Suing for Unpaid Deposits

Generally speaking, if a buyer breaches a contract for the purchase of real estate and the seller accepts the buyer’s refusal to perform the contract (as known as “repudiation”), an innocent seller is entitled to retain the deposit paid by the buyer under a contract of purchase and sale. But what happens when a buyer breaches a contract before the deposit is due and payable? Is the seller still entitled to the deposit if the transaction collapses due to the buyer’s breach?

In a recent decision, the British Columbia Court of Appeal confirmed that a seller is entitled to an unpaid deposit owing under a contract of purchase and sale for real estate, even if the repudiation of the contract is accepted by the innocent party. In its decision in Argo Ventures v. Choi 1, the Court confirmed that a seller can sue for the unpaid deposit even after it has accepted the repudiation of the contract due to the buyer’s breach or default.

The facts of the case are as follows: In the summer of 2016, the buyers entered into a contract to purchase a property in Port Coquitlam, British Columbia for approximately $6,500,000, with an initial non-refundable deposit of $300,000 due within ten business days. The buyers decided not to complete the purchase, despite there being a binding contract, and failed to provide the deposit within ten business days of acceptance (as set out in the contract). The buyers breached the contract (by stating that they would not complete the purchase) before the date the deposit was due. The seller accepted the buyers’ repudiation of the contract for failure to pay the deposit on time, thereby terminating the contract, and the seller commenced an action for the amount of the unpaid deposit.

On January 25, 2019 the Supreme Court of British Columbia awarded a judgment against the buyers in the amount of $300,000, plus pre-judgment interest and costs. The buyers did not dispute that the deposit was owing on a certain date and that it was unpaid, rather at trial they put forward a defence of non est factum, stating they were unaware of the changes that were made in the counteroffer which were initialed by them. The defence of non est factum was unsuccessful with the Supreme Court as the judge found that the buyers’ mistaken belief regarding the revisions in the counteroffer, as initialed by them, was due to their own carelessness.

On appeal, the buyers stated that the trial judge erred in its decision and they put forward a new argument that the unpaid deposit was not owing and due, as it was forfeited on the repudiation of the contract. The buyers’ argument had two main aspects:

  1. The deposit was not owing on the date they repudiated the contract (i.e., the repudiation of the contract occurred before the deposit was due); and
  2. The deposit could not be forfeited to the seller because it was never paid.

On the first point, the court refused the buyers’ argument and relied on the principles set out in Vanvic Enterprises Ltd. v. Mack 2,  which state that “where the seller’s right to a non-refundable deposit has accrued before it accepts the buyer’s repudiation, the seller can sue for an amount equal to the unpaid deposit”3.

On the second point, the court refused the buyers’ argument noting that the trial judge did not order the forfeiting of the deposit, but rather an award in damages or debt in an amount equal to the deposit.

Through its decision in Argo Ventures v. Choi, the Court reviewed some important aspects of the law regarding deposits as summarized below:

  • Deposits cannot be excessive or unconscionable, and that deposits are an exception to the usual rule against penalties.4
  • Even where the seller does not suffer any damages, the deposit is still forfeitable if the buyer is in default or breaches the contract.5
  • A seller can still sue for an unpaid deposit owing, even after it has accepted the buyer’s repudiation of the contract.6

A seller can claim an award for either damages or debt for an unpaid deposit owing.7 The Court, through its decision in Argo Ventures v. Choi, has confirmed that regardless of when a deposit is due and payable, an innocent seller will be entitled to the deposit (or a sum equal to the deposit) under a contract for real estate if the buyer breaches the contract (and such repudiation is accepted by the seller), even if the breach by the buyer occurs before the deposit was due and payable. In addition to retaining, or claiming an award for, the deposit, a seller may also sue for any damages suffered that exceed the amount of the deposit. Licensees should always advise their clients to seek independent legal advice for any matters related to breach of contract.

1. Argo Ventures v. Choi, 2020 BCCA 17
2 Vanvic Enterprises Ltd. v. Mack, 1985 CanLII 588 (BC CA)
3 See para 36 of Argo Ventures v. Choi, 2020 BCCA 17
4 See para 36 of Argo Ventures v. Choi, 2020 BCCA 17; and Tang v. Zhang, 2013 BCCA 54
5 See para 47 of Argo Ventures v. Choi, 2020 BCCA 17; and Tang v. Zhang, 2013 BCCA 54
6 See para 47 of Argo Ventures v. Choi, 2020 BCCA 17
7 See para 45 of Argo Ventures v. Choi, 2020 BCCA 17

Cherry Plant Completed

A new state-of-the-art cherry packing facility across from Duck Lake will come to life this weekend.

Jealous Fruits announced Monday it has completed construction on the 140,000 square foot facility, which has been in planning and construction in various phases since the company acquired the site in 2015.

“The new plant is central to our various orchards, logistically accessible for shipping, and has easy customer and staff access,” Jealous Fruits said on Facebook.

The plant features 28 lanes of optical sorting equipment and can handle 18 tons of cherries per hour. There are three cold-storage rooms with 550 tons of capacity, administrative headquarters, retail shop and adjoining dorms to house 130 staff.

It is expected the plant will start packing fruit on about July 4.

Blanket Ban on Residential Evictions Ends

Landlords with existing orders for eviction can take them to the courts beginning July 2, 2020, for enforcement and can enforce a writ order effective immediately. Landlords can enter a rental suite with 24-hour notice and don’t need the tenant’s consent. And documents can now be served in person.

REALTORS® and landlords are expected to follow health guidelines like physical distancing, cleaning and wearing masks when appropriate. Please continue with your diligence in showing property and meeting with clients. Check out the protocols from WorkSafeBC for more information.

The government commits to giving advance notice before lifting the moratorium on evictions for non-payment of rent at a future date. A framework will be put in place that will require landlords to work with tenants to repay rent that’s owing over a reasonable period of time.

For now, the freeze on rent increases remains in place, as does a landlord’s ability to restrict access to common spaces.

Read the government news release here and information about COVID-19 and tenancies here. And these are the timelines required for serving notices during tenancies.

TOURISM INDUSTRY THRILLED

Phase 3 of British Columbia’s reopening plan is a crucial step towards recovery for the tourism industry.

The tourism industry, among many others, felt the impact of COVID-19 immediately, but now that Canadian visitors are welcome and British Columbians are encouraged to explore the province, Tourism Kelowna is thrilled.

“The important and very valid health restrictions kicked in and so that meant that visitor flow absolutely stopped in our area,” says CEO of Tourism Kelowna Lisanne Ballantyne. “Phase 3 being announced was a watershed moment so it meant that it was now allowable for travel within the province.”

Ballantyne says the tour companies are ready to serve visitors and “it’s business as usual, but usual just looks a little bit different.”

“Everyone in the tourism business felt immediately, a sense of optimism because the phones started ringing, visitors started arriving, people started to book attractions, booking hotel rooms.”

And now that COVID-19 restrictions are easing and people are visiting, staff at Ogopogo Parasail are thrilled to welcome back customers safely.

“I think [COVID-19] made our opening a little bit slower, but once we were getting into the busier season, the restrictions were starting to lift anyways so it actually worked out quite well with the timing,” says Joel Devries with Ogopogo Parasail.

For parasailing, staff are operating two separate boats when it’s busy to ensure people are more distanced than they normally would be. Lifejackets are sanitized after each use and hand sanitizer is provided before and after the services.

Glenmore Road going down to single-lane traffic for 2 weeks

Crews will begin paving work on Glenmore Road on Monday, June 29, which will close one lane in each direction for two weeks.

The work will be taking place between Kane Road and Begbie Road and, depending on weather, is expected to be completed by Monday, July 13.

<who>Photo Credit: Google Maps

Photo Credit: Google Maps

“Travelers are encouraged to plan their commute and consider an alternate route during road work,” says a release from the City of Kelowna.

“Transit will continue to operate on its regular schedule but will be making stops in the travel lane. Speed through the construction zone will be reduced to 30km/h.”

<who>Photo Credit: Google Maps

Photo Credit: Google Maps

According to the City, mill and fill treatment of this section of Glenmore Road will extend the road surface life by 15-20 years.

It’s part of the City’s annual Pavement Management Program, which prioritizes repair work on a large number of Kelowna’s roads.

The Perfect Itinerary for a Summer Weekend in Penticton, British Columbia

The Perfect Itinerary for a Summer Weekend in Penticton, British Columbia

Penticton may just be the ultimate summer getaway town in British Columbia. With two glittering lakes, dozen of sandy beaches, hot sun, endless vineyards and views to die for, it’s a hedonist’s dream.

And after three summers, plenty of guests and a whole lot of exploring, I think we’ve found the best Penticton has to offer. Here’s our itinerary for the perfect summer weekend in Penticton, British Columbia.

penticton sign above okanagan lake

Day 1 – Lakeside wanderings and local beer

An evening stroll along Lakeshore Drive is a great introduction to your weekend in Penticton. Check out the S.S Sicamous and Rose Garden at the western end before returning to the downtown core. Drinks are waiting at Cannery Brewing on Ellis St. This laid-back tap room (and patio) offers a wide selection of craft beer alongside the best nachos in town.

After the Cannery closes, head across the street to the funky Mile Zero Wine Bar for a nightcap or two (they also serve Cannery beer!)

Arrived early for your weekend in Penticton? Take an easy hike on the Kettle Valley Railway trail, high above Okanagan Lake. The trail winds through vineyards, orchards, across railway trestles and past a winery or two.

perfect weekend in penticton beach view

Okanagan Lake beach
Four beer tasters and sample popcorn at Cannery Brewery, Penticton

Tasting flight at the Cannery Brewery
A railway trestle on the Kettle Valley Railway trail

Walking the Kettle Valley Railway trail in Penticton
The town of Penticton in summer

View of Penticton from the Kettle Valley Railway trail

Day 2 – Penticton Farmer’s market, wine touring & burgers by the beach

Welcome in the morning with the Penticton Farmers and Community Market, starting at 8.30am. Spanning four downtown blocks, this market is one of the biggest in BC.

Breakfast pastries are plentiful, but there are sit-down options also available on at cafes on Front and Main Streets. Be sure to take a hat or sunscreen; it gets hot here early!

Saturday afternoons are for wine tasting. Just a short distance uphill from downtown is the start of the Naramata Bench, an area nicknamed ‘Napa of the north.’ Here, you can drive, cycle or even walk between award-winning wineries on a self-guided tour.

Lunch is taken on one of the many winery patios or lawns. For the ultimate in Naramata Bench experiences, picnic at Poplar Grove Cheese with a bottle of Lock and Worth wine and a round of Okanagan Double Cream Camembert.

Burger 55 is my pick for the perfect post-wine tour dinner – eat on their patio or head to the park on nearby Marina Way to eat your customised burger by the lake. Don’t waste your time eating inside in Penticton! Finish your evening with an ice-cream cone from Ogo’s on Main Street.

Penticton Farmers market signs

Penticton Farmers market signs
A road intersection with market stalls and crowds of people at the Saturday Morning Farmers Market in Penticton

A busy day at the Saturday Morning Farmers Market in Penticton
The edge of Bench 1775's patio with lake views

The patio at Bench 1775 Winery
A Therapy staff member pour wine samples - wine tasting is one of the best things to do during a summer weekend in Penticton

Wine tasting at Therapy Vineyards in Naramata
Three glasses of wine with three appetsers of food

Paired appetisers and wine at Serendipity Winery, Naramata Bench

Day 3 – Brunching on the lake, floating on the channel

Today is a lazy day. It starts with brunch at the Hooded Merganser and epic views of Okanagan Lake (the restaurant is quite literally sitting on top of it). Be sure to stay close to the water for the rest of your time in town, whether that means some quality beach time (with a dozen to choose from!), a little paddle boarding or a lazy float down the river.

A trip to Penticton almost wouldn’t be quite complete without some tubing down the Channel between Skaha and Okanagan Lakes. The ride starts on Riverside Drive.

Before you depart, take a slight detour to the top of Munson Mountain at the start of the Naramata Bench. Aside from being the home of the Penticton sign, Munson also offers panoramic views across both lakes, Summerland and the mountains beyond. It’s a final look of paradise before you return home! (Also a good chance to pick up any wine you may have forgotten to buy the day before…) And that was it, the perfect weekend in Penticton.

 

The bright blue water of Okanagan Lake, with surrounding hills

Okanagan Lake views from Hooded Merganser restaurant
People in inflated tubes float down the Penticton Channel - an iconic summer weekend activity in Penticton

Floating the Penticton Channel
Vineyards leading down to Okanagan Lake with 'wine shop' sign

Therapy Vineyards, Naramata Bench
The crystal clear waters of Okanagan Lake, lined with golden sands

Okanagan Lake

BC’s temporary rental supplement extended until the end of August

As British Columbia, the rest of Canada and the entire world continues to navigate its way through COVID-19, the Government of BC has extended assistance to renters to last for most of the summer.

The province’s temporary rental supplement (TRS), which began on April 9, will now be in effect until the end of August.<who>Photo Credit: City of Kelowna

Photo Credit: City of Kelowna

“While we are seeing good success at limiting the spread of COVID-19 thanks to everyone’s joint efforts, it has been a difficult time for many,” said Selina Robinson, minister of housing.

“Recognizing the financial challenges faced by many people, our government is extending the TRS and maintaining the rent freeze and the ban on evictions for non-payment of rent.”

Although the ban on evictions for non-payment of rent will stay in effect, the ban on evictions for any other reasons will be lifted later this month.

The TRS program provides $500 per month for eligible households with dependents and $300 per month for eligible households with no dependents, while all eligible roommates are allowed to apply for the supplement separately.

Any money provided to these renters through the supplement will be paid directly to landlords on the renters’ behalf.

To learn more and apply online, click this link.

(Original story: March 25 @ 2:15 pm) – Premier John Horgan has announced a number of temporary measures to help renters in British Columbia.

It’ll offer households up to $500 a month towards rent for anyone who has lost their job or wages due to COVID-19.

BC Government News

@BCGovNews

Premier Horgan and Minister of Municipal Affairs + Housing Selina Robinson announce relief for renters and landlords, part of BC’s COVID-19 Action Plan.
For resources and more information about our response to COVID-19 see http://www.gov.bc.ca/covid19  https://twitter.com/i/broadcasts/1mrGmQAMAYwGy 

1:15pm COVID-19 Update March 25, 2020

BC Government News @BCGovNews

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“With lost jobs and lost wages due to COVID-19, many tenants are worried they can’t make the rent,” said Horgan, who added that it’s a challenging time for landlords too.

“Our plan will give much-needed financial relief to renters and landlords. It will also provide more security for renters, who will be able to stay in their homes without fear of eviction or increasing rents during this emergency.”

That security he’s talking to is a temporary halt on evictions and a freeze on rents, even annual rent increases, during this time.

Today’s measures have been put in place to help renters with low to moderate incomes who are facing financial hardship as a result of COVID-19, but do not qualify for existing rental assistance programs.

Any money provided to these renters through the supplement will be paid directly to landlords on the renters’ behalf.

“As we work together to fight this pandemic, we can’t afford to leave anyone behind,” said MLA Chandra Herbert, leader of the Province’s Rental Housing Task Force.

“That’s why I delivered recommendations that address the immediate concerns of both landlords and tenants who are doing their best at this difficult time.”

For the time being, in support of social distancing and self-isolation, renters now have the right to prevent landlords from accessing rental units without full consent.

The exception is in cases where access is urgently needed due to a health or safety concern or to prevent undue damage to the unit.

For more information on today’s announcement, click this link.

Canada Day! Going Online.

There will be no fireworks, no live music and no big gatherings in Penticton this year on Canada Day, but the city has plans to take its celebration online.

In order to discourage large gatherings in light of COVID-19 restrictions, the city has put together a virtual Canada Day, featuring local children’s entertainers, popular musicians, and fun video submissions from across the region.

Headliners include music duo Aidan and Mandy, musician Beamer Wigley, magician Leif David, and dance and fitness instructor Ashley Dias. The show is expected to last 90 minutes, starting at 12 p.m. on July 1.

“Residents can expect a high-energy, entertaining show featuring some of your favourite local performers and musicians,” said sport and event project manager Carly Lewis. “Be prepared to move your body and sing along as we celebrate the best of our community!”

Residents are asked to contribute to the event by submitting a self-recorded one-minute video of them and their family singing our national anthem here. The video will be incorporated into a Community Song Project, to be revealed on the virtual Canada Day show.

As for evening entertainment, residents won’t be watching the typical annual fireworks show. The Penticton Lakeside Resort took over running the $25,000 fireworks show in January, but they confirm this year is not a go.

“We couldn’t move forward because it just encourages people to congregate,” said Penticton Lakeside Resort director of marketing Brannigan Mosses.

Aside from the COVID-19 restrictions, they were not sure they could raise the money needed.

“There is a significant amount of time required to fundraise for an event like that. With the shift in the economy, donations would be hard to come by … and honestly, we want to encourage donations to go to causes with a more immediate need,” Mosses explained.

She said they had already received two donations toward the fireworks fund before the pandemic hit, which have both been returned.

They hope to be back next year with the fireworks and do not have any plans to give up on the display.

The Social Benefits of Social Distancing

 The 97 Street Pub has reopened and you know what that means?

You can get food like this:

<who>Photo Credit: 97 Street Pub</who>

Photo Credit: 97 Street Pub

And this:

<who>Photo Credit: 97 Street Pub</who>

Photo Credit: 97 Street Pub

And you know what else? You can enjoy it here:

<who>Photo Credit: 97 Street Pub</who>

Photo Credit: 97 Street Pub

And here:

<who>Photo Credit: 97 Street Pub</who>

Photo Credit: 97 Street Pub

When you return to 97 Street Pub, you can soak up the sun from the patio or go indoors to relax in the spacious indoor courtyard. From there, the BBQ chef is grilling up some handhelds, fan favourites and vegan fare — you’ll love being back in the pub.

And the team at the locally-owned, 97 Street Pub, will love to have you back too.

They’re excited to reopen under their new COVID-19 compliant guidelines and they want you to know that you can enjoy a socially-distanced dining experience — which got us thinking… in light of this good news, we wanted to present a new perspective on socializing and highlight some of the social benefits of social distancing.

With these new spacing arrangements, you have to keep your party to six. So when you send out your invite, choose your five wisely and if someone misses the cut, you can use social distancing as your excuse. They’ll understand. Invite them next time. But be warned, if they see you posting patio pics on your Instagram Stories, that may cause conflict.

<who>Photo Credit: 97 Street Pub</who>

Photo Credit: 97 Street Pub

Speaking of conflict, sharing appetizers can be an enjoyable and intimate experience, but it can also cause tension when an agreement on what to share cannot be had.

For example, let’s say that you and your partner want to split an appies. Pre-social distancing, you’d likely have to order something you both can agree on. But in this post-pandemic era of social distancing, you don’t have to share — even if it is your partner. Use social distancing to claim your plate as your own. Go ahead and get the hot wings, eat all the pickle fries and hoard the bruschetta because you have a perfectly legitimate excuse to ‘Treat Yo Self.’

Now that we’ve discussed appies, let’s chat about drinks.

Typically, when you come in a group, you naturally come to an agreement on which beer to get in a pitcher. Usually, this results in a cool, crisp lager that everyone can enjoy. But let’s say that you wanted an IPA to pair with your burger… well, my friend, this is your lucky dining day! You can use social distancing to excuse yourself from pitching in on the pitcher.

Let’s look at the silver lining in between your silver utensils: your plate is yours to enjoy.

No more social courtesy of agreeing to give away your food.

Let’s say you’ve ordered some of the 97 Street Pub’s famous parmesan fries to go with your main. Typically, you’d have someone at your table digging into your stash. But now, social distancing means hands off the parm fries. What’s on your plate is yours.

<who>Photo Credit: 97 Street Pub</who>

Photo Credit: 97 Street Pub

When you’re done enjoying your meal, you can play a game of pool.

The 97 Street Pub pool tables are open, safe and sanitary. Just remember to remain socially distant and respect others’ space… stay about a pool-cue distance away from others.

From appies, mains to post-meal entertainment, there are many social benefits in social distancing. Did we miss any? Let us know in the comments on Facebook.

As this article is only meant to be a fun new way to think about social distancing, please enjoy yourself.

Come dine and relax at the 97 Street Pub. It’s a great place to socialize and their team has done everything they can to protect you.

Lastly, when it comes to sharing the bill? Well, that’s up to you.

They’re seating you spaciously at the reopened 97 Street Pub, connected to the Best Western Plus Kelowna Hotel and Suites, so head over for some great food, great service and great fun.


97 Street Pub offers daily food and drink specials, featuring a wide variety of local Okanagan beer, coolers, wine and premium liquors. The pub features 16 TVs including big screens and plasmas, ongoing special events, including events with LIVE music, and ongoing special sporting events.