Delta Hotel, Whistler: Court refuses to dismiss suit by investors against Barbican

Date of Release: July 20, 1994                     No. C89l2l2

                                            Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:                           )

                                  )

VILLAGE GATE RESORTS LTD.          )

                                  )

                   PLAINTIFF      )       REASONS FOR JUDGMENT

                                  )

AND:                               )

                                  )       

ANDREW MOORE, et al, and WHISTLER ) ON AN APPLICATION FOR NON-SUIT MOUNTAIN INN, LIMITED PARTNERSHIP    )     

                                  )

                   DEFENDANTS     )

                                  )         OF THE HONOURABLE

AND:                               )

                                  )

BARBICAN PROPERTIES INC., ET. AL. )

                                  )         MR. JUSTICE LOWRY

                   DEFENDANTS BY )

                   COUNTERCLAIM )

Counsel for Village Gate Resorts Ltd.     W.B. McAllister, Q.C.

and B.P.Y.A. l38 Holdings Ltd.:                  Brenda Brown

Counsel for the Defendants:                          D.G.S. Rae

                                                   T.R. Manson

                                                    A. Borrell

Counsel for Barbican Properties Inc.:    George Macintosh, Q.C.

                                                   Lisa Warren

Heard at Vancouver, B.C.:              May 26, July l3-l4, l994

     After four weeks of trial, an application to dismiss the action against it is brought by Barbican Properties Inc. which is sued by a number of people (the "investors") who purchased interests in a limited partnership as part of the acquisition of strata lot units in a hotel complex at Whistler Mountain. The general partner, Village Gate Resorts ("Resorts"), operates the hotel, or better, engages an agent to do so, for the benefit of the partnership. Resorts was, for a period of years, owned by Barbican through an intermediary company. It had then no employees and was managed by the officers of Barbican. The investors maintain that Resorts breached both contractual, statutory, and fiduciary duties owed to them for which it must account before, during, and after Barbican's ownership. They contend that Barbican is also liable to account because it knowingly participated in Resorts' breaches and benefited in the result. For the limited purpose of this application only, Barbican accepts that Resorts breached fiduciary duties, but says that the investors' case, which is now closed, is devoid of any evidence upon which, as a matter of law, it could be held liable as a participant. This is then a "no evidence" motion for non-suit. The investors say it is ill-founded both procedurally and substantively.


     The issues are two: Is there some evidence that supports all of the requisite elements of any pleaded case against Barbican? If not, is there any reason the action against it should not be dismissed now?

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