File photo.

(JENNIFER STAHN / iNFOnews.ca)

A Cariboo couple who argued that nearby out-of-control wildfires and a provincial state of emergency weren't grounds to offer a refund to a family that cancelled their vacation rental have been ordered to pay back the cash.

While much of the province was on fire in 2017, the defendant in the case, Remco Wijnhorst, argued his vacation rental cottage was just outside of the fire zone and not subject to a nearby evacuation order and therefore he would not issue a $3,500 refund to Duane and Elizaveta Gingras, who booked and paid for the cottage but were unwilling to travel there with their four-year-old daughter.

In the Jan. 8 decision, B.C. Provincial Court Judge Peter Whyte said that it was "unjust" not to issue the refund as the Cariboo was in a State of Emergency due to the wildfires and the family's only option to get there was to either travel through areas under evacuation order or take lengthy detours on isolated backroads not far from the fires.

"Vacationing in an area adjacent to an Evacuation Alert Zone due to wildfires is fundamentally inconsistent with that which the (family) bargained for when they entered into the Rental Agreement," Judge Whyte said in the decision. "The presence of unpredictable, volatile fires within proximity of the rental property significantly changed the nature of the agreement between the parties.”

According to the decision, the Gingrases paid $3,500 for a two-week stay in July 2017 at a vacation rental ran by Wijnhorst and Erin Smith-Friesen outside of Horsefly.

Two weeks before the planned trip, the province issued a State of Emergency for the Cariboo region because of the wildfires. The Gingrases contacted Wijnhorst and Smith-Friesen to ask about the wildfire situation, before cancelling their reservation one week before their vacation was due to start.

They then asked for a refund.

However, Wijnhorst and Smith-Friesen refused, saying the cottage was never in the evacuation zone and while the wildfires were close, that was not classified as a “disaster” under the cancellation policy which only issued a refund if the property was “struck by disaster.”

The Gingrases argue it was fundamentally unsafe for them to travel to the rental cottage due to the environmental conditions caused by the wildfires and they should get a refund.

The defendants admit that while the conditions were “far from ideal” the cottage was at all times ready to be occupied so no refund should be given.

While much of the decision is given to legal arguments about the contract, Judge Whyte ultimately sides with the Gingrases.

“I find it would be unjust to hold the (Gingrases) accountable to complete a contract which involved the provision of a family vacation, in a location where the environmental conditions resulted in a designation of the surrounding area as being classified as being either at ‘high danger’ or ‘extreme danger,’ he said.

The judgement also overrules an early small claims court ruling which sided with the vacation rental owners.

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