The Devil is in the Details #496

Aug 24, 2017

Posted by
Chris Johnston
B.A., LL.B.


Judges are often asked to decide between competing versions of events at trial. Lawyers are advocates attempting to persuade the judge that their client's story should be preferred. When making the decision as to which party's version of events to believe, a judge may consider which story makes sense, is logical, has a ring of truth or, very often these days, which story is consistent with the documents. Documents typically don't lie, don't exaggerate, don't have faulty memories and are often more reliable than witnesses.

Whenever a licensee has a claim that's heading to litigation and ultimately will be decided by a judge, the documents can make the difference between winning and losing. Keeping good records at the time events occur, and then making them available to your defence lawyer, may help you win your case.

The Real Estate Council of British Columbia mandates that licensees make and keep certain records, but that's only a start. Licensees are wise to keep records beyond the basic transaction file. This may include faxes, Microsoft Word documents, letters, memoranda and, most importantly, email and text messages. These can be stored electronically with little effort, cost or storage required.

The Provincial Court recently determined a case in favour of a seller's agent in no small measure because of the email and text message records available at trial.1 Madam Justice Janzen held that the seller's agent wasn't liable in a case where a seller claimed the licensee had agreed to a selling price without her authorization.

Each of the parties had very different, and seemingly irreconcilable, versions of several key phone calls and meetings, as well as differing accounts of what instructions were given on price. The email and text messages confirmed what was discussed and when and, despite allegations by the seller that she had been intimidated or coerced by her agent, the records indicated the contrary. The documents assisted the Court in deciding that the licensee's story was to be preferred.

In another recent case, emails and text messages were used to assist the Court in determining whether architectural plans were included in a contract.2 In all versions of the contract, the inclusion of those plans had been manually struck out. However, the fourth and final version of the contract was a bit faded. The buyers maintained that the plans were included; the seller and seller's agent maintained the opposite.

Determining whether or not the strike out was the intention of the parties and whose evidence to believe was no easy task. The strike out was as obvious to the seller and its agent as it was apparently a complete shock and surprise to the buyers. Again, the Court used the email and text message record to tip the scales of justice in favour of the seller and the seller's agent. The records clearly showed no mention of the plans around the time of the contract, but did show a litany of messages well after the contract in which the buyers were looking to purchase the plans. The Court found that the plans were not part of the deal.

Although you may not think the records you keep will be useful, if you ever find yourself in a dispute over facts, they may help you prove your side of the story.

Chris Johnston 
B.A., LL.B.

  1. Eskildsen v. RE/MAX (Unreported BCPC May 24,2017) .
  2. 1029865 B.C. Ltd. v. 1007442 B.C. Ltd., 2017 BCSC 926.

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