agents are Mr. Ravi Gill (“Ravi”) and Ms. Diljot Kaur,
aka Ms. Diljot Mangat (“Ms. Kaur”). Ravi and Ms. Kaur both work at City
Realty Ltd. The realtor parties are all represented by the same counsel
and take the same positions. I make no distinction regarding them in these
reasons, except where one individual took a particular step.
[15] There are two non-party real estate agents in this narrative:
a) Mr. Aman Ladwal (“Mr. Ladwal”) who acted as Mr. Gupta’s agent; and
b) Mr. Rick Aulakh (“Mr. Aulakh”) who is an agent at City Realty Ltd. but who
was not retained by any party to the transaction.
[16] As discussed below, 236BC Ltd. is a named defendant. It is represented by

the same counsel as Baljit. It offered no evidence in defence of this application,
apart from the affidavit of Baljit. Because of the distinct legal issues, I discuss the
plaintiff’s claim against 236BC Ltd. under a separate heading.
Factual Background
[17] As noted, the plaintiff is the registered owner of the Property upon which he
operates a motel business.

[18] In August 2021, the plaintiff retained the services of a real estate agent,
Mr. Ladwal, to list the Property for sale.
[19] In the latter half of 2021, Baljit was in the market for commercial real estate.
The exact nature of his desire for an investment property is disputed. As discussed
below, Baljit says that he wanted a property that could be developed. Baljit retained
the services of two real estate agents, Ravi and Ms. Kaur.
[20] With the assistance of Ravi and Ms. Kaur, Baljit located and eventually made
an offer on the Property.
[21] Mr. Gupta and Baljit entered into a contract of purchase and sale dated
December 13, 2021 (the “Contract of Purchase and Sale”). Mr. Gupta agreed to sell
the Property to Baljit on the following terms:
a) The purchase price was $1,900,000.
b) The subject removal date was December 30, 2021.
c) A deposit for $75,000 was to be paid within 24 hours of subject removal

(the “Deposit”).
d) The closing date was March 7, 2022.
[22] The Contract of Purchase and Sale contained the following relevant “subject”
provisions:
a) “[2] Subject to the Buyer[s] approving the property disclosure statement

[“PDS”] and such statement will be incorporated into and form part of the
contract.” (the “PDS Clause”).
b) “[4] Subject to the Buyer[s] checking and approving the title search.” (the
“Title Search Clause”).
c) “[6] Subject to the Buyer[s] checking and approving all information

regarding the property with city hall.” (the “City Hall Clause”).

d) “[7] Subject to the Buyer[s] certifying and approving the CPS with their
Lawyer/Notary.” (the “Legal Advice Clause”).
[23] The Contract of Purchase and Sale also contained the following provisions:
“The Buyer is satisfied with all the size, measurements and other information
of the dwelling[s] and/or acknowledges that the size, measurements zoning
information, and allowable land-use provisions, other the [sic] information
they have received regarding the dwelling[s] and/or land[s] while thought to
be accurate is not guaranteed to be accurate, and if important to the Buyer,
should not be relied upon without verification with the proper authorities by
the Buyer themselves prior to signing this contract.
The Buyer is advised that it would be prudent before final subject removal to:
inspect for a buried oil tank, confirm availability of property insurance, check if
property is on the Heritage registry, & Archaeological registry, confirm zoning
& future zoning with the city, do a lot survey 7 [sic] confirm whether the
property is in a flood plain or a peat bog area.
The Buyer and Seller acknowledges [sic] that the real estate licensees are
not qualified to give legal, accounting or tax advice, and that any questions
regarding legal documents, including charges registered against title,
accounting for taxes payable should be answered by independent legal
counsel and/or accountants. The Buyer and Seller acknowledge that they
have been advised to seek independent legal, accounting and tax advice
regarding this contract prior to signing this contract. All parties have been
advised to and afforded the opportunity to seek independent
legal/professional advice prior to entering into this Contract.”
[24] Following the signing of the Contract of Purchase and Sale on December 13,
2021, Mr. Gupta, as a vendor, completed and signed a property disclosure
statement dated December 16, 2021 (the “Property Disclosure Statement” or
“PDS”). The Property Disclosure Statement was blank. In addition, clause 18 of the
Contract of Purchase and Sale indicates that there are no representations apart from
those contained in the contract document and the Property Disclosure Statement.
The plaintiff submits that the wording of the Contract of Purchase and Sale, plus the
blank Property Disclosure Statement, indicated that he made no representations

about the Property.
[25] The following matters are in dispute between Baljit and his realtors. I set the
realtors’ position out here. Below I discuss whether any conflict on the evidence is

material to this application. Ravi and Ms. Kaur say:
a) Baljit is a sophisticated and experienced purchaser of real estate. He

owns three commercial properties in addition to his personal residence.
b) In 2021 Baljit was looking for investment property with good rental income.
Ravi and Ms. Kaur located the Property as one that may be of interest to
Baljit.
c) Ms. Kaur prepared an offer to purchase the Property and reviewed the
terms with Baljit before it was presented. When advising Baljit about the
Property, Ms. Kaur pointed out the existence of the FortisBC Right of Way.
She says that she explained the FortisBC Right of Way to Baljit. Baljit
asked no questions about it.
d) Once the offer was accepted, the Contract of Purchase and Sale was
drafted. Ms. Kaur reviewed and explained all of its terms and conditions,
including the “subjects” to Baljit.
e) The Contract of Purchase and Sale included the terms discussed above
including the PDS Clause, the Title Search Clause, the City Hall Clause,
and the Legal Advice Clause.
f) Baljit reviewed and signed the Contract of Purchase and Sale.
g) Baljit did not ask Ravi or Ms. Kaur any questions about the title search
which noted the FortisBC Right of Way.
h) When it was received, Ravi or Ms. Kaur provided the (blank) Property
Disclosure Statement. Baljit did not ask any questions about it.
i) Baljit travelled to Keremeos with Ravi on two occasions. The first trip was
before the subject removal date. During that first visit, Baljit met and spoke
with representatives of the Village of Keremeos. He understood that he
could ask any questions about the Property that were important to him.

Baljit did not ask any questions about any rights-of-way or other
restrictions registered on the title. Baljit did not instruct Ravi to ask
questions about the development potential of the Property.
j) At the first visit to Keremeos, Baljit received contact information for the
planning professionals and representatives of the Village of Keremeos.
Baljit had the opportunity to contact those individuals if he had any
questions. Baljit did not contact any representative of the Village of
Keremeos.
k) On December 30, 2021, Ms. Kaur met with Baljit to discuss “subject
removal”. She explained the context of removing subjects. Baljit agreed to
remove the subjects and provided Ms. Kaur with a cheque for the Deposit.
The cheque was written by a third party, Mr. Sahota. Baljit reviewed,
approved, and removed all of the “subjects”.
l) Later, on December 30, 2021, Baljit requested an extension of the

completion date to May 16, 2022. Mr. Gupta agreed to this extension on
the provision that the Deposit would be released to Mr. Gupta. All parties
agreed. The Deposit was released to Mr. Gupta.
m) On the second visit to Keremeos, on or about April 24, 2022, Ravi

travelled with Baljit and Mr. Balhar Jagpal (principal of 236BC Ltd.) and
met with representatives of the Village of Keremeos. Again, Baljit did not
instruct Ravi to seek any additional information from the representatives of
Keremeos.
n) On May 3, 2022, Baljit requested a further extension to June 20, 2022.

Mr. Gupta agreed to that extension.
o) As discussed below, on May 29, 2022, Baljit assigned the Contract of

Purchase and Sale to 236BC Ltd. It is common ground that Baljit did not
consult with Ravi or Ms. Kaur about this assignment. They learned of the
assignment on June 20, 2022.

p) Baljit learned of the Unregistered Right-of-Way from Mr. Jagpal on either
June 18 or 19, 2022, which was before the final extended completion date
of June 20, 2022.
q) There is no dispute that Mr. Jagpal had learned of the Unregistered Right
of Way from the Notary Public whom he retained for the conveyance. As
discussed below, there is some evidence that either Mr. Jagpal or Baljit
spoke to people who advised that the Unregistered Right of Way would
inhibit building on, or development of, the Property.
r) On the completion date of June 20, 2022, a meeting was scheduled at the
realtors’ office to sign the conveyance documents. Although there is some
difference between the versions of the events at that meeting, it is clear
that the following occurred:
i. Baljit advised Ravi and Ms. Kaur of the assignment of the Contract of
Purchase and Sale to 236BC Ltd. He also advised that 236BC Ltd.
could not complete the purchase of the Property.
ii. Baljit also advised Ravi and Ms. Kaur of the existence of the
Unregistered Right of Way. He asked them why they had not notified
him of its existence.
iii. According to Ravi and Ms. Kaur, Baljit asked what he should do. Ravi
advised Baljit that he was obligated to complete the conveyance under
the terms of the Contract of Purchase and Sale. Ravi further advised
Baljit that he should speak with a lawyer.
iv. Ravi and Ms. Kaur say that Baljit stated that he would be willing to
complete the conveyance if the realtors lowered their commission.
v. When the realtors did not agree to lower their commission, Baljit
instructed them to seek a further extension on the closing date.

[26] Baljit’s affidavit does not specifically deny any of the points raised above. His
counterclaim pleads that he was an inexperienced investor in real estate and that he
relied completely on his realtors. However, his affidavit does not include that
information. Baljit’s affidavit says the following:
a) Through his realtors, Ravi and Ms. Kaur, he advised the seller’s realtor
that he was interested in purchasing the Property only if he would be able
to develop and build anywhere on the Property.
b) In response to Ravi and Ms. Kaur, the vendor’s realtor represented that
the Property had development potential that was suitable to Baljit’s needs,
and that he would be able to build on the front, back, and side areas of the
Property.
c) The vendor’s realtor further represented that he would be able to build on

all areas of the Property.
d) At all material times, Ravi, Ms. Kaur, and the vendor’s realtor were aware
of Baljit’s requirement that he be able to build on all areas of the Property.
e) He accepted the seller’s offer to sell the Property for the amount of
$1,900,000 plus GST based on the representation regarding his ability to
build anywhere on the Property.
f) He acknowledges that he sought two extensions on the closing date: first

to May 16, 2022, and second to June 20, 2022.
g) Baljit’s affidavit does not address the evidence that he agreed to the
release of the Deposit to the vendor in exchange for the first extension.
h) On or about May 29, 2022, Baljit assigned the Contract of Purchase and
Sale to the numbered company defendant, 236BC Ltd.
i) After signing the contract to 236BC Ltd, Mr. Jagpal became aware of the
Unregistered Right of Way. Mr. Jagpal backed out of the assignment

agreement because the Unregistered Right of Way had potential effects
barring some building and construction on the Property.
j) The disclosure of the Unregistered Right of Way came as a complete

shock to Baljit. The plaintiff and the defendants by counterclaim had not
informed him of the Unregistered Right of Way.
k) Baljit’s affidavit states: “I was advised by various builders that I would not
be able to build on all areas of the Property due to the Right of Way.” I
return to this statement below.
l) Baljit decided to “rescind” the Contract of Purchase and Sale and its
assignment. He has demanded that the Deposit be returned with interest.
(I note that the plaintiff argues that Baljit “repudiated” the contract, and the
plaintiff accepted that repudiation.)
[27] As noted, Baljit’s affidavit evidence is that he had spoken to “various

builders”. The plaintiff takes significant issue with Baljit’s evidence on this issue. and
submits that the evidence is contradicted by prior statements.
a) At his examination for discovery, Baljit could not recall any details about
who these people were. Later, in his examination for discovery, he
indicated that he had only spoken to Mr. Jagpal who, in turn, had spoken
to the “builders”. The plaintiff submits that any alleged information from the
“builders” is either unattributed hearsay or double unattributed hearsay.
Either way, it is inadmissible.
b) Even if admitted into evidence, there is no evidence to suggest that any of

those builders attended the Property, viewed any documentation with
respect to the Property, or had any knowledge of Keremeos.
[28] I discuss below my consideration of Baljit’s evidence on the issue of

suitability.
Suitability – the Law
[29] There is no great divide between the parties on the law to be applied on the
question of suitability.
[30] Since the introduction of the summary trial process in the late 1980s, much
has been written on the issue of suitability. The well-spring of the jurisprudence is, of
course, Chief Justice McEachern’s prescient decision in Inspiration Management
Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.).
[31] For the current test, both parties cite the decision of our Court of Appeal in
Gichuru v. Pallai, 2013 BCCA 60, wherein Justice D. Smith summarized the law as
follows:
[30] In Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989),

36 B.C.L.R. (2d) 202 (C.A.), the court confirmed that the court under this rule
“tries the issues raised by the pleadings on affidavits”, that “a triable issue or
arguable defence will not always defeat a summary trial application”, and that
“cases will be decided summarily if the court is able to find the facts
necessary for that purpose, even though there may be disputed issues of fact
and law” provided that the judge does not find “it is unjust to do so” (p. 211).
In determining the latter issue (whether it would be unjust to proceed
summarily), the Chief Justice identified a number of relevant factors to
consider (at p. 215):
In deciding whether it will be unjust to give judgment the chambers
judge is entitled to consider, inter alia, the amount involved, the
complexity of the matter, its urgency, any prejudice likely to arise by
reason of delay, the cost of taking the case forward to a conventional
trial in relation to the amount involved, the course of the proceedings
and any other matters which arise for consideration on this important
question.
[31] To this list has been added other factors including the cost of the
litigation and the time of the summary trial, whether credibility is a critical
factor in the determination of the dispute, whether the summary trial may
create an unnecessary complexity in the resolution of the dispute, and
whether the application would result in litigating in slices: Dahl v. Royal Bank
of Canada et al., 2005 BCSC 1263 at para. 12, upheld on appeal at 2006
BCCA 369.
[32] All parties to an action must come to a summary trial hearing prepared
to prove their claim, or defence, as judgment may be granted in favour of any
party, regardless of which party has brought the application, unless the judge

concludes that he or she is unable to find the facts necessary to decide the
issues or is of the view that it would be unjust to decide the issues in this
manner. This requirement was underscored by Madam Justice Newbury
in Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275:
[34] It is trite law that where an application for summary
determination under Rule 18A is set down, the parties are obliged to
take every reasonable step to put themselves in the best position
possible. As this court noted in Anglo Canadian Shipping Co. v. Pulp,
Paper & Woodworkers of Canada, Local 8 (1988), 27 B.C.L.R. (2d)
378 (B.C.C.A.) at 382, a party cannot, by failing to take such steps,
frustrate the benefits of the summary trial process. Where the
application is brought by a plaintiff, the defendant may not simply
insist on a full trial in hopes that with the benefit of viva voce evidence,
‘something might turn up’: see Hamilton v. Sutherland (1992), 68
B.C.L.R. (2d) 115, [1992] 5 W.W.R. 151 (B.C.C.A.) at paras. 66-
7. The same is true of a plaintiff where the defence has brought the R.
18A motion. [Emphasis added in Gichuru.]
[32] I have those considerations in mind as I decide on the issue of suitability. As

discussed below, the defendants rely on the guidance from our Court of Appeal
indicating that this Court should not decide on cases where it would be “unjust” to do
so.
Positions of the Parties
[33] Although Baljit is the defendant in the plaintiff’s proceeding, I set out his
position first, because it frames the issues.
Baljit’s Position – Suitability
[34] I note at the outset of this discussion that Baljit’s submissions focussed
primarily on the suitability argument. Apart from his affidavit, Baljit tendered no
evidence that would support his position or lead to a finding that Baljit should prevail
in the action, against either the plaintiff or the real estate agents. As discussed
below, his counsel submits that further evidence will be developed when the matter
proceeded to trial.
[35] I also note that, at the hearing, counsel for the defendants made submissions
in support of Baljit’s position. Some of those submissions were based upon the
evidence, primarily Baljit’s affidavit. However, counsel also made submissions that
were not based on the evidence tendered at this hearing. For example, there was no

evidentiary basis for counsel’s submissions that:
a) Baljit was an unsophisticated real estate investor who relied completely

upon his agents;
b) the representations regarding the development potential of the Property

were primarily made orally as opposed to the Property Disclosure
Statement, which was in writing; and
c) the representations might have been made at a meeting between Mr.

Gupta and Baljit.
[36] When I say there is no evidence to support these submissions, I again note
that Baljit’s affidavit was the only evidence tendered by the defence. That affidavit
does not address the three issues described in the paragraph above. Further, it does
not respond to the vast majority of the content of the affidavits of Ravi and Ms. Kaur.
[37] As a result, and to be clear, I am not considering the defence’s unsupported

submissions as evidence. I consider Baljit’s evidence to be restricted to that which is
contained in his affidavit and the extracts from his examination for discovery.
Further, as discussed below, I consider Baljit’s evidence to be circumscribed by a
prior response to the demand for particulars.
[38] Baljit’s position is that, based upon his affidavit, the evidence establishes (for
the purpose of this application) that:
a) he was an unsophisticated investor who relied completely upon his real

estate agents;
b) he was looking for a property that was suitable for development;

c) he advised his real estate agents of this requirement;
d) through his real estate agents, Baljit advised the vendor (plaintiff) of his
development requirements;

e) the plaintiff knew, or ought to have known, about the Unregistered Right of
Way and he withheld that information from Baljit;
f) the plaintiff’s real estate agent represented that the Property had
development potential and that Baljit would be able to build on all areas of
the Property;
g) in deciding to purchase the Property, Baljit relied on the representations

made by Mr. Gupta through Mr. Gupta’s agent to Baljit’s agents;
h) after agreeing to the terms of the Contract of Purchase and Sale, Baljit
extended the time for completion of the transaction;
i) on May 29, 2022, he assigned the Contract of Purchase and Sale to the
236BC Ltd.;
j) 236BC Ltd then advised Baljit of the Unregistered Right of Way; and
k) he was advised by “various builders” that he would not be able to build on

the Property due to the Unregistered Right of Way.
Hence, he was entitled to back out of the Contract of Purchase and Sale, based on
the plaintiff’s deliberate and fraudulent representations. To the extent that there are
any gaps in the evidentiary basis for his defence, Baljit submits that he should be
entitled to assemble that evidence for trial.
[39] Further, Baljit’s real estate agents, Ravi and Ms. Kaur, either negligently or
deliberately failed to perform the appropriate searches, and as a result, failed to
discover the Unregistered Right of Way; thus, they failed to inform Baljit about the
Unregistered Right of Way, its significance or effects.
[40] On that basis, Baljit submits that in the action:
a) he was entitled to “rescind” the Contract of Purchase and Sale based

upon material misrepresentations;

b) he is entitled to the return of his Deposit; and
c) if he is found liable to the plaintiff, then, to the extent that he is held liable
for any damages, those damages should be paid by the real estate agents
that he retained.
[41] In respect of this application, Baljit submits that these claims are not suitable
for summary trial because:
i. there are conflicts on the evidence;
ii. the evidence tendered is not sufficient to proceed to judgment, and

proceeding in a summary fashion would result in an injustice to him;
iii. he needs further time to develop the evidence, including interviewing

witnesses and retaining experts relating to the standard of care of real
estate agents and the impact of the Unregistered Right of Way.
The Plaintiff’s Position
[42] In answer to Baljit’s position on suitability, Mr. Gupta submits:
a) There is no real dispute on the evidence;
b) To the extent there is a dispute on the evidence, any such conflict can be
resolved based upon the pleadings, the documents, and the testimony of
all parties and witnesses; and
c) Baljit’s evidence is demonstrably false.
[43] As a result, the matter is:

a) suitable; and
b) the plaintiff should prevail on both liability and damages.
[44] A summary of the plaintiff’s position on the merits of the litigation is:

a) Pursuant to the Contract of Purchase and Sale, Baljit was required to
satisfy himself regarding the appropriateness and title of the Property. For
that reason, the “subject” clauses were included in the contract.
b) The Contract of Purchase and Sale and the Property Disclosure

Statement are clear. The vendor made no representations about the
Property.
c) Baljit removed the “subjects”.
d) Hence, he was bound to the terms and required to complete the

conveyance.
[45] The plaintiff submits that there is no real conflict on the evidence. The plaintiff
points to the following evidence which, he submits, will allow me to determine the
factual issues in his favour.
[46] The plaintiff submits that the defence position is entirely dependent upon
Baljit’s evidence relating to the alleged misrepresentations. The plaintiff submits that
Baljit’s evidence on crucial issues is demonstrably false, or internally inconsistent.
[47] I start this discussion with two propositions that are not in dispute. The
evidence establishes that Baljit never met with Mr. Gupta. Baljit alleges that he
relayed his requirements about development potential through Ravi and Ms. Kaur to
the plaintiff’s agent. Correspondingly, Baljit alleges that Mr. Gupta, through his
agent, represented that the Property could be developed as Baljit wished. Those
propositions are not disputed by Baljit. In fact, he is the only person who puts
forward that scenario.
[48] The plaintiff submits that there are several fatal evidentiary flaws in Baljit’s
affidavit.
The Property Disclosure Statement

[49] First, the plaintiff notes that his Property Disclosure Statement was blank, and
the Contract of Purchase and Sale provides that there are no other representations.
By submitting a blank statement, the plaintiff indicated that he was making no
representations about the Property. That is the contract between the parties.
The Representations
[50] Second, the evidence of the real estate agents does not support Baljit.
[51] The only evidence supporting Baljit’s position is his affidavit. In that affidavit,
Baljit says that:
a) he told his agents about his interest in developing the Property; and
b) the plaintiff, as a vendor, made the relevant representations about the

development potential of the Property through the vendor’s agent to
Baljit’s agents (Ravi and Ms. Kaur).
[52] The plaintiff notes that both Ravi and Ms. Kaur deny that Baljit ever advised
them about the need for the Property to be developed. It follows that they did not
advise Mr. Gupta’s agent of that requirement. The realtors further deny that
Mr. Gupta or his agent provided any such representations about the Property. There
is no affidavit from Mr. Ladwal (the vendor’s agent). Mr. Ladwal is not a party to the
counterclaim.
[53] Hence, the plaintiff submits, that there can be no finding that the vendor made
any representations to the purchaser. Any such representations would have to have
been made through the realtors, and the realtors deny any such representations. At
best, Baljit’s claim is based upon inadmissible hearsay evidence, in circumstances
where the alleged speakers of the information deny making the statements.
Baljit’s Affidavit and the Response to Demand for Particulars
[54] Third, the plaintiff notes that the basis of the defence position is summarized
in Baljit’s affidavit #1 which states:
12. The Seller’s realtor represented that the Property had development

potential that were (sic) suitable to my needs and that I would be able to build
in front, back and sides areas of the Property.
[55] The plaintiff submits that this statement must be viewed in light of the
pleadings. In that regard, the plaintiff notes that he received Baljit’s response to civil
claim (filed July 15, 2022). Baljit’s response raised the allegations of
misrepresentations. The plaintiff immediately (on July 18, 2022) issued a demand for
particulars wherein he demanded particulars of the alleged representations made by
the plaintiff. In response, Baljit provided the following particulars:
4. The Seller’s agent Rick Aulakh represented to [the defendant] that the
Property had development potential … and that [the defendant] would be able
to build in front, back and sides areas of the Property …
[56] The plaintiff submits there is a fatal flaw in this statement: Mr. Aulakh was not
the plaintiff’s real estate agent.
[57] As noted above, the plaintiff’s agent was Mr. Ladwal. Mr. Aulakh had no
association with the plaintiff. In fact, Ms. Kaur’s evidence discloses that Mr. Aulakh
was a realtor who worked at the same real estate office as Ravi and Ms. Kaur.
However, he was not retained as a realtor by any party in respect of this transaction.
There is evidence that Mr. Aulakh did attend a meeting in Keremeos with Baljit.
[58] Hence, three things:
a) Baljit’s affidavit #1 simply refers to the “Seller’s realtor”. Given Baljit’s

response to demand for particulars, that statement must mean Mr. Aulakh,
who was not the plaintiff’s realtor.
b) Even if the allegation in the response to demand for particulars is true, the
plaintiff cannot be bound by representations made by a stranger to the
contract.
c) On the issue of suitability, Baljit cannot resile from the position that he took
in his response to demand for particulars.
[59] Based on the three points made above, the plaintiff submits that I can make
the necessary factual findings regarding the evidentiary impact of Baljit’s affidavit #1.

He submits that on the specific issue of the alleged misrepresentation by the plaintiff,
Baljit’s evidence establishes that the plaintiff made no representations. On that
basis, he submits that I can determine the necessary facts and grant judgment for
the plaintiff.
Evidence from Examination for Discovery
[60] Fourth, the plaintiff also points to Baljit’s examination for discovery and the
answers he gave before and after the lunch break.
[61] Before the lunch break, when asked about the specific misrepresentations,
Baljit stated that Ravi (his own agent) failed to advise him about “a property
easement” (at Q. 412). It was clear from the context of his answer that he was
referring to the FortisBC Right of Way that was registered on the title as a statutory
right of way. Baljit testified that a builder told him not to purchase the Property
because of the statutory right-of-way:
419 Q. So the builder told you because of the statutory right-of-way

registered against title, you could not build on the property; is that
correct?
A. Not any, but lot of it will go to waste.
420 Q. Right, and the wastage was only going to be because of the
registered right-of-way; correct?
A. Yes, because of that.
421 Q. And no other reason; correct?
A. For now, just that.
[62] The discovery then broke for lunch. Immediately after lunch, the following
interchange occurred;
424 Q So, do you wish to add anything to your response prior to

lunch with respect to the reasons that you did not complete the
purchase of the Keremeos property?
A. Yes. Balhar Jagpal told me there’s easement there and he

found out from the City and which was not disclosed to me.
425 Q. And is that the right-of-way that’s registered on title?
A. That as well as the easement, that’s why I’m mentioning easement
again.

[63] Baljit goes on at Q. 431 to clarify that the “easement” was discovered by
Mr. Jagpal’s notary when he was working on the assignment of the Contract of
Purchase and Sale. Hence, there is no dispute that when Baljit talked about the
“easement”, he was talking about the Unregistered Right of Way.
[64] The plaintiff submits that this U-turn in his evidence demonstrates that Baljit’s
affidavit evidence should not be accepted.
Baljit’s Actions after Learning of the Unregistered Right of Way
[65] Fifth, the plaintiff points to Baljit’s actions after learning of the existence of the
Unregistered Right of Way. For this, the plaintiff relies on the following evidence:
a) Baljit’s evidence from his examination for discovery (Q. 438–Q. 440),
where he testified that Mr. Jagpal advised him (Baljit) of the existence of
the Unregistered Right of Way “a few days” before the (last extended)
closing date of June 20, 2022.
b) Affidavit evidence of Ravi and Ms. Kaur, which, the plaintiff submits, is
uncontroverted.
[66] Ms. Kaur’s affidavit #1 notes Baljit had requested, and she had obtained,
extensions of the closing date until June 20, 2022. She met with Baljit at her office
on June 20, 2022. At that meeting Baljit informed her:
a) of the assignment of the contract to 236BC Ltd.;
b) of the existence of the Unregistered Right of Way;
c) that Mr. Jagpal (236BC Ltd.) did not want to complete the assigned deal
because of the Unregistered Right of Way;
d) if Ravi and Ms. Kaur lowered their commission, then Baljit would agree to
close on the Property; (Ravi and Ms. Kaur did not respond to that
suggestion.) and
e) Baljit needed more time to complete the conveyance and requested that

Ravi and Ms. Kaur seek another extension to the completion date.
[67] Based upon those conversations, Ms. Kaur drafted an addendum extending
the closing to June 23, 2022. The fact that the documents were drafted is not in
dispute. However, the vendor would not agree to a further extension without a
further deposit of $100,000. In response to that position, Baljit indicated that he was
able to pay an additional $10,000. The vendor refused those terms. As a result, the
closing date was not extended, and the deal collapsed.
[68] The plaintiff submits that this evidence, which is not challenged by Baljit,
indicates that Baljit learned of the Unregistered Right of Way prior to June 20, 2022,
but was still willing to proceed with the purchase of the Property if certain conditions
were met.
Findings on Suitability – Vendor v. Purchaser
[69] In my opinion, I am able to make the findings of fact necessary to decide the
plaintiff’s claim against Baljit, and I exercise my discretion to do so.
[70] As noted above, the process of determining whether the matter is suitable for
determination has also led me to decide this issue in favour of the plaintiff.
[71] First, I accept the submission that, on this summary trial, Baljit is bound by his
response to the demand for particulars. In that response, he provided particulars of
the representations made by the plaintiff. Baljit described the representation as
coming from Mr. Rick Aulakh, but:
a) there is no evidence suggesting that Mr. Aulakh was the vendor’s agent;
b) Mr. Ladway was the vendor’s agent; and

c) Mr. Aulakh was an agent who worked in the same office as Baljit’s
realtors.
[72] Baljit’s later affidavit evidence was that the representations regarding the
development potential of the property were made by “the Seller’s realtor”. Put

simply, I cannot accept that statement as true. Baljit had already provided particulars
describing the representations as coming from Mr. Aulakh.
[73] Second, I accept the plaintiff’s submission that Baljit cannot successfully
proffer a defence to the plaintiff’s case without corroborating evidence from Ravi and
Ms. Kaur. Put another way, I find that the conflicting evidence from Ravi and
Ms. Kaur is fatal to Baljit’s defence to the plaintiff’s claim. I say this because Baljit’s
version of events required the following communications to have occurred:
a) Baljit communicated to Ravi and Ms. Kaur his interest in purchasing a

property suitable for development;
b) Ravi and Ms. Kaur then relayed that interest through Mr. Ladwal to the
plaintiff;
c) The plaintiff then responded with the representations regarding the

development potential of the Property. That representation was made via
Mr. Ladwal to Ravi and Ms. Kaur; and
d) Ravi and Ms. Kaur then relayed that representation to Baljit.
[74] The first obvious gap in this chain relates to the representations being made
by Mr. Aulakh (addressed above). The second gap in this scenario is that Baljit’s real
estate agents do not support Baljit’s version of events on the issue of the vendor’s
representations. According to Ravi and Ms. Kaur, Baljit never informed them of his
interest in developing the Property. As a result, they never inquired about the
development potential. Hence, no representation was made by Mr. Gupta.
[75] While the conflict between Baljit and his agents could present an evidentiary
issue between those parties, the plaintiff is unaffected by that dispute. On Baljit’s
version of events, the representations were conveyed through the real estate
agents. The real estate agents deny any such representations (in both directions).
This is not an issue where I can believe Baljit and disbelieve Ravi and Ms. Kaur. By
definition, Baljit has no personal knowledge of any statement made by the vendor (or

his realtor) to Ravi and Ms. Kaur. There is no evidence from the vendor’s realtor, Mr.
Ladwal, who is not a party to this action. Hence, there is no evidence that the vendor
made any representation about the Property.
[76] In my opinion, these two determinations, on their own, are sufficient to

dispense with Baljit’s arguments on suitability.
[77] In coming to this decision, I place no weight on the plaintiff’s submission

regarding Baljit’s examination for discovery and his apparent inability to distinguish
between the FortisBC Right of Way and the Unregistered Right of Way. I gave Baljit
the benefit of the doubt on the incongruent answers that he gave before lunch, and
then corrected them.
[78] It follows, however, that I find that the plaintiff’s claim against Baljit is suitable
for determination on summary trial. It further follows that I find in favour of the
plaintiff in respect of the claim in breach of contract. I find that the plaintiff has
established that there was an enforceable contract. The other side of that coin is that
the defence has failed to establish that there was any misrepresentation made by
the vendor. The contractual terms govern.
[79] I address the issue of damages below.
[80] I now move on to the suitability of Baljit’s counterclaim against Ravi and
Ms. Kaur.
Suitability of the Counterclaim
[81] The real estate agents, Ravi and Ms. Kaur, are defendants by counterclaim.
They are not third parties. Baljit alleges that they negligently, or deliberately, failed to
advise Baljit about the Unregistered Right of Way. He alleges that:
a) he was an unsophisticated real estate investor who relied completely on

the advice of his realtors;
b) their acts or omissions constitute a breach of the standard of care owed to

the clients of real estate agents; and

c) their acts or omissions have caused him the losses flowing from the failure
of the conveyance.
[82] Ravi and Ms. Kaur submit that:
a) Baljit’s evidence on this summary trial fails to address the requisite

elements of a professional negligence claim;
b) hence, I am able to dismiss the counterclaim against them.
[83] Ravi and Ms. Kaur acknowledge that there is a substantive conflict in the
evidence between theirs and Baljit’s:
a) Baljit says that he advised the realtors that he wanted to purchase a

property with development potential.
b) Ravi and Ms. Kaur deny that Baljit told them any such thing.
[84] Despite this conflict, Ravi and Ms. Kaur submit that a combination of
admissions and documentary evidence should lead me to conclude that the
counterclaim against them should be dismissed.
[85] First, Ravi and Ms. Kaur note the obvious: Baljit bears the onus of proof on
the counterclaim. I accept that submission.
[86] Second, Ravi and Ms. Kaur submit that there is no evidence that Baljit was an
unsophisticated investor. Although Baljit makes that allegation, it is not supported by
any evidence from Baljit. That issue is not mentioned in his affidavit. In addition, Ravi
and Ms. Kaur submit that the available evidence points in the opposite direction:
a) At the time they were retained, Baljit owned three commercial properties in
addition to his family home. This fact suggests that he was experienced.
b) Without seeking any input or advice from Ravi and Ms. Kaur, Baljit
assigned the Contract of Purchase and Sale to 236BC Ltd. This

assignment suggests a significant level of sophistication.
[87] I will address this piece of the evidence on its own. I accept that there is no
evidence that Baljit was unsophisticated, but I do not consider that issue to be
determinative of the outcome of the counterclaim. In other words, the debate over
Baljit’s level of sophistication is not an essential element to Baljit’s claim against his
realtors. I do not base my decision on that piece of the evidence.
[88] More importantly, Ravi and Ms. Kaur submit that a plaintiff suing real estate
agents in negligence, faces the onus of establishing the constituent elements of the
tort. They submit that:
a) there is no evidence that they had a duty to search for unregistered

charges against title;
b) there is no evidence from Baljit indicating that the standard of care of a

reasonably prudent realtor required them to discover the existence of the
Unregistered Right of Way; and
c) there is no evidence of any damage suffered.
[89] To be clear, the realtors admit that they owed a general duty of care to their
client. They also admit that they did not know about the Unregistered Right of Way.
Hence, there is no conflict in those aspects of the evidence. They submit that the
issues are whether those failures:
a) constitute an omission that breached a duty of care or fell below the

standard of care; or
b) caused any damage.

[90] On these issues, Ravi and Ms. Kaur rely on the decision of Justice Dardi in
Beacock v. Moreno, 2019 BCSC 955. They refer to two propositions from that case.
[91] First, Dardi J. set out the five elements that a plaintiff must establish to
succeed against a realtor in a professional negligence claim:

[109] The authorities establish that in order to succeed in a claim in
negligence against the realtor defendants, the plaintiff must prove on a
balance of probabilities that:
a) the realtor defendants were possessed a special skill;
b) the realtor defendants undertook to apply that skill for the
assistance of the plaintiff;
c) the plaintiff relied upon such skill;
d) the conduct of the realtor defendants fell below the requisite
standard of care of a reasonably prudent brokerage and real estate
agent at the material time; and
e) the plaintiff suffered damage as a result of the breach of the
standard of care by the realtor defendants.
[92] Second, relying on Beacock, Ravi and Ms. Kaur submit that, in actions
claiming professional negligence, the plaintiff is required to adduce expert evidence
on both the breadth of the duty of care and the standard of care of realtors, unless
the actions of the realtor fall in the description of “common experience”. Again, Dardi
J. in Beacock wrote:
[106] In Brown v. Douglas, 2010 BCSC 1059 [Brown SC], rev’d on other
grounds 2011 BCCA 521, Willcock J. (when he was a member of this Court)
summarized the governing principles regarding the duty of care of a real
estate agent:
[38] To some extent a common duty of care is implied from the
relation of principal and agent and from a basic appreciation of the
role of the agent in the market. Expert evidence is not necessary to
establish a standard of care based on common experience: Burbank
v. R.T.B., 2007 BCCA 215, 279 D.L.R. (4th) 573; and Summit Staging
Ltd. v. 596373 B.C. Ltd., 2008 BCSC 198, 68 R.P.R. (4th) 280.
[39] In Phelan v. Realty World, [1994] 38 R.P.R. (2d) 128 (S.C.),
Baker J. adopted the following description of the duty of care of an
agent to his principal set out in Fridman, Studies in Canadian
Business Law, at 334:
An agent who is receiving a reward must not only exercise
reasonable care, but he is also deemed to possess reasonable
skill, thus as real estate brokers hold themselves out to the
public as being experts in property valuation and sale, they

must display the qualities which are generally associated with
their calling and in offering advice and information must use
due care.
[107] It is clear that there is an implied duty of care between a realtor and a
client to possess reasonable skill related to property valuation and sales. A

realtor is to exercise the skill of a reasonably prudent realtor in the
circumstances.
[108] Mr. Justice Willcock also addressed the legal test for establishing a
broader duty of care between a real estate agent and a client:
[41] One who seeks to impose a broader duty, for example, a duty
to make specific enquiries on behalf of a purchaser or to warn of
particular risks of a transaction, bears the evidentiary burden of
establishing the nature and extent of that duty. For example, the
allegation made by the plaintiff in Summit Staging Ltd. that the agent
ought to have done a market analysis was dismissed because no
evidence was adduced with respect to what was customarily required
of the agent: see para. 46 and the cases cited therein, as well as the
similar decision in Phelan.
[42] Similarly the plaintiffs’ case against their realtors in Perrault v.
North Vancouver (District), 2010 BCSC 382, was dismissed because
the plaintiff’s allegation that the realtors had not verified accuracy [sic]
the information disclosed by the sellers for completeness was not
supported by evidence of the existence of the duty of care alleged.
The Court held at para. 19:
The difficulty with this submission of the plaintiffs is that there
is no evidence before me as to what information is usual or
customary for brokers to verify. Put another way, is searching
the Municipal Planning Department or the Public Library for
notices or claims issued by a public body over two decades
earlier a usual or customary step taken by a reasonable and
prudent realtor?
[Emphasis added in Beacock.]
[93] Ravi and Ms. Kaur submit that the inquiries to discover the Unregistered Right
of Way constitute “specific enquiries on behalf of a purchaser” which fall outside of
the “common experience” category. Hence, expert evidence is required.
[94] In this regard, the realtors point to two separate, and undisputed facts:
a) It was 236BC Ltd.’s notary who discovered the Unregistered Right of Way.
b) The Contract of Purchase and Sale provided that the plaintiff:

i. was responsible for determining allowable land-use provisions;
ii. was advised to check if the Property is on the Heritage registry or the
Archaeological registry, confirm zoning & future zoning with the city, do
a lot survey, and confirm whether the property is in a flood plain or a

peat bog area; and
iii. was advised that the real estate licensees are not qualified to give
legal, accounting or tax advice, and that any questions regarding legal
documents, including charges registered against title should be
answered by independent legal counsel.
[95] The realtors submit that the discovery of the Unregistered Right of Way fell
outside of their duty of care. Further, there is no evidence that their services fell
below a particular standard of care. In short, Baljit’s evidence does not address this
issue.
[96] In response to the realtors’ submissions on the need for expert evidence,
counsel for Baljit submits that this is an area where Baljit should be permitted some
time (i.e., before the trial) to obtain expert evidence on the scope of the duty and
standard of care of a real estate agent. Baljit submits that it would be unfair and
premature to decide this claim on a summary basis. In sur-rebuttal to that
submission, Ravi and Ms. Kaur note that the trial is scheduled for July 8, 2024, and
all pretrial procedures have been conducted. Hence, there is nothing premature
about this application. The law is clear that a party must come to a summary trial
prepared to put their best foot forward.
[97] On a separate issue, Ravi and Ms. Kaur submit that there is no evidence that
the Unregistered Right of Way would (or will) have any impact on the development
potential of the Property. They submit the right of way may have no effect because it
is not registered. Further, the only “evidence” put forward by Baljit is the inadmissible
hearsay (or double hearsay) of the “builders”. Hence, there is no evidence that the
development potential of the Property is limited.
[98] In response to this submission, Baljit submits that this is another area where
he will be obtaining expert evidence in time for trial. Ravi and Ms. Kaur, again in sur-
rebuttal, note that Baljit says that he decided to back out of the Contract of Purchase
and Sale based on the Unregistered Right of Way, and yet, deep into this litigation,

he still has not obtained any expert advice on the legal implications of the document.
Again, they submit that Baljit had an obligation to establish that fact on the summary
trial.
[99] In a separate submission, Ravi and Ms. Kaur submit that Baljit’s counterclaim
has no chance of success. They submit that, framed as a counterclaim (as opposed
to a third-party notice), Baljit has no claim against them for the damages pursued by
the plaintiff. They rely on the reasoning of Justice Kirchner in Kaltenegger v. Cao,
2022 BCSC 2203 at paras. 238–245. In that case, the vendor of land
(Mr. Kaltenegger) sued the purchaser (the defendant Ms. Cao) for backing out of a
contract to purchase land. Ms. Cao brought a separate action (heard at the same
time) against her realtor, Mr. Liu.
[100] Justice Kirchner found that Mr. Liu was negligent, in part, because he failed to
advise Ms. Cao about the actual boundaries of the property she was purchasing.
However, Kirchner J. found that Ms. Cao could not establish that she suffered any
damage because of Mr. Liu’s negligence. He ruled that, in order to establish her
damages, Ms. Cao would have to have completed the conveyance of the land. She
would then own land that was worth less than she thought it was worth based upon
Mr. Liu’s advice. She could then sue Mr. Liu for the difference in value based on her
alleged overpayment. Justice Kirchner wrote:
[240] Ms. Cao argues that but for Mr. Liu’s negligence, she would not have
agreed to purchase 917 Pacific and she would not have been placed in the
position of being sued by Mr. Kaltenegger. In that case, she says, she would
have suffered no loss or damage.
[241] However, the damage Mr. Kaltenegger suffered, for which Ms. Cao
must now compensate him, was not caused by Mr. Liu’s acts or omissions. It
was caused by Ms. Cao refusal to complete her binding contract with
Mr. Kaltenegger against Mr. Liu’s advice.
[242] Mr. Liu’s negligence did not entitle Ms. Cao to break her contract with
Mr. Kaltenegger. In this regard I reject Ms. Cao’s reply submission that she
“properly did not complete” her contract with Mr. Kaltenegger because of
Mr. Liu’s negligence. Mr. Kaltenegger is an innocent party and there is
nothing “proper” about Ms. Cao breaking her contract with him because of
her own agent’s negligence. She was bound to complete that contract and,
had she done so, she would be entitled to sue Mr. Liu for whatever damages
flowed from her now owning a piece of property for which she believes she
overpaid and is not the full property she thought she was buying.

[101] Ravi and Ms. Kaur submit that the facts and reasoning in Kaltenegger are “on
all-fours” with this case. Having improperly backed out of the Contract of Purchase
and Sale, Baljit cannot now claim that the realtors’ negligence caused the damage
that he suffered. If he had a claim against the realtors, he should have completed
the deal and sued for the difference in value.
[102] I note, for the sake of completeness, that Baljit’s counterclaim also alleges
that Ravi and Ms. Kaur were in breach of their contractual and fiduciary duties to
Baljit. The counterclaim also alleges a breach of trust. Ravi and Ms. Kaur do not
deny that they owed contractual and fiduciary duties to Baljit, but they say that there
is no evidence that they breached any such duties.
Finding on Suitability – Counterclaim Against Realtors
[103] In my opinion, Ravi and Ms. Kaur have established that the counterclaim
against them is suitable for summary determination. In stating that, I find that Baljit
has failed to establish that the summary trial on the counterclaim against the realtors
is not suitable. I exercise my discretion to allow the matter to be decided by way of
summary trial.
[104] It follows that I dismiss the counterclaim against the realtors. In that regard:
a) I accept the realtors’ submission that there is no evidence that would

establish that the discovery of the Unregistered Right of Way falls within
the “common duty of care” that is implied from the realtor-client
relationship.
b) I further accept the realtors’ submission that the available evidence

suggests that the discovery of unregistered rights of way fell outside the
common duty of care. Specifically, the Contract of Purchase and Sale

reserved certain duties to lawyers and notaries. It was Mr. Jagpal’s notary
who discovered the Unregistered Right of Way.
c) Hence, there is no evidence that the duty existed. Further, there is no

evidence of the standard of care that might apply. Hence, if I were to
assume that the duty existed, there is no evidence that the work of Ravi
and Ms. Kaur fell below the requisite standard.
[105] Put another way, on the evidence presented, I am unable to determine

whether the discovery of an unregistered right of way would fall within the common
duty of care of a realtor. The available evidence suggests the opposite conclusion.
By definition, that means that Baljit has failed to establish the existence of an
element of his claim against the realtors. Hence, although there is a dispute on the
evidence (as to what Baljit advised his realtors), there is no dispute on the state of
the evidence at this summary trial. Baljit has tendered no evidence on two essential
elements of his claim. As a result, his counterclaim must be dismissed.
[106] If I should be mistaken on the issue of liability, then I note that I also accept
the submission of the realtors in respect of Baljit’s failure to establish damages.
[107] I accept that the reasoning in Kaltenegger would apply to these facts:
a) Baljit backed out of the Contract of Purchase and Sale with Mr. Gupta.
b) Mr. Gupta is entitled to damages for that decision.
c) The realtors are not responsible for the damages suffered by Mr. Gupta
for backing out of the transaction.
d) If Baljit had a claim against his realtors, he was required to complete the
transaction with Mr. Gupta and then sue his realtors for the difference in
the value between the property they told him he was getting, and the
Property he obtained.
e) It further follows that Baljit would have to establish that the Unregistered
Right of Way had a negative impact on the value of the Property. He has
failed to adduce any evidence on that issue.
[108] It follows that the counterclaim against the realtors must be dismissed.

Baljit’s Counterclaim Against the Plaintiff
[109] The plaintiff also seeks the dismissal of the counterclaim against it. Baljit
counterclaimed against the plaintiff for the return of his Deposit. As noted above a
cheque for $75,000 was paid.
[110] Baljit’s counterclaim must fail for the same reasons that I have set out above,
plus an additional reason.
[111] As noted above, on December 31, 2021, Baljit sought an extension of the
completion date. Mr. Gupta agreed on the condition that the Deposit would be
released to Mr. Gupta. Baljit agreed to that term (see para. 25(l) above). Hence,
Baljit has no claim to the Deposit.
[112] I note that the plaintiff argues that the Deposit cheque was not written by
Baljit. I do not need to address that issue.
[113] I dismiss Baljit’s counterclaim against the plaintiff.
The Plaintiff’s Claim Against 236BC Ltd.
[114] The plaintiff also claims that he is entitled to judgment against 236BC Ltd.
which was the assignee of the Contract of Purchase and Sale.
[115] The plaintiff acknowledges that the general force of the law is against him on
this issue. In the ordinary course, there is no privity of contract between the original
vendor and the assignee. However, the plaintiff submits that the facts of this case
distinguish it from the majority of cases.
[116] The plaintiff relies on wording found in the decision in Wanson (Bristol)
Development Ltd. v. Sahba, 2018 BCCA 260. In that case, the vendor (Wanson)
sold a “pre-build” condo to Mr. Bloor. Mr. Bloor then assigned that contract to
Ms. Sahba. In the assignment agreement, Ms. Sahba agreed to indemnify Mr. Bloor

for any damages. Ms. Sahba then failed to close on the condo. Wanson sued and
obtained a judgment against Mr. Bloor. Mr. Bloor sought to pursue Ms. Sahba on the
basis of the indemnity agreement. He then assigned his right of action to Wanson.
Hence, Wanson (vendor) sued Ms. Sahba (assignee), but Wanson had stepped into
the shoes of Mr. Bloor. Wanson was successful at trial. Ms. Sahba appealed. The
question arose during the appeal whether Wanson could have sued Ms. Sahba
directly. Justice Bennett wrote (for the court):
[41] During the hearing of the appeal, questions arose regarding whether
Wanson could have or should have sued Ms. Sahba directly. In my view, it
could not.
[42] Assignments do not create privity of contract between the vendor
(Wanson) and the assignee (Ms. Sahba) in the absence of an express
agreement providing for Ms. Sahba’s liability under the Contract: Victor Di
Castri, The Law of Vendor and Purchaser: The Law and Practice Relating to
Contracts for Sale of Land in the Common Law Provinces of Canada, loose-
leaf (Toronto: Thompson Reuters, 1988) at 491.
[43] In this case, the Purchase Agreement was between Wanson and
Mr. Bloor, and the Assignment was between Mr. Bloor and Ms. Sahba.
Further, s. 7.1 of the Purchase Agreement obviated the need for Wanson to
be concerned with an assignee’s failure to complete the purchase, as s. 7.1
ensures Mr. Bloor retained his own responsibility to perform.
[117] In the present case, Mr. Gupta says that the exception discussed by Justice
Bennett in para. 42 applies. He points to the wording of the assignment from Baljit to
236BC Ltd. It provides, in clause 4.8, that 236BC Ltd. as assignee, agrees to
“observe and perform all of the obligations of the original buyer under the Contract”.
The plaintiff submits that this provision satisfies the requirement, described in
Wanson, for an express agreement providing for (236BC Ltd.’s) liability under the
contract.
[118] From a procedural standpoint, I note that the plaintiff’s notice of application
raised the issue of 236BC Ltd.’s contractual obligations, including the Wanson
decision. As noted above, Baljit and 236BC Ltd. are represented by the same
counsel. However, the defence offered no specific answer to this position on behalf
of 236BC Ltd.
[119] Baljit and 236BC Ltd. filed their application response, and it includes a “Legal

Basis” that falls into three broad categories. The three broad categories are:
a) Mr. Gupta misrepresented the Property;
b) the realtors were negligent; and
c) the matter is not suitable for summary trial.
[120] None of those arguments include a position that assists 236BC Ltd.
[121] The evidence is undisputed that up until the June 20, 2022 closing date,
neither Mr. Gupta nor the realtors were aware of 236BC Ltd.’s involvement. There is
no allegation that Mr. Gupta made any representation to 236BC Ltd. Further, the
realtors were not retained by 236BC Ltd. The realtors’ only duties were owed to
Baljit.
[122] Hence, the application response does not join the issue with the plaintiff’s
arguments regarding the liability of 236 BC Ltd. Further, the defendants did not
address this issue in their oral submissions at the hearing.
[123] Hence, the question for me is whether the carve-out, as discussed by Justice
Bennett in Wanson, applies to this case: Did the assignment agreement create a
privity of contract between Mr. Gupta and 236BC Ltd.?
[124] In my opinion, it did not, and the carve-out that the plaintiff seeks to rely upon
does not apply to these facts.
[125] As noted the plaintiff relies on the Court of Appeal’s decision in Wanson. The
plaintiff argues that the assignment agreement provides that 236BC Ltd. will perform
all of the obligations of Baljit under the original Contract of Purchase and Sale. The
plaintiff points to para. 42 of Wanson and submits that, in this case, there is “an
express agreement providing for [236BC Ltd.]’s liability under the Contract”. Hence,
the plaintiff says that the law supports the direct liability of the assignee on these
facts.

[126] To begin, I note that the cited paragraph is, by definition, obiter. It addresses
a situation that did not exist. Wanson sued Ms. Sahba after taking an assignment of
Mr. Bloor’s claim against her. Justice Bennett was addressing a hypothetical
scenario.
[127] Next, in my opinion, with the greatest of respect, para. 42 of Wanson is

somewhat ambiguous in its use of the term “the Contract”. The plaintiff’s submission
is that “Contract” means the assignment agreement. In my opinion, that is not a
proper interpretation of the language of para. 42.
[128] By my reading of Wanson, the word “Contract” is not a defined term in the
reasons of either the trial judge or the Court of Appeal.
[129] However, a full reading of the case discloses that the use of the word
“Contract” in para. 42, in fact, refers to the original sale agreement. I say that
because:
a) at para. 9 of Wanson, the Court of Appeal discusses clause 7.1 of the

original purchase agreement;
b) at para. 21, the Court refers to Mr. Bloor’s obligations “under s.7.1 of the
Contract”. In the context of that discussion, the Court is clearly referring to
the original agreement between vendor and purchaser (i.e., not the
assignment);
c) then, at para. 42, the Court again uses the word “Contract”; and
d) finally, at para. 43, the Court again refers to “s. 7.1 of the Purchase
Agreement”.
[130] In that context, the word “Contract” must mean the original purchase contract
(not the assignment).
[131] Thus, I turn to the Contract of Purchase and Sale to determine whether any
nexus could arise in that document. There is an assignment provision in the Contract

of Purchase and Sale. The parties (Mr. Gupta and Baljit) agreed that Baljit was
entitled to assign the contract. However, that term is clear that the name of the
assignee must be added or substituted to the Contract of Purchase and Sale. As
noted, the vendor had no knowledge of the assignment or of 236 BC Ltd.
[132] Thus, in my opinion, the Court of Appeal, by using the word “Contract” in
para. 42, meant to say that the assignee of a contract would only become liable to
the original vendor when the assignee signs on to the original contract. 236BC Ltd.
did not sign the Contract of Purchase and Sale.
[133] I find support for this proposition in the Di Castri text that is cited in para. 42 of
Wanson. In Victor Di Castri, The Law of Vendor and Purchaser: The Law and
Practice Relating to Contracts for Sale of Land in the Common Law Provinces of
Canada, vol 2 (Toronto: Thompson Reuters, 2023) at 13:32, the text states:
The true assignment creates privity of estate, but not privity of contract
between the vendor and the assignee. The latter, vis-à-vis his assignor,
becomes primarily liable for the price with the assignor as surety. But the
assignee, apart from an express agreement, incurs no personal liability to the
vendor.
[134] In this case, there was never any privity between Mr. Gupta and 236BC Ltd.
In my opinion, no agreement between Baljit and 236BC Ltd. could create privity
between Mr. Gupta and 236BC Ltd. without Mr. Gupta’s knowledge.
[135] It follows that, although 236BC Ltd. made no submissions on this issue, I find
that the plaintiff has failed to establish his case against 236BC Ltd. I exercise my
discretion in favour of proceeding on the claim against 236BC Ltd. on a summary
basis, and I dismiss that claim.
Damages
[136] For the reasons set out below, I also exercise my discretion not to assess
damages in a summary fashion.

[137] The plaintiff seeks damages of $301,285.01. I explain the elements that
comprise that figure below.
[138] First, the plaintiff says that, after the collapse of the sale to Baljit, he took
reasonable steps to market the Property. He has been unable to attract another
buyer. He submits that a reasonable period to market the Property was three
months. He then obtained an appraisal of the Property.
[139] The plaintiff tendered the Retrospective Narrative Appraisal of the Property
prepared by Ms. Kate M. Ficek of Grover, Elliott & Co. Ltd. The appraisal was
conducted as of September 20, 2022 (three months post-June 20, 2022). The
defendants took no issue with the qualifications of the appraiser or the introduction
of the report.
[140] Ms. Ficek opined that the value of the Property as of September 20, 2022,
was $1,620,000.
[141] On that basis, the plaintiff claims damages of $280,000, which is the
difference between the $1,900,000 sale price and the September 20, 2022 appraisal
value.
[142] The plaintiff also seeks:
a) $24,750 representing the additional mortgage payments of $4,125 per

month for six months from July–December 2022.
b) $55,000 representing the additional mortgage payments of $5,500 per

month for 10 months from January–October 2023.
c) $5,720.71 representing half of the property taxes for 2022.

d) $10,814.30 representing the full property taxes for 2023.
[143] The total of these amounts is $376,285.01. From that figure, the plaintiff
deducts the Deposit paid by Baljit ($75,000). On that basis, the plaintiff arrives at
$301,285.01.

[144] The defendants put forward no argument regarding the assessment of
damages.
[145] In my opinion, however, the plaintiff’s calculation of the damages is deficient.
[146] I note that the appraisal of Ms. Ficek indicates that, as of October 21, 2023,
when she inspected the Property, the 13 motel units on the Property were rented to
long-term tenants. Hence, since June 20, 2022, the plaintiff has received income
from the Property that he would not have received if he had sold the Property.
[147] I note that the “Orders Sought” section of the plaintiff’s notice of application
does not seek a summary assessment of the damages. It only seeks:
a) a declaration that Baljit and 236BC Ltd. are in breach of the Contract of
Purchase and Sale;
b) judgment for breach of contract;
c) dismissal of the counterclaim;
d) interest and costs.
[148] The body of the notice of application, under the heading “Calculation of
Damages”, describes several legal principles relating to the assessment of damages
in this type of case. However, there is no written argument setting out the specific
calculation that the plaintiff put forward at the summary trial. Put another way, the
plaintiff provided no notice of the actual calculations that would be used in arguing
for a summary determination
[149] I have no evidence of the amount of rent received by Mr. Gupta. However, the
plaintiff claims damages for the expenses he has incurred since June 20, 2022,
without accounting for the income he has earned in the same period. I return to the
guidance of the Court of Appeal from both Inspiration Management and Gichuru

(supra). I find it would be unjust to assess the plaintiff’s damages on a summary
basis at this point.
[150] However, in my opinion, it would also be unfair to force the plaintiff through a
full trial on damages. In my opinion, it is an issue that, if properly addressed, should
be able to be concluded in chambers. That, of course, will require proper responsive
materials from the remaining defendant.
[151] Hence, although I am exercising my discretion and disallowing the summary

assessment of the plaintiff’s damages, I will direct that the plaintiff is entitled to bring
the assessment of the claim for damages back on a summary basis.
[152] For the sake of the judicial economy, I will seize myself of the remaining
issues.
Summary
[153] It follows from my reasons above that:
a) I exercise my discretion to allow the following issues to be decided by

summary trial:
i. Liability of Baljit to Mr. Gupta in contract;
ii. Liability of Mr. Gupta to Baljit in the counterclaim;
iii. Liability of the realtor defendants to Baljit in the counterclaim.
iv. Liability of 236BC Ltd. to the plaintiff.
b) I exercise my discretion, and I do not allow the following issues to be

decided by summary trial:
i. Assessment of damages.
c) I grant the declaration sought by the plaintiff in paragraph 1 of the notice of

application, as it relates to Mr. Baljit Singh Gill being in breach of the
Contract of Purchase and Sale. I do not grant the declaration as it relates

to 236BC Ltd.
d) I dismiss Baljit’s counterclaim for the return of the Deposit.
e) I dismiss Baljit’s counterclaim against the realtors.
f) I dismiss the plaintiff’s claim against 236BC Ltd.
[154] The matter has not been completed as between plaintiff and Baljit, so I make
no final order as to costs in that respect. However, the real estate agents are entitled
to their costs of defending the counterclaim.
“A. Ross J.”

2024 BCSC 193

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Gupta v. Gill,

2024 BCSC 193 (CanLII)

Baljit Singh Gill and 1364236 B.C. Ltd.

Before: The Honourable Justice A. Ross

Reasons for Judgment

Counsel for the Plaintiff: S. Sheena-Nakai

Counsel for the Defendants: R. Mpania

Counsel for the Defendants by M.K. Sterns

2024 BCSC 193 (CanLII)

2024 BCSC 193 (CanLII)

b) The defendants by counterclaim seek dismissal of the counterclaim.

b) Also, pursuant to Rule 9-7, all of the defendants by counterclaim

2024 BCSC 193 (CanLII)

[6] For the reasons set out below:

b) I grant judgment in favour of the plaintiff against the individual defendant.

c) I dismiss the plaintiff’s claim against the corporate defendant.

d) I dismiss the defendant’s counterclaim against the plaintiff.

e) I dismiss the defendants’ counterclaim against the real estate agents.

f) However, I decline to exercise my discretion to assess damages on this

[7] In these reasons, I address the following issues:

a) Are the two applications suitable for resolution by summary trial?

d) Is the plaintiff entitled to relief against the assignee numbered company?

[8] My discussion below addresses a number of different claims and positions.

a) the vendor’s claim against the purchaser;

2024 BCSC 193 (CanLII)

d) the purchaser’s counterclaim against his real estate agents.

The Parties, the Property, and the Rights of Way

a) Registered on the title to the Property is a statutory right of way in favour

2024 BCSC 193 (CanLII)

[14] The parties involved in this case are:

c) Later, Baljit assigned the contract to purchase the Property to 1364236

[16] As discussed below, 236BC Ltd. is a named defendant. It is represented by

2024 BCSC 193 (CanLII)

a) The purchase price was $1,900,000.

b) The subject removal date was December 30, 2021.

c) A deposit for $75,000 was to be paid within 24 hours of subject removal

d) The closing date was March 7, 2022.

a) “[2] Subject to the Buyer[s] approving the property disclosure statement

c) “[6] Subject to the Buyer[s] checking and approving all information

2024 BCSC 193 (CanLII)

blank Property Disclosure Statement, indicated that he made no representations

2024 BCSC 193 (CanLII)

a) Baljit is a sophisticated and experienced purchaser of real estate. He

f) Baljit reviewed and signed the Contract of Purchase and Sale.

2024 BCSC 193 (CanLII)

l) Later, on December 30, 2021, Baljit requested an extension of the

m) On the second visit to Keremeos, on or about April 24, 2022, Ravi

n) On May 3, 2022, Baljit requested a further extension to June 20, 2022.

o) As discussed below, on May 29, 2022, Baljit assigned the Contract of

2024 BCSC 193 (CanLII)

2024 BCSC 193 (CanLII)

c) The vendor’s realtor further represented that he would be able to build on

f) He acknowledges that he sought two extensions on the closing date: first

2024 BCSC 193 (CanLII)

j) The disclosure of the Unregistered Right of Way came as a complete

[27] As noted, Baljit’s affidavit evidence is that he had spoken to “various

b) Even if admitted into evidence, there is no evidence to suggest that any of

[28] I discuss below my consideration of Baljit’s evidence on the issue of