Vancouver, Harbourside Park: Court grants leave to appeal in dispute between developers and construction firms

                                                 Date: 19971205
Docket: CA023594
Registry: Vancouver


Court of Appeal for British Columbia


BETWEEN:


NOEL DEVELOPMENTS LTD. and SPF PROPERTIES INC.

PLAINTIFFS
(RESPONDENTS)
AND:


METRO-CAN CONSTRUCTION LTD.

DEFENDANT
(APPLICANT)
AND:


METRO-CAN CONSTRUCTION (HS) LTD.,
and THE GUARANTEE COMPANY OF NORTH AMERICA

DEFENDANTS




Before: The Honourable Mr. Justice Goldie
(In Chambers)


B. Cramer Counsel for the Defendant
Metro-Can Construction Ltd.
(Applicant)


J. Logan Counsel for the Plaintiffs (Respondents)


Place and Date of Hearing Vancouver, British Columbia
November 14, 1997


Place and Date of Judgment Vancouver, British Columbia
December 5, 1997



Reasons for Judgment of the Honourable Mr. Justice Goldie:

[1] This is an application for leave to appeal. The applicant
is the defendant styled in the cause as Metro-Can Construction
Ltd. I will refer to it as "Metro-Can". It is the parent of
the defendant Metro-Can Construction (HS) Ltd. I will refer to
it as "Metro-Can (H.S.)".

[2] The order appealed was made in chambers by Madam Justice
Koenigsberg on 9 July 1997. She dismissed the application of
Metro-Can to strike out paragraphs 6 through 8 of the statement
of claim as offending sub-rule 24(d) of Rule 19 of the Rules of
the Supreme Court of British Columbia. If Metro-Can had been
successful it would have been dismissed from the action.

[3] I had prepared draft reasons which set out the somewhat
labyrinthine network of disputes between the parties. I put
these to one side when I found it difficult to describe what
had gone on without touching upon questions which may have to
be decided on appeal. It is sufficient to say the plaintiffs
are developers who as owners entered into a contract with
Metro-Can (H.S.) to build apartment buildings. Differences
arose which were the subject matter of proceedings which have
been before this Court. Both parties were united in predicting
further differences.

[4] Accordingly, I content myself with saying, in the briefest
terms, that the merits of Metro-Can's appeal are not so lacking
as to make it possible to say it is bound to fail; the
importance to the parties is established and the issues which a
panel of this Court may be called upon to consider could be of
general importance to the profession.

[5] Leave to appeal is granted, with costs to be determined by
the panel hearing the appeal. Order accordingly.

[6] If the parties are anxious to expedite this appeal a
request to this end should be made to the Chief Justice of the
Court.



"The Honourable Mr. Justice Goldie"