COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
Luminary Holding Corp. v. Fyfe,  
2022 BCCA 185  
Date: 20220527  
Docket: CA47303  
Between:  
Luminary Holding Corp. and Kevin Dunn  
Plaintiffs  
(Respondents)  
And  
Todd Fyfe, Todd Fyfe Personal Real Estate Corporation, and  
Fernie Real Estate Company Ltd.  
Defendants  
(Appellants)  
Before:  
The Honourable Mr. Justice Harris  
The Honourable Mr. Justice Willcock  
The Honourable Madam Justice DeWitt-Van Oosten  
On appeal from: An order of the Supreme Court of British Columbia, dated  
February 3, 2021 (Luminary Holding Corp. v. Fyfe, 2021 BCSC 167,  
Vancouver Docket S165945).  
Counsel for the Appellants:  
G.A. Purdy, Q.C.  
S. Twining  
Counsel for the Respondents:  
Place and Date of Hearing:  
W. McMillan  
Vancouver, British Columbia  
March 14, 2022  
Place and Date of Judgment:  
Vancouver, British Columbia  
May 27, 2022  
Written Reasons by:  
The Honourable Madam Justice DeWitt-Van Oosten  
Concurred in by:  
The Honourable Mr. Justice Harris  
The Honourable Mr. Justice Willcock  
Luminary Holding Corp. v. Fyfe  
Summary:  
Page 2  
The appellant, Todd Fyfe, was the listing agent for a 160-acre property in Fernie. A  
portion of the property was in the Agricultural Land Reserve. The respondent, Kevin  
Dunn, was a prospective purchaser. Over the course of three to four months,  
Mr. Fyfe and Mr. Dunn communicated about the property. Ultimately, Mr. Dunn  
purchased it. Mr. Fyfe knew, well before the closing date, that an ongoing boundary  
review would result in the remainder of the property moving into the ALR unless the  
landowner opted out. He did not tell Mr. Dunn about this fact. After the purchase,  
Mr. Dunn learned that the entirety of the property was in the ALR. As a result, his  
plans for developing the property had to change and construction was delayed.  
Mr. Fyfe and the other appellants were found liable in negligence for failing to  
disclose the boundary review and the entitlement to opt out. Mr. Fyfe appeals the  
judge’s finding of an implied agency and breach of duties owed to Mr. Dunn. He also  
alleges error in the assessment of damages.  
HELD: Appeal allowed, in part. The liability findings were open to the judge on the  
evidence. That aspect of the appeal is dismissed. However, the appeal from the  
damages award for lost business profits is allowed and the amount reduced.  
Reasons for Judgment of the Honourable Madam Justice DeWitt-Van Oosten:  
[1]  
The respondents, Luminary Holding Corp. and Kevin Dunn, purchased a 160-  
acre property near Fernie, British Columbia for the purpose of developing an  
executive retreat (the “Fernie Property”). At the time of the purchase, they knew that  
approximately 100 acres of the land was in the Agricultural Land Reserve (“ALR”).  
[2]  
What they did not know is that the Fernie Property was subject to a boundary  
review by the Agricultural Land Commission, with a likelihood that the remaining 60  
acres would also be incorporated into the ALR unless the seller or the respondents,  
as purchasers, opted out. No one exercised the entitlement to opt out. Instead, the  
respondents learned post-purchase that the entirety of the Fernie Property was in  
the ALR. Because of this, they had to change their development plans, resulting in  
considerable delay and added expense.  
[3]  
The appellant, Todd Fyfe, was the listing agent for the Fernie Property. Well  
before the closing date, he learned of the boundary review, the fact that the Fernie  
Property was caught by the review, and the entitlement of the owner to opt out.  
However, he did not disclose this information to the respondents.  
Luminary Holding Corp. v. Fyfe  
[4] The respondents sued Mr. Fyfe, his real estate corporation (Todd Fyfe  
Page 3  
Personal Real Estate Corporation) and the supervising brokerage firm (Fernie Real  
Estate Company Ltd.). The trial judge found all three liable for negligence and  
awarded the respondents a cumulative $1,536,180 in damages.  
[5]  
On appeal, Mr. Fyfe says the liability findings reflect legal error and should be  
set aside. Mr. Fyfe also contends the judge erred in his assessment of damages.  
[6]  
For the reasons that follow, I would dismiss the challenge to the liability  
findings. However, I agree with Mr. Fyfe that the judge erred in his assessment of  
lost profits. I would set aside that award and, in its place, substitute an award for  
$219,084.  
Background  
[7]  
Reasons for judgment in the Court below are indexed as 2021 BCSC 167.  
The judge canvassed the factual background at length. I will highlight the facts I  
consider most salient to the appeal.  
The Sale and Purchase of the Fernie Property  
[8]  
[9]  
The Fernie Property was listed for sale in late 2012.  
Mr. Dunn was interested in purchasing the land to develop an executive  
retreat with his spouse and some friends. Their original plan was to build a large  
lodge that would include two family residences, eight guest suites, a commercial  
kitchen and an accessory shed (“Plan A”).  
[10] Mr. Dunn contacted Mr. Fyfe on July 5, 2013. In response, Mr. Fyfe sent  
Mr. Dunn information about the Fernie Property and they arranged for a viewing on  
August 4, 2013. The original listing stated that a portion of the Fernie Property was  
in the ALR. Mr. Dunn noted this fact; however, the judge accepted that he “did not  
appreciate its import” (at para. 174(c)).  
[11] At the same time as these events, the Agricultural Land Commission (“ALC”)  
was conducting a boundary review in the Regional District of East Kootenay (the  
Luminary Holding Corp. v. Fyfe  
Page 4  
“District”). The ALC is a provincial tribunal created under the Agricultural Land  
Commission Act, S.B.C. 2002, c. 36. The boundary review proposed that the entire  
Fernie Property and other lands be brought into the ALR. Landowners could opt out  
by communicating their preference to the ALC.  
[12] Mr. Fyfe attended a public hearing about the boundary review on August 15,  
2013. He understood that the Fernie Property was among the properties proposed  
for inclusion. He also understood that landowners could opt out. Mr. Fyfe expressed  
concern at the meeting about the fact that only a few of the affected landowners  
were in attendance. In response to that concern, the ALC emphasized the ability to  
opt out. When Mr. Fyfe left the meeting, he did not know when the ALC would make  
a final decision about the Fernie Property.  
[13] Between the August 4 viewing and November 13, 2013, Mr. Dunn made  
various inquiries of Mr. Fyfe specific to: (1) road access to the land; (2) maintenance  
responsibility for that road; (3) a power line on the Fernie Property; and (4) a right of  
way.  
[14] Mr. Fyfe responded to Mr. Dunn’s inquiries. Specific to the issue of road  
access and maintenance, Mr. Fyfe reached out to government officials and  
confirmed that road maintenance would be the respondents’ responsibility. However,  
he also told Mr. Dunn that he was “looking into some ancient legislation” that might  
shed additional light on the matter and would let him know the result. Mr. Fyfe  
testified that he also made inquiries of BC Hydro on behalf of Mr. Dunn.  
[15] On October 28, 2013, Mr. Dunn sent an email to Mr. Fyfe telling him that he  
would likely present an offer on the Fernie Property before the end of that week. He  
said he understood that Mr. Fyfe could act for both the seller and the buyer”  
(emphasis added). He would provide [Mr. Fyfe] with all the details and have [him]  
write up the formal offer(emphasis added).  
[16] The next day, Mr. Fyfe responded, saying he “would be happy to put the  
documents together for [Mr. Dunn].” He “could draft the documents and [Mr. Dunn]  
Luminary Holding Corp. v. Fyfe  
Page 5  
could have [his] lawyer insert any comments and conditions concerning due  
diligence” (emphasis added).  
[17] Mr. Dunn had a lawyer in Calgary who did some work for him. However,  
Mr. Dunn did not ask that lawyer to conduct any research about the ALR.  
[18] On October 31, 2013, Mr. Fyfe asked Mr. Dunn if he had contacted his  
lawyer. Mr. Dunn said “no” because the lawyer had become ill, but he told Mr. Fyfe  
that he “might still be able to put in an offer [the next day] contingent on” getting  
certain guarantees from government about road access leading to the Fernie  
Property.  
[19] On November 8, 2013, Mr. Dunn emailed Mr. Fyfe and told him that he  
wanted to “go ahead with a conditional purchase offer” in the amount of $700,000.  
He asked Mr. Fyfe to send him “any formal sale purchase agreement” for his  
signature.  
[20] Mr. Fyfe responded two days later by sending Mr. Dunn a link to various  
“purchase documents”, including: (1) a property disclosure statement; (2) a standard  
form entitled Working with a Realtor (Designated Agency) (“WWR Form”) and (3) a  
standard form Contract of Purchase and Sale for the Fernie Property. The  
documents were not accompanied by any explanation. The property disclosure  
statement included the following information: “An estimated 100 acres is in the ALR.  
60 Acres is out of the ALR”.  
[21] The WWR Form explained three “possible models” that might govern the  
relationship between a seller, purchaser and realtor. These included a “designated  
agency”, a “limited dual agency” and a “customer relationship.” The WWR Form  
contained an acknowledgement clause seeking to have Mr. Dunn confirm that he  
was in a (non-agency) customer relationship with Mr. Fyfe.  
[22] Mr. Dunn signed the WWR Form on November 12, 2013 and returned it to  
Mr. Fyfe. However, he did not initialize the boxes acknowledging the relationship  
with Mr. Fyfe as a customer relationship. Mr. Fyfe brought this to his attention.  
Luminary Holding Corp. v. Fyfe  
Page 6  
Mr. Dunn subsequently initialed where requested and returned the document to  
Mr. Fyfe.  
[23] The next day, following an exchange of counteroffers, Mr. Dunn agreed to  
purchase the Fernie Property for $775,000. The Contract of Purchase and Sale was  
subsequently assigned to Luminary Holding Corp. (“Luminary”), a company  
controlled by Mr. Dunn, his spouse and the friends who would be co-developing the  
Fernie Property. The Contract of Purchase and Sale was executed five days before  
the deadline to opt out of inclusion in the ALR. Mr. Dunn was not aware of the option  
to opt out or the deadline. The purchase of the Fernie Property closed on November  
28, 2013.  
[24] On January 22, 2014, the remaining 60 acres were moved into the ALR as  
part of the boundary review. The respondents did not know of this fact.  
Development of the Fernie Property  
[25] After the closing date, the respondents began to develop the Fernie Property  
in accordance with Plan A. They retained an architect to prepare drawings.  
[26] On February 18, 2014, the seller was sent a letter by the ALC confirming that  
the whole of the land was now in the ALR. This notice did not make its way to the  
respondents. Instead, they carried on with Plan A, anticipating the development to  
unfold in three stages: developing the land; building an accessory building (a shop);  
and then laying the foundation for the retreat’s main building (a lodge). Mr. Dunn  
testified that under Plan A, construction would likely start in spring 2015 and would  
take approximately 19 months to complete. The judge found that a construction  
start-date of 2016 was more likely (at para. 220).  
[27] By late June 2014, the respondents had prepared their plans for the lodge,  
which they intended to place at the north end of the Fernie Property. They applied to  
the District for a building permit to start construction of the shop.  
Luminary Holding Corp. v. Fyfe  
Page 7  
[28] On July 8, 2014, the District informed the respondents that the whole of the  
Fernie Property was in the ALR and the building permit could not be approved.  
[29] After additional communication with the District, the respondents applied on  
August 19, 2014 for a “non-farm use exemption.That application required approval  
from both the District and the ALC. In the interim, the respondents downed tools on  
Plan A.  
[30] On January 9, 2015, the District voted to support a non-farm use exemption,  
provided that the respondents moved the proposed location of their buildings to the  
south end of the Fernie Property. The respondents confirmed they were able do so.  
The District then forwarded the exemption application to the ALC for a final  
determination. The respondents reactivated their work on Plan A.  
[31] On December 6, 2015, the ALC rejected the non-farm use application. The  
respondents retained a consultant to assist with next steps. The consultant  
recommended asking the ALC to reconsider, but cautioned the respondents that it  
could take considerable time. Given this advice, the respondents decided in January  
2016 to stop work on Plan A until there was greater certainty. By this time, Luminary  
had spent $572,240 planning and designing Plan A.  
[32] Ultimately, in addition to seeking reconsideration, the respondents decided to  
modify their development plans. A new plan (“Plan B”) would be developed in two  
phases. The first phase would consist of a building that contained one family  
residence and four guest suites, as well as a shop. The second phase would include  
a second family residence, six to eight guestrooms and a commercial kitchen. The  
first phase did not require ALC or rezoning approval and could be built on the north  
end of the Fernie Property.  
[33] On April 12, 2016, the respondents submitted a reconsideration application to  
the ALC, indicating that their original plan (Plan A) would likely be scaled down.  
Luminary Holding Corp. v. Fyfe  
Page 8  
[34] On May 14, 2016, the respondents hired a general contractor to start the first  
phase of Plan B. It was contemplated that construction would complete by August  
31, 2017.  
[35] On June 1, 2016, the respondents were advised that the ALC would  
reconsider an exemption.  
[36] On June 28, 2016, the respondents filed a notice of civil claim against the  
appellants.  
[37] On July 6, 2016, the District issued a building permit for the shop and  
construction began shortly thereafter.  
[38] On July 12, 2016, the respondents applied to the District for a building permit  
for the main building contemplated under the first phase of Plan B. The permit was  
issued on September 29, 2016.  
[39] On October 31, 2016, the ALC decided the non-farm use reconsideration  
application and granted approval for a building on the south side of the Fernie  
Property (confirmed by the ALC’s executive committee on December 7, 2016). The  
approved building size would have been sufficient to accommodate the single lodge  
contemplated under Plan A.  
[40] For a variety of reasons, the respondents decided to ask the ALC to change  
the approved building location from the south side of the Fernie Property to its north  
side. A fresh application was required. That was submitted in October 2017. On  
January 22, 2018, the ALC granted the relocation request, approving construction of  
a building on the north side of the Fernie Property that was actually larger than the  
lodge contemplated under Plan A. Zoning approval for the second phase of Plan B  
was obtained from the District on May 10, 2018.  
[41] At the time of the trial, the respondents continued to pursue Plan B. However,  
construction had not yet begun on the second phase. The respondents told the  
judge they anticipated starting construction in spring 2022.  
Luminary Holding Corp. v. Fyfe  
Page 9  
[42] The first phase of Plan B opened for business as a bed and breakfast in  
August 2018. Luminary had spent $5,711,936.78 for construction of the first phase.  
(Just under 50% of that amount is attributable to the family residence.) The bed and  
breakfast lost money due to, among other things, the downturn in Alberta’s economy  
and the COVID-19 pandemic. Operations had paused by the start of the trial.  
[43] The respondents claimed a cumulative $2,676,597.70 in damages.  
Trial Judgment  
[44] There were five issues to resolve at the trial: (1) the proper characterization of  
the relationship between Mr. Fyfe and Mr. Dunn; (2) the standard of care governing  
that relationship and whether it was breached; (3) causation; (4) contributory  
negligence; and (5) damages.  
[45] The judge answered the liability questions as follows:  
a) By at least October 29, 2013, there was an implied agency relationship  
between Mr. Fyfe and Mr. Dunn. That relationship came to an end on  
November 10, 2013 (at para. 124).  
b) As an implied agent, Mr. Fyfe “owed the full range of client duties to  
Mr. Dunn” (at para. 124).  
c)  
Those duties included making “full and fair disclosure of all material  
circumstances and of everything [Mr. Fyfe knew] regarding the subject  
matter” to Mr. Dunn, as well as “full disclosure of all facts within [Mr. Fyfe’s]  
knowledge which might affect the value of the [Fernie Property] or  
[Mr. Dunn’s] decision” (at paras. 113 ,125, citing Mulligan v. Stephenson,  
2016 BCSC 1941 at paras. 110112).  
d) Alternatively, if there was no implied agency, there was a customer  
relationship between Mr. Fyfe and Mr. Dunn (at para. 128).  
e) In the customer relationship, Mr. Fyfe had a duty to “discuss the available  
agency options and the risks and benefits of each” with Mr. Dunn; to  
promptly informMr. Dunn of the boundary review; and to “urge Mr. Dunn  
Luminary Holding Corp. v. Fyfe  
Page 10  
to seek independent advice on the suitability of the [Fernie Property] for  
Mr. Dunn’s proposed use” (at para. 129).  
f)  
Mr. Fyfe breached the implied agency by not telling Mr. Dunn of the  
boundary review and the ability to opt out (at paras. 148, 150). These  
matters fell within the scope of Mr. Fyfe’s “broadly framed” duties as an  
implied agent (at para. 150).  
g) Mr. Fyfe also breached duties owed to Mr. Dunn if their relationship was  
properly characterized as a customer relationship (at para. 151). When  
Mr. Dunn indicated to Mr. Fyfe on October 28, 2013 that he understood  
Mr. Fyfe could actfor both the seller and the purchaser, Mr. Fyfe was  
duty bound to have had a “more detailed discussion about the basis upon  
which he was working for Mr. Dunn” (at para. 152). He should have also  
recommended that Mr. Dunn “secure independent assistance” in relation to  
the purchase, the boundary review and the ability to opt out. His failure to  
do so constituted a breach (at para. 155).  
h) In the customer relationship, Mr. Fyfe was also duty bound to tell Mr. Dunn  
about the boundary review and the ability to opt out (at para. 161). These  
were “material latent defect[s]” that could have affected Mr. Dunn’s  
intended use of the Fernie Property and would not have been discernable  
even with “reasonable levels of inquiry” by Mr. Dunn (at paras. 161, 168).  
i)  
Had Mr. Fyfe not breached his duties, the respondents would have been  
able to pursue Plan A by having the seller of the Fernie Property opt out of  
inclusion, or by exercising that option themselves after the purchase closed  
(at para. 191).  
j)  
There was no basis for a finding of contributory negligence by Mr. Dunn (at  
para. 205).  
[46] Specific to damages, the judge held the appellants liable for:  
a) $572,240 in thrown away expenses for the development of Plan A (at  
para. 208).  
Luminary Holding Corp. v. Fyfe  
Page 11  
b) $279,014 in added capital costs as a result of having to shift from Plan A to  
Plan B. In reaching this amount, the judge applied a 4% negative  
contingency to account for the difference between the respondents’  
evidence that construction under Plan A would have commenced in 2015  
and the judge’s determination that a 2016 start date was more likely (at  
para. 220). He also applied a 5% negative contingency for “betterment”  
expenses in the construction of Plan B that would not have been incurred  
under Plan A (at para. 223), and a 10% negative contingency for the  
possibility that due to uncertainty in the future of the tourism industry, the  
second phase of Plan B might never be built (at para. 224(f)).  
c)  
$675,277 for lost profits. This amount included business losses for 2016  
and 2017 in the cumulative amount of $200,865 (at para. 237).  
d) $9,649 for consultant fees.  
Issues on Appeal  
[47] The appellants say the judge committed six errors. He:  
a) misapplied the legal test for an implied agency by failing to consider the  
entirety of the circumstances;  
b) erred by not allowing the content of the implied agency to be contextually  
informed by the circumstances;  
c)  
wrongly reversed the burden of proof for establishing a material latent  
defect;  
d) erroneously awarded expenses thrown away on Plan A and lost profits,  
resulting in double recovery;  
e) committed palpable and overriding error in his determination of lost profits  
by failing to account for negative contingencies; and,  
f)  
erred in awarding lost profits for 2016 and 2017 given his finding as to  
when construction on Plan A would reasonably have started.  
Luminary Holding Corp. v. Fyfe  
Page 12  
[48] The appellants do not challenge the conclusions on causation or contributory  
negligence. Nor do they take issue with the judge’s assessment of damages for Plan  
B’s increased capital costs or consultant fees.  
Analysis  
The Judge Did Not Err in His Implied Agency Analysis  
[49] The judge found that “an implied agency relationship was created [between  
Mr. Fyfe and Mr. Dunn] by at least the time of Mr. Fyfe’s email on October 29, 2013,  
and that [the agency] came to an end [on] November 10, 2013” (at para. 124,  
emphasis added).  
[50] The bases for this finding are thoroughly detailed at para. 121 of his reasons:  
[121] In my view, the following evidence and findings are relevant in  
determining the nature of the relationship here:  
a)  
b)  
c)  
At the outset of their dealings, Mr. Dunn appreciated that Mr. Fyfe  
was an agent for the seller.  
Mr. Dunn was not aware, when he first met Mr. Fyfe, that it was  
possible for Mr. Fyfe to act for both the plaintiffs and the seller.  
Mr. Dunn suggested to Mr. Fyfe that he had others assisting him.  
However, at no point did he suggest that he had his own realtor. The  
fact that Mr. Dunn had other people with whom he was consulting  
does not avoid the possibility of an implied agency relationship,  
particularly when there was no realtor on Mr. Dunn’s team. Mr. Fyfe  
had no information that there was a realtor on Mr. Dunn’s team.  
d)  
e)  
Mr. Dunn called upon Mr. Fyfe to perform substantial research on  
the road access and power line issues. Such work was also in the  
seller’s interest, to the extent that it may have removed qualms held  
by any interested purchaser. However, these research assignments  
from Mr. Dunn should have put Mr. Fyfe on alert about the potential  
creation of an implied relationship flowing from the fact that Mr. Dunn  
was treating him as someone who could be asked to perform tasks  
at Mr. Dunn’s direction and for his benefit.  
Mr. Fyfe moved deeper into the provision of advice, rather than  
simply providing information, in the exchange of emails on October  
1, 2013. In this exchange, he provided his interpretation of a Ministry  
of Transport email and went further to say that he was “looking into  
some ancient legislation” and that he would “let you know what I  
find”. As Mr. Dunn himself recognized in his email of October 28, this  
level of research was “above and beyond” what a listing agent  
should be expected to provide to a mere potential purchaser.  
Luminary Holding Corp. v. Fyfe  
Page 13  
f)  
I find that there was no discussion of the various potential agency  
relationships between Mr. Dunn and Mr. Fyfe in the days leading up  
to the October 28, 2013 email exchange. Mr. Dunn only agreed that  
it was possible that there was such a discussion, but also suggested  
that the conversation he was thinking about could have occurred in  
2015 in relation to a different transaction. Mr. Fyfe did not produce  
phone records which would presumably have given weight to his  
suggestion that there was such a call. When directly questioned on  
this subject at his discovery, when his memory should generally  
have been better, Mr. Fyfe claimed not to recall any such  
conversation. Although Mr. Fyfe suggested that his memory had  
improved in the 3.5 years since his discovery, it was clear to the  
court that this reconstructed memory of a call was in fact the result of  
(a) listening to Mr. Dunn’s testimony, and (2) creating an ex post  
facto justification for some of the language in Mr. Dunn’s email.  
g)  
While Mr. Fyfe suggest that the language used by Mr. Dunn in his  
email tracked what he would normally have said to someone in a  
conversation about a customer relationship, he acknowledges that  
the term “act for” is not language he would ever have used. I  
conclude that Mr. Fyfe was not reliable on the subject of the alleged  
phone call ahead of the October 28, 2013 email.  
h)  
i)  
Even if there was a discussion about the agency options over the  
phone in the days leading up to the October 28 email from Mr. Dunn,  
this email should have alerted Mr. Fyfe that Mr. Dunn did not  
understand what Mr. Fyfe alleges he explained.  
The fact that Mr. Dunn starts out his October 28 email by recognizing  
that Mr. Fyfe has done more than a realtor would normally do should  
have been another red flag for Mr. Fyfe, i.e., that he may have  
already crossed the line from what a listing agent in a mere customer  
relationship would normally do.  
j)  
Mr. Dunn’s use of the term “act for both the seller and buyer” is very  
difficult to square with a mere customer relationship. “Act for”  
reasonably signifies a client relationship. Barron’s Canadian Law  
Dictionary, 6th ed, defines “agent” as “one who…acts for the benefit  
of another; one authorized by a party to act on that party’s behalf.”  
Black’s Law Dictionary, 11th ed, defines “agent” as “someone who is  
authorized to act for or in place of another”.  
k)  
l)  
Further, the use of the word “both” in his email suggests that  
Mr. Dunn was viewing the seller and himself as having an equivalent  
relationship with Mr. Fyfe, not a relationship in which the seller was  
at the higher “client” level and the he was down at the lower  
“customer” level.  
Finally, Mr. Dunn’s suggestion that he had some control over how  
much commission Mr. Fyfe would receive should have been a further  
indication that Mr. Dunn assumed he was in a client relationship.  
m) The effect of the October 28 email is that Mr. Dunn must be taken to  
have been requesting Mr. Fyfe to act for him in a client relationship.  
Luminary Holding Corp. v. Fyfe  
Page 14  
That should have triggered Mr. Fyfe to clarify that he was not  
prepared to accept such a retainer.  
n)  
However, Mr. Fyfe never clarified his role after receipt of the October  
28 email. Rather, he replied that he would be “happy” to prepare the  
documents. While it is true that the preparation of the documents  
itself is not inconsistent with a mere customer relationship, the  
positive response that he was “happy”, without reservation,  
qualification, or correction, would reasonably have led Mr. Dunn to  
believe that Mr. Fyfe was accepting Mr. Dunn’s proposal. Indeed,  
that was Mr. Dunn’s evidence as to his understanding. By failing to  
clarify his role, we are left in a situation where there was a proposal  
by Mr. Dunn, and an apparent acceptance by Mr. Fyfe. This is  
precisely the type of fact pattern that calls out for the imposition of an  
implied agency.  
o)  
p)  
The fact that Mr. Fyfe’s response referred to the potential for  
Mr. Dunn’s lawyer putting in conditions concerning due diligence  
does not rebut the potential for Mr. Fyfe to be in an agency  
relationship with Mr. Dunn. An individual will often retain a realtor  
and a lawyer for the same real estate transaction.  
I find that the situation did change with the November 10, 2013  
provision of the WWAR and the Contract. Each document contains  
extensive language that should have made it clear to Mr. Dunn that  
Mr. Fyfe was (now) declining to act in a formal agency relationship.  
The WWAR form was processed on two separate occasions  
because of Mr. Dunn’s failure to initial the clarification of the  
limitation on the relationship on the first attempt. I conclude that  
there was enough information in these two documents to end any  
implied agency. The problem for Mr. Fyfe is that he waited almost  
two weeks after the October 28 email to make his legal position  
clear.  
[Emphasis in original.]  
[51] The appellants say the finding of an implied agency fails to account for the  
entirety of the circumstances surrounding the relationship between Mr. Fyfe and  
Mr. Dunn. This includes inferences they contend could have been drawn from  
Mr. Dunn’s acknowledgment of a customer relationship on the WWR Form. The  
appellants say the fact of the acknowledgement supported their view that from the  
start, Mr. Dunn knew that Mr. Fyfe was not working for him and they were in a  
customer relationship. The appellants say the judge ignored this inference, as well  
as the absence of any evidence showing that Mr. Dunn relied upon assertions made  
by Mr. Fyfe or information provided by him, when Mr. Dunn executed the Contract of  
Luminary Holding Corp. v. Fyfe  
Page 15  
Purchase and Sale. This too, the appellants argue, was indicative of a non-agency  
relationship.  
[52] The appellants submit that had the judge engaged in the proper analysis, he  
would have reached the inescapable conclusion that the actions of Mr. Fyfe and  
Mr. Dunn were never consistent with an implied agency and, consequently, the  
respondents failed to prove it was reasonable for Mr. Dunn to infer that Mr. Fyfe had  
consented to that kind of a relationship.  
[53] The appellants do not dispute that an implied agency can be limited in time;  
however, they argue that in not taking a holistic approach to the evidence, the judge  
endorsed an “ephemeral” and “anomalous” 12-day implied agency that generates  
“considerable uncertainty” for real estate agents. If this Court upholds the finding,  
real estate agents will be in an untenable position. They might “owe the ‘full suiteof  
fiduciary obligations at one moment and then be relieved of those obligations in the  
next”: appellants’ factum at paras. 6970.  
[54] I agree with the respondents that this ground of appeal lacks substance and,  
in its essence, seeks to have the Court retry the evidence and reach its own  
conclusion as to whether Mr. Dunn reasonably inferred that Mr. Fyfe consented to  
act as his agent. That is not our role.  
[55] At para. 119 of his reasons, the judge correctly instructed himself on the legal  
test for an implied agency as set out in Siemens v. Howard, 2018 BCCA 197. The  
question to be asked in each case is “whether it is reasonable for the party asserting  
an agency relationship to [have inferred] from the conduct of the other party that  
[they] consented to an agency relationship” (at para. 12, emphasis added).  
[56] It is clear the judge answered this question with reference to the entirety of  
the evidence.  
[57] First, before engaging in the analysis, he reviewed the whole of the  
interaction between Mr. Fyfe and Mr. Dunn, including events that occurred after the  
agency came to an end (at paras. 1145).  
Luminary Holding Corp. v. Fyfe  
Page 16  
[58] Then, specific to the question of an implied agency, the judge considered: the  
communication between Mr. Fyfe and Mr. Dunn; the nature of the inquiries Mr. Dunn  
made of Mr. Fyfe; the responses received; the absence of any clarifying discussion  
about the applicability or non-applicability of an agency relationship prior to  
November 10, 2013; Mr. Dunn’s understanding, as made manifest in his October 28,  
2013 email, that Mr. Fyfe would “act for both the seller and the buyer”; the absence  
of a response from Mr. Fyfe disabusing Mr. Dunn of any such notion or declining to  
act as his agent; and Mr. Fyfe’s unqualified commitment to prepare the Contract of  
Purchase and Sale as requested before clarifying the nature of their relationship (at  
para. 121).  
[59] In Siemens, the Court explained that to determine whether an implied agency  
exists, a judge must examine the events asserted in support of an agency “in the  
context of all of the circumstances” (at para. 14). In my view, the judge did that.  
Ultimately, he interpreted the circumstances differently than the appellants.  
However, that does not mean he erred. The appellants do not suggest the judge  
misapprehended the relevant evidence. Rather, they disagree with the weight he  
assigned to parts of it and the inferences he drew.  
[60] The argument made under this ground of appeal is not dissimilar to one that  
was advanced and rejected in Siemens, namely, that the judge ignored or  
overlooked evidence that was central to the implied agency analysis. As noted at  
para. 20 of Siemens, the “standard of review on this ground of appeal is palpable  
and overriding error”, citing Van Mol v. Ashmore, 1999 BCCA 6 at paras. 1112,  
leave to appeal ref’d [1999] SCCA No. 117. In my view, the appellants have not  
established palpable and overriding error.  
[61] I am satisfied that on this record, and in these circumstances, it was open to  
the judge to conclude that until the differences between an agency and non-agency  
relationship had been brought to Mr. Dunn’s attention by virtue of the WWR Form,  
and, importantly, Mr. Dunn was explicitly asked to acknowledge a customer  
relationship, it was reasonable for Mr. Dunn to infer from Mr. Fyfe’s conduct that  
Luminary Holding Corp. v. Fyfe  
Page 17  
Mr. Fyfe was willing to act as his agent in purchasing the Fernie Property. Mr. Dunn  
testified that when he received the October 29 email from Mr. Fyfe stating that he  
was “happy to put the documents together”, Mr. Dunn interpreted that email as  
Mr. Fyfe “acting on [Mr. Dunn’s] behalf”. He thought he had “hired Mr. Fyfe”. It was  
his understanding that he did not need to hire anyone other than Mr. Fyfe, because  
Mr. Fyfe “could act for both the buyer and the seller”.  
[62] In submissions before us (but not fleshed out in their factum), the appellants  
suggested that a finding of implied agency will be legally flawed unless there is  
evidence of actual reliance on the advice or information received from the alleged  
agent. This argument cannot succeed in light of the judge’s findings of fact.  
[63] The judge found that Mr. Dunn “called upon Mr. Fyfe to perform substantial  
research on the road access and power line issues” (at para. 121(d), emphasis  
added); Mr. Fyfe provided “advice, rather than simply providing information” (at para  
121(e)); Mr. Dunn was “requesting Mr. Fyfe to act for him in a client relationship” (at  
para. 121(m), emphasis added); and Mr. Fyfe compiled a “formal sale purchase  
agreement” as requested by Mr. Dunn (at paras. 36-37). In my view, these findings  
show that Mr. Dunn looked to, trusted and impliedly relied upon Mr. Fyfe for  
information, for advice and for the production of documents in furtherance of his  
intention to purchase the Fernie Property.  
[64] The appellants’ suggestion that the judge’s implied agency finding puts real  
estate agents in an untenable position is without merit. First, whether an implied  
agency exists involves a case-by-case assessment. The judge’s conclusion of an  
implied agency in this case is specific to the interaction between Mr. Fyfe and  
Mr. Dunn, as informed by the evidence. The agency persisted over a period of days  
and at a time when Mr. Dunn was informing himself about potential obstacles to  
development in preparing for a conditional offer. That was the context in which the  
judge found that Mr. Fyfe owed a duty to disclose the boundary review. In any event,  
all realtors need to do to avoid the situation that arose here is to clarify the nature of  
the relationship at the front end of their dealings with an unrepresented customer.  
Luminary Holding Corp. v. Fyfe  
Page 18  
[65] Although Mr. Fyfe testified that he discussed the limited nature of his role with  
Mr. Dunn prior to October 28, 2013, and encouraged him to obtain his own agent,  
the judge did not accept this evidence (at para. 121(f)). To the contrary, he found  
that Mr. Fyfe’s testimony on this point was a “reconstructed memory” designed to  
create an “ex post facto justification for some of the language in Mr. Dunn’s email”  
(at paras. 121(f)(g)). This is a significant credibility and reliability finding adverse to  
Mr. Fyfe that was not challenged on appeal.  
The “Content” of the Implied Agency was Contextually Informed  
[66] The judge held that in the absence of a formal limited dual agency agreement  
(which was allowed for in 2013), the content of Mr. Fyfe’s duties in the implied  
agency were the same as the duties borne towards a “full client” (at para. 125).  
Consequently, Mr. Fyfe had a duty to disclose to Mr. Dunn “all known material  
information” in respect of the Fernie Property (at paras. 126, 148). This included the  
“known existence” of the boundary review and the ability to opt out (at para. 150). As  
Mr. Fyfe disclosed neither, he failed to meet the standard required of him (at  
para. 150).  
[67] The appellants say that in reaching this conclusion, the judge failed to  
appreciate that the nature and extent of the duties owed in an implied agency are  
informed by its context. Consequently, defining those duties requires an  
individualized assessment.  
[68] In Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2009 BCCA 224 at  
para. 91, the Court noted that the “reach of [the] fiduciary obligations” owed in a  
particular relationship will be determined by the “contractual or other circumstances  
that define the conduct of the fiduciary” (emphasis added). See also Wang v. Laura  
W. Zhao Personal Real Estate Corporation, 2021 BCCA 97 at para. 26, leave to  
appeal ref’d 39653 (29 September 2021), and Pirani v. Pirani, 2022 BCCA 65 at  
paras. 94100. In the latter case, the legal framework for analyzing the scope of  
alleged fiduciary duties is discussed at some length, albeit within the specific context  
of a trust agreement.  
Luminary Holding Corp. v. Fyfe  
Page 19  
[69] The appellants contend that had the judge contextually analyzed Mr. Fyfe’s  
obligations to Mr. Dunn, rather than simply assume they would be the same as in a  
full client relationship, he would have realized that “this was a relationship in which  
the client (Mr. Dunn) was not looking to his agent (Mr. Fyfe) to protect his interests”:  
appellants’ factum at para. 81 (emphasis added). Instead, Mr. Dunn:  
… sought no advice from Mr. Fyfe regarding the material terms of the offer to  
purchase, disclosed virtually no details regarding his plans for the [Fernie]  
Property, and relied on his lawyer in Calgary to help him to finalize all the  
details. It was also an agency in which Mr. Fyfe had no discretion to  
unilaterally affect the position of Mr. Dunn. Mr. Dunn was merely a  
prospective buyer until he presented an offer, at which time there was no  
agency relationship.  
… the overall context indicates the existence of an adversarial relationship  
between Mr. Dunn and Mr. Fyfe. For instance, in his email of September 12,  
2013, Mr. Dunn misled Mr. Fyfe into believing that he had a professional  
opinion that the listing price for the Property was too high. The evidence at  
trial was that Mr. Dunn had obtained no such professional opinion …  
Another factor limiting the content and scope of the agency relationship is the  
fact that the agency relationship … came to an end before Mr. Dunn  
presented an offer to purchase the [Fernie] Property …  
… it was an agency relationship limited by the circumstances of the case and  
by Mr. Dunn’s understanding that Mr. Fyfe still represented the interests of  
the seller.  
(Appellant’s factum at paras. 8487.)  
[70] For substantially the same reasons I would not accede to the first ground of  
appeal, I agree with the respondents that in defining the scope of Mr. Fyfe’s  
obligations as an implied agent, the judge did engage in a contextual analysis. His  
consideration of Mr. Fyfe’s responsibilities, including his disclosure obligations,  
accounted for the contextual factors pressed by the appellants. This is readily  
apparent from the reasons. In particular, see paras. 114, 121(a), (c), (d), (n), (o).  
[71] Moreover, at the trial, the respondents called William Phillips to provide expert  
opinion evidence on the “standard of care of a real estate agent in British Columbia  
in 2013.” The appellants did not object to the admissibility of this evidence or to  
Mr. Phillips’ qualifications as an expert witness. A report prepared by Mr. Phillips  
was marked as an exhibit at the trial, again without objection.  
Luminary Holding Corp. v. Fyfe  
Page 20  
[72] Among other things, Mr. Phillips opined that:  
Excepting [any] modifications as laid out in [a] Limited Dual Agency  
Agreement the agent, as the agent for both parties, is required to provide the  
following duties to the prospective purchaser as laid out in [Real Estate  
Council of BC] Rules, Part 3, Sec. 3-3 Duties to clients:  
f) … disclose to the client all known material information respecting real  
estate services, and the real estate and the trade in real estate to which the  
services relate;  
A listing agent, if the listing agent is also the agent for a prospective  
purchaser of the listed property and they have not entered [into] a Limited  
Dual Agency Agreement, has the identical duties to the prospective  
purchaser as if the listing agent acted solely for the prospective purchaser.  
[Emphasis added.]  
[73] The judge relied on Mr. Phillips’ evidence in assessing the nature and extent  
of the obligations owed by Mr. Fyfe (at paras. 125, 161). He was entitled to do so.  
Mr. Phillips’ report and his testimony formed part of the overall evidentiary context  
for determination of the issue. The judge found that Mr. Phillips’ evidence was not  
undermined in cross-examination (at paras. 130, 161). The appellants did not tender  
expert opinion evidence to the contrary.  
[74] In light of Mr. Phillips’ evidence, the absence of a written dual agency  
agreement limiting the scope of Mr. Fyfe’s duties, and the judge’s finding that  
Mr. Dunn was “treating [Mr. Fyfe] as someone who could be asked to perform tasks  
at Mr. Dunn’s direction and for his benefit” (at para. 121(d), emphasis added), I see  
neither legal nor palpable and overriding error in the conclusion that Mr. Fyfe’s  
obligations were akin to those in a full client relationship and that they included an  
obligation to disclose the boundary review and the ability to opt out of incorporation  
into the ALR.  
[75] Objectively, these were plainly material pieces of information to Mr. Dunn as  
purchaser. The judge found Mr. Dunn’s testimony that he told Mr. Fyfe in August  
2013 of his intention to build a commercial lodge to be credible (at para. 166). At the  
Luminary Holding Corp. v. Fyfe  
Page 21  
very latest, Mr. Fyfe knew of this intention by October 2, 2013 (at para. 166(d)). And  
yet, he said nothing about the situation to Mr. Dunn, even when tasked with writing  
the conditional offer. In the particular circumstances of this case, I have no difficulty  
with the judge’s conclusion that the duties owed by Mr. Fyfe as an implied agent  
included disclosure of this information. I agree with the judge that if the fact that 100  
of the 160 acres was in the ALR was considered significant enough to disclose on  
the property disclosure statement, the potential for that number to substantially  
increase because of the ongoing boundary review was also material (at paras. 158–  
160).  
There was no Reversal of Onus in the Latent Defect Inquiry  
[76] The judge’s primary basis for finding liability was breach of the implied  
agency. However, in the alternative, he also considered whether the respondents  
proved a breach of a customer relationship. It was not disputed that, at the very  
least, Mr. Fyfe and Mr. Dunn were in a customer relationship (at para. 111). Indeed,  
that is the nature of the relationship Mr. Dunn was asked to acknowledge on the  
WWR Form.  
[77] The judge found a breach of the customer relationship. He was satisfied that  
Mr. Fyfe had a duty to “promptly inform Mr. Dunn of the ALR Boundary Review, and  
to urge Mr. Dunn to seek independent advice on the suitability of the [Fernie  
Property] for Mr. Dunn’s proposed use” (at paras. 129, 151, 155, 161, 167).  
[78] In reaching that conclusion, the judge again relied on the evidence of  
Mr. Phillips. He accepted Mr. Phillips’ “opinion on the standard of care applicable to  
a listing agent in a customer relationship” (at para. 130). The appellants do not say  
Mr. Phillips was not credible on this point or that his evidence was otherwise  
unreliable. His report said this:  
A listing agent, who is aware of an unrepresented prospective purchaser’s  
intended use of the listed property, and of the circumstances that may affect  
the intended use of that property, should consider as a material latent defect  
any current or reasonably foreseeable conflict between the uses. Before that  
purchaser begins written negotiation to purchase the property, the agent  
Luminary Holding Corp. v. Fyfe  
Page 22  
should make full written disclosure to the unrepresented prospective  
purchaser.  
[Emphasis added.]  
[79] In finding a breach of the customer relationship, the judge also considered the  
regulatory framework that applied to Mr. Fyfe, including the Real Estate Council of  
British Columbia, Professional Standards Manual, 7th ed. (2010). The Manual  
stipulates that a listing agent “must disclose all known material latent defects” (at  
para. 146). At the time of the dealings between the parties, R. 5-13 of the Rules of  
the Superintendent of Real Estate defined a “material latent defect” as a “material  
defect that cannot be discerned through a reasonable inspection of the property”,  
including a defect “that renders the real estate … unfit for the purpose for which a  
party is acquiring it” (at para. 145, emphasis added).  
[80] The judge was satisfied that the potential incorporation of the Fernie Property  
into the ALR amounted to a “material latent defect” because it would interfere with  
Mr. Dunn’s intended use of the land and would not have been discernable even had  
Mr. Dunn made independent inquiries about the ALR. The judge found it  
“speculative” that steps taken by Mr. Dunn to confirm the Fernie Property’s original  
ALR status would have revealed the existence of the boundary review (at  
paras. 168(c)(d)). The appellants say this finding is problematic because the judge  
placed an evidentiary onus on them to prove discoverability, rather than on Mr. Dunn  
to prove a material latent defect. I do not read the judge’s reasons that way. Rather,  
in noting at para. 168(c) that the appellants did not call a District witness to confirm  
what would have been disclosed in response to any such inquiry, the judge was  
simply observing that there was no evidence to support the inference that the  
appellants were asking him to draw.  
[81] In reaching his conclusion about a breach of the customer relationship, the  
judge cited various authorities, including McGuire v. Kernel Construction &  
Development Ltd., 2019 BCSC 58, in which it was accepted that a realtor has a duty  
to “disclose all material facts known to [them] which could affect a reasonable  
purchaser’s willingness to enter into an agreement of purchase and sale” (at  
Luminary Holding Corp. v. Fyfe  
Page 23  
para. 118). The judge found that the case law was generally consistent with  
Mr. Phillips’ evidence (at para. 130).  
[82] Given my conclusion on the first ground of appeal, it is not necessary for this  
Court to decide on the judge’s alternative liability finding. Suffice to say, for the  
purpose of these reasons, the judge engaged in a careful and considered analysis of  
a breach within the context of a customer relationship; correctly instructed himself on  
the relevant legal principles; was alive to the arguments raised by the appellants (at  
paras. 164171); and was satisfied that the respondents proved a material latent  
defect that was not disclosed to them. I see no principled basis for appellate  
interference with this conclusion.  
The Judge Did Not Award Double Recovery  
[83] As stated, the appellants do not challenge the findings on causation or  
contributory negligence. Instead, it is their position that if the liability findings are  
upheld, there are substantial problems with the judge’s assessment of damages.  
[84] For one, the appellants say the judge was wrong to award damages for  
expenses thrown away in developing Plan A and lost profits. They say this results in  
double recovery.  
[85] In my view, this argument can be dealt with summarily.  
[86] First, as correctly noted by the respondents, the appellants did not argue at  
the trial that if the judge awarded Plan A expenses and lost profits, it would result in  
double recovery. Instead, they said the claim for Plan A expenses was too high  
because by July 2014, the respondents would have known there were significant  
risks associated with pursuing that plan. Accordingly, they should have stopped work  
on Plan A until they received confirmation from both the District and the ALC that  
they could proceed. This was a mitigation argument (rejected by the judge at  
paras. 209211). On appeal, the appellants have recast their challenge to this part  
of the assessment.  
[87] Second, and in any event, I see no basis for interference.  
Luminary Holding Corp. v. Fyfe  
Page 24  
[88] Damages awards attract significant deference on appeal. As explained in  
Ostrikoff v. Oliveira, 2015 BCCA 351 at para. 2, “[a]n award of damages is a fact-  
finding exercise that this Court will not interfere with lightly.” Generally, an award will  
not be altered on appeal unless the appellant can show there was no evidence in  
support of the judge’s conclusion, the judge assessed damages applying a mistaken  
or wrong principle, or the result reached was wholly erroneous: Woelk v. Halvorson,  
[1980] 2 S.C.R. 430 at 435.  
[89] The judge considered and rejected arguments that Plan A was pursued  
without a genuine intention to follow through; that Plan A would have been stymied  
in any event; or that it was not actually necessary to shift to Plan B. The judge found  
that the respondents “would have carried on with Plan A absent the ALR Problem”  
(at para. 177). They were “clearly on track to building Plan A when the negligence  
was uncovered” (at para. 177). There was evidence “Plan A should have been  
profitable, and hence there is no economic reason to assume that it would not have  
been pursued had the ALR Problem not intervened” (at para. 178). See also  
paras. 180182.  
[90] Given these findings, I am satisfied there was a sufficient basis for the judge  
to award expenses thrown away as a distinct category of damages.  
[91] The judge’s analytical approach accords with the governing legal principles.  
Reliance damages attempt to “put the injured party in the position it would have  
been in had the tort not been committed”: PreMD Inc. v. Ogilvy Renault LLP, 2013  
ONCA 412 at para. 65; C.M. Callow Inc. v. Zollinger, 2020 SCC 45 at para. 108.  
Specific to expenses thrown away, a plaintiff is “entitled to recover only those  
expenses that were truly wasted”: PreMD at paras. 67-68; Hutchison v. Moore, 2021  
BCCA 301 at para. 112.  
[92] The respondents’ claim for Plan A expenses was squarely grounded in  
design, engineering and planning costs incurred between January 2014 and January  
2016, specific to their original plan (at para. 208). At the trial, an itemized list of Plan  
A expenses amounting to $572,240 was entered as an exhibit and placed before  
Luminary Holding Corp. v. Fyfe  
Page 25  
Mr. Dunn when testifying. He confirmed that the list accurately represented “the total  
invoices paid for Plan A”. This is the amount awarded by the judge.  
[93] The judge also found, as a fact, that had the respondents been able to  
proceed with Plan A, construction under that Plan would not have started until 2016  
(at para. 220). There was no room for overlap between expenses thrown away and  
damages for lost profitability. Based on the judge’s assessment of the likely start  
date for construction under Plan A, the anticipated facilities would not have been  
ready for operation in the period covered by the claimed expenses.  
The Judge Appropriately Accounted for Negative Contingencies  
[94] The second of the appellants’ challenges to the assessment of damages can  
also be summarily addressed.  
[95] The respondents claimed lost profits in the amount of $1,134.084. To prove  
this loss, they tendered expert opinion reports prepared by Doug Bastin with Grant  
Thornton Consulting. The purpose of this evidence was to estimate profits the  
respondents would have achieved had they been able to pursue Plan A, rather than  
Plan B. Operations under the first phase of Plan B, in the form of a bed and  
breakfast, did not commence until August 2018.  
[96] The appellants challenged the reliability of Mr. Bastin’s opinion and the judge  
agreed there were “difficulties” with his evidence (at para. 232). The judge’s  
concerns included, but were not limited to, calculation errors that required correction;  
Mr. Bastin wrongly assumed a 2019 start date for the second phase of Plan B; he  
misunderstood the size of the guest accommodation available under Plan B; and, in  
formulating his opinion, Mr. Bastin did not assess in any concrete way the potential  
business impact of the collapse of the Alberta oil and gas industry or the COVID-19  
pandemic (at para. 232).  
[97] The judge accepted that the appellantsnegligence delayed the respondents  
in “getting their operations off the ground” and that, as a result of having to shift to  
Luminary Holding Corp. v. Fyfe  
Page 26  
Plan B, their “operations were initially more limited in terms of the number of rooms  
available” (at para. 236).  
[98] However, because of his concerns with Mr. Bastin’s opinion, the judge found  
“it would not be appropriate to accept Mr. Bastin’s report in its entirety” (at para. 235,  
emphasis added). Instead, he decided to approach the claim for lost profits as a  
“past income loss/delay claim” and, in assessing this loss, he only partially relied on  
Mr. Bastin’s projections (at para. 236). The judge’s assessment of lost profits  
accounted for the following factors (at para. 234):  
a)  
the collapse of the oil and gas industry … damaged the market for  
the [respondents’] proposed retreat property;  
b)  
c)  
Plan B Phase 1 … lost money during its first two years of operation;  
COVID-19 [threw] the whole tourism industry into disarray,  
particularly in relation to the international travellers that the  
[respondents] intend to target;  
d)  
e)  
Plan B Phase 2 has not been built, and it is not absolutely certain  
that it ever will be built; and  
There is no plan for the [respondents’] business to end in 2022.  
[99] The judge’s comparative analysis of profits under Plans A and B yielded a  
difference of $675,277, which was $458,807 less than the amount claimed by the  
respondents.  
[100] In light of this analysis and the outcome, I see no merit to the appellants’  
argument that the judge failed to apply negative contingencies in assessing lost  
profits, or that he made an award under this head of damages that is “obviously  
unfair”: appellants factum at paras. 112, 115, 116, 126.  
[101] To the contrary, the judge correctly instructed himself that a plaintiff cannot  
recover for loss that is “too remote or speculative” (at para. 206, citing Deloitte &  
Touche v. Livent Inc. (Receiver of), 2017 SCC 63 at para. 77). He was plainly alive  
to the appellants’ concerns about the reliability of Mr. Bastin’s evidence and he gave  
those concerns meaningful effect. He ultimately selected an assessment  
methodology that he thought was better tailored to the circumstances of the case  
and represented a “more reasonable” approach (at para. 236).  
Luminary Holding Corp. v. Fyfe  
Page 27  
[102] I appreciate that from the appellants’ perspective, once the judge found  
reliability issues with Mr. Bastin’s evidence, he should not have relied on any part of  
it, including the projections under Plan A. However, while the judge acknowledged  
reliability concerns, he did not find that Mr. Bastin was biased (at para. 233). Rather  
than disregard Mr. Bastin’s evidence in its entirety, the judge decided it was  
appropriate to treat the matter as one of weight (at para. 233). This was a  
determination squarely within his purview as the trier of fact and the appellants have  
not persuaded me that the use of Mr. Bastin’s evidence constitutes a palpable and  
overriding error.  
The Judge Erred in Awarding Lost Profits for 2016 and 2017  
[103] That brings me to the last of the alleged errors with the damages award.  
[104] To assess lost profits caused by delay in construction and Plan B’s reduced  
accommodations capacity, the judge compared Mr. Bastin’s projected Plan A profits  
from 2016-2019 with the “actual results over the same period” (at para. 237). As  
noted, the comparison yielded a difference of $675,277.  
[105] The appellants say the judge made a palpable error in awarding business-  
related losses for 2016 and 2017. Even had Plan A proceeded as contemplated, the  
executive retreat would not have been operating in those years. Rather than remit  
the matter to the Supreme Court for a new assessment of lost profits, the appellants  
suggest this Court should adjust Mr. Bastin’s 2018 and 2019 projections under Plan  
A to reflect the fact that these would be the first two years of operation (with the  
usual inherent vulnerabilities); apply a 10% negative contingency to account for the  
downturn in Alberta’s economy; and then subtract the actual earnings of Plan B for  
those years. According to the appellants’ calculation, this would result in a total loss  
of profits in the amount of $200,718.  
[106] The respondents say there is nothing erroneous about the judge’s  
assessment of lost profits. His role was to assess, not calculate damages. This is  
necessarily an exercise in judgment, rather than one of precise calculation: Rosvold  
v. Dunlop, 2001 BCCA 1 at paras. 1012, 18. Moreover, the judge did not make an  
Luminary Holding Corp. v. Fyfe  
Page 28  
actual finding as to when Plan A would be operable. As such, his assessment of lost  
profits reasonably reflects the fact that under Plan A, the respondents’ business  
could have commenced at any time between 2016 and 2018. Finally, the  
reasonableness of the judge’s approach is said to be readily apparent from the fact  
that he awarded damages only for past loss, denying the respondents’ prospective  
claim. He found the prospective claim to be speculative and, appropriately,  
exercised his discretion to reject it. The respondents say the judge carefully  
assessed Mr. Bastin’s evidence (the appellants did not adduce a conflicting opinion),  
and there was a sufficient evidentiary foundation for his conclusions.  
[107] Given the judge’s factual findings, the appellants have persuaded me that the  
award of lost profits for 2016 and 2017 reflects palpable error.  
[108] In his evidence, Mr. Dunn testified that construction on Plan A would likely  
have commenced in spring 2015 (reasons for judgment at para. 53). He said the  
construction would take about 19 months to complete (at para. 53).  
[109] The judge described Mr. Dunn’s projection as “aggressive” and found that  
2016 was “more reasonable” (at para. 220). If a 19-month timeline is applied from  
spring 2016, fall 2017 would be the earliest time that Plan A would reasonably have  
been available for occupancy. In light of this practicality, I consider it wholly  
erroneous to have awarded lost profits for 2016 and 2017. On the evidence, as  
assessed by the judge, there is a strong likelihood the respondents would have been  
focused on construction until at least fall 2017 and would not have been open for  
business.  
[110] Post-trial, the parties appeared before the judge to address the issue of  
interest. The appellants argued that interest on the damages should only run from  
January 2019 because there were no accrued business losses until then. The judge  
rejected this submission, saying it was “not possible to determine with certainty  
when Plan A would have been completed … [and it] potentially could have been  
completed anywhere within the 2016–2018 period.” In the appeal, the respondents  
Luminary Holding Corp. v. Fyfe  
Page 29  
say these comments support their position that 2016 and 2017 were appropriately  
included in the assessment of lost profits.  
[111] Although I consider the judge’s comments to be properly before this Court as  
part of the record, I do not consider them determinative. First, the issue before the  
judge was the commencement of the appellants’ interest obligation, not the  
entitlement to lost profits for 2016 and 2017. Second, this was not an application to  
re-open and reconsider the trial findings. In my view, when the reasons for judgment  
are read as a whole, it is clear the judge found that the respondents would not be  
positioned to open their Plan A business, in whole or in part, until fall 2017. That  
finding did not change after the hearing to settle the interest obligation.  
[112] How, then, do we rectify the error?  
[113] In my view, the appellant’s suggestion of moving Mr. Bastin’s analysis forward  
by two years makes sense. Applying that approach using calculations produced by  
the appellants (not challenged by the respondents on appeal), I accept that the total  
revenues for 2018 and 2019 under Plan A would have reasonably amounted to  
$198,553 and $417,990, respectively. Once operating expenses were deducted from  
those amounts, the respondents’ profits under Plan A would have approximated  
$28,592 for 2018 and $155,074 for 2019.  
[114] The Plan B bed and breakfast business lost money in 2018 and 2019, in the  
amounts of $29,871 and $5,547, respectively. Accordingly, the respondents’ past  
loss of profits for 2018 and 2019 is reasonably assessed at a cumulative $219,084.  
[115] I reject the appellants’ suggestion that this amount should be reduced by a  
further 10% to account for the downturn in Alberta’s economy. In my view, the judge  
already gave effect to that negative contingency in rejecting the respondents’ claim  
for prospective business losses (at para. 234).  
Luminary Holding Corp. v. Fyfe  
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Disposition  
[116] For the reasons provided, I would allow the appeal, but only to the extent  
necessary to rectify the damages award for lost profits.  
[117] I would set aside the award of $675,277 for lost profits and substitute, in its  
place, an award for $219,084.  
[118] I would not accede to any other grounds of appeal, leaving in place all other  
findings and awards made by the judge.  
The Honourable Madam Justice DeWitt-Van Oosten”  
I AGREE:  
The Honourable Mr. Justice Harris”  
I AGREE:  
The Honourable Mr. Justice Willcock”  



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