IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
0976820 B.C. Ltd. v. Dorset Realty Group  
Canada Ltd.,  
2022 BCSC 988  
Date: 20220613  
Docket: S166420  
Registry: New Westminster  
Between:  
And  
0976820 B.C. Ltd. DBA Ackroyd Pets & Aquarium  
and William Wong  
Plaintiffs  
Dorset Realty Group Canada Ltd., Colin Schuss, Padilla Holdings  
Limited, Warrington Management Ltd., and 0998036 B.C. Ltd.  
Defendants  
- and -  
Docket: S195407  
Registry: New Westminster  
Between:  
And  
Dorset Realty Group Canada Ltd.  
William Wong  
Plaintiff  
Defendant  
Before: The Honourable Madam Justice Burke  
Reasons for Judgment  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 2  
The Plaintiff, appearing in person and as  
Representative for the Plaintiff, 0976820  
B.C. Ltd.:  
W. Wong  
Representative for the Plaintiff 0976820  
B.C. Ltd., appearing in person:  
H. Ho  
Counsel for the Defendants,  
C. Schuss and Dorset Realty Group  
Canada Ltd:  
V. Reakes  
C. Leung (A/S)  
Counsel for the Defendants, Warrington  
Management Ltd and 0998036:  
N. Lapper  
Place and Date of Trial:  
New Westminster, B.C.  
September 27-29, 2021  
October 1, 4-7, 2021  
November 5, 2021  
February 22-25, 2022  
Place and Date of Judgment:  
New Westminster, B.C.  
June 13, 2022  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
I. INTRODUCTION  
This matter involves two actions: New Westminster Registry No. S166420  
Page 3  
(the “Action”) and New Westminster Registry No. S195407 (the “Parallel Action”).  
The actions were tried together in hearings spread out over several months.  
The Action arises out of a commercial lease (the “Lease”) between the  
plaintiff numbered company, doing business as Ackroyd Pets & Aquarium  
(“Ackroyd”), and the defendant, Padilla Holdings Limited (“Padilla”), for a commercial  
unit located at 140-8171 Ackroyd Road, Richmond, British Columbia (the “Unit”).  
The plaintiff, William Wong, is a director of Ackroyd. Ackroyd and Mr. Wong are  
collectively referred to as the “Plaintiffs”.  
The defendant, Colin Schuss, acted as a dual leasing agent to the plaintiff,  
Ackroyd, and Padilla during the lease transaction.  
Mr. Schuss provided his services through the defendant company, Dorset  
Realty Group Canada Ltd. (“Dorset”).  
Herietta Ho is not a party to these proceedings, but is a director and  
representative of Ackroyd.  
The Unit is located within a shopping centre known as the Richport Town  
Centre (the “Premises”).  
The Premises were managed by the defendant, Warrington PCI Management  
(“Warrington”), incorrectly named in these proceedings as Warrington Management  
Ltd.  
In March 2014, an intermediary company, 0871951 B.C. Ltd. (“087”) entered  
into an agreement (the “Purchase Agreement”) with Padilla to purchase the  
Premises, including all of the landlords’ rights and obligations arising under leases  
within the Premises. In July 2014, 087 assigned all rights interest and title under the  
Purchase Agreement to the defendant, 0998036 B.C. Ltd. (“099”).  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
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At the close of the Plaintiffs’ case, Mr. Schuss and Dorset Realty (together,  
the “First Applicants”) applied to have the case dismissed on the basis that there is  
no evidence to support the case against them in the Action, pursuant to Rules 12-  
5(4) and (5) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]. Likewise,  
Warrington and 099 (the “Second Applicants”) have also brought a “no evidence”  
application, seeking to have the Plaintiffs’ claims against them dismissed.  
After carefully considering this matter despite Mr. Wong’s strong views and  
argument concerning this case on behalf of himself, Ackroyd and 097, I conclude the  
Plaintiffs have failed to adduce any evidence supporting any of their allegations. The  
Plaintiffsclaims should therefore be dismissed.  
II.  
BACKGROUND  
A.  
The Plaintiffs’ Claims  
By its amended notice of civil claim in the Action, filed December 1, 2015, the  
Plaintiffs allege that:  
a) Prior to entering into the Lease, Padilla and Dorset made negligent or  
deceitful misrepresentations to the Plaintiffs regarding the estimated  
operating costs and property taxes (together, the “Additional Rent”) payable  
under the offer to lease and the Lease.  
b) The Plaintiffs relied on the misrepresentations made by Padilla, Warrington,  
and Dorset in entering into the Lease.  
c) The misrepresentations of Padilla, Warrington, and Dorset in respect of the  
Additional Rent amount to fraud or a conspiracy to induce the Plaintiffs to  
enter into the Lease.  
d) Dorset failed to advise the Plaintiffs of the terms of Chapters and City Fresh’s  
(the “Anchor Tenants”) leases or advise that each would vacate the Premises  
in 2014.  
Within the Parallel Action, Mr. Wong further alleges that:  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
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a) Mr. Schuss and Dorset breached their fiduciary obligations by  
misrepresenting the Additional Rent and failing to advise that the Anchor  
Tenants would vacate the Premises; and  
b) Dorset negligently failed to inform of the administration fee payable under the  
Lease.  
The alleged misrepresentations by Mr. Schuss and Dorset concerning the  
Additional Rent are in respect of 2013 only. The Plaintiffs concede that at the time of  
their involvement, Mr. Schuss and Dorset could not have estimated the Additional  
Rent beyond 2013.  
B.  
The “No Evidence” Applications  
As noted above, the First Applicants brought a “no evidence” application at  
the close of the Plaintiffs’ case. As the First Applicants noted, a defendant is entitled  
to apply under R. 12-5(4) without being called upon to elect whether to call evidence:  
Rules, R. 12-5(5).  
The Plaintiffs’ claims against the First Applicants are in negligent  
misrepresentation, deceit and fraud, conspiracy, negligence, and breach of fiduciary  
duty.  
In a no evidence application, the court must consider the evidence called by  
the plaintiff to determine whether there is some evidence to support each element of  
the alleged cause of action.  
With respect to the Plaintiffs’ allegations of negligent misrepresentation, the  
Plaintiffs must show that the First Applicants made untrue, inaccurate or misleading  
representations to them concerning:  
a) additional rent payable by Ackroyd during 2013; and  
b) the lease terms of the Anchor Tenants.  
To succeed in this cause of action, the Plaintiffs must show:  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
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a) there was a duty of care between them and the First Applicants based on a  
“special relationship;  
b) the representations in question were untrue, inaccurate, or misleading;  
c) that the representations were negligently made;  
d) that they reasonably relied on the misrepresentations; and  
e) they suffered damage as a result of their reliance:  
See: Queen v. Cognos Inc., [1994] 1 S.C.R. 87 at 110.  
The Plaintiffs described the claims against the First Applicants on three  
essential bases:  
a) the First Applicants negligently misrepresented the Additional Rent;  
b) the First Applicants negligently misrepresented that Chapters and City Fresh  
were “anchor tenantsin the Premises; and  
c) the First Applicants negligently misrepresented by failing to disclose the 15%  
administration fee in the Lease and/or the increase in property taxes.  
Warrington and 099 also brought an application to have the Plaintiffs’ case  
against them dismissed under Rules 12-5(4) and (5). The claims against Second  
Applicants are largely distinct from the claims made against Dorset and Mr. Schuss.  
In the Action, the Plaintiffsprimary claim is in negligent misrepresentation—  
the factual underpinning of which concerns the negotiations between the Plaintiffs  
and Dorset, on behalf of the landlord, Padilla, with respect to the offer to lease and  
Lease in August 2013. There was no evidence at trial that either of the Second  
Applicants were ever directly involved in the Lease negotiations. Accordingly, the  
Second Applicants submit no actionable misrepresentation could possibly have been  
made to the Plaintiff by either 099 or Warrington.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
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It is undisputed that 099 was not involved in any matter relating to these  
actions until after it purchased the Premises from Padilla in August 2014almost a  
year after the execution of the offer to lease and the Lease. Ms. Ho confirmed on  
cross-examination that she did not deal directly with anyone in the Lease  
negotiations other than representatives from Dorset.  
The remaining claims against the Second Applicants are in conspiracy,  
breach of contract, and private nuisance. The Second Applicants maintain these  
claims generally stem from the Plaintiffspre-contractual misunderstanding of its  
obligation under the offer to lease and the Lease. The Second Applicants submit the  
essential basic elements of each of these claims have also not been established by  
the Plaintiffs, and they should thus be dismissed.  
On a “no evidence” application, the court must consider the evidentiary record  
and determine “whether there is any evidence ‘capable of’ supporting the plaintiff’s  
claim, without evaluating the quality of that evidence”: Insurance Corporation of  
British Columbia v. Mehat, 2018 BCCA 242 at para. 48 [Mehat]. As the Court stated  
in Mehat:  
[49]  
The relevant question is whether a reasonable trier of fact “could’ find  
in the plaintiff’s favour, not whether the trier of fact “would” do so.  
[50] … the evidence must be “reasonably capable” of supporting the  
inferences that are necessary to prove the plaintiff’s case.  
The court may engage in a limited weighing of the evidence. The task for the  
court is to determine whether any facts have been established by evidence from  
which the matters in issue may be reasonably be inferred: Mehat at para. 51. When  
deciding whether evidence is capable of sustaining such an inference, the court  
should give it “the most favourable meaning”: Mehat at para. 52.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
III. EVIDENCE  
A. Evidence of Ms. Ho  
In early 2013, Ms. Ho decided to go into the pet store business. She relied on  
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Howard Lee, a former colleague, for financial advice in respect of the business  
venture and elicited the assistance of a long-time customer, Mr. Wong.  
Ms. Ho asked Mr. Wong to assist her with any language difficulties  
encountered when leasing a space. Mr. Wong agreed to help. Ms. Ho also felt Mr.  
Wong’s involvement lent credibility to her business intentions.  
Ms. Ho knew that to operate her business she would need to purchase pets,  
supplies and equipment, including cages, tanks, and large washbasins.  
Ms. Ho also knew that unless she leased a former pet store, she would incur  
costs renovating a space to suit her needsthe most important of which would be to  
run water lines for numerous tanks requiring freshwater. Ms. Ho gave evidence that  
this required trenching through concrete.  
Ms. Ho did not find a pet store space for lease, and therefore renovations  
were unavoidable.  
Prior to viewing the Unit, Ms. Ho knew that a commercial lease would require  
Ackroyd to pay minimum monthly rent as well as Additional Rent.  
Sometime in July 2013, Ms. Ho viewed an online advertisement (the  
“Advertisement”) for the Unit.  
Ms. Ho read the Advertisement and learned that the Unit was 5,812 square  
feet and that the estimated Additional Rent for 2013 (referred to as operating costs”  
in the Advertisement) were $12.71 per square foot, or $6,155.88 per month (the  
“Advertised Additional Rent Estimate”).  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 9  
Ms. Ho understood that the Advertised Additional Rent Estimate was just  
thatan estimate. Ms. Ho accepted that there might be some variance in the actual  
Additional Rent Ackroyd would be required to pay during 2013.  
Ms. Ho admitted that she understood that $12.71 per square foot figure in the  
Advertisement and offer to lease was an estimate only and that there could be  
variation after reconciliation by the landlord was completed. Additional Rent included  
property tax and a share of the common area expenses, such as property  
management and snow removal. Property tax would not be known on a going  
forward basis, Ms. Ho also understood that certain utility charges would be charged  
on top of the Additional Rent.  
By the Advertisement, Ms. Ho also learned that the Unit would come available  
on July 31, 2013. Ms. Ho was anxious to find and take possession of a space and  
motivated by her and Mr. Lee’s wish to resign from their jobs at another pet store.  
Ms. Ho also knew renovations would take some time and wanted to ensure  
that Ackroyd was operating by December 2013. Ms. Ho knew that December sales  
would significantly surpass sales during any other month of the year.  
On July 16, 2013, Ms. Ho and Mr. Wong met Mr. Schuss at the Unit for the  
viewing.  
During their viewing, neither Ms. Ho nor Mr. Wong asked any questions of Mr.  
Schuss about Additional Rent, property tax, common area charges, or Padilla’s  
terms of the lease with its other tenants at the Premises.  
In the days following, Ms. Ho arranged for a second viewing of the Unit with  
her business partner, Mr. Lee.  
Mr. Schuss did not attend the second viewing. There is no evidence that he  
was asked to attend.  
Ms. Ho did not ask Mr. Schuss any questions following her second viewing.  
Nor is there any evidence that Mr. Wong asked Mr. Schuss any questions.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 10  
After the second viewing, Ms. Ho asked Mr. Wong to inform Mr. Schuss that  
she wanted to make an offer to lease.  
When Ms. Ho decided to make an offer to lease, she had only the information  
contained in the Advertisement and the advice that she had received from Mr. Lee.  
She had not asked any questions of the defendants on topics such as Additional  
Rent, property tax, common area charges, or Padilla’s lease terms with its other  
tenants.  
Mr. Wong did as requested, and on July 31, 2013, Mr. Schuss emailed a draft  
offer to lease to Mr. Wong (the “First Offer”). In the email, Mr. Schuss noted that  
there was still some uncertainty about the lease termsspecifically the minimum  
rent payable.  
Ms. Ho received Mr. Schuss’ email and the First Offer from Mr. Wong.  
From this point forward, all information was sent from Mr. Schuss to Mr.  
Wong, who then relayed the information to Ms. Ho on behalf of Ackroyd. Ms. Ho, as  
the company representative, authorized this chain of communication.  
Ms. Ho read the First Offer. In particular, Ms. Ho reviewed clause 9 and  
understood that the estimated Additional Rent of $12.71 per square foot (the “Offer  
Additional Rent Estimate”) was an estimate only and that it did not provide any  
information of the estimated Additional Rent payable after 2013.  
Ms. Ho did not ask Mr. Schuss any questions about the First Offer.  
Ms. Ho asked Mr. Wong to prepare a counteroffer to lease (the “First  
Counteroffer”). Mr. Wong did as requested.  
The First Counteroffer was drafted by Mr. Wong. It included additional terms  
that Ms. Ho wanted, as well as clarifications that helped her better understand  
Ackroyd’s rights and obligations concerning the Unit.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
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The First Counteroffer was sophisticated in its amendments and included the  
following:  
a) clause 3: lease term extended from five years to seven years;  
b) clause 9: addition of a lease improvement allowance of $15 per square foot;  
c) clause 10: Additional Rent would not be payable until January 2014 (rather  
than December 2013);  
d) clause 15: the date by which Ackroyd was to approve the Lease was  
extended from August 9 to August 15, 2013;  
e) clause 20: Ackroyd would not be required to pay rent during the fixturing  
period extended from November 30, 2013, to December 31, 2013; and  
f) clause 23: a reduced scope of indemnity, removing any personal risk to the  
shareholders of Ackroyd.  
Aside from the date it would commence, the First Counteroffer did not  
propose any changes to the Offer Additional Rent Estimate.  
Ms. Ho asked Mr. Wong to send the First Counteroffer to Mr. Schuss so that  
he could pass it on to Padilla. Mr. Wong did as requested.  
Padilla did not accept the First Counteroffer.  
On August 6, 2013, Mr. Schuss communicated Padilla’s counteroffer (the  
Second Offer”) to Mr. Wong. Mr. Wong, in turn, forwarded the Second Offer to Ms.  
Ho.  
Ms. Ho read the Second Offer. Among the revised terms, Ms. Ho understood  
that Padilla was proposing an increase in minimum rent during the last two years of  
the Lease, that Ackroyd’s obligations in respect of payment of Additional Rent would  
commence December 2013 (not January 2014), and that the leasehold improvement  
allowance was reduced to $6 per square foot.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 12  
Ms. Ho understood that she was being asked to initial the changes proposed  
in the Second Offer, but did not do so.  
Instead, Ms. Ho instructed Mr. Wong to again ask that Ackroyd’s obligations  
in respect of payment of Additional Rent commence January 2014, not December  
2013. On Ms. Ho’s instructions, Mr. Wong crossed out the handwritten words  
“December 31, 2013” at clause 10 and inserted the words “January 2014”. He  
returned this counteroffer to Mr. Schuss (the “Second Counteroffer”).  
Padilla rejected the Second Counteroffer. Mr. Wong’s handwritten notation  
“January 2014” was crossed out again and a date of “December 2013” was restated  
and returned to Mr. Wong (the “Final Offer”).  
Ms. Ho and her partners relented. The Final Offer was agreed to on or in the  
days following August 9, 2013. In any event, the precise date is immaterial to this  
application.  
Neither Ms. Ho nor Mr. Wong asked questions of Mr. Schuss during  
negotiations of the Final Offer.  
There is no evidence from Ms. Ho or Mr. Wong of any discussion about either  
the Advertised Additional Rent Estimate, the Offer Additional Rent Estimate,  
property tax, common area charges, or the lease terms with the other tenants at the  
Premises. In fact, Ms. Ho admits that she never posed questions on these topics.  
Despite the Final Offer stating that Ackroyd would take possession of the Unit  
on September 1, 2013, Ms. Ho was anxious to take possession of the Unit early.  
On August 14, 2013, Ms. Ho reviewed an email from Mr. Schuss sent to Mr.  
Wong. The email explained the “next steps”, including payment of the deposit.  
Neither Ms. Ho nor Mr. Wong posed any questions about these matters.  
According to Ms. Ho, on August 15, 2013, without any discussion with Mr.  
Schuss, Ms. Ho signed a subject removal form and provided it to Mr. Schuss. As  
reviewed below, Mr. Schuss says he discussed these matters with Mr. Wong.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 13  
On August 16, 2013, Ms. Ho reviewed an email from Mr. Schuss to Mr.  
Wong. The email advised that Warrington would start drafting the terms of lease  
between Padilla and Ackroyd only once Ackroyd provided a deposit cheque.  
On learning this, Ms. Ho obtained a cheque from Mr. Lee, post-dating it to  
August 21, 2013, and arranged for it to be sent to Mr. Schuss.  
Mr. Schuss agreed to hold the deposit cheque until its cash date.  
On August 20, 2013, Mr. Schuss provided Mr. Wong with the Lease for  
Ackroyd’s review, via email.  
Initially, Ms. Ho believed that the Lease was not attached to Mr. Schuss’  
email. However, at trial, on hearing a voice message left by Mr. Wong for Mr.  
Schuss, Ms. Ho recalled that the Lease had been attached and had been forwarded  
to her by Mr. Wong.  
Ms. Ho recalls reading Mr. Schuss’ email but admits that she neglected to  
read the attached Lease.  
Despite that, on August 20, 2013, Ms. Ho instructed Mr. Wong to advise Mr.  
Schuss that she was prepared to sign the Lease.  
Importantly, Ms. Ho says that she did not tell Mr. Schuss or Mr. Wong that  
she had not read the Lease. There is no evidence that the Applicants ought to have  
known of Ms. Ho’s failure in this respect.  
At trial, Ms. Ho gave evidence that she did not understand the terms of the  
Final Offer and the Lease before signing these documents, including that she would  
be required to pay Additional Rent based on annual estimate, which were subject to  
adjustment based on the actual costs incurred. However, these obligations were set  
out in the Final Offer and Lease, both of which were signed by Ms. Ho on behalf of  
Ackroyd. She also said she understood that Ackroyd would be charged a 15%  
administration fee on these adjusted amount for Additional Rent, notwithstanding  
that this was a clear term in the Lease.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 14  
On August 20, 2013, after Mr. Wong had advised Mr. Schuss that Ackroyd  
had received, read, and was prepared to sign the Lease, Mr. Schuss emailed Mr.  
Wong advising that Ackroyd could collect the Lease on August 21, 2013, and return  
a signed copy to Dorset on August 22, 2013.  
Ms. Ho read Mr. Schuss’ email, but did not relay her confusion or ask any  
questions of Mr. Schuss or Mr. Wong to clarify the instructions provided by Mr.  
Schuss. There is no evidence that the First Applicants ought to have known of Ms.  
Ho’s misunderstanding.  
On August 21, 2013, Ms. Ho and Mr. Wong attended Dorset’s office to sign  
the Lease.  
Ms. Ho recalls that a secretary, Evelyn Eaton, advised her that until Ms. Ho  
signed the Lease, Ms. Eaton could not provide the key to the Unit.  
Ms. Ho knew that she had until August 30, 2013 to sign the Lease.  
Ms. Ho gave evidence that she asked Ms. Eaton whether she could receive  
legal advice with respect to the Lease. Ms. Ho says Ms. Eaton did not refuse her  
that opportunity. Rather, Ms. Eaton simply advised she was unable to provide Ms.  
Ho with a key to the Unit until the Lease was signed. This evidence was repeated  
several times in cross-examination.  
There is no evidence that Ms. Ho informed Ms. Eaton that she did not read  
the Lease or would not be able to understand its terms.  
When Ms. Ho signed the Lease, she was in the company of Mr. Wong who,  
by her own evidence, had been enlisted to help her overcome any language  
barriers.  
Ms. Ho opted to sign the Lease so that she could take possession of the Unit  
that day. Ms. Ho’s election was made without taking any advice on the Lease and  
without advising any person that she had not read the Lease, despite her recognition  
that she would not have understood the Lease had she read it and after receiving an  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 15  
email from Ms. Schuss advising that Ms. Ho could have taken the Lease away with  
her for review.  
Ms. Ho admits that she signed the Lease because she was motivated by her  
own urgency to take possession of the Unit that day.  
At the time of signing the Lease, and apart from the information contained in  
the Advertisement, the Final Offer, and the Lease, Ms. Ho admits that she had  
asked no questions, engaged in no discussions, and received no advice from the  
First Applicants in respect of:  
a) Additional Rent;  
b) property tax;  
c) common area expenses;  
d) the terms of lease of either Anchor Tenant; or  
e) the Lease itself.  
On October 4, 2013, Ackroyd received a statement of charges for the Unit as  
of December 1, 2013. The statement of charges provided for Ackroyd’s base rent  
and Additional Rent for December 2013.  
The statement of charges is identical to the base rent and Additional Rent that  
Ackroyd had expected to pay under the terms of the Final Offer. It is also identical to  
the base rent and Additional Rent identified by the Lease.  
On February 28, 2014 (after 087 had purchased the Premises), Ackroyd  
received a further statement from Warrington (who was managing the Premises on  
behalf of 087) on account of the reconciled Additional Rent owing for 2013.  
Ms. Ho was not surprised by the reconciliation requiring her to pay an  
additional $235.61. Ms. Ho expected a variation of around this amount as the 2013  
Additional Rent had previously only been estimated.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 16  
Ackroyd commenced operations on December 1, 2013. As expected, Ackroyd  
had good sales month.  
Nonetheless, on January 20, 2014, Ackroyd requested that it be permitted to  
defer paying Additional Rent for 13 months.  
When the landlord refused, Ackroyd offered to pay interest of 5% on the  
deferral. However, the landlord refused again.  
On July 22, 2014, Ms. Ho received a statement of property tax for December  
1, 2013, to December 31, 2013. The statement confirmed that she had been  
charged $5.74 per square foot of the unita penny less than the amount estimated,  
which amounts to $4.85 less than the proportion of property tax included in the  
Advertisement Additional Rent Estimate, the Offer Additional Rent Estimate and the  
Lease.  
Chapters moved from the Premises in May 2014. It was however replaced by  
Staples by September of 2014.  
B.  
Evidence of Mr. Wong  
Although Ms. Wong provided much commentary while leading Ms. Ho in  
direct examination, his own testimony was brief and short on details.  
The record clearly establishes that Mr. Wong was Ackroyd’s representative.  
Although Mr. Wong takes issue with term “agent”, he concedes that he agreed to be  
the primary person to communicate with Mr. Schuss in respect of the Final Offer and  
Lease negotiations.  
Like Ms. Ho, Mr. Wong concedes that he did not ask Mr. Schuss about the  
tenancies of either Anchor Tenants.  
According to Mr. Wong, he and Ms. Ho assumed the Anchor Tenants would  
remain tenants in the Premises.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 17  
While Mr. Wong states that he did not know that operating costs during 2014  
would be more than $12.71, he rightly pointed out in his direct evidence that “to be  
fair, I don’t think anybody knows. Schuss didn’t know. Honest mistake. I didn’t  
know”.  
Mr. Wong further admitted that the “estimate” referred to in the Final Offer  
could have resulted in the Additional Rent being more or less.  
According to Mr. Wong, between February and April 2014, Ackroyd’s  
business slowed. Mr. Wong does not blame that on the Anchor Tenants, although he  
says the closures of those stores “didn’t help”. Instead Mr. Wong states that the slow  
down experienced was consistent with the “nature of retail”.  
In direct, Mr. Wong spent considerable time on the claim that he did not know  
that the Padilla would be charging an administration fee.  
Mr. Wong admits to having read the Final Offer. Mr. Wong told Mr. Schuss  
that he read the Lease. The Final Offer states, in relevant part:  
10. The Tenant proportion of the 2013 annual operating costs and  
property taxes are currently estimated at $12.71 p.s.f. per annum  
($6,155.88 per monthly) and from 1st December 2013 plus Goods  
and Services Taxes as per the Landlord Standard form Lease.  
The Lease states, in relevant part:  
“Operating Costs” mean the sum (without duplication) of all costs of the  
Landlord of operating and maintaining in good repair the Shopping Centre  
including but not limited to the total costs of:  
[]  
(e) an administrative overhead charge equal to 15% of the costs  
previously referred to in this definition including municipal realty taxes.  
Mr. Wong does not deny a conversation Mr. Schuss says occurred on August  
16, 2013. Mr. Wong’s evidence on this point is as follows:  
Q: You heard during the examination of Ms. Ho that Mr. Schuss told you in  
August 2013 that he was uncertain Chapter’s was renewing their lease, do  
you agree?  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 18  
A: I do not.  
Q: And you told him that you had a friend who would like to open up at  
12,000 sq.ft. Chinese restaurant.  
A: I don’t recall.  
Q: Do you deny that?  
A: I said I don’t recall.  
Q: And because Mr. Schuss didn’t know, he said he would touch base with  
you in the fall when he knew if Chapters was staying.  
A: I don’t remember that.  
C.  
Evidence of Mr. Schuss  
Mr. Schuss was called as an adverse witness in the Plaintiffs’ case.  
It is important to note that, aside from the First Offer and an email from Mr.  
Schuss to Mr. Wong about the Second Counteroffer, Mr. Schuss was only afforded a  
single document to refer to during his examinationa statement sent to Ackroyd  
after Mr. Schuss’ involvement for which there is no evidence he knew any thing of.  
Despite that, Mr. Schuss’ evidence was clear, precise, and corroborative of  
much of Ms. Ho’s evidence in terms of the Final Offer negotiations and the Lease. It  
was also accurate when compared to the exhibits marked during Ms. Ho’s  
examination.  
Mr. Schuss’s evidence is as follows:  
a) In preparing to create an advertisement for the Unit, Mr. Schuss sought an  
estimate of operating costs (i.e., Additional Rent) from Padilla. Padilla’s  
representative advised that the 2013 costs were budgeted at $5.75 per  
square foot for property tax and $6.96 per square foot for CAM charges. The  
representative also noted that water charges were additional.  
b) Mr. Schuss then prepared the Advertisement for the Unit. The Advertisement  
noted that operating costs for 2013 were estimated at $12.71 per square foot  
(i.e., $5.75 + $6.96 = $12.71).  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 19  
c) After Ms. Ho’s initial email to Mr. Schuss on July 14, 2013, Ms. Ho advised  
Mr. Schuss that Mr. Wong would be contacting him on her behalf.  
d) On July 15, 2013, Mr. Schuss discussed Chapters’ lease renewal with Adam  
Spear (a representative of Padilla). Mr. Spear indicated that he had not  
spoken to Chapters yet, but guessed that if Chapters renewed it would only  
be until 2015. Mr. Spear told Mr. Schuss the Chapters lease expired June  
2014. Mr. Schuss responded to Mr. Spear providing his views on the lease  
rates that may be achievable.  
e) As of July 15, 2013, Mr. Schuss had no information about whether or not  
Chapters would renew its lease in the Premises. It was common for Mr.  
Schuss to engage in discussions with a landlord before knowing a tenant’s  
leasing plans.  
f) On July 30, 2013, Mr. Schuss met with Mr. Wong at a Starbucks. During the  
meeting Mr. Wong told Mr. Schuss that he would be representing Ms. Ho. Mr.  
Wong explained that Ms. Ho’s English was not strong and that she required  
his assistance. Mr. Wong told Mr. Schuss that Ms. Ho wanted to make an  
offer to lease the Unit. Mr. Wong told Mr. Schuss that he had legal training.  
Mr. Schuss had no reason to doubt the information Mr. Wong relayed.  
g) On July 31, 2013, Mr. Schuss sent the First Offer to Mr. Wong. Shortly  
thereafter, Mr. Wong responded with the First Counteroffer. Mr. Schuss  
understood that Mr. Wong had typed the First Counteroffer himself. Certain of  
its terms appear to have been copied from the First Offer, other terms were  
new or modified. Mr. Wong instructed Mr. Schuss to present the First  
Counteroffer to Padilla.  
h) Although not questioned on it in direct examination, Mr. Schuss provided  
sworn affidavit evidence, in which he stated that Mr. Wong gave him the First  
Counteroffer on August 2, 2013. Mr. Schuss’ affidavit was entered by the  
plaintiff as evidence.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 20  
i) On August 6, 2013, Mr. Schuss emailed the Second Offer to Mr. Wong. The  
covering email states:  
Further to our telephone conversation, please find attached the unsigned  
offer to lease draft you gave me the last time we met, however, we have now  
made the amendments required by the landlord...  
A listing of the landlord’s amendments is provided by Mr. Schuss’ email.  
j) On August 7, 2013, Mr. Wong responded with the Second Counteroffer (as  
described above).  
k) On August 8, 2013, Padilla rejected the Second Counteroffer. Mr. Wong’s  
handwritten notation “January 2014” was crossed out again and a date of  
“December 2013” restated in the Final Offer. Ackroyd agreed to the terms of  
the Final Offer. On August 9, 2013, Mr. Wong hand delivered the fully  
executed Final Offer to Mr. Schuss.  
l) On August 12, 2013, Ms. Ho and Mr. Wong attended at the Unit to measure  
the space. During their visit, Mr. Schuss hand delivered to Mr. Wong Padilla’s  
standard form lease and a layout plan.  
m) Mr. Schuss advised Mr. Wong that Warrington was not prepared to draft the  
prepared form of lease until Ackroyd had removed its subjects and paid a  
deposit.  
n) Mr. Wong advised Mr. Schuss that Ackroyd was prepared to remove subjects  
on the Final Offer based on the standard form of lease that had been  
provided. Ackroyd did that on August 15, 2013. Ackroyd then provided a post-  
dated deposit cheque.  
o) On August 16, 2013, Mr. Wong called Mr. Schuss. Mr. Wong told Mr. Schuss  
that a friend, Bill Koo, wanted to lease 12,000 square feet in the space then-  
occupied by Chapters. Mr. Schuss advised Mr. Wong that the Chapters lease  
was not up until June 2014.  
p) On August 20, 2013, Mr. Schuss emailed the Lease to Mr. Wong.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 21  
q) Mr. Schuss also left a copy of the Lease at the reception of his office at  
Dorset in case Mr. Wong had difficulty printing it. When Mr. Schuss returned  
to the office the following day, someone had picked up the Lease. Mr. Schuss  
assumed it was Mr. Wong.  
r) Mr. Schuss received a telephone message from Mr. Wong on August 20,  
2013, advising that they had read the Lease and were ready to sign. Mr.  
Schuss had no reason to believe that Mr. Wong and Ms. Ho had not read the  
Lease.  
s) Mr. Schuss afforded Mr. Wong four opportunities to read the Lease.  
t) On August 21, 2013, the Plaintiffs signed the Lease and collected the key  
from Dorset’s office.  
u) On October 7, 2013, Mr. Schuss and Mr. Spear discussed, via email, that City  
Fresh had two options to lease remaining. Mr. Schuss explained that if City  
Fresh exercised its option, Padilla was required to enter into a renewal with  
the tenant.  
v) On November 28, 2013, Mr. Schuss and Mr. Spear discussed, via email, that  
Warrington remained uncertain about Chapters’ leasing plans.  
w) On December 12, 2013, Mr. Schuss and Mr. Spear discussed, via email, that  
while there was no official decision by Chapters to close their store, that  
Warrington expected Chapters to vacate the Premises when their lease  
expired in June 2014.  
x) At no time did either Ms. Ho or Mr. Wong ask Mr. Schuss about the terms of  
lease with any other tenant.  
y) Mr. Schuss did not have knowledge of the leasing plans of other tenants to  
the Premises at the time the Lease was signed.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
IV. ANALYSIS  
These claims involve a series of unfortunate events and demonstrate the  
Page 22  
potential impact of signing an agreement without first fully reading and  
comprehending its terms.  
While Mr. Wong has made a number of strong statements suggesting the  
Plaintiffs were wrongfully induced into a detrimental agreement, they are simply not  
made out in the evidence. Rather, the evidence demonstrates the opposite: the  
Plaintiffs and Ms. Ho had every opportunity to negotiate, read, and understand the  
Final Offer and the Lease.  
While Mr. Wong consistently raised the fairness of this situation, Ms. Ho and  
Mr. Schuss’ testimony clearly demonstrates that Ms. Ho chose not to read Lease  
because she was in a rush to obtain a key to the Unit and begin renovations. In  
particular, Ms. Ho agreed she wanted the key to the premises in order to start the  
renovation process so that her business could open by December 2013in time for  
the Holiday season, where retail sales are generally highest. As part of that, she  
needed to apply for permits and her contractor needed to view the Unit.  
The evidence is unchallenged that when Ms. Ho arrived at Dorset’s offices,  
she saw the size of the Lease and asked if she could take it home to review at  
length. Ms. Eaton, the receptionist at Dorset, confirmed Ms. Ho could take the Lease  
home, but that she was unable to give Ms. Ho the key to the Unit until the Lease was  
signed.  
In her rush to ensure the store opened by December, Ms. Ho forewent the  
opportunity to read the Lease and thereby did not inform herself of the terms—  
despite observing the large document which signalled that the terms of the Lease  
included more than the Final Offer as agreed by the parties. Indeed, that Final Offer  
noted that a standard form lease would be prepared, so she was aware from the  
outset that the Final Offer would not ultimately constitute the parties’ entire  
agreement.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 23  
Ms. Ho also contradicted much of Mr. Wong’s evidence, including that he  
typed up the First Counteroffer, in which he changed a number of clauses in the First  
Offer.  
In any event, Mr. Wong’s evidence is itself incapable sustaining his  
allegations. As noted above, his testimony was brief and largely bereft of detail.  
Likewise, he all but acknowledged that the First Applicants could not have known  
what the Additional Rent would ultimately be for 2013.  
Nonetheless, I will deal with each aspect of the Plaintiffs’ claim below.  
A.  
The First Applicants  
1. The Anchor Tenants  
The First Applicants concede a general duty of care being owed to Ackroyd,  
but maintain that concession does to extend to a duty to inquire into the leasing  
plans of other tenants of the Premises. The First Applicants submit there is no  
evidence that Mr. Schuss knew, prior to Ackroyd signing the Lease, that Chapters  
and City Fresh would not be renewing their respective leases in 2014.  
The Plaintiffs’ claim in this regard is premised on two pieces of evidence: the  
Advertisement for the Richport Town Centre created by Dorset that listed Chapters,  
Royal Bank, City Fresh, and Starbucks as anchor tenants and a July 15, 2013 email  
to Mr. Schuss indicating Chapters’ lease was set to expire in 2014. In my view,  
neither provide any basis for a claim in negligent misrepresentation.  
With respect to the Advertisement, its contents were true at the timeeach  
listed business was in fact a tenant when the Advertisement was released. There is  
nothing inaccurate or untrue about the Advertisement. It thus cannot be evidence of  
negligent misrepresentation.  
Likewise, in the July 15, 2013 email, Mr. Spear noted to Mr. Schuss that the  
Chapters lease would expire on June 30, 2014, and sought an update, noting Padilla  
would like a tenant who would pay more for the space. However, the email  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 24  
exchanges make clear that Chapters had an option to renew and it had not made its  
intentions known to Padilla at the time. There is no evidence Mr. Schuss knew that  
Chapters would not renew its lease. Indeed, in an email exchange from November  
2013, Mr. Schuss and Mr. Spear still are unclear on whether Chapters will or will not  
renew their lease.  
Likewise, there is no evidence that the First Applicants were aware in July  
and August 2013 that City Fresh would not want to renew its lease. The City Fresh  
lease was set to expire in October 2014, but also had an option to renew. Each of  
these tenants had an option to renew and had not expressed any plans to the  
parties when the Lease was signed.  
Rather, it appears Ackroyd assumed the Anchor Tenants’ tenancies would be  
ongoing. There is no evidence of any inquiries by the Plaintiffs into the status of  
these leases or evidence that they indicated to the First Applicants that this was an  
important part of the decision to sign the Lease.  
Moreover, even if there were evidence the First Applicants had made untrue  
or inaccurate representations with respect to the Anchor Tenants to the Plaintiffs,  
there is no evidence the Plaintiffs suffered any damages because the Anchor  
Tenants did not renew their respective leases in 2014. While in the course of  
argument on this issue, Mr. Wong offered to “send to the court” proof of these  
damages, Mr. Wong has been provided significant liberty in advancing his case by  
both the court and counsel and has “closed his case”. In any event, as there was no  
evidence of untrue or inaccurate representations, this latter point would not sustain  
an action of this nature. Furthermore, as noted earlier, while Chapters vacated their  
premises in May 2014, Staples took over the premises as tenants shortly thereafter.  
Ms. Ho gave evidence that sales in December 2013 were “significant”, but  
slowed substantially by March 2014before the Anchor Tenants decided not to  
renew their leases. Indeed, Ms. Ho said Ackroyd’s sales decreased 20% by this  
point. Ms. Ho was not surprised as she expected December would be the most  
significant sales month of the year. In addition, Ms. Ho said Ackroyd’s sales  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 25  
improved after the Anchor Tenants vacated their units. This appears to be contrary  
to the allegations and claims made by the Plaintiffs.  
In conclusion, there is no evidence the First or Second Applicants made  
negligent misrepresentations to the Plaintiffs with respect to the Anchor Tenants.  
There is no evidence the impugned representations were inaccurate or untrue and  
no evidence the Plaintiffs suffered any damages because of the alleged  
misrepresentations.  
2.  
The Property Tax  
The Plaintiffs concede they are only making a misrepresentation claim  
against the First Applicants with respect to with respect to the 2013 property tax  
estimate in the Advertisement. In response, the First Applicants say the estimate for  
the 2013 property tax was accurate, and thus cannot sustain a claim for negligent  
misrepresentation. The First Applicants point out that that property tax was $5.75 per  
square and the common area charges were $6.96 per square foot. Mr. Wong relies  
on a letter from Warrington stating the property tax was being increased  
substantially in 2014 due to an increase in property values. However, as the First  
Applicants correctly point out, that estimate is for the Unit’s 2014 property taxes. The  
letter is therefore not evidence of any misrepresentations by the First Applicants with  
respect to the 2013 property taxes. Indeed, the actual property taxes for 2013 were  
$5.74 per square footone penny less than advertised.  
There is no evidence supporting this aspect of the Plaintiffs’ claim. Indeed, all  
the evidence suggests the Advertisement was accurate. Accordingly, there can be  
no finding of misrepresentation.  
3.  
Additional Rent  
The Plaintiffs say the First Applicants negligently misrepresented the  
Additional Rent payable under the Lease, thus inducing them to enter into the Lease  
to their detriment. The First Applicants say that:  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 26  
a) Mr. Schuss provided Mr. Wong with a blank draft lease in advance of  
forwarding the actual Lease;  
b) Mr. Schuss both emailed a copy of the Lease to Mr. Wong and left a copy at  
the Dorset office for him, which he retrieved;  
c) Mr. Wong informed Mr. Schuss he had read the Lease and was prepared to  
sign it; and  
d) Mr. Wong and Ms. Ho had the opportunity to take the Lease with them and  
review once again before signing, but chose not to because they were in a  
rush to begin renovations on the Unit.  
Accordingly, the First Applicants submit the Plaintiffs had every opportunity to  
familiarize themselves with the Lease and the clauses relating to the Additional Rent  
were clear and obvious terms to the Lease. Hence, they say there is no evidence of  
negligent misrepresentation.  
I agree. There is no evidence the First Applicants made any  
misrepresentations with respect to the Additional Rent payable under the Lease.  
Indeed, all the evidence suggests Mr. Schuss gave Mr. Wong and Ms. Ho every  
opportunity to read the Lease, offered the chance to ask him questions with respect  
to it, and that it was their own actions that lead them not to read it and familiarize  
themselves with its contents.  
For example, Mr. Schuss provided evidence he had sent a blank lease to Mr.  
Wong after they had agreed to the Final Offer. Despite Mr. Wong’s protestations,  
there is no contradictory evidence, as Mr. Wong did not testify otherwise on this  
point. Accordingly the evidence shows that the blank lease was provided to Mr.  
Wong.  
While the Warrington insisted the Plaintiffs pay a deposit before it would  
prepare the Lease, on August 20, 2013, Mr. Schuss provided the prepared form of  
lease to Mr. Wong by email. That afternoon, Mr. Wong left a voice mail for Mr.  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 27  
Schuss indicating that he had read the lease and the Plaintiffs were prepared to  
sign the Lease. While Mr. Wong initially said he did not recall this, once he heard  
the voice mail he essentially conceded this was the case. Neither Mr. Wong, nor Ms.  
Ho asked any questions of Mr. Schuss about what was contained in these  
documents or ask Mr. Schuss to explain the terms.  
The First Applicants say, and I agree, that they had no further duty to explain  
the terms of the Lease. There was no indication that the Plaintiffs were confused or  
Mr. Schuss ought to have known they were confused. Indeed, the negotiating  
process did not alert Mr. Schuss to any such concerns. Mr. Wong made a number of  
changes in the First Counteroffer which indicated some sophistication or business  
acumen. Moreover, he had held himself out to Mr. Schuss as having some legal  
training. In all of the circumstances, the First Applicants were entitled to assume the  
Plaintiffs had read the Lease and were familiar with its terms. As the Plaintiffs  
indicated in these proceedings, their troubles arose because they made  
assumptions, which turned out to be wrong.  
B.  
The Second Applicants  
1. Fiduciary Duty  
With respect to the Second Applicants, the Plaintiffs agree there was no  
contractual relationship between Ackroyd and Warrington, but appear to allege a  
fiduciary duty arising out of the payment of management and administration fees  
under the Lease.  
In response, Warrington submits such a duty was not pled in the amended  
notice of civil claim, was raised for the first time at trial, and should not be  
entertained.  
I have been provided with no authority for the proposition that a property  
manager has a fiduciary duty to a tenant. A fiduciary duty between parties with  
commercial interest is a rarity: Litwin Construction (1973) Ltd. v. Pan (1988), 29  
B.C.L.R. (2d) 88 (C.A.) at 104. Indeed, there will generally be no basis to  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 28  
superimpose fiduciary obligations in a commercial relationship where both parties  
are sophisticated, arm’s-length entities with relatively equal bargaining who  
negotiated their respective rights and obligations under the agreement: Cadbury  
Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142 at para. 30; Cardero Coal  
Ltd. v. Carbon Creek Partnership, 2022 BCSC 253 at para. 197. In negotiating the  
transaction, Mr. Wong certainly presented himself as such a party. In any event, I  
am not satisfied there is any evidence in the present case which could reasonably  
support finding such a novel relationship.  
With respect to 099, the Second Applicants argue the corporation purchased  
the Premises from Padilla the end of August 2014, and thus had no hand in the  
negotiating the impugned Lease. Moreover, all the alleged errors (as discussed  
below) relate to December 2013 to July 2014, when Padilla was the owner of the  
Premises and the landlord. Indeed, 099 only issued 3 invoicesnone of which have  
been disputed.  
2.  
Property Tax Errors  
The Plaintiffs allege they were overcharged for property taxes under the  
Lease in 2013 and 2014. While 099 did not own the Premises at this juncture,  
Counsel for the Second Applicants argues that while the property taxes increased in  
2014, payment for this year was made before 099 purchased the Premises.  
Moreover, as noted above, the 2013 property tax estimate was accurate.  
The crux of the Plaintiffs’ claim in this regard appears to be that they were  
overcharged for property taxes for 2014. Under the Lease, the Plaintiffs paid  
property taxes annually on an advanced basis. That is, the landlord would estimate  
the property tax assessment for the Premises for the upcoming year and charge  
each tenant proportional to the square footage of their respective unit.  
The evidence shows that Plaintiffs were overcharged for at least part of 2014.  
However, it is also demonstrates the Plaintiffs were subsequently credited for the  
overpayment. The Plaintiffs were credited $567 for July 2014 and the amount of  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 29  
$27,643 for the amount paid from December 2013 to June 2014 until the actual  
amount of 2014 taxes was established was credited.  
3.  
Rent Error  
The Plaintiffs argue that, at least once, their rental payments were not  
properly accounted for by the landlords. Moreover, they assert that the landlord  
unlawfully had a bailiff attend at the Unit to collect rental payments which were in  
arrears on several occasions.  
It appears that Ackroyd advance payment of rent for December 2013,  
included in the initial deposit of first month rent plus security deposit, was not  
credited in error until July 2014. By time 099 took over in August 2014, this error was  
corrected and the security deposit paid to Padilla was accounted for.  
With respect to the landlord’s use of bailiffs, I find they were within their rights  
under the Lease to do so. Under clause 3.3 of the Lease, the rental payment is due  
on the first of the month. In September 2014 and November 2014, 099 engaged a  
bailiff to attend at the Unit to collect rental payments that had fallen into arrears. The  
evidence shows Ackroyd was in arrears at these times, and the landlord’s actions  
were thus justified under the Lease.  
While Mr. Wong largely complains about the behaviour of the Bailiff at the  
time, which includes sitting on the counter of the store premises, while clearly not  
appropriate, this is not sufficient to support a cause of action against the Landlords.  
Mr. Wong also says this was an “intimidation” tactic, along with others brought  
against Ackroyd by the new property owners, but that is only surmise. There is no  
evidence of such a tactic.  
4.  
Negligent Misrepresentation  
The Plaintiffs broadly allege the Second Applicants negligently  
misrepresented the terms of the Lease to them. I find there is no evidence  
supporting such an assertions. Indeed, Warrington was not involved with the lease  
negotiations and had no involvement with the Plaintiffs until they became tenants at  
0976820 B.C. Ltd. v. Dorset Realty Group Canada Ltd.  
Page 30  
the Premises. Moreover, 099 had no involvement with the Plaintiffs until 2014 when  
they purchased the Premiseswell after the Lease was signed. There was no  
period or opportunity in which the Second Applicants could have been in a position  
to make negligent representations to the Plaintiffs in respect of the Lease on which  
they could have relied to their detriment.  
V.  
CONCLUSION  
I find the Plaintiffs have brought no evidence reasonably capable of proving  
any of the claims in the Action or Parallel Action. The First and Second Applicants’  
applications under R. 12-5(4) and (5) are granted and the Action and Parallel Action  
are dismissed.  
If the parties are unable to agree on costs, they may seek direction from the  
Court.  
Burke, J.”  



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