Case Studies, Discovery Bay (Kelowna): APEGBC suspends missing structural engineer

Disciplinary Hearing

Sven E. Hage, P.Eng., Edmonton, AB

A complaint was made to the Association regarding structural engineering services Mr. Hage provided for a multi-family dwelling project in Kelowna, B.C. A number of deficiencies were identified by the complainant, which had been hired by the project’s developer to review the structural design. The complainant had been unable to contact Mr. Hage to discuss the deficiencies and to obtain additional documents and information. The complaint was investigated by the designated reviewer and the Investigation Committee but no replies were received to their letters to Mr. Hage. The Investigation Committee recommended an inquiry be held regarding Mr. Hage’s failure to respond to a request by the Investigation Committee for documents and information, contrary to section 30(4) of the Engineers’ & Geoscientists Act. On September 13, 2005, a disciplinary inquiry relating to the charges was held. Mr. Hage did not appear at the inquiry.

The discipline panel found the allegations were proven and after hearing submissions on penalty ordered that Mr. Hage’s membership in the Association is suspended until:

  • he has provided a complete response to the Investigation Committee’s request for documents and information; and
  • he has written and passed the Professional Practice exam.

Mr. Hage was also ordered to pay the Association’s legal costs in the amount of $3,000.

Copies of the disciplinary panel’s decisions on liability and penalty can be found on the APEGBC website under Enforcement and Discipline.

Case studies, Pendrell Place: "Please be advised..."

The following is the text of a letter sent by Dr. Balderson to the general public advising of unresolved building envelope and legal issues at Pendrell Place.


September 28, 2005

TO WHOM IT MAY CONCERN

RE: PENDRELL PLACE, 1819 PENDRELL ST., VANCOUVER
STRATA PLAN VR 1008, MLS V555673


Please be advised that Pendrell Place is a leaky rotten condo complex with unresolved building envelope issues and related outstanding legal actions.

We trust that potential purchasers will be provided with complete disclosure regarding the long history of building envelope leaks, rot, mould, leaky pipes, phony accounts and litigation.

In particular, we trust that potential purchasers will be informed that the east wall has not been renovated and that Strata Lot 22, Unit 504, has been uninhabitable since 2000 (see Levelton reports).

We advise that potential purchasers should seek assurance that all work done to the common property and all improvements within all strata lots has been done with appropriate City of Vancouver permits (e.g., building, electrical, plumbing).

We recommend that potential purchasers seek independent legal advice before contracting for the purchase of any strata lot at Pendrell Place, 1819 Pendrell Street, Vancouver.


Dr. James Balderson, Ph.D., Q.S.
COLCO: The Coalition of Leaky Condo Owners
www.myleakycondo.com

The Odyssey (Surrey): Enefer v. Owners Strata Plan LMS 1564, 2005 BCSC 1331

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Enefer v. Owners Strata Plan LMS 1564,

2005 BCSC 1331

Date: 20050927
Docket: L051884
Registry: Vancouver

Between:

William Lawrence Enefer

Petitioner

And

The Owners, Strata Plan No. LMS 1564

Respondents


Before: The Honourable Mr. Justice Taylor

Supplementary Reasons for Judgment

Counsel for the petitioner:

R. Fayerman

Counsel for the respondent Strata

A. Murray

Counsel for the respondent J. Collins

D.F. Sutherland for P.A. Mazzone

Date and Place of Hearing:

August 12, 2005 & Written Submissions

.

[1] Following delivery of my decision in this application on August 12, 2005, counsel were invited to make submission on the issue of costs as between the petitioner, the respondent strata plan owners and Jerome Collins who was joined as a respondent by consent at the commencement of the hearing of the application.

[2] As a transcript of my oral reasons has been issued I do not intend to review the cause of action or the reasons for my decision. Those reasons are the matrix upon which these reasons are founded.

[3] However, I wish to reiterate one important fact being that the opposition of Mr. Collins, who represented his wife%u2019s interest and those of an undefined group of Owners known as the %u201CToth Group%u201D to the imposition of a levy, for the final portion of the costs of a substantial rehabilitation project was founded, not upon any concern as to the need for such repairs but upon the strata council%u2019s choice of an owner%u2019s representative, whom they viewed as less qualified than the individual Mr. Collins and his supporters subsequently proposed.

[4] The appointment of the Owners%u2019 representative was part of the contractual obligations of the Strata Corporation with its engineers and remedial contractor. As well, the Owners%u2019 representative had responsibilities to the Strata Council beyond those contractual obligations in that he was to assemble information/evidence necessary for litigation against the developer of this Strata Plan.

[5] The appointment was the responsibility of the Strata Council and any dissatisfaction with the actions of the Strata Council%u2019s conduct was a matter to be raised at the next election of its directors.

[6] It was not, however, a matter to be used to highjack or block the levy needed for repairs.

[7] The consequence of the rejection of the levy founded upon this objection to the appointment of the Owners%u2019 representative by the Strata Council was to impair the tenders secured as I discussed in my reasons.

[8] The issue of costs, however, should not be determined by analysis of the voting of the Owners at meetings of the Strata Corporation for that is their right under the bylaws of the Strata Property Act regardless of their motivation.

[9] What is, however, the proper subject matter of the issue of costs is the unsuccessful opposition to the application brought by the petitioner and supported by the Strata Council as representative of all owners.

[10] Counsel for the petitioner seeks costs against the Strata Corporation or against the members of the %u201CToth Group%u201D or, alternatively, the respondent Collins. Counsel for the Strata Council advances a similar position as against the %u201CToth Group%u201D or Collins but also says the respondent Collins should pay the petitioner%u2019s costs directly.

[11] Counsel for Mr. Collins, whose position is that the petitioner is entitled to his costs from the Strata Council as is he himself and that the Strata Council should bear its own costs.

[12] Additionally, counsel for the petitioner and the Strata Corporation seek special costs as against Collins and/or the %u201CToth Group.%u201D

[13] The position of the petitioner and the Strata Council in respect of the Toth Group, in my view, is ill founded as it is predicated upon the members of the so-called group opposing the vote for the third levy.

[14] The members of that group as referred to in Schedule A to Ms. Friedrick%u2019s affidavit is presupposed to have voted owner for owner against the resolution for the levy. There is no evidence that the members so voted as the minutes simply record the number of votes for and against.

[15] Even if this group could be so defined as suggested in the affidavit of Ms. French, the exercise of a democratic right is not a proper basis to assign costs.

[16] There may be many reasons, some obvious some less so, as to why any particular owner might vote against the imposition of a levy.

[17] Furthermore, those of the Toth Group were not parties to this litigation and costs should be awarded against them even if identifiable simply on the basis that Mr. Collins purported to represent their interests as well as that of his wife.

[18] Mr. Collins, by consent of the petitioner and the other respondents, was joined as a respondent on the basis of having obtained authorization from his spouse to be %u201Can interested party.%u201D

[19] The petitioner is entitled to costs against the respondent Strata Corporation and against Collins. The respondent Strata Corporation is entitled to costs against Collins.

[20] Mr. Collins, in my view, is not entitled to any costs given my conclusion that any dissatisfaction with the owner%u2019s representative%u2019s appointment was something that should not have been raised in opposition to the petitioner%u2019s application.

[21] Counsel for Mr. Collins suggests that such a disentitlement %u201Cwill send a chill throughout the Strata community as it would make it virtually impossible for anyone to take a dissenting view on a special resolution.%u201D

[22] The liability for costs does not arise from a failed exercise of a democratic right. It arises simply because of the groundless opposition to an application that succeeded.

[23] The suggestion that %u201Cnone of the actions of Mr. Collins brought the Strata Council into the proceeding%u201D is correct but only to an extent. What the actions of Mr. Collins did was to take what would have been an otherwise unopposed application and convert it into a full day%u2019s hearing in large part to counter the submissions anticipated and made by Mr. Collins on behalf of himself that those he purports to represent.

[24] As observed by MacDonald J. in Tadeson v. The Owners Strata Plan NW 2644 A992067 Vancouver Registry 15/1/99 at paragraph 29

%u2026without their opposition there would have been a consent order in these proceedings if indeed the proceedings had been necessary at all.

[25] Counsel for the petitioner and the Strata Corporation seek special costs. In my view, nothing in the conduct of the respondent Collins suggests of any opprobrious behaviour in the course of this litigation. Simply put, Mr. Collin%u2019s position was, as I concluded, one of groundless opposition and thus ill conceived.

[26] Such conduct in the context of the affairs of this Strata Corporation cannot be fairly described as %u201Creprehensible%u201D as that term was defined in Garcia v. Crestwood Forest Products (1994), 9 B.C.L.R. (3d) 242 at par. 12.

[27] While it may have been ill advised it was not conduct that should be %u201Cdeserving of reproof or rebuke%u201D by an award of special costs.

[28] The petitioner will recover his costs from the Strata Corporation which in turn will recover those costs and its own costs both on Scale 3 from the respondent Collins. To the extent that the petitioner recovers his costs from the Strata Corporation he shall not be held responsible for any unit of assessment of those costs by the Strata Corporation upon the owners.

[29] Whether or not others may contribute to Mr. Collins%u2019 liability for costs is a matter between him and the so called %u201CToth Group,%u201D whom ever its members may be.

%u201CJ.D. Taylor, J.%u201D
The Honourable Mr. Justice J.D. Taylor

Case Studies, Pendrell Place: Andrews and Clower quit Council; Dixon and Mason sell; another law suit

2005 September 15

Strata Council Minutes - Excerpts

"That the resignations of Mr. Keith Andrews and Ms. Rhonda Clower be accepted with regret ...."

"Ms. Dixon also reported that she and Hilary Mason had recently sold their strata lot and that she would therefore be resigning from the Strata Council when the sale closed. After some discussion, she agreed to continue as President for the immediate future...."

"Strata Lot 22

Notwithstanding the various efforts made by management and by Council to reach a resolution, the owner of strata lot 22 filed a petition in the Supreme Court of British Columbia on October 4, 2005, against The Owners, Strata Plan VR 1008, to force unspecified repairs to the exterior east wall and to seek a variety of other remedies. The Council is onsulting with the Corporation's solicitor and will bring the matter before the ownership in due course."

[The above notice of a new law suit was at the bottom of page 5 of the Minutes of the September 15, 2005 Strata Council Meeting , prior to Adjournment on page 6, as if it was mentioned at the Strata Council Meeting which took place two weeks before the Petition was filed in Supreme Court on October 4, 2005. The Minutes were prepared and distributed - late - by STRATACO MANAGEMENT LTD.]

Leaky condo developer Michael Audain appointed to the board of directors of the National Gallery

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Minister Frulla Announces Appointment to the National Gallery of Canada

OTTAWA, September 14, 2005 -- Minister of Canadian Heritage and Minister responsible for Status of Women Liza Frulla today announced the appointment of Michael J. Audain, of Vancouver, to the board of directors of the National Gallery of Canada.

"The National Gallery of Canada will find an ardent supporter of the arts in Mr. Audain. I am convinced that he will be a valuable contributor to this organization that represents one of the most valuable jewels of our heritage," said Minister Frulla.

Mr. Audain is President of Polygon Homes Ltd., and has overseen the development of more than 15,000 homes in Greater Vancouver and Seattle since joining the Polygon group of companies in 1980. From 1976 to 1980, he was Principal, Audain Planning Limited, and from 1977 to 1979, he was a sessional lecturer on Social Policy at the School of Community and Regional Planning, University of British Columbia.

Immediate past president of the Business Council of British Columbia, Mr. Audain is currently a member of the Canadian Council of Chief Executives. Mr. Audain also served as past president of the Urban Development Institute, and of the Vancouver Art Gallery.

Mr. Audain is also Chair of the Vancouver Art Gallery Foundation and of the Audain Foundation for the Visual Arts in British Columbia. In addition, he serves on the British Columbia Arts Council and chairs the British Columbia Arts Renaissance Fund.

In 2004, the Council for Business and Arts honoured him with Canada's Edmund C. Bovey Award for leadership in the arts. In 2002, Mr. Audain was also awarded the Queen's Golden Jubilee Medal.

The National Gallery of Canada Corporation is responsible for the management of the National Gallery of Canada and its affiliate, the Canadian Museum of Contemporary Photography. It develops, maintains, and promotes, throughout Canada and internationally, a collection of both historic and contemporary art with special, but not exclusive, reference to Canada. It furthers knowledge, understanding, and enjoyment of art in general among all Canadians.

Information:

Patrick Doyon
Director of Communications
Office of the Minister of Canadian Heritage and
Minister responsible for Status of Women
(819) 997-7788

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Date created: 2005-09-14 Important Notices

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