Executive Summary: Key Legal and Evidentiary Issues

• Application to strike paragraphs 15-25 of the amended counterclaim alleging fraudulent and/or negligent misrepresentation, brought under Rule 9-5(1)(a) and (b) of the Supreme Court Civil Rules.
• Whether the impugned paragraphs disclosed a reasonable cause of action under the "plain and obvious" test from R. v. Imperial Tobacco Canada Ltd. and Nevsun Resources Ltd. v. Araya.
• Sufficiency of pleadings tested against the elements of negligent misrepresentation (Queen v. Cognos Inc.) and fraudulent misrepresentation (Wang v. Shao, as cited in Chow v. Pang).
• Confusion arising from inconsistent references to "the Plaintiff," "Isusius," and "PelionMark," and the unexplained introduction of an undefined "Purchase Agreement."
• Actionability of representations concerning future conduct (completion within 16 months and within budget), which must generally relate to existing or past fact unless made without intention to honour them.
• Failure to plead falsity at the time the representations were made, the defendant having relied instead on subsequent performance to establish falsity.

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Facts Braven Isusius, the self-represented plaintiff, commenced this action as assignee of all rights, title, and interest formerly held by PelionMark Restorations Ltd. ("PelionMark"), of which he is the principal. PelionMark executed an assignment in his favour on or about January 12, 2026, and Mr. Isusius says he gave notice of the assignment to the defendant prior to or contemporaneous with commencing this action. The dispute concerns agreements between PelionMark and The Owners, Strata Plan N.W. 41 (Hawthorne Park) for comprehensive roofing remediation of 12 residential buildings, comprising 134 strata lots, and associated structures. The relevant agreements include a Design Contract for engineering design services, municipal permit applications, and coordination of regulatory approvals, and a Roofing Contract dated August 31, 2020.

Contract terms in dispute The parties disagree on the terms of the Roofing Contract. The plaintiff says it contemplated that the work would be carried out over an anticipated two-year period or longer to accommodate the defendant's budgetary and financial constraints (including funding through contingency reserves rather than immediate levies), with the contract price stated as "approximately $650,000." He also says the defendant later asked PelionMark to perform additional work worth more than $100,000. The defendant says the Roofing Contract was for a fixed price of $650,000 and that the work was to be completed within 16 months.

Performance and termination Between August 2020 and October 2024, PelionMark performed work on 7 out of the 12 buildings. The plaintiff alleges that starting in or about late 2023, the defendant began refusing or failing to release progress payments, and that an unpaid balance of $87,820.27 accumulated. On October 9, 2024, PelionMark alleged that the defendant had committed a repudiatory breach and purported to accept that breach. The defendant takes the position that PelionMark breached the Roofing Contract, entitling it to treat it as being at an end. The relief the plaintiff seeks includes unpaid invoices of $87,820.27, expectation damages of $98,816.69, consequential financial losses of $37,000, legal fees and disbursements of $33,800, restitution of $2,500 for a City of Surrey permit damage deposit, damages for loss of commercial reputation and creditworthiness of $35,000, statutory trust remedies, punitive damages of $200,000, interest, and special costs. The defendant alleges that PelionMark charged roughly $150,000 in overages not contemplated in the contract over just the first 5 buildings, and that more than 42 months passed before work was completed on only 7 of the 12 buildings. Following termination, the defendant paid $87,820.27 into court, $13,270 to SSR Roofing Supplies for shingles ordered by PelionMark (to remove a claim of lien), and $446,000 to Coast Mountain Roofing to complete the project and fix deficiencies. The replacement contractor substantially completed the balance of the project by July 15, 2025.

Procedural history The plaintiff filed his 37-page notice of civil claim on January 19, 2026. The defendant filed a response to civil claim and counterclaim on February 10, 2026. The plaintiff filed a response to counterclaim on February 17, 2026, and this application on March 4, 2026. On March 20, 2026, the defendant filed its application response and an amended counterclaim. The amendment re-numbered paragraphs 9-18 of the original counterclaim as paragraphs 15-25, and the primary change was the addition of an allegation that the purported assignment of PelionMark's rights to the plaintiff failed to comply with s. 36(1) of the Law and Equity Act, RSBC 1996, c. 253, that the assignment is void because it assigns a bare right of action, and that the action generally is an abuse of process.

The application The plaintiff applied to strike paragraphs 9-18 (now 15-25) of the defendant's counterclaim, which set out a factual basis for a claim in fraudulent and/or negligent misrepresentation. The application was brought under Rule 9-5(1)(a) and (b) of the Supreme Court Civil Rules. In the alternative, the plaintiff sought an order that the defendant provide full particulars. The grounds advanced were that the impugned paragraphs failed to disclose a reasonable claim in fraudulent or negligent misrepresentation, failed to plead material facts capable of establishing personal liability distinct from the corporate contracting party, and improperly attempted to convert a contractual performance dispute into a personal tort liability claim without pleading an independent legal foundation. The defendant opposed the relief sought but, as the court observed, put minimal effort into formulating an argument in opposition. Its primary position was that, if the counterclaim was found to be deficient, it requested leave to amend.

Applicable law Rule 9-5(1)(a) permits the court to strike a pleading that discloses no reasonable claim or defence. The "plain and obvious" test, as restated in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, asks whether the claim has no reasonable prospect of success, assuming the pleaded facts to be true. The Supreme Court reiterated in Nevsun Resources Ltd. v. Araya, 2020 SCC 5, that the motion to strike is a tool to be used with care and that the approach must be generous, erring on the side of permitting a novel but arguable claim to proceed. Rule 9-5(1)(b) addresses pleadings that are unnecessary, scandalous, frivolous, or vexatious, as summarized in Willow v. Chong, 2013 BCSC 1083. The elements of negligent misrepresentation, summarized in Queen v. Cognos Inc., [1993] 1 S.C.R. 87 at para. 33, are: a duty of care based on a special relationship; an untrue, inaccurate, or misleading representation; negligence by the representor; reasonable reliance by the representee; and detrimental reliance resulting in damages. The elements of fraudulent misrepresentation, as summarized in Chow v. Pang, 2021 BCSC 1599 (drawing on Wang v. Shao, 2019 BCCA 130), are: a representation of fact to the victim; falsity of the representation; knowledge of the falsity (or recklessness as to truth) by the representor; intention that the victim act on it; and inducement to enter the contract in reliance. A representation must generally be one of existing or past fact, per Gill v. Basi, 2014 BCSC 1972, though statements about future conduct may be actionable if the party making them did not have the stated intention at the time, per Pan v. Dong, 2024 BCSC 869 at para. 107.

Analysis The court identified several deficiencies in the impugned section of the amended counterclaim. Paragraph 16 introduced the defined term "Purchase Agreement" rather than "Contract," the defined term elsewhere used for the Roofing Contract. Paragraphs 20, 21, and 22 created confusion by distinguishing between "the Plaintiff" and "Isusius," with apparent intent that "the Plaintiff" refer to PelionMark — even though the action has been brought by Mr. Isusius personally, the counterclaim is brought only against him personally, and PelionMark has not been named as a party. Paragraph 24 raised a further concern, alleging that the plaintiff (Mr. Isusius personally) was a party to the Roofing Contract, when previous allegations identified PelionMark as the contracting party. Representations c) and d) — that PelionMark would complete the work within 16 months and within the budget defined in the Roofing Contract — appeared to be statements about future conduct, which are normally not actionable in misrepresentation unless the maker had no intention of honouring them at the time. The defendant pled these as having been falsified by subsequent performance rather than asserting falsity at the time the representations were made. As to representations a) and b) — that PelionMark was competent and had the capacity to complete the work — the defendant did not clearly assert these were false at the time of utterance, instead drawing that conclusion from subsequent events and conduct.

Disposition The court held that the entire misrepresentation section of the amended counterclaim was confusing, and that it was plain and obvious it disclosed no reasonable cause of action in either negligent or fraudulent misrepresentation in its current form. Paragraphs 15-25 of the amended counterclaim (formerly paragraphs 9-18 of the original counterclaim) were struck out pursuant to Rule 9-5(1)(a) of the Supreme Court Civil Rules. The defendant was granted leave to file and deliver a further amended counterclaim within 30 days from the date of release of the reasons. The alternative application for particulars was adjourned generally. The plaintiff, Braven Isusius, was the successful party, and was awarded costs of the application in any event of the cause, payable at the conclusion of the action; the specific monetary amount of those costs cannot be determined from the decision.