Subject: PH 2, 1819 Pendrell St., MLS®: V611976 $639,000

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20060919
Docket: L051694
Registry: Vancouver

Between:

The Owners, Strata Plan LMS 343

Plaintiff

And:

Haseman Canada Corporation, Kenji Hasegawa, Katsuo Ono, Allan Lee,
Gauvin Construction Ltd., Interplan Architecture & Planning Inc., John W. Scott,
Columbia Waterproofing Ltd., Indalex Limited, Starline Windows Ltd.,
F.E.I. Construction Ltd,. JEM Sundecks Ltd., John Doe formerly known as D & G
Decking Installations Ltd., John Doe formerly known as Pacific Engineered Concrete
Waterproofing Ltd. and John Doe formerly known as Precision Plastering Ltd.

Defendants

Before: The Honourable Mr. Justice Tysoe

Oral Reasons for Judgment

In Chambers
September 19, 2006

[1]                THE COURT:  The Defendants, Haseman Canada Corporation, Gauvin Construction Ltd., Interplan Architecture & Planning Inc. and John W. Scott, (“the Applicants”) each apply for the dismissal or stay of this action on the basis that it is abuse of process.

[2]                This action relates to the design and construction of a 130-unit complex within nine buildings located in Coquitlam, B.C.  Occupancy permits for the three phases of construction were issued between 1992 and 1996.  Water leakage and cracking of stucco was noticed by 1996.  In October 1996, a maintenance contractor recommended to the Plaintiff’s property manager that a building envelope consultant or specialist be retained.  Some repairs were effected later in that decade and extensive remediation work took place in 2004 and 2005.

[3]                On June 30, 2000, the Plaintiff commenced Action No. L001792 asserting claims against the City of Coquitlam, John Doe, and others (the "First Action”).  There was not a lot of activity in the First Action until 2005 when the Plaintiff made an application to substitute the Applicants and another party for John Doe and others.  The application was subsequently amended to alternatively seek the addition of the Applicants and the other party as defendants in the First Action, and the request for substitution was abandoned at the hearing of the application.

[4]                The application was heard by Mr. Justice Pitfield over the course of three days.  On the last day of the hearing, counsel for the Plaintiff advised the Court that it had commenced this action against the Applicants and others on the preceding day, July 7, 2005.

[5]                One of the arguments made by the Plaintiff to Mr. Justice Pitfield was that joinder of the Applicants to the First Action should be preferred to the alternative of commencing a separate action against them and applying for consolidation of the separate actions.  However, there was a very substantial difference between these two alternatives.  If the Applicants were joined to the First Action, they would have lost the right to assert a limitation defence under the Limitation Act, R.S.B.C. 1996, c. 266, as a result of the provisions of s. 4(1) of the Act.  Conversely, if the Applicants were not joined to the First Action, any limitation defence that may have accrued to their benefit would have been preserved.

[6]                There were differing positions before Mr. Justice Pitfield as to whether the limitation period had expired as against the Applicants at the time of the hearing.  It was the position of the Plaintiff that it had not expired as a result of the postponement provisions of s. 6(3) of the Limitation Act.  The Applicants maintained that the limitation period had expired.  Mr. Justice Pitfield took the approach endorsed by numerous authorities that he should consider the application on the assumption that the limitation period had expired.  The positions of each of the parties remain the same at this hearing, and it is common ground that I am not to make a determination on this application whether the limitation period expired prior to the commencement of this action.

[7]                By Reasons for Judgment issued on August 8, 2005, and cited as The Owners, Strata Plan LMS 343 v. City of Coquitlam, 2005 BCSC 1150, Mr. Justice Pitfield dismissed the Plaintiff’s application to join the Applicants as defendants in the First Action.  Mr. Justice Pitfield reviewed the extent of the connection between the existing claims and the claim against the proposed defendants, the delay of the Plaintiff, the reasons given for the delay, and the prejudice to the parties.  The essence of his reasoning was that the prejudice to the Applicants in the event they were added as Defendants in the First Action outweighed the prejudice to the Plaintiff in the event that they were not added.

[8]                On September 2, 2005, the Plaintiff filed a notice of application for leave to appeal in respect to the decision of Mr. Justice Pitfield.  A hearing of the leave application has not been scheduled and no other steps have been taken in the appeal.  On the other hand, the Plaintiff has taken numerous steps in the furtherance of this action, as well as the First Action and a third action which has been commenced to bring in additional parties, since the issuance of Mr. Justice Pitfield’s decision, including the setting of a trial date next fall.  Counsel for the Plaintiff advised me at the hearing of this application that the Plaintiff will abandon the appeal if I dismiss these applications.

[9]                The Applicants say that there are the following two bases to dismiss or stay this action as an abuse of process: