Vancouver, Galleria II: Court rules duty of care to be decided at trial in Molnar leaky condo case

Citation:

The Owners, Strata Plan No. VR 1720 v. Jeck

Date: 20000202

 

2000 BCCA 100

Docket:

CA025700

Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Mr. Justice Cumming

February 2, 2000

The Honourable Mr. Justice Finch

 

The Honourable Mr. Justice Mackenzie

 
 

Vancouver, B.C.

 

BETWEEN:

THE OWNERS, STRATA PLAN NO. VR 1720

PLAINTIFF
(RESPONDENT)

AND:

BART DEVELOPMENTS LTD., GALLERIA II DEVELOPMENTS LTD.
PARTNERSHIP, MOLNAR CONSTRUCTION LTD., SPACEWORKS
ARCHITECTS (A PARTNERSHIP), PETER REESE, THADDEUS
YOUNG, GORDON SPRATT & ASSOCIATES LTD., TAMM/TACY
AND ASSOCIATES LTD., SCOTT CALVERT, SPECTRUM
INDUSTRIES LTD. (FORMERLY WESTERN WATERPROOFING &
MEMBRANES LTD.), CSA BUILDING SCIENCES LTD., CSA
BUILDING SCIENCES WESTERN LTD., RALPH JECK, MURRAY
FRANK and CHRISTIAN SKENE

DEFENDANTS

AND:

RALPH JECK, MURRAY FRANK and CHRISTIAN SKENE

DEFENDANTS
(APPELLANTS)

C.A.B. Ferris

appearing for the Appellant

D.P. Church and I.G. Schildt

appearing for the Respondent


[1] FINCH, J.A.: The appellants Jeck, Frank and Skene appeal the dismissal of their application under Rule 18A for summary dismissal of the plaintiff's action against them. The appellants are all employees of CSA Building Sciences Ltd. ("CSA") and Mr. Skene, a professional engineer, is the president of that company. In 1989 the plaintiff contracted with CSA to conduct a condition survey of their building, a so-called "leaky condo". The plaintiff's claim against the appellants is for damages for negligence in carrying out the survey. It says they failed to identify deficiencies in the building which were not found until other engineers made an inspection in 1995. It says the cost of repairs was then significantly higher than it would have been in 1989.

[2] The appellants' action for dismissal of the action against them was based on the proposition that they owed no duty of care to the plaintiff. They say there is no evidence that the plaintiff relied on any appellant to conduct the survey and that there is no allegation of or particulars of reliance in the pleadings. They say the learned summary trial judge erred in holding that reliance by the plaintiff on the individual appellants could be inferred in the circumstances.

[3] The learned summary trial judge referred to Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd. (1993), 83 B.C.L.R. (2d) 145, British Columbia Ltd. v. RBO Architecture Inc. (1994), 94 B.C.L.R. (2d) 96, and Boss Developments Ltd. v. Quality Air Maintenance Ltd. (1995), 5 B.C.L.R. (3d) 209. He then dealt with the issues of reliance and duty in this way:

[12] While it is true that the plaintiffs did not engage CSA because they intended to rely on the skill of any individual they could identify by name, it is equally true that CSA held itself out as a firm of "consulting engineers", with "engineers, architects and technologists ...[who] focus their interests exclusively upon resolving" the very problem, building deficiencies, the plaintiffs contracted with CSA to address.
[13] There is no question that all three of the personal defendants had a degree of experience and technical skill nor that each was actively involved in the survey and preparation or presentation of the report to the plaintiffs. The personal defendants must have known the plaintiffs would rely on their report. The extent of their involvement, distinguishes them from the engineers in Edgewater, who merely affixed a seal "without more".
[14] This case is indistinguishable from Boss. It cannot be plausibly argued that a limited company purporting to offer professional services of "consulting engineers" and indicating that its employees have special skill and experience is not inducing its clients to rely on those individuals' expertise. It is immaterial whether the client can identify that expertise with individual employees of the firm.
[15] Limited companies cannot exercise professional functions except through qualified individual employees. Those employees must realize it is their skill and experience the clients are engaging and will rely on. They therefore owe a concomitant duty of care to those clients and are potentially liable in tort if they fail [to] meet that duty.
 

[4] The order entered in the court below says simply "that the application be dismissed". Counsel for the plaintiff submitted, however, that the judge's reasons effectively find that all three appellants did owe a duty of care to the plaintiff, and that in future proceedings that issue will be res judicata.

[5] On a careful reading of the reasons given in the court below, I am not convinced that the judge did conclude that all three appellants owed a duty of care to the plaintiff. He did not say so expressly and I think the reasons may be read as saying only that he was not able to conclude that the appellants or any of them did not owe a duty of care.

[6] Whatever the correct interpretation of the reasons may be, I have concluded that it would be unfair to decide the issue of the appellants' duty on the present incomplete record. In London Drugs Ltd. v. Kuehne & Nagel International Ltd. (1992), 73 B.C.L.R. (2d) 1 (S.C.C.), Iacobucci, J. speaking for the majority of the court said at p. 22:

... It is now well established that the question of whether a duty of care arises will depend on the circumstances of each particular case, not on predetermined categories and blanket rules as to who is, and who is not, under a duty to exercise reasonable care. There may well be cases where, having regards to the particular circumstances involved, an employee will not owe a duty of care to his or her employer's customer. ...
... At best, these decisions simply confirm that the question of whether a duty of care arises between an employee and his or her employer's customer depends on the circumstances of each particular case. The mere fact that the employee is performing the "very essence" of a contract between the plaintiff and his or her employer does not, in itself, necessarily preclude a conclusion that a duty of care was present.
 

On the material before us, I do not think the circumstances of the case have been sufficiently developed to be able to say whether a duty of care on any of the three appellants has been established. As I said at the outset, this was an application under Rule 18A, founded on affidavit material, for dismissal of the action against the three appellants on summary trial. I note that it was not an application to strike out pleadings.

[7] In my view, whether any appellant did in fact owe a duty of care is an open question properly to be decided at trial when the parties have adduced all such evidence as they may think relevant.

[8] I would dismiss the appeal. I would order that the costs of the appeal follow the disposition of the action in the court below.

[9] CUMMING, J.A. I agree.

[10] MACKENZIE, J.A. I agree.

[11] CUMMING, J.A. There will be an order accordingly.

"The Honourable Mr. Justice Finch"