Executive Summary: Key Legal and Evidentiary Issues

• Dispute centers on alleged repudiatory breach of a multi-year roofing remediation contract between a contractor’s assignee and a strata corporation, including scope, duration, and pricing structure for the work performed on 12 residential buildings.
• The strata’s counterclaim attempts to convert a contractual performance dispute into personal tort claims of negligent and fraudulent misrepresentation against the individual principal, raising questions about proper pleading of personal liability distinct from the corporate party.
• Alleged misrepresentations about PelionMark’s competence, capacity, completion timeline, and ability to stay within budget are criticized for being vague, internally inconsistent, and tied mainly to later performance rather than to clearly pleaded false statements of existing fact at the time of contracting.
• The court finds that key “representations” about completing the project within 16 months and within budget are, as pleaded, non-actionable statements about future conduct or events, without clear allegations that they were false when made or that there was no intention to perform them.
• Confusing drafting in the counterclaim—particularly the shifting use of “Plaintiff,” “PelionMark,” and “Isusius,” and whether the individual was a contracting party—undermines the viability of the misrepresentation claims and obscures the alleged duty of care and basis for personal liability.
• Applying Rule 9-5(1)(a) of the Supreme Court Civil Rules, the court strikes the misrepresentation portion of the counterclaim for disclosing no reasonable cause of action, but grants the strata leave to re-plead and awards the self-represented plaintiff his costs of the application, with the quantum to be determined later.

Background and parties

The case arises from a large-scale roofing remediation project at a residential strata complex known as Hawthorne Park in British Columbia. The plaintiff, Braven Isusius, is the principal of PelionMark Restorations Ltd. (“PelionMark”), a contractor engaged by The Owners, Strata Plan N.W. 41, to perform comprehensive roofing work on 12 buildings comprising 134 strata lots. The work also included associated structures and required engineering design services, permit applications, and coordination of regulatory approvals. PelionMark initially entered into a design and permitting agreement (the “Design Contract”) to address engineering design, municipal permits, and regulatory certifications, followed by a substantive roofing agreement dated August 31, 2020 (the “Roofing Contract).

The plaintiff says that PelionMark assigned to him all rights, title, and interest under these agreements by way of an assignment executed on or about January 12, 2026, and that he notified the strata of this assignment when or before he commenced the action. As a result, he sues in his personal capacity as assignee rather than in the name of the company that performed the work. The defendant, the strata corporation, is the owner and manager of the Hawthorne Park complex and the contracting counterparty under the Roofing Contract.

The roofing contracts and commercial dispute

The parties offer sharply conflicting views on the basic terms of the Roofing Contract. The plaintiff’s position is that the contract contemplated an anticipated two-year or longer duration, to accommodate the strata’s budgetary constraints, reliance on contingency reserves rather than immediate levies, weather limitations, latent structural conditions, and the need for professional engineering oversight. On his account, the price was “approximately $650,000,” with timelines and building-by-building scheduling designed to remain flexible.

The strata, by contrast, pleads that the Roofing Contract was a fixed-price agreement with a total price of $650,000 and that PelionMark was required to complete the work within 16 months. This disagreement over whether the contract was fixed-price and time-certain, or more flexible and conditional, underpins much of the later dispute about overages, delays, and performance.

Between August 2020 and October 2024, PelionMark completed work on 7 of the 12 buildings. The plaintiff alleges that beginning in late 2023, the strata refused or failed to release progress payments for various reasons, all of which he disputes. He says an unpaid balance of $87,820.27 accrued on completed work. On October 9, 2024, PelionMark treated the strata’s conduct as a repudiatory breach of contract and purported to accept that breach. The strata, however, asserts that it was PelionMark that breached the Roofing Contract, entitling the strata to treat the contract as at an end.

After termination, the strata advanced significant financial figures tied to the fallout. It pleads that PelionMark had already billed roughly $150,000 in overages not contemplated by the contract over the first five buildings, that it had repeatedly raised concerns about the extended timeline—over 42 months to complete work on only seven buildings—and that it then incurred costs to mitigate the impact of the dispute. Specifically, it says it paid $87,820.27 into court, $13,270 to a supplier to remove a lien, and approximately $446,000 to a replacement contractor, Coast Mountain Roofing, to complete the project and remedy alleged deficiencies, with that contractor substantially completing the remaining work by July 15, 2025.

Plaintiff’s claims and monetary relief sought

In his notice of civil claim, which is detailed and lengthy, the plaintiff sets out a series of monetary claims stemming from the alleged wrongful conduct of the strata in terminating the contract and withholding payment. These include the unpaid invoices in the amount of $87,820.27, expectation damages for the remaining contract scope of $98,816.69, consequential losses for loss of use of money estimated at $37,000, and legal fees and disbursements incurred before he terminated prior counsel totalling $33,800. He also seeks restitution of a $2,500 permit damage deposit paid to the City of Surrey, damages for loss of commercial reputation and creditworthiness of $35,000, statutory trust remedies, punitive damages of $200,000 or another amount as the court considers appropriate, interest, and special costs.

These pleaded amounts reflect the plaintiff’s position that the strata’s conduct both deprived him (as assignee) of money owing under the Roofing Contract and caused broader financial and reputational harm in his business activities. None of these substantive damages claims, however, are decided in the application under review; the decision instead focuses narrowly on the sufficiency of the strata’s counterclaim in misrepresentation.

The strata’s counterclaim and misrepresentation theory

The strata filed a response and counterclaim, later amended. Among other things, it sought to ground a personal claim in tort against Mr. Isusius for negligent and fraudulent misrepresentation. The misrepresentation section of the amended counterclaim alleged that, during negotiations in 2020 and before entering the Roofing Contract, Mr. Isusius represented that PelionMark was competent to complete the work and was a roofing expert; that it had the capacity to complete the work; that it would be able to complete the work within 16 months; and that it would be able to complete the work within the budget defined in the contract. These statements were grouped as the “Representations.”

The strata further pleaded that these statements were made as statements of fact, not opinion, and were intended to convey that PelionMark was a competent roofing contractor capable of performing within the time and budget parameters. It alleged that these Representations induced the strata to enter into the contract on the agreed price and terms and that, but for those statements, it would not have entered into the contract on those terms or at all.

To support its allegation that the Representations were false, the strata pointed to subsequent events: PelionMark’s alleged practice of invoicing for work not contemplated by the contract and on schedules inconsistent with the agreed payment schedule, and chronic problems in the completed work, such as leaking roof membranes into strata units and persistent ventilation issues in the attic spaces. It also pleaded that “the Plaintiff, through Isusius, knew or ought to have known” that the true contract price was materially higher than represented and that PelionMark was not fully qualified, or that the representations were made recklessly, not caring whether they were true or false.

The counterclaim attempted to characterize these allegations as supporting negligent misrepresentation, or alternatively fraudulent misrepresentation, by asserting that the plaintiff and/or Mr. Isusius knew the Representations were false or misleading, or were reckless as to their truth, and owed a duty to exercise reasonable care in the information they provided about the business. The strata alleged that it reasonably relied on the Representations, that reliance induced it to enter into the contract, and that the resulting harms included overpaying for work, incurring costs to rectify deficiencies, and paying a new contractor to complete the job to the expected standard.

Pleading defects and confusion about parties

The court’s analysis takes issue with the clarity and structure of the misrepresentation allegations. First, the amended counterclaim introduces the defined term “Purchase Agreement” in the misrepresentation section even though the rest of the pleading uses “Contract” for the Roofing Contract, creating internal inconsistency on what precise agreement is being discussed. More deeply, the pleading repeatedly uses “the Plaintiff,” “PelionMark,” and “Isusius” in ways that are difficult to reconcile with the actual parties to the litigation.

Although the action is brought by Mr. Isusius personally as plaintiff (as assignee of PelionMark’s contractual rights), the misrepresentation paragraphs often appear to use “the Plaintiff” as if it referred to PelionMark, while elsewhere distinguishing that from “Isusius.” The counterclaim itself is brought only against Mr. Isusius personally; PelionMark is not a party to the proceeding. Yet the pleading states, for example, that “the Plaintiff, through Isusius, knew or ought to have known” certain facts and that “the Plaintiff and/or Isusius” performed unworkmanlike work or invoiced above contract costs.

This imprecision matters because a misrepresentation claim must clearly identify who made which representation, in what capacity, and to whom. It also matters for the boundary between corporate and personal liability: if PelionMark was the contracting party, a claim against its principal personally for tortious misrepresentation requires a clear factual foundation distinguishing his personal acts and duties from those of the company. Compounding the problem, paragraph 24 of the amended counterclaim asserts that it was an implied term of the contract that PelionMark and/or Isusius would exercise reasonable care, skill, and diligence, and then describes a “breach of the contract between the Plaintiff and Defendant,” implying that the individual plaintiff may have been a contracting party, in tension with earlier allegations that PelionMark was the contractor.

Statements of future conduct and misrepresentation law

The court also scrutinizes the nature of the alleged Representations themselves, particularly the assertions that PelionMark would complete the work within 16 months and within the contractual budget. In misrepresentation law, actionable statements are generally representations of existing or past fact. Promises or opinions about future events—such as predicted timelines or cost projections—are usually non-actionable, unless tied to misstatements of existing facts or made by someone with special skill or knowledge who negligently or fraudulently provides a projection that is not honestly held. Similarly, statements about future conduct may ground fraudulent misrepresentation only where the plaintiff can allege and later prove that, at the time of speaking, the representor lacked the intention to perform as promised.

In the amended counterclaim, the strata largely relies on what happened after contract formation—billing practices, cost overruns, and workmanship issues—to say that the Representations were false. What is missing, in the court’s view, is a clear and direct allegation that, at the time the statements were made in 2020, they were false as to existing facts or that there was no genuine intention to honour them. The pleading does not articulate, in a focused way, which contemporaneous facts were misrepresented, or how the alleged competence, capacity, and budget/timeframe assurances were inaccurate when made, rather than simply being undermined by later performance problems.

The motion to strike and legal standards applied

The plaintiff brought a focused application to strike the misrepresentation paragraphs (now numbered 15–25 in the amended counterclaim) under Rule 9-5(1)(a) and (b) of the Supreme Court Civil Rules. Subrule (1)(a) permits striking a pleading that discloses no reasonable claim or defence; under this provision, the court assumes the pleaded facts are true, unless they are manifestly incapable of proof, and asks whether it is plain and obvious that the claim has no reasonable prospect of success. Subrule (1)(b) addresses pleadings that are unnecessary, scandalous, frivolous, or vexatious, including those that do not go to any recognized cause of action or are so confusing that they serve no useful purpose.

In its application response, the strata provided only limited substantive argument in defence of its misrepresentation claims. Its main position was that if deficiencies were found, it should be given leave to amend. It did not offer a detailed explanation of how its misrepresentation allegations satisfied the elements of negligent or fraudulent misrepresentation or cured the confusion around party identity and the nature of the alleged representations.

Outcome of the application

After reviewing the pleadings and the applicable tests for negligent and fraudulent misrepresentation, the court concludes that the misrepresentation section of the amended counterclaim is confusing and, in its current form, fails to disclose a reasonable cause of action. The problems include inconsistent references to the contracting party and to who made which statements, as well as an overreliance on subsequent performance to support alleged misrepresentations that are, on their face, framed as future commitments about time and budget rather than clear statements of existing or past fact.

Applying Rule 9-5(1)(a), the court orders that paragraphs 15–25 of Part 1 of the amended counterclaim (formerly paragraphs 9–18 of the original counterclaim) be struck out. However, recognizing that defects in pleading can sometimes be corrected, the court exercises its discretion to grant the strata leave to amend. The strata is directed to file and deliver a further amended counterclaim within 30 days of the release of the reasons if it wishes to re-plead its misrepresentation theory in a clearer and legally viable way.

Because the plaintiff is successful on this interlocutory application, the court awards him his costs of the application “in any event of the cause,” meaning he will receive those costs regardless of the ultimate outcome of the underlying trial. The decision does not quantify the amount of costs; that figure will be determined later through the ordinary costs process. There is no adjudication in this decision on the plaintiff’s substantive monetary claims (unpaid invoices, expectation damages, punitive damages, and related amounts) or on the strata’s broader counterclaims. For present purposes, the successful party is the plaintiff, and the only financial consequence ordered in his favour is an entitlement to costs of this application, with no specific dollar amount stated or capable of being determined from the judgment itself.