Judge Judith Doulis made the ruling despite pest control technician Tim Garvin telling Emmeline and Kevin Van Geemen two months after they bought the property that 60 to 80 bats had lived in the insulation between the house’s tin roof and cedar panel ceiling for a minimum of five years.
Doulis said she could not accept Garvin as an expert witness.
“The Court has not been provided with sufficient evidence as to Tim Garvin’s education, training, or experience with bats,” Doulis said in her Oct. 5 ruling.
“He declined to attend court in these proceedings — for good reason. People who work in pest control could spend untold hours in court if they allow themselves to become entangled in lawsuits arising from infestations.”
The judge also ruled that although small amounts of guano — the accumulated excrement of bats — was spotted by seller Eric Stevenson in an exterior wall in 2016 and in the ceiling of the master bedroom in 2017, she did not find him negligent in the sale of the property.
“He testified that he believed his remediation efforts were effective and had no cause to believe that bats had established a roost in the ceiling of the residence,” said the judge, whose ruling included a list of extensive renovations Stevenson had done prior to selling the house. “I believe him.”
The first-time homebuyers purchased the 43-year-old house for $354,500 in May 2019. The house is located on two-and-a-half acres on the banks of the upper Fraser River.
When they bought the property, bat houses were attached high on the rear wall of the house. Doulis stated the purpose of the bat houses became evident in the late spring when the property was teeming with mosquitos: bats have a voracious appetite for flying insects.
“The claimants had no issue with the bats who lived peacefully outside in their bat houses, but recoiled from sharing their inside space with the flying mammals,” the judge said.
'A sprinkle of small black droppings'
The couple had the house inspected prior to purchasing it, with an inspector producing a report related to deficiencies that included inoperable baseboard heaters, water leakage, rotting windows and an old roof.
None of the deficiencies related to a rodent infestation, although the inspector was limited by her inability to reach the highest section of roofing, inspect areas concealed by ceilings and walls and access the roof space.
Based on the inspection report, the Van Geemens hired several trades people, including a structural engineer, a plumber and restoration expert to further examine the property. None reported any signs of a bat infestation.
“Before removing the subject clauses on the contract of purchase and sale, the property had been viewed, assessed and inspected by a host of people, including a building inspector, an engineer, realtors, trades people, friends, and of course, the buyers and sellers themselves,” Doulis said.
The day the couple moved in, they noticed "a sprinkle of small black droppings" on the floor in southeast corner of the master bedroom by the wall under the peaked roof. They thought it was mouse feces and put down traps and invited their cat into the room.
All six people who helped the Van Geemens move into the house also saw the droppings in the master bedroom. All agreed the couple’s cat would take care of the problem.
But within a week or so of moving into the house, Emmeline Van Geemen believes she heard “weird soft sounds she could not identify,” thinking it was the sound of mice in the ceiling.
“Despite cleaning up the scattering of droppings on the master bedroom floor and giving the cats free reign, the feces reappeared and the live mouse traps remained empty,” Doulis said.
Near the end of June 2019, Kevin Van Geemen removed one of the ceiling boards in the ensuite bathroom. Feces rained down on him.
“The claimants still believed they had a mouse problem, although they never actually saw a mouse in the residence and their cats did not catch any,” the ruling said.
'A bat problem'
In early July, the Van Geemens hired Eric Moore, a contractor, to install an electric fireplace and chandelier in the master bedroom. His first task was to replace the cedar tongue-and-groove planking on the intended feature wall with fire-retardant drywall.
When removing the cedar boards, Moore discovered what he identified as rodent feces in the walls. He thought deer mice had moved in and were running amuck. He alerted the couple to the problem.
The Van Geemens called in Timothy Garvin of 1st Defence Pest Control, who concluded “they did not have a mouse problem, they had a bat problem.” Garvin told the couple that bats could carry rabies and their guano was toxic.
He told them that guano was akin to asbestos in that it was not dangerous until disturbed. The Van Geemens learned guano can contain fungal spores which cause histoplasmosis, a species of lung infection.
Garvin gave the Van Geemens some advice on evicting bats and offered to perform this service for $225 per hour. He quoted a total of $5,775 for remediating the master bedroom alone.
The couple chose to hire Moore instead at a cheaper rate to seal the roof while the bat colony migrated south; bats are a protected species under the Wildlife Act. The work took five months and cost the couple $33,036.19 in supplies and labour, including $8,988 to Moore.
The Van Geemens did not allege fraud by Stevenson, but argued he was negligent in “failing to take reasonable care” in his efforts to evict the bats from inside the house.
They alleged Stevenson knew or ought to have known “his efforts in this regard were inadequate and this lack of attentiveness created a substantial danger to the health and safety of its occupants, present and future.”
Stevenson testified that he used his best efforts to prevent the bats from penetrating the building envelope and never saw a bat inside the house in the time he lived there from 2015.
In court, where both the Van Geemens and Stevenson represented themselves, Emmeline Van Geemeen “argued vigorously” that the judge should not find Stevenson a credible witness.
She alleged he was inconsistent in his evidence as to whether he observed bats return to the property every year — saying there were no bats in 2018, and at another time saying he consistently saw bats every year, but there were fewer in 2018.
Emmeline Van Geemen said Stevenson’s evidence contradicted information in a government-linked publication titled “Got Bats?” and other research which stated bats return to the same roost every year.
In the end, the judge ruled in Stevenson’s favour.
“The claimants do not suggest he had actual knowledge of the bats roosting in the ceiling of the residence prior to closing the sale on May 31, 2019,” Doulis said.
“The claimants surmise the bats roosting in the ceiling were members of a longstanding intergenerational colony which returned year after year. I have no admissible evidence from which I can draw such a conclusion.”
