Vancouver, Harbourside Park: Court of Appeal dismisses appeal by general contractor for dismissal of claims by developer

                                                 Date: 19980326
Docket: CA023594
Registry: Vancouver


COURT OF APPEAL FOR BRITISH COLUMBIA



ORAL REASONS FOR JUDGMENT:


Before:

The Honourable Mr. Justice Macfarlane March 26, 1998
The Honourable Madam Justice Prowse
The Honourable Mr. Justice Finch Vancouver, B.C.



BETWEEN:

NOEL DEVELOPMENTS LTD. and
SPF PROPERTIES INC.

PLAINTIFFS
(RESPONDENTS)

AND:

METRO-CAN CONSTRUCTION LTD.

DEFENDANT
(APPELLANT)

AND:

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

DEFENDANTS




B. Cramer appearing for the Appellant
J. Logan appearing for the Respondent



[1] PROWSE, J.A.: This is an appeal from an order of
Madam Justice Koenigsberg pronounced July 9, 1997, dismissing
an application by Metro-Can Construction Ltd. pursuant to Rule
19(24)(d) of the Rules of Court to strike certain paragraphs of
the plaintiffs' statement of claim and to dismiss the action
against it as an abuse of process. In the result Madam Justice
Koenigsberg found that the position taken by the plaintiffs in
a related action did not preclude them from pursuing this
action against Metro-Can Construction.

[2] In my view, Madam Justice Koenigsberg came to the correct
conclusion. I would dismiss the appeal substantially for the
reasons given by her.

[3] MACFARLANE, J.A.: I agree.

[4] FINCH, J.A.: I agree.

[5] MACFARLANE, J.A.: The appeal is dismissed.




"The Honourable Madam Justice Prowse"