Court rules six-year limitation clause protects architects against liability for leaks and rot at Sayward Elementary School

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Board of School Trustees of School District No. 72 (Campbell River) v.,

 

2007 BCSC 280

Date: 20070228
Docket: SO42535
Registry: Vancouver

Between:

The Board of School Trustees of School District No. 72 (Campbell River)

Plaintiff

And:

IBI Group Consultants Ltd., IBI Group Architects, N.A. Irwin Consulting Limited,
Beinhaker Design Services Ltd., Ewen S. Fisher Management Inc.,
M. Blumberg Design Services Ltd., Scott Stewart & Associates Limited,
DHA Design Group Inc., E.A. Patton Design Services Inc., Peter Zurawel Design
Services Ltd., TJ McIntyre Design Group Ltd., Precision Civil Installations Ltd.,
J.F. Butler & Sons Ltd., Status Electrical Corporation, Sky-Tech Products Ltd.,
 Standard Roofing Corporation and Sunco Drywall Ltd.

Defendants

 

And:

Torry & Sons Plumbing & Heating Ltd. and Bill Torry Holdings Corp.

 

Third Parties


Before: The Honourable Mr. Justice Rice

Reasons for Judgment

(In Chambers)

Counsel for the Plaintiff:

Brian M. Samuels

Counsel for the IBI Defendants:

Gregory S. Miller

Date and Place of Trial:

December 14 and 15, 2006
January 25, 2007

 

Vancouver, B.C.

INTRODUCTION

[1]                This application is brought pursuant to Rule 18A by a group of the defendants for dismissal of the plaintiff’s claims against them in this action.  The group alleges that the plaintiff’s right to commence action was statute barred by a limitation clause in an agreement between the plaintiff School Board and the defendant IBI Group Consultants Ltd.

[2]                The applicant defendants (collectively the “IBI Group”) include IBI Group Consultants Ltd., IBI Group Architects, N.A. Irwin Consulting Limited, Beinhaker Design Services Ltd., Ewen S. Fisher Management Inc., M. Blumberg Design Services Ltd., Scott Stewart & Associates Limited, DHA Design Group Inc., E.A. Patton Design Services Inc., Peter Zurawel Design Services Ltd. and TJ McIntyre Design Group Ltd.

[3]                The respondent plaintiff is a British Columbia School Board which owns Sayward Elementary School at 690 Kelsey Way, Sayward, British Columbia, including the land, the school building and other facilities.

[4]                The dispute concerns leakage problems at Sayward Elementary School which the School Board contends are due to the faulty design and construction of the School by the IBI Group in 1993 and 1994. The question is whether a six year limitation clause in the parties’ construction agreement (Article 3.9.6) now bars claims against the IBI Group because the six-year limitation period began from the certified date of substantial completion, or whether the time began to run not until when the faults were discovered or became discoverable. If the agreement was subject to “discovery” or “discoverability”, as the School Board contends, the action is not barred.

FACTS

[5]                The School Board entered into a contract with IBI in a form called the Canadian Standard Form of Agreement Between Client and Architect (1989 edition) (the “Client-Architect Agreement”), under which IBI was to provide architectural services for design and construction of the school.

[6]                As requested by the Ministry of Education of British Columbia, IBI submitted the Client-Architect Agreement to the plaintiff subject to review by the Ministry of Education.  The Ministry of Education subsequently advised the respondent that it was “OK to sign”, and the parties executed it with effect from November 6, 1991.   Construction commenced in about 1993 and IBI certified substantial performance of its work as of March 21, 1994.

[7]                The School Board’s expectation was that the building would last for 50 years.  Unfortunately, water leakage problems developed, and after 10 years, the School Board discovered that those problems were due to major defects such that by 2004, as a result of water ingress through the building envelope, some of the structural posts and members had become so rotted that they were in danger of collapsing, and it was too dangerous for students or staff to occupy the building.

[8]                The School Board did not commence this action until May 6, 2004 because the defects were not discovered and were not discoverable until that time.

[9]                The IBI Group agrees that for the purposes of this application only, and without prejudice to its right to dispute the issues at trial, the court may assume that there has been negligence, a breach of contract, or a fundamental breach and a breach of duty to warn on the part of the defendant applicants.

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Le Soleil Hotel (Vancouver):Court rules against appointment of administrator; awards special costs against Nomani

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Nomani v. The Owners, Strata Plan LMS 3837,

 

2007 BCSC 276

Date: 20070228
Docket: L050472
Registry: Vancouver

Between:

Syed Nomani also known as Jewel Nomani

Petitioner

And

The Owners, Strata Plan LMS 3837

Respondent


Before: The Honourable Mr. Justice Blair
in Chambers

Reasons for Judgment

Syed Nomani appeared on his own behalf

 

Counsel for the Respondent

A. Murray

Date and Place of Trial/Hearing:

December 11 – 15, 2006

 

Vancouver, B.C.

[1]                The petitioner, Syed Nomani, seeks the appointment of an administrator to exercise the powers and perform the duties of the Strata Corporation LMS3837 (the “Strata Corporation”), pursuant to s. 174 of the Strata Property Act, S.B.C. 1998, c. 43 (the “Strata Act”).

[2]                The Strata Corporation occupies a building at 567 Hornby Street in Vancouver and consists of 127 hotel-style strata lots and three commercial strata lots.  Mr. Nomani owns two of the hotel strata lots.  The developer, American Corporate Suites Canada Inc. (“ACS”) created the Strata Corporation in 1999 with the intention of operating a hotel business.  The purchasers of the strata lots had the opportunity to either occupy their lots or lease them to ACS.

[3]                Prior to the registration of the strata plan in 1999, ACS leased the underground parking lot to an affiliated company and after the registration the Strata Corporation leased to ACS the common property within the building to allow it to operate the hotel known as Le Soleil Hotel & Suites.  I will refer to these as the leases.  ACS became insolvent in 2001, and in January 2002 a group of strata owners known as the Le Soleil Owners Group (the “LSOG”) petitioned ACS into bankruptcy. In March 2002 ACS’s Receiver offered its assets for sale, including the leases, with the caveat that there existed the possibility of litigation with respect to the legality of the leases.

[4]                The LSOG sought to acquire ACS’s assets to achieve its goal of taking over the hotel’s operation, but a higher bid was made by Sunbelt Hotel Management Services Ltd. (“Sunbelt”), an affiliate of Le Soleil Hotel and Suites Ltd. which continued the hotel’s operation.  In March 2003 Le Soleil Hospitality Inc. (“Hospitality”) assumed operating the Le Soleil hotel and continues to do so with approximately 95 of the 127 owners presently leasing their strata lots to the Le Soleil hotel operation to manage as hotel units.  The Le Soleil hotel utilizes the leased properties obtained from ACS’s bankruptcy as part of its hotel operation, including the lobby on the main floor entrance and the underground parking lot.  The owners of the remaining 32 units either use the units for their own purposes or make their own arrangements for the rental of their strata lots.  Mr. Nomani, through a company called Hornby Apartment Ltd., operates a hotel known as the Hornby Hotel within the hotel and manages approximately 18 strata lots.

[5]                The operation of the Strata Corporation is distinct from the operation of the Le Soleil hotel and in 2000 the Strata Corporation retained Crosby Property Management Ltd. (“Crosby”) to provide strata management services.  Although the LSOG originally comprised a majority of the owners of the Strata Corporation, it now numbers just some 21 owners.  When the majority of the owners belonged to the LSOG they controlled the Strata Corporation’s strata council, but diminishing support led to their losing control of the strata council at the Strata Corporation’s annual general meeting on January 31, 2005.



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Squamish, Howe Sound Secondary School: Leaky school information deleted from Wikipedia

The following information was deleted from Wikipedia by an editor. 

The facts are the facts, despite the editor's attempt to censor them.   

Howe Sound Secondary is a public Secondary school in Squamish, British Columbia part of School District 48 Howe Sound.

Notable alumni include: Dr. James Balderson B.Ed. M.Ed. Ph.D. Q.S. (Class of '57; President of the Student Council; Founding Member, COLCO: Coalition of Leaky Condo Owners - www.myleakycondo.com ) ;

 

History

A new building was erected in the 1950s; the addition was completed in March 1996.

The leaky schools issue

Like thousands of leaky condos in British Columbia, The Howe Sound Secondary School building has been plagued with leaks and rot since the 1996 expansion project was completed.

Litigation regarding defective design and construction remains unsettled.

The BC Supreme Court ruled in January 2007 that the School Board waited too long to sue the architect.

The current [January 2007] estimated cost of repairs is about $1 million. The final cost may be much higher.

Realtors breached fiduciary duty to disclose and engaged in fraudulent misrepresentation

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Westrheim et al v. Gao et al,

 

2007 BCSC 274

Date: 20070227
Docket: S061028
Registry:
Vancouver

Between:

David Westrheim and Sheung Pui Cheng

Plaintiffs

And

Dian Dai-Qing Gao, Norman Chan and
Par Excellence management Inc.,
doing business as Sutton - Killarney Realty

Defendants

Before: The Honourable Madam Justice Sinclair Prowse

Reasons for Judgment

Counsel for the Plaintiffs:

S.A. Turner

Counsel for the Defendants:

B.J. Promislow

Date and Place of Trial:

January 23-25 and February 7, 2007

 

Vancouver, B.C.

(I)         NATURE OF THE PROCEEDING AND RELIEF SOUGH

[1]                In the summer of 2005, the Plaintiffs (who are husband and wife) sold their condominium located in the False Creek area of downtown Vancouver (the “Condominium”) to the Defendant, Diana Dai-Qing Gao, who is, and was, at all material times, a licensed real estate agent.

[2]                The Defendant, Norman Chan, is Ms. Gao’s husband and was Ms. Gao’s real estate agent in this transaction.  (Mr. Chan is also, and was, at all material times, a licensed real estate agent.)  The Defendant, Par Excellence Management Inc., doing business as Sutton Group - Killarney Realty, is the real estate agency through which Ms. Gao and Mr. Chan did, and do, work.

[3]                Approximately a month after this purchase was completed, Ms. Gao sold the Condominium for $95,500 more than the amount for which she had purchased it from the Plaintiffs.

[4]                The Plaintiffs contend that in the particular circumstances of the sale of the Condominium to Ms. Gao, the Defendants owed the Plaintiffs a fiduciary duty; that this fiduciary duty included the obligation to provide the Plaintiffs with full disclosure regarding Ms. Gao’s intended purpose in purchasing the Condominium; and that the Defendants breached this duty.  In this trial, the Plaintiffs seek damages arising from that breach.


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GCAN Insurance loses battle with Concord Pacific over duty to defend in leaky condo cases

Parkview Gardens, Concord Pacific, Vancouver, BC.

Parkview Tower, Concord Pacific, Vancouver, BC

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

GCAN Insurance Company v. Concord Pacific Group Inc. et al,

 

2007 BCSC 241

Date: 20070222
Docket: S063402
Registry:
Vancouver

Between:

GCAN Insurance Company

Petitioner

And

Concord Pacific Group Inc. formerly known as
Concord Pacific Developments Ltd.,
Parkview Towers (No. 1) Limited, and
Centreville Construction Ltd.

Respondents

-And –

Docket: S063274
Registry:
Vancouver

Between:

GCAN Insurance Company

Petitioner

And

Pacific Place Holdings Ltd.,
Governor’s Tower Limited, and
Centreville Construction Ltd.

Respondents

Before: The Honourable Madam Justice Nicole Garson

Reasons for Judgment

Counsel for Petitioner

G.S. Miller

Counsel for Respondents in both actions

A. De Jong and M. Lam

Date and Place of Hearing:

February 5, 6 and 7, 2007

 

Vancouver, B.C.

[1]                In these petitions, the insurer, GCAN Insurance Company (“GCAN”), applies for a declaration that it has no duty to defend the Respondents pursuant to policies of liability insurance with respect to claims against those Respondents brought in actions by two strata corporations for defective workmanship and resultant damage.

[2]                The petitions raise the issue of whether the particular wording of the policies extends coverage to the general contractor, construction manager, owner, and developer for damage caused to a building by its own faulty workmanship or that of its subcontractors.  The Petitioners contend that this court’s decision in Swagger Construction Ltd. v. ING Insurance Co. of Canada, 2005 BCSC 1269 is determinative of the issue, and is binding on me; consequently, they are entitled to a declaration that the insurer has no duty to defend the underlying actions. 

[3]                The Respondents argue that the Swagger decision is distinguishable.  They claim that although the insuring clause in the policies before me and the one in the policies before the court in Swagger are essentially the same, the exclusion clauses differ.  Based on the principle that it is the wording of the whole of the policy, and not the general principles of interpretation that govern, the Respondents argue that to find that the insuring clause does not cover damage to the building arising from the insured’s own faulty workmanship is inconsistent with the exclusion clauses.  The exclusion clauses in the policies at issue in this case would be redundant, according to the Respondents, if coverage for their own work is not covered by the insuring clause.

[4]                The Respondents also argue that the totality of the jurisprudence suggests that Swagger is an aberration that ought not to be followed since its reasoning departs from well-established lines of authority on the issue of the interpretation of the policies.  The Respondents argue that this case falls within the exceptions to the rule in  Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), on the grounds that there was binding authority that was not considered by the chambers judge, and also on the ground that subsequent decisions have affected the validity of the judgment.

Facts

[5]                I rely on these facts for the purposes of determining the issues before me, but they are not findings of fact for any other purpose. This outline of the relevant facts is based on the pleadings as well as the affidavit evidence before me. The pleadings in the underlying actions and the affidavits provided by the Respondents are inconsistent in respect to the roles of the various Respondents in the construction of the two projects. Below, I will address the problem that arises from this inconsistency.

[6]                The claims against the Respondents in the underlying actions are brought by two strata corporations.  They are what has become known as “leaky condo” actions.  The underlying actions are styled as follows:  Owners Strata Plan LMS 990 v. Parkview Towers (No. 1) Limited et al., B.C.S.C. Action No. S035605, Vancouver Registry (the “Parkview Tower Action”), and Owners Strata Plan LMS 1725 v. Governor’s Tower Limited et al., B.C.S.C. Action No. S006008, Vancouver Registry (the “Governor’s Tower Action”) (collectively, the “underlying actions”).

[7]                The Parkview Tower Action is the subject of petition No. S063402 (the “Parkview Tower Petition”).  The Respondents in the Parkview Tower Petition, Parkview Towers (No. 1) Limited and Centreville Construction Ltd. are named as defendants in the Parkview Tower Action.

[8]                The Governor’s Tower Action is the subject of petition No. S063274 (the “Governor’s Tower Petition”).  The Respondents in the Governor’s Tower Petition, Pacific Place Holdings Ltd., Governor’s Tower Limited, and Centreville Construction Ltd., are named as defendants in the Governor’s Tower Action.

 

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