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Two Vancouver families have had an expensive nightmare due to an leaking underground storage tank.

In 2001, Ms. Aldred purchased a West Vancouver property from the Colbecks, who had purchased it themselves two years before. When she mentioned a building inspection, the Colbecks gave her the inspection report they had commissioned, and assured her that the old underground storage tank on the property had been properly dealt with. (The Colbecks gave these assurances on the basis of a report from their contractor, who had been on site for less than a day and charged only $900, yet claimed that he had pumped out the tank, cleaned it and filled it with sand, removed filler/vent pipes and replaced the sidewalk.)

Ms. Aldred relied on these assurances, which were untrue.  When she listed the property for sale in 2008, she discovered that the UST was still on the property.  This began a chain of lawsuits. Ms. Aldred paid over $200,000 for remediation and is now suing her remediation contractor.  The sale of the property at $1.57 million fell through, and she ultimately sold it for $1 million. [see related case Gulston v Aldred 2010 BCSC 241 relating to Aldred’s action for breach of contract]

Ms. Aldred successfully sued the Colbecks for negligent misrepresentation and as persons responsible for remediation of the property under BC’s Environmental Management Act.  The judge ruled that the  Colbecks had negligently misrepresented the status, safety and integrity of the oil tank, and Ms. Aldred reasonably relied on these representations.

The property was a contaminated site under BC’s Environmental Management Act, and the Colbecks (as owners) had a statutory responsibility for its remediation.  Further, as the Colbecks had not examined the tank, leakage must have occurred while they owned the property, thus contributing to the contamination.

Ms. Aldred was entitled to recover damages caused by the Colbecks’ negligent misrepresentation: she had sold one property at a loss of $6123 in order to purchase the West Vancouver property in 2001.  She is entitled to damages equal to the reasonable cost of remediation services rendered under the supervision of an environmental biologist, to be determined following disposition of the action between Ms. Aldred and her remediation contractor.

Her claim for damages sustained due to the delay in selling the property was dismissed as too remote from the negligent misrepresentation to be compensable. Further, no award for general damages (for discomfort, frustration etc) waswarranted.

Comment: Property owners need to know what their contractors do — not just what they say they do. The Colbecks should have asked their contractor more questions and not relied on his representations about his work: the description of the work, the short time it took to complete and the price charged should have raised a suspicion that the work was not properly done.

Aldred v Colbeck, 2010 BCSC 57 (Jan 20 2010)

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