Vancouver, Spinnaker West: History of leaks and rot 1992-2002; an interim report


2002 October 29

Dear Mary,

Re: Your Leaky Rotten Condo
Spinnaker West, LMS 0497
2368 Laurel Street, Vancouver, BC


I have written this letter as a result of numerous requests from you over the years for information about your leaky rotten condo and how to get it repaired.

My research regarding your leaky rotten condo at Spinnaker West is not complete, however, I thought this interim report would be helpful in gaining an understanding of your life in a leaky condo complex and some of the forces affecting decisions regarding repairs.

Please let me know of any errors or omissions you think should be addressed.A year has passed since I took photographs of the rot inside the walls at your leaky condo in the summer of 2001 after which you were promised, once again, that the building, including your leaky rotten condo, would be fixed.

Your front room ceiling has had water stains for years.

Your
kitchen wall has had stains and mould for years.

Your bedroom wall has had stains and mould for years.

Your new
hardwood floors have had water damage for years.

When the rainy season began last fall while you were in Japan, two strata lots situated above yours (SL 5, Boulton and SL 6, Harris) were apparently damaged by leaks.

Repairs to those leaky condos at Spinnaker West, including interior drywall repairs, were made immediately, but your leaky rotten condo was not repaired.

Plastic sheeting remains on the exterior wall of one of the leaky condos above yours (SL 6, Harris), one year later.

I observed major repairs to the east wall in 1992, or 1993.

Several attempts to stop leaks have been made since 1992 on the walls of the upper floor levels (SL 4, SL 5, SL 6, SL 7, SL 8).

The ground floor units, SL 2 and SL 3, have a long history of leaks.

For example, you wrote a letter to the Strata Corporation in 1993 regarding leaks into your leaky rotten condo, SL 3, on the north wall.

Attempts have been made to stop leaks into SL 2 and SL 3.

Although storage areas and voids behind the south walls of SL 2 (Marthinus) and SL 3 (Kagami) were filling with several inches of water, the repair effort fell short of attending to the entire affected section of SL 3, thus leaving you with continual leakage, and as we have seen by the removal of wall sections in 2001, you have rotten wood and fungi in the south walls of your leaky rotten condo.

The owner of SL 2 at the time of the repairs, Kim Marthinus, having consulted with me about leaky rotten condos and being thoroughly familiar with one of the engineering reports (Morrison-Hershfield, October, 1997), sold to Levajak and left the building.

Levajak has claimed that she did not receive full disclosure regarding the condition of the building when she purchased from Marthinus in 1998.

The Morrison-Hershfield Report dated 1997 mentions that the owners had observed “cracking and staining of stucco, sagging and stained balcony soffits, and rot beneath the flashing on balcony walls.”

The October 1997 Morrison-Hershfield report also states:

There is one notable discrepancy between the drawings and what was actually constructed. The drawings indicate … that the entry stairs into units 4 - 7 were to be constructed of pressure treated wood with a ‘non-slip’ finish. The actual construction is a wood frame structure covered by an exposed aggregate concrete finish. The interface of the exposed aggregate with the stucco has been a problem in the past allowing water to enter the lower level suites.
Although this defect in the design and construction of LMS 0497 was documented by Morrison-Hershfield in 1997, the owners did not expose the affected area to reveal extensive wood rot until the summer of 2001, and have left it exposed to the present time, October 2002, without taking effective action to stop the leaks and rot.

The 1997 Morrison-Hershfield Building Envelope Condition Assessment Report also documented other areas of high moisture content and rot in the sheathing.

Thousands of dollars thus seem to have been wasted at Spinnaker West on faulty repairs and several engineering investigations and reports.

For some unknown reason, the majority of owners at Spinnaker West have been reluctant to follow the findings, conclusions and recommendations of several experienced building envelope engineers.

Money for special assessments appears to have been recently requisitioned and collected from the owners without proper authority (no resolution).

Complete detailed financial records are not readily available from the property manager, despite your many requests.

It has been impossible to determine how much money the owners have spent to date on repairs to the building envelope.

A Writ of Summons was only recently filed on behalf of the owners in the Supreme Court of British Columbia with D. Bruce Gleig of Clark, Wilson as Counsel (L 0213174, October 10, 2002).

It appears that proper authorization to initiate litigation has not been provided by the strata Corporation (no resolution).

Confusingly, the lawyer Samantha Ip of Clark, Wilson, lives in the building (SL 5) and has apparently mentioned to you and others that she may be in a conflict of interest and therefore not able to act for the owners.

However, lawyer Ip appears to remain as the main contact person between the owners of Spinnaker West and Clark, Wilson.

It was puzzling to note that, for some unknown reason, the Writ as filed on October 10 did not name the developers of Spinnaker West, namely:
Spinnaker Ventures Inc.;
Glen Harris, President and Director;
Shawn Philley, Secretary and Director;
Mossadiq S. Umedaly, Director; and
Abdul Pirbhai, Director.
Surprisingly, shortly after your inquiry to lawyer Samantha Ip as to why the developers were not being sued, you received a visit from lawyer Clive Boulton, the owner of SL 5, who expressed an interest in purchasing your unit because he and Glen Harris of SL 6, one of the developers, were considering adding more space to their strata lots.

The long delay in taking legal action, combined with a failure to mitigate rot damage by acting upon the advice of expert building envelope engineers since receiving the building envelope condition reports from Spratt Engineering in 1996, which reported defects and rot, followed by the more detailed report from Morrison-Hershfield in 1997, may be detrimental to the owners in recovering damages from the architect James Hancock and others.

The delay in taking early legal action may also have affected your ability to claim against professional liability insurance policies held by the architects for your building.
Professional liability insurance is "claims made insurance". In other words, in order for a claim to be considered, it must be made within the time period that the policy is in effect. By inserting this building envelope exclusion into its policies, ENCON is effectively eliminating the possibility of any claims that are not made prior to the policy renewal date. All new policies exclude "prior acts" which does not retroactively cover projects built prior to the policy being issued.

Owners and strata councils of leaky condominiums should immediately check with their lawyers to ensure that, if their design architect, engineer or building envelope specialist is insured by ENCON, that the professional AND ENCON are put on notice, in writing any potential claim for damages. Failure to do so could result in no ability to seek recovery for damages from the insurer, even if the professional is found at fault.
(See HPO “Leaky Condo Alert” dated March 10,2000)

I urge, therefore, that you and the other owners seek from your law firm a clear written opinion of the costs and probability of success with your proposed litigation plan.

Dr. Hamed Umedaly was a resident owner in the building (SL 8) from September 1992 until he sold in May 1998 to Folprecht.

I have not determined the influence Dr. Hamed Umedaly exercised within the Strata Corporation prior to his departure. He may have been reluctant, as an owner in the Strata Corporation, to sue Mossadiq Umedaly.

Dr. Hamed Umedaly bills the Medical Insurance Plan (MSP) in the order of $300,000 per year.

Folprecht commissioned a “Building Inspection & Condition Report” dated May 8, 1998, copies of which he apparently made available to other owners of Spinnaker West.

The 1998 report by RMC INSIGHT Building Consultants Inc. clearly states:
Indications of previous repairs that appear to be cosmetic and piecemeal in nature. There is a high likelihood that all problems have not been solved and deterioration will accelerate over time. High maintenance costs will result. A global approach to the repairs is required so that the water leakage problems do not re-occur.

Buildings with little or no roof overhang are susceptible to water penetration [leaks] and rot damage. Wall areas on the side of prevailing winds, around windows, doors and other openings, as well as balconies, rails, wall protrusions, and any areas where dissimilar materials connect are particularly vulnerable. Removal of siding in suspect areas is required to determine the extent of any damage. EXPECT MAJOR PROBLEMS [emphasis in original].

Consult engineering firm specializing in building envelope evaluation.
Folprecht apparently purchased from Dr. Hamed Umedaly in 1998 with full knowledge of the building’s faulty condition and thus arranged for a holdback contingent on repairs, which has now expired unused.

The
removal of cladding by the stairs to the upper units at your leaky rotten condo in 2001 as part of the investigation by BC Building Science Engineers confirmed extensive leaks and rot as predicted by the 1997 Morrison- Hershfield report four years earlier.

Given the previous investigations and reports and a visual examination of the building, including the
open sections of wall at your leaky rotten condo, the JRS Engineering report in 2002 recommended a full building envelope restoration with an estimated cost to repair approaching one million dollars.

Decisions seem to be made at meetings of various owners of Spinnaker West without proper advance notice, motions, resolutions and minutes.

The assignment and use of parking spaces in your leaky condo building does not appear to be in accordance with the Strata Plan filed in the Land Titles Office.

In addition to apparently unauthorized and unregistered changes in the location of assigned parking spaces, the following owners are apparently using two spaces each, i.e., using common property, without proper registered authorization:
SL 5, Clive Boulton, an original purchaser, who bought from Spinnaker Ventures Inc., with Abdul Pirbhai and Glen Harris signing on behalf of Spinnaker;

SL 6, Helga Hennsler Harris, an original purchaser, who bought from Spinnaker Ventures Inc., with Mossadiq Umedaly and Glen Harris signing on behalf of Spinnaker;

SL 7, Judy Lane Reeves, who bought from Dr. Peter Andrew Balogh and Karen Lee Balogh, who bought from Spinnaker Ventures Inc., with Mossadiq Umedaly and Glen Harris signing for Spinnaker;

SL 8, Otto and Sladjana Folprecht, who bought from Dr. Hamed Umedaly and Dr. Susan Purkiss, who bought from Spinnaker Ventures Inc., with Abdul Pirbhai and Glen Harris signing on behalf of Spinnaker.
It thus appears that you do not have the use of the one parking space that you bought as exclusive use common property, and furthermore, you (SL 3) and others (SL 2 and SL 4) do not appear to have the use of several other parking spaces designated as common property on the registered Strata Plan.

As an original owner, you know your leaky rotten condo building has had a history of leaks since construction in 1991-1992 and occupancy in 1992.

A record of the early leaks can be found on the “Chart of Leaks” otherwise known as “History of Water Problems – Spinnaker West” which was apparently prepared by the property manager for a meeting in October 1995.

The “History of Water Problems” document records leaks into your condo in 1994 and – incorrectly - notes leaks previous to 1994 were “resolved by developers [sic] contractor”.

It is obvious from subsequent events and engineering reports that the developer’s contractor did not stop the leaks.

The “History of Water Problems” document also records leaks into other condos at Spinnaker West.

The “History of Water Problems” document records various commonly futile measures by All Star during 1994 and 1995 such as caulking and the use of elastomeric, which can actually accelerate the spread of rot.

The July 1996 “Preliminary Report on Investigation of Water Leakage and Cracking of Stucco” at Spinnaker West from Spratt & Associates outlines damage by leaks into several condos, leaks and damage at balconies, significant
cracks in stucco, leaks through cold joints and the presence of fungus infected and rotted wood.

One of the original developers (Glen Harris, President of Spinnaker Ventures Inc.) still lives in the building (SL 6).

The Strata Corporation continues to use the same property manager appointed by the original owner-developers (Ann Hedley from Realacorp).

For some unknown reason, a copy of the signed contract between the property manager and the Strata Corporation is not readily available.

It is abundantly clear that the owners have failed to meet their obligations to repair and maintain Spinnaker West building in accordance with the Condominium Act and the Strata Property Act.

You have received information based on the Strata Property Act detailing the responsibility of the owners to repair the building. (HPO, "
The Strata Property Act: Responsibilities of Strata Councils").

You have also viewed the video “What to do when your condo springs a leak”. (CMHC, 1998).

Despite a ten-year long history of leaks and sporadic faulty partial repairs, and despite your many requests, written and verbal, since 1992 that the building be fixed, (see minutes of 1995), today in October 2002, no effective management plan seems to be in place to repair the leaky building in accordance with the principles presented in “
Managing Major Repairs - A Condominium Owner's Manual”.

The majority of owners in your leaky rotten condo building are apparently continuing to ignore the information found in the CMHC's “
Best Practices Guide”.

Furthermore, the majority of owners have apparently ignored significant findings and recommendations in several reports by building-envelope engineering firms including:

Gordon Spratt & Associates (July 1996);
Morrison-Hershfield (October, 1997);
BC Building Science (August, 2001); and
JRS Engineering (August, 2002).

You have been advised that the present condition of the building and in particular, the condition of your unit with
rot and mould clearly evident and left exposed for more than a year, detracts from your ability to sell or rent your strata lot.

In 1992, the developers of Spinnaker West were asking $266,900 for SL2 which is on the ground floor next to your leaky rotten condo. It sold for $256,000. Two years later in 1994 the asking price was $248,000 with a selling price of $240,000. Four years later the asking price was $259,000 with a selling price of $245,000.

This summer (2002), a deal to sell SL 2 with an asking price of $225,000, a substantial discount from the 1998 purchase price of $245,000, appears to have failed because of the well documented leaky rotten condition of the building and the consequent inability of the purchaser to obtain financing due to the poor condition of the leaky condo building and the unknown cost to repair it.

The BC Assessment Authority is aware that your leaky condo building has suffered water damage and is in need of costly repairs, as documented by the multiple engineering reports.

The assessed value of your leaky rotten condo and others in the building will therefore probably be reduced accordingly for the 2003 property tax roll.

As it is now, your leaky rotten condo has fallen in value from your 1992 purchase price of $230,000 to a BC Assessment Authority 2002 tax roll value of $189,400 which did not take into account the 2002 estimated $100,000 repair and legal bill, all of which suggests you have lost more than $140,000 in value since you purchased your made-in-BC leaky rotten condo, not counting the cost of your damaged new hardwood floors and real-estate sales commissions that you would pay when you sell.

It appears that all of the leaky residential condos in your leaky rotten condo complex at Spinnaker West have suffered similar drops in value.

I was shocked by the way the President of the Strata Corporation and Chairman of the Waterproofing Committee, Gary Hamilton, the owner of SL 4, told you a few days ago, in my presence, while we were examining the rot at your home, that you were “disconnected from reality” and that you were “living in a fantasyland”.

President Hamilton also stated that you were responsible for the condition of the building because you had attended numerous meetings at which proposals for fixing and even destroying and re-developing the building were brought forward.

I attempted three times to ask President Hamilton a question in your presence, but each time I did so, the President told me, quite loudly, to “shut up!!”

You quite rightly pointed out to President Hamilton that the rot and mould clearly evident for so long at your condo was the true reality.

You have told me that President Hamilton called you later and apologized to you.

This type of incident is not uncommon among neighbours in a leaky rotten condo complex.

Unfortunately, inadequate proposals leading to further delay continue to be made as late as this month at “informal meetings”.

The proposal that the present building be destroyed so that the owners could build a new condo complex seems ill- conceived and certainly lacks clear cost-benefit analysis.

One wonders if the proposal is another delaying tactic.

The repair proposal by Attilo Bortignon dated October 14, 2002, which was apparently solicited and presented to the owners by Glen Harris, presented on paper headed “ABC Always Better Construction”, is clearly inadequate given the findings of previous engineering reports.

As I have pointed out to you, the proposed “German Construction Systems Inc.Ventilated Curtain Wall Super Panel” product is a “natural organic fiber reinforced calcium-silicate panel.”

Similar cladding materials are manufactured in Canada and the USA.

Unfortunately, some of them have experienced failures when exposed to water because the “natural organic fiber” is actually ground wood sawdust which, when wet, causes the boards to swell and buckle causing further damage from leaks and rot.

The Bortignon proposal is primarily aimed at using a particular product for the cladding.

The wood rot and leaks in the building envelope must still be dealt with prior to the application of this or any other cladding.

It now appears, once again, that your leaky condo and the rest of the building will suffer through yet another wet winter without proper repairs while you are in Japan.

It is most important to realize that Spinnaker West’s building envelope was defective the day the developers sold the leaky condo to you in 1992.

The leaks are not your fault.

Little or nothing has been done to address the fundamental faulty design and construction of Spinnaker West.

To the contrary, minutes of the Spinnaker West Strata Corporation seem to reveal an explicit policy to avoid starting repairs that would “trigger” repairing the building in accordance with provisions of the Homeowner Protection Act.

Furthermore, the owners seem to be slow in realizing the significant implications of changes in 1996 to the Vancouver Building By-Law with regard to building envelope construction and repairs.

Exactly why the owners of Strata Plan 0497 has and continues to operate in accordance with a policy designed to avoid repairing the building properly remains to be determined.

After all, the former and present owners and partners of owners in the leaky condos in Spinnaker West are well- educated, accomplished people, including:

- physicians (Susan Purkiss and Danica Levajak);
- an anesthesiologist (Hamed Umedaly);
- lawyers (Boulton and Ip);
- a dentist (Peter A. Balogh);
- a Professional Geoscientist specializing in hydrogeology (Gary Hamilton);
- a multi-lingual international conference and court reporter (Mary Kagami);
- a business woman (Judy L. Reeves);
- an assistant network computer engineer (Otto Folprecht);
- a marketing assistant (Sladjana Folprecht);
- a stock-broker’s assistant (Helga Hennsler Harris);
- a real-estate developer (Glen Harris); and
- a director of a public company (Clive Boulton).

One of the lawyer residents in Spinnaker West, Samantha Ip is a lawyer associated with Clark, Wilson, which has a very large practice litigating on behalf of owners of leaky rotten condos.

I have personally attended various information meetings where lawyer Samantha Ip, lawyer D. Bruce Gleig Spinnaker West’s Counsel-of-Record, and lawyer Patrick Williams, all of Clark, Wilson have told owners of leaky rotten condos that they must repair their leaky condos in accordance with the provisions of the Strata Property Act and the Homeowner Protection Act.

You have told me that the sales person on site when you purchased your leaky condo was Shawn Philley, who, it turns out was one of the developers and Secretary and Director of Spinnaker Ventures Inc. You have also told me that Mr. Philley did not advise you that Spinnaker West was a leaky condo.

Another developer of Spinnaker West was Mossadiq S. Umedaly, a high-profile, multi-millionaire; a Chartered Accountant with an MBA; the former Vice President and Chief Financial Officer of Ballard Power Systems; now Chairman and Chief Executive Officer of privately owned Xantrex Technology Inc.; on the advisory boards for the Faculties of Business at Simon Fraser University and McMaster University; has held senior positions in the Aga Khan Development Network; is an advisor and contributor to several philanthropic projects in Canada, and developing countries in Africa and Asia.

The Financial Post reported that Mossadiq Umedaly is an Ismali Muslim born in Uganda who was recruited to Ballard Power in 1990 - the year before he signed the Disclosure Statement for Spinnaker West in January 1991 – and that Umedaly managed to cash in $21-million worth of stock options just before leaving Ballard in 1998 when you were struggling to get the leaks and rot in Spinnaker West repaired.

1998 is also the year in which Dr. Hamed Umedaly sold out of Spinnaker West.

Another observation, the significance of which, if any, is unknown at this time, is that lawyer Boulton and developer Harris purchased their leaky condos in Spinnaker West in 1992 for the exact same price $269,908.12.

In addition to attending to the above matters, whenever you do repair the building, or before, you may want the building committee to investigate the continuing damage done by birds (starlings) that have been nesting for several years inside exhaust vents on the north wall.

Mary, on a personal note, my wife and I admire the way you have fought for physical recovery from your stroke and regained much, although not all, of your former mobility.

Contrary to President Hamilton’s remarks to you, we can attest to the fact that you have a rational, clear understanding of the reality of the leaky rotten mess at Spinnaker West: your condo building is leaky and rotten.

We know that you are completely and rightly frustrated by your experience with your leaky rotten condo at Spinnaker West, given the sorry history of faulty repairs, the continuing damage to the building, repeated delays and false starts, and the lack of a proper plan to repair the rot and stop the leaks.

I have therefore decided to accept your request that I act on your behalf with your proxy in order to help initiate a proper repair strategy at Spinnaker West.

I trust this letter will help achieve that objective.

Yours truly,

Dr. James Balderson, PhD QS
COLCO: The Coalition of Leaky Condo Owners
www.myleakycondo.com
james.balderson@myleakycondo.com

Copy to:

The Owners, Strata Plan LMS 0497, Spinnaker West
C/O Ann Hedley, Property Manager,
Realacorp Management Ltd.
1867 West Broadway, Vancouver
E realacorp@axion.net

 

Case Studies, Spinnaker West: Historical overview, 1992 - 2002

(NOTE: an update to this memo sent May 31, 2005 may be found here.)


2002 October 29

TO: THE OWNERS, STRATA PLAN 0497, SPINNAKER WEST
E realacorp@axion.net
FROM: DR.JAMES BALDERSON, PHD, QS

RE: LEAKS AND ROT AT SPINNAKER WEST

I have written the following letter to Mary Kagami, the Owner of Strata Lot 3, Strata Plan 0497.

The letter contains information regarding Spinnaker West, Strata Plan LMS 0497, 2368 Laurel St., Vancouver, BC.

Please report receipt of this letter and the availability of both letters in the records of the Strata Corporation, in accordance with the Strata Property Act.

Please advise me of any errors that should be corrected.

Thank you.
Dr. James Balderson, PhD QS


2002 October 29

Dear Mary,

Re: Your Leaky Rotten Condo
Spinnaker West, LMS 0497
2368 Laurel Street, Vancouver, BC


I have written this letter as a result of numerous requests from you over the years for information about your leaky rotten condo and how to get it repaired.

My research regarding your leaky rotten condo at Spinnaker West is not complete, however, I thought this interim report would be helpful in gaining an understanding of your life in a leaky condo complex and some of the forces affecting decisions regarding repairs.

Please let me know of any errors or omissions you think should be addressed.
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LMS 1400 (Vancouver): Court upholds Vancouver's immunity clause, dismisses claim; City not liable for faulty inspections but may have duty to warn the world of known defects

 

Citation:

The Owners, Strata Plan LMS1400 v. Objekt Properties Corp. et al.

Date:

20021007

 

2002 BCSC 1420

Docket:

C995675

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

THE OWNERS, STRATA PLAN LMS1400

PLAINTIFF

AND:

 

OBJEKT PROPERTIES CORP., BRENTON CONSTRUCTION LTD.,

ROBERT LESHGOLD, ARCHITECT,

JONATHAN STOVELL, CITY OF VANCOUVER,

RELIANCE HOLDINGS LTD., READ JONES CHRISTOFFERSEN LTD.,

A.V. WESTERN STUCCO LTD., MCLAUGHLIN CONSTRUCTION,

JACK LESHGOLD, LEIBA LESHGOLD,

MICHAEL BRENT ALSTON, SALLY ANN F. ALSTON

 

DEFENDANTS

 

 

REASONS FOR JUDGMENT

 

OF THE

 

HONOURABLE MR. JUSTICE BROOKE

           

 

 

Counsel for the Plaintiff:

Garth M. Evans

Counsel for the Defendants, Robert Leshgold, Architect, Jonathan Stovell, Reliance Holdings Ltd., Jack Leshgold and Leiba Leshgold:

 

D. Scott Lamb

Counsel for the Defendant,

City of Vancouver:

 

Brent D. Jordan

Date and Place of Hearing:

August 22, 2002

 

Vancouver, BC

 

[1]            The defendant, City of Vancouver, seeks dismissal of the action against it pursuant to Rules 18A, 19(24) and 25(1) of the Rules of Court.  The application is resisted by the plaintiff and by the defendants, Robert Leshgold, Architect, Jonathan Stovell, Reliance Holdings Ltd., Jack Leshgold and Leiba Leshgold.

[2]            By way of background, the plaintiff claims against 13 defendants, including the defendant, City of Vancouver, for damages for construction defects in a condominium development undertaken between 1993 and 1994.

[3]            The claims against the City of Vancouver are specifically set out in paragraphs 40 and 41 of the statement of claim, and generally against all of the defendants in paragraph 33 of the statement of claim.

[4]            Paragraph 40 says this:

The City of Vancouver was negligent in its inspections of the Building and failed in its duty to ensure that the Building was constructed to and complied with the City of Vancouver Building By-laws, the British Columbia Building Code and the National Building Code and was further negligent in issuing the Occupancy Permit without ensuring that the Building had been constructed in compliance with the City of Vancouver Building By-laws, the British Columbia Building Code and the National Building Code.

 

[5]            Paragraph 41 says:

In breach of the duty of care owed to the Plaintiff by the City of Vancouver the Building was not constructed in accordance with the City of Vancouver Building By-laws, the British Columbia Building Code and the National Building Code which resulted in structural defects, water leaks, rotting and other damage to the Building.

 

[6]            Paragraph 33 says:

The Defendants, and each of them, owe a duty to warn the Plaintiff of any potential or actual defects, deficiencies and/or damages in the construction of the Building.  In breach of their duty to the Plaintiff, the Defendants, and each of them, failed to warn the Plaintiff of the Defects and Deficiencies which were known to the Defendants and each of them.  As a result of the said failure to warn, the Plaintiff has suffered damages.

 

[7]            On the hearing of the notice of motion the defendant, City of Vancouver, abandoned its application under Rule 25(1), adjourned its application for summary trial under Rule 18A, and proceeded with its application under Rule 19(24).  Rule 19(24) provides:

(24)  At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

 

(a)   it discloses no reasonable claim or defence as the case may be, ...

 

[8]            In Hunt v. Carey Can. Inc. (1990), 49 B.C.L.R. (2d) 273, the Supreme Court of Canada said this at p. 289:

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?  As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.  Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

 

[9]            The defendant City of Vancouver relies upon s. 294(8) of the Vancouver Charter, S.B.C. 1953, c.55 which provides:

(8)   The city, or any officer or employee thereof, in inspecting and approving plans or in inspecting buildings, utilities, structures or other things requiring a permit for their construction, has no legal duty, on which a cause of action can be based, to ensure that plans, buildings, utilities, structures, or other things so constructed, comply with the by-laws of the city or any other enactment.  The city, or any officer or employee thereof is not liable for damages of any nature, including economic loss, sustained by any person as a result of neglect or failure of the city or officer or employee thereof to discover or detect contraventions of the by-laws of the city or other enactment or from the neglect or failure, for any reason or in any manner, to enforce such a by-law or enactment or for any damage from a failure to recommend, or resolve to file a notice in the land title office pursuant to section 336D.

 

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