Case Studies, Spinnaker West: Clogged drains (Oct 9, 2004)

MEMO TO: THE OWNERS, LMS 0497, SPINNAKER WEST, 2368 Laurel St., Vancouver.


It has been raining.

I attended at Mary Kagami’s strata lot Friday, October 8, 2004, morning at about 11 a.m.

I found that all three original inadequate 1-inch drains on Mary’s North deck were clogged with needles from the fir tree.

Mary’s deck was covered (West to East) with about 1.25 inches of standing water as measured at her back doorway.

Mary had cleared needles from the drains prior to leaving for Japan two weeks ago.

She had parked the debris in piles at corners away from the drains.

I cleared the drains and removed the debris by dumping it over the wall to the lane below.

It takes only a few needles to block each drain.

The needles fall from the tree and float on very little water towards the drains.

Furthermore I observed that the back deck to the East was covered with many tree needles.

These needles can float towards Mary’s deck.

They should be cleared away immediately.

The back deck to the West is covered with wood decking.

Although the drain for the West deck was dribbling some water into the lane, it could also be clogged, resulting in more water and needles being directed to Mary’s deck.

The original inadequate drains run through common property and appear to be the direct responsibility of the strata corporation.

The strata corporation has been aware for years that drainage from the back decks is inadequate.

Standing water on the back deck represents a danger not only to common property but also to the private property of Mary Kagami inside her strata unit.

Larger drains could be installed easily and quickly by coring or by jackhammer.

As reported previously and still not fixed, water seepage is continuing to damage the inside walls and the hardwood flooring on the south side of Mary’s strata lot.
As the proxy-holder for Mary Kagami, I hereby give notice that the back-deck drainage situation requires immediate urgent attention.

I also look forward to receiving notice of meetings pertaining to the business of the strata corporation and, in particular, to meetings dealing with proposed repairs to the building envelope.

Please instruct the grounds-keepers to remove the large pile of junk mail below the mailbox.

The papers could attract firebugs and, at the least, present an unsightly mess at Mary’s doorway.

Note also that the house lights at the mailbox-entranceway by Mary’s door do not operate.

It would be a simple matter to install two CFL energy efficient lights and this should be done immediately.

Thank you for your anticipated urgent attention to these matters.

For Mary Kagami,

James Balderson

Emerald Terrace, Kamloops: Court permits leaky condo owners to consolidate actions




Strata Plan KAS 1691 v. City of Kamloops et al,


2004 BCSC 1231

Date: 20041006
Docket: S041856
Registry: Vancouver


The Owners, Strata Plan KAS 1691



The Corporation of the City of Kamloops, T.R. Underwood Engineering Ltd.,
Rodney George Gobelle, Torres Engineering Ltd., Jaime Torres, Hugo G. Lebihan, Indalex Limited, formerly known as Indal Corporation/Corporation Indal,
formerly known as Caradon Limited/Caradon Limitee, doing business as Caradon Windows and Doors, Ensurco Duradek (Canada) Limited, T & N Roofing Ltd., John Doe General Contractor, John Doe Roofing Inspector, John Doe Stucco, John Doe Flashings, and John Doe Caulking, John Doe Sheathing Membrane, John Doe Self-Adhesive Membrane, John Doe Railings, John Doe Masonry, John Doe Concrete, John Doe Waterproofing, John Doe Doors, John Doe Below-Grade Waterproofing.


- and -

Docket: A982483
Registry: Vancouver


The Owners, Strata Plan KAS1691



421839 B.C. Ltd., Lloyd R. McLean, Ted J. Thomas Design Consultants Limited,
Abco Waterproofing & Sundecks Inc., Storm Roofing & Consulting Inc., Neil Hoffman and Todd Hoffman Doing business as T & N Roofing, Badruddin Kajani, Sohail Kajani and Shahid Kajani


Before: The Honourable Rice

Reasons for Judgment

Counsel for plaintiff

S. Jackson

Counsel for defendant The Corporation of the City of Kamloops

J.W. Locke

Counsel for TR Underwood Engineering Ltd., Rodney George Gobelle, Torres Engineering Ltd. and Jamie Torres

E.C. Watson

Date and Place of Trial/Hearing:

August 24, 25
and 26, 2004


Vancouver, B.C.


[1]            These interlocutory cross applications arise within two actions by the plaintiff, both concerning a leaky condo building called Emerald Terrace at 712 Sahali Terrace, Kamloops B.C. (“Building”)

[2]            The respondents seek dismissal of the Second Action.  The plaintiff opposes the dismissal and argues instead for a consolidation of the two actions, or alternatively, if the First Action is dismissed, for joinder of the Second Action Defendants as defendants in the First Action.  If the dismissal of the plaintiff’s Second Action is not granted, the City of Kamloops opposes consolidation, but favours an order that the actions be tried together at the same time.  The other Second Action Defendants appearing do not agree to consolidation or the actions being tried together on grounds of prejudice. 


[3]            The plaintiff in both actions is the strata corporation established pursuant to the Condominium Act for the owners of individual units in the Building.  The defendants in both actions are allegedly suppliers of materials and services in connection with the construction of the Building including the City of Kamloops.

[4]            The Building was built between the start of 1993 and the end of 1995.  A certificate of interim occupancy was granted December 18, 1996.  The final certificate of occupancy was issued May 7, 2000.  In 1995 and afterwards, leaks were discovered in the Building. 



The Madison (Coquitlam): Michael Audain loses in court; Winchester Investments added as defendant in leaky condo suit against Polygon companies



The Owners, Strata Plan LMS 1212 v. Winchester Investments Ltd.,


2004 BCCA 500

Date: 20041001

Docket: CA032139


The Owners, Strata Plan LMS 1212




Winchester Investments Ltd.






The Honourable Mr. Justice Smith

(In Chambers)


R.L. Basham, Q.C.

Counsel for the Appellant

V.P. Franco

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

9 September 2004

Place and Date of Judgment:

Vancouver, British Columbia

1 October 2004


Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]            This is an application for leave to appeal from an interlocutory order by which the Chambers judge added the appellant as a defendant pursuant to Rule 15(5)(a)(iii) of the Rules of Court.

[2]            I observe at the outset that the impugned order was discretionary and that leave to appeal such an order will be granted only where the order is clearly wrong, a serious injustice will occur, or the discretion was not exercised judicially or was exercised on a wrong principle: Strata Plan LMS 2019 v. Green, [2001] B.C.J. No. 741 at para. 6 (QL), 2001 BCCA 286, Proudfoot J.A. (In Chambers); Yang v. Yang, [2000] B.C.J. No. 1765 at para. 3 (QL), 2000 BCCA 486, Saunders J.A. (In Chambers).

[3]            The appellant has the burden of establishing the necessary conditions for leave.  They are described by Saunders J.A. in Goldman, Sachs & Co. v. Sessions, [2000] B.C.J. No. 998 at para. 10 (QL); 2000 BCCA 326 (In Chambers):

[10]  The criteria for leave to appeal are well known.  As stated in Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.) they include:

(1)  whether the point on appeal is of significance to  the practice;

(2)  whether the point raised is of significance to the action itself;

(3)  whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and

(4)  whether the appeal will unduly hinder the progress of the action.

[4]            In the appellant’s memorandum of argument, it states the point in issue in this way:

The learned Chambers Judge erred in law and was clearly wrong in deciding that there was some evidence to establish a possible partnership between Winchester Investments Ltd. (the “Appellant”) and Polygon Town Centre Development Ltd. and Polygon Construction Ltd. sufficient to add the Appellant as a Defendant to the proceedings.

[5]            Before discussing that issue, I will deal with a second issue raised during oral submissions by counsel for the appellant that she urged should be considered on the basis of its general importance.  The question is whether an application to add a party under Rule 15(5)(a)(iii) may be granted on the basis of pleaded allegations alone, or whether the applicant has the burden of establishing by affidavit evidence that a real issue exists between it and the proposed new party.  Counsel for the appellant submits that there are conflicting decisions on the point in the Supreme Court.  She wishes to argue that the cases holding that no affidavit evidence is required have been decided incorrectly.

[6]            However, as counsel for the respondent points out, the Chambers judge did not grant the application in this case on the basis of the allegations in the proposed amended pleading; rather, she relied on filed affidavits to reach her decision.  She said:

[14]  There is evidence before me through affidavits as to the existence, or not, of an issue between the parties.  As a result, I do not find it necessary to delve into the legal debate as to whether evidence is required on an application under Rule 15(5)(a)(iii).  I am satisfied that the plaintiff has put forth some evidence to take this matter beyond a bare assertion contained in the pleadings, as alleged by Winchester.

[7]            Thus, the issue identified by the appellant does not arise in this case and, for that reason, I refuse leave to appeal on this issue.  However, as counsel for the appellant stressed the general importance of the question, I add, as a matter of interest, that leave to appeal has been granted on this issue in The Owners, Strata Plan LMS 1816 v. Acastina Investments Ltd. and Marjon Investments Ltd. (16 July 2004), Vancouver Registry, CA032029 (C.A.), a case in which the chambers judge added a party on the basis of pleaded allegations alone and rejected the submission that affidavit evidence was necessary.  The appeal is set for hearing next month.

[8]            I turn now to the issue as framed in the appellant’s memorandum of argument.

[9]            The action may be described as a “leaky condo” case.  The owners of a building known as "The Madison" claim damages for breach of contract and negligence; they allege that construction deficiencies resulted in water damage to The Madison.  The action, as it was initially constituted, included as defendants Polygon Town Centre Development Limited (previously known as Polygon Development VII Limited) and Polygon Construction Ltd.  The plaintiff claimed against the Polygon companies as "the developer and general contractor for The Madison".