Documents from Westsea Construction and its law firm should be read critically. An October 2019 mailing to Orchard House lessees shows how outrageously erroneous a notice from Westsea can be, and letters from company lawyer Mark Stacey always proclaim as fact what is really just the company’s opinion. Even a decision from a B.C. Supreme Court Justice can contain errors.
Regarding the company’s communications with lessees, an example is the two key words that disappeared from an excerpt from our Lease recently mailed to all lessees reminding them of their obligations. What we call “the wear-and-tear exception” to our duty to maintain the interiors of our suites and our windows/doors omitted the words that specify the exception.
For lessees who want to check this, it was the 11 October 2019 “Other Matters” letter from Westsea, which accompanied the annual notice of the amount of next year’s monthly suite fees. Under the heading GENERAL REMINDERS it quoted our obligations under Article 4.03 of the Lease, then made a complete hash of the quoted clause. Our Lease-granted exception from having to repair or replace worn-out suite components disappeared.
We have to hope that such misleading information distributed to almost 200 lessees is incompetence and not deliberate.
A document error not attributable to Westsea, and which at first glance seems minor, has become more ominous because it was carried into the decision of Madam Justice J. Douglas in her B.C. Supreme Court ruling on the civil suit of Trenchard vs Westsea Construction regarding who pays for new glazing. It involves our Lease clause 7.01, of which I—and I suspect you—have a perfectly good copy. But the copy issued by the Land Titles office cuts off a single letter, making “and” the non-grammatical “an” when referring to “legal and accounting charges” that lessees must pay. The Justice Douglas decision quotes this as saying, “any legal and accounting charges” (her paragraph 25).
Unfortunately for lessees, “any” in the clause is more favourable to the company’s position on the Lease than “and”, as it bolsters the company’s legal efforts to have its leases interpreted as broadly as possible. How could anyone in the future dispute the appropriateness of a particular legal or accounting charge billed to lessees when they believe that the Lease endorses billing them “any” legal and accounting charges? Who is going to check their copy of the Lease or question the non-grammatical Land Titles version when they’re looking at a printed decision from a justice of the B.C. Supreme Court?
We cannot know how Justice Douglas came to think the clause 7.01 word was “any”; did she presume it or was incorrect information provided to her?
Justice Douglas also stated a more substantial error, summarizing clause 7.01 as allowing the billing to lessees of various expenses including “management fees” (her paragraph 133). No it doesn’t. Now, we can’t blame Westsea’s legal team for arguing that this is what the Lease means, but somehow Justice Douglas came to think that’s what the Lease explicitly says.
Of course Mr. Trenchard will point out this error to the B.C. Court of Appeal, but we should all take note that even a superior-court decision document can contain a permanent-record error about our Lease.
Lastly, lessees should keep in mind that lawyers represent their clients strongly in part by stating as fact positions that may not be upheld in court. Just one example is Westsea’s declaration that some of us are in default of the Orchard House lease when we decline to pay the landlord’s litigation expenses. The only judge’s opinion on this so far is that we do NOT have to pay those landlord expenses, yet the company’s lawyer has frightened most lessees into paying by stating as truth that they must. We’ll see about that.
Westsea’s lawyer is also good at creative omissions in his letters to us and verbally in court, such as proclaiming that Hugh Trenchard’s original Petition action (lawsuit) was dismissed. He does not complete the facts with the information that the action was dismissed with the consent of both parties because he yielded on behalf of Westsea, agreeing that the company would provide all lessees the windows-replacement engineering report that Mr. Trenchard had asked for in the first place.
But choose virtually any letter from Westsea lawyer Mark Stacey that you have on file and ask yourself about each of its statements, “Is what he says actually true or is it–as our lawyer on the litigation expenses issue said–“but a bald assertion”?
(Updated 10 November 2019)