‘Objective interpretation’ needed to define ‘infestation,’ judge says in denying condo buyer’s claim

For some, one unwanted bug may constitute an infestation. For others, even 100 undesired insects would not. That is why, wrote a Supreme Court of British Columbia judge in a recent decision, attributing a subjective interpretation of the word “infestation” would “render it meaningless” in the context of a property disclosure statement.

As a result, Justice Steven Wilson ruled that a BC lawyer was not entitled to compensation for what she described as an infestation of silverfish in a condominium she purchased in 2018. He ruled that the condo sellers were “not untruthful” when they signed a PDS attesting that they knew of no infestation by insects or rodents.

In 2018, the plaintiff, Deborah Flood, who had moved from Ireland in 2010, wanted to buy her first home. In March 2018, she agreed to purchase a two-bedroom condo in North Vancouver. As part of listing the property for sale, the defendants completed the PDS.

Flood purchased the condo for $620,000, viewing it once before making her offer. She did not have the property inspected but reviewed two years of strata minutes, and her inquiries were answered satisfactorily.

However, after Flood moved in on July 1, 2018, she immediately noted silverfish in the apartment. She contacted the building manager and requested fumigation, which was done on October 16, 2018. This kept the silverfish away for a brief period, but it was not long before they returned. The plaintiff requested a second fumigation, done in December 2018. Once again, there was a brief respite, but the silverfish returned.

Silverfish are wingless insects, approximately 12 to 19 millimetres long, not counting three bristle-like or tail-like appendages at the rear end of their bodies. They have carrot-shaped or fish-shaped bodies and are silver or grey. They are nocturnal and generally hide in tight cracks or crevices during the daytime. They live in houses, condos, and commercial structures such as offices, stores, and libraries.

The insects can roam significant distances while searching for food and survive for weeks without food or water. They are routinely found in damp, humid, moist climates, making them prevalent in Vancouver. Although some believe they come into a home through the drain system, this is incorrect. Instead, they will go down a drain to the trap, searching for water.

Silverfish do not cause damage to structures, nor do they spread disease. They are considered more of a nuisance than a health problem.

Flood then contacted seller Brian Gottmers by text. She asked him what he did to get rid of the silverfish. His text response was: “Unfortunately, silverfish were something we lived with too. Other than doing a complete [fumigation], the one thing I found best was to dust and clean around the baseboards – when we stayed on top of that, we did see a lot less of them. Dust is basically what they eat.”

Gottmers added: “The other reality is that they are probably all over the building, especially with the age of the building, so fumigating your unit may keep them (and all other bugs) dying for as long as the pesticide lasts but won’t be forever. Our house is close to the same age, and we’ve seen a few here too.”

But by early 2019, when she found a silverfish in her bed, Flood could not live with the silverfish situation in her unit and ended up selling the unit for $600,000.

Flood claimed the defendants were obligated to disclose an infestation of silverfish to her. She argued they were specifically obligated to respond “yes” to the question on the PDS regarding any known infestation of insects or rodents.

Flood said the contents of the PDS were “both a misrepresentation and a breach of the contract of purchase and sale” because the contract incorporated the PDS.

As for her damages, Flood claimed for the loss she suffered upon sale and wanted reimbursement of money she spent on painting and electrical work. She also claimed for moving expenses, rental expenses after she moved out but before she could sell, loss of opportunity for missing out on other real estate purchasing opportunities, and damages for her loss of enjoyment and mental health concerns.

Flood’s two roommates corroborated the plaintiff’s evidence on silverfish sightings. Flood also argued that Gottmers’ text message, in which he refers to the defendants having “lived with silverfish,” is “tantamount to an admission of a problem and that the silverfish issue should therefore have been disclosed to her in advance so that she could make an informed decision as to whether to proceed with her purchase.”

However, Justice Wilson pointed to the testimony of witnesses who had occupied the unit that indicated differing views on the number of sightings of silverfish, the tolerance levels, and whether the situation represented an infestation.

For example, while Flood moved out of the unit in February 2019 and either stayed with friends or rented other accommodation while she had the condo up for sale, one of her roommates stayed until July 2019 despite the silverfish.

He also pointed to the sellers of the unit, who had lived there from 2006 to 2018. They testified they had no problems with silverfish, seeing them sporadically and never more than two at once.

Seller Gottmers testified that he was trying to be helpful with advice when he sent Flood the text about living with silverfish and what she could do. He denied that this text conceded that silverfish were constantly present in the unit.

The man who purchased the unit from Flood also gave testimony. He said he was aware of the silverfish situation during the purchase and inspection process because the PDS attached to Flood’s listing mentioned it.

He said that after he moved in with his wife in August 2019, they would see a silverfish perhaps once a week. “They would squash it and throw it out and could go a week without seeing any. They have also gone a month or two without seeing silverfish.”

He testified he considers the silverfish a minor nuisance, “no different from a fly or a mosquito.” He said he did not think this constituted an infestation.

Justice Wilson also heard evidence from pest control expert witnesses for the plaintiff and the defendants. He did not accept Flood’s expert, who testified that there was an infestation of silverfish when the defendants signed the PDS.

 “His opinion employed a subjective interpretation of the term’ infestation.’ It was also premised on the assumption that the number of silverfish in the unit in March 2018 was the same as when the plaintiff resided there.”

Flood’s pest control expert also admitted that the quantity of silverfish could fluctuate, and it is impossible to determine numbers at any particular time without some ongoing monitoring.

“Even if there were an infestation during the plaintiff’s occupancy, and I make no such finding, it does not necessarily follow that the unit was infested when the PDS was signed,” Justice Wilson said.