Court orders Coquitlam to list leaky condo documents for Dan Healey; refuses order that James Balderson produce documents related to COLCO's Leaky Rotten Condo list

Citation:

Healey v. The Corporation of the City of Coquitlam et al

Date:

20020603

 

 

2002 BCSC 842

Docket:

C996637

 

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

DAN HEALEY

PLAINTIFF

AND:

 

THE CORPORATION OF THE CITY OF COQUITLAM AND
THE CORPORATION OF THE CITY OF PORT COQUITLAM AND
HER MAJESTY IN RIGHT OF THE PROVINCE OF BRITISH COLUMIBA

 

DEFENDANTS

 

 

REASONS FOR JUDGMENT
OF
MASTER BARBER
(IN CHAMBERS)

 

 

Appearing on his own behalf:

Dan Healey

Counsel for the Defendants:
City of
Port Coquitlam and City of Coquitlam

 

L. Krebs

Counsel for James Balderson and The Coalition of Leaky Condo Owners:

 

A.M. Grant

 

Date and Place of Hearing:

May 14, 2002

 

 

Vancouver, BC

 

[1]            The Plaintiff applied by notice of motion dated February 25, 2002, filed May 2, 2002, for an order:

1.    Of production of documents against the City of Port Coquitlam;

 

2.    The City of Coquitlam in regards to the file’s and/or file described as “Leaky Condo’s”;

 

3.    For production of documents from a non-party to the action, C.O.L.C.O. and James Balderson.

 

[2]            In the statement of claim the plaintiff alleges, inter alia, that he suffered damage to his real property by way of water damage due to the negligent administration of the building code.  He alleges that the damage was foreseeable by the defendants.  And that the Crown had actual or constructive knowledge that the building code was insufficient to prevent damage.  In addition, he alleges that the defendants had a duty to inform him about the hazardous code practices.  This is a brief overview of the twenty page statement of claim. 

[3]            I will deal first of all with the request for orders number one and two, against Port Coquitlam.  What the plaintiff really wants is number two.  Coquitlam admitted that it did have a leaky condo file but says that it is irrelevant and that there are few privileged items in it. 

[4]            The affidavits of Adrienne G. Atherton, sworn March 12, 2002 and Mr. Ian D.M. Mackie, sworn the same date were tendered by Coquitlam’s solicitors in defence of the motion.  According to the statement of claim the plaintiff purchased his condominiums in 1994 and 1995.  He says that he became aware of the damage in 1999.  It appears from the aforementioned affidavits that there are documents in Coquitlam’s files which relate to the time in question and which may, under the test in Dufault and Stevens be relevant in that they could have notes or memorandum attached to them by members of the defendants bearing on the issues in question.  Therefore, Coquitlam’s Leaky Condo file is to be produced, except for those documents over which they claim privilege.  Those later documents are to be listed under part 3, of their list of documents, and then if there is still a question as to whether or not they should be produced that issue can be heard.

[5]            With respect to the claim for an order against COLCO – there is no such formal entity and thus that application is dismissed.

[6]            That leaves the claim for an order against James Balderson.  Mr. Balderson, through his counsel, objects to produce his file and his reasons are succinctly set forth in his affidavit as:

(a)   the request of documents are irrelevant;

 

(b)   the applicant has not provided any basis upon which the court can determine whether the request of documents are in fact relevant;

 

(c)   it would be highly prejudicial to Mr. Balderson to be compelled to provide such documents;

 

(d)   some of the documents have been provided to Mr. Balderson on the condition that they be considered confidential

 

(e)   many of the documents have been prepared in contemplation of litigation and are therefore privileged.

 

[7]            The plaintiff, in his affidavit number two, filed May 2, 2002 says:

4.    The Plaintiff is of the belief that documents used to produce the list described as Leaky Rotten Condos are vital to his case and furthermore the documents themselves in the hand of structural engineering experts will reveal clear patterns of Building code liability that the Coalition of Leaky Condo Owners are not aware of and/or are deliberately concealing from the public.

 

5.    The Plaintiff theorizes the refusal from James Balderson and/or the Coalition of Leaky Condo Owners to share this information bares the view they have something to hide and/or the information is relevant to building code liability.

 

[8]            While the test in Dufault and Stevens is a low one, the plaintiff has not passed the test in this case.  Therefore, the application for an order against Mr. Balderson is dismissed with costs payable by the plaintiff forthwith after assessment.

“Master Barber”