Vancouver, Le soleil Hotel: Judge decides to hear stay application: arrangements for oral discovery to proceed



Peh v. The Owners, Strata Plan LMS 3837,


2008 BCSC 16

Date: 20080107
Docket: S072096
Registry: Vancouver


Chong Yeow Peh, Quan Yin Sau, Yeo Lee Lang, Teow Hock Ong,
See Wa Hong, Alfred Khoon Wah Tan, Yvonne Tan, Arvindrai Ramanlal,
Surendra Ramanlal, Bhupatrai Ramanlal, Deborah Ann Chang,
Christopher Chao Chong Chang, Tee Leong Lim, Bridget Teck Sim Tan,
Fooi Pen Lew, Tjiungwanara Njoman, David King Siang Goh,
Ginny Siew Hoon Pow, Tuck Fai Tham, Ernest Fee Pin Tham,
Victoria Huey Yi Tham, Fee Seng Chou, Selina Poh Kim Chua, Lilis Setyayanti,
Geok Leng Tan, Lye Eam Tan, Syed Nomani, Toong Jin Lam,
Catherine Beng Hua and 567 Hornby Apartment Ltd



The Owners, Strata Plan LMS 3837 and 347518 B.C. Ltd.


Before: The Honourable Mr. Justice Sigurdson

Directions following
Case Management Conference

Counsel for Plaintiffs:

R.D. Holmes
L. Muir

Counsel for 347518 B.C. Ltd.:

R.J. Sewell, Q.C.
S.A. Griffin

Counsel for The Owners, Strata Plan LMS 3837:

M.W. Mounteer
P.R. Bennett

Date and Place of Hearing:

December 20, 2007


Vancouver, B.C.

[1]                On the application of 347518 B.C. Ltd. and The Owners, Strata Plan LMS 3837, I referred the petition to the trial list, granting leave to the plaintiffs (formerly the petitioners) to file a statement of claim and the defendants (formerly the respondents) to file statements of defence, which has been done.  At a case management conference on November 27, 2007, I made some directions concerning the delivery of lists of documents, the defendants’ to be delivered by January 16, 2008. 

[2]                I scheduled a further case management conference on December 20, 2007, to address the scheduling of motions. 

[3]                These are my directions following that case management conference. 

[4]                Mr. Holmes argues that it is appropriate to first set down his summary trial application for hearing under Rule 18A.  The plaintiffs wish to bring a summary trial application for, among other things, declarations that the common property lease is void, the unanimous resolution of March 30, 1999 is void, and the room leases were terminated in January 2002. 

[5]                Mr. Sewell, counsel for 347518 B.C. Ltd. says that the summary trial application should not be set down for hearing until oral and documentary discovery has been completed and an application for security for costs can be made.  He argues that the summary trial application in any event is an inappropriate attempt by the plaintiffs to litigate in slices.  Mr. Bennett, counsel for The Owners, Strata Plan LMS 3837, says that discovery is needed before the summary trial application should be heard, and submits that was the basis upon which the matter was referred to the trial list.

[6]                Mr. Sewell, however, makes a preliminary point, that is supported by Mr. Bennett, which is that the first application should be the defendants’ application to stay these proceedings.  He argues that there is related litigation involving the subject hotel that bears on the defence that the plaintiffs are contractually bound not to bring this proceeding and the defences that the plaintiffs’ claims are barred by the doctrine of res judicata and by the Limitation Act.  Those actions are all in this court, and are as follows: 

1.         Vancouver Registry file no. S056026 between Le Soleil Hospitality Inc. and Le Soleil Restaurant Inc. as plaintiffs and Andrew Louie, 668706 B.C. Ltd., 688571 B.C. Ltd., 708583 B.C. Ltd., 716652 B.C. Ltd., 716648 B.C. Ltd., 700439 B.C. Ltd., 587019 B.C. Ltd., and 585503 British Columbia Ltd. as defendants;

2.         Vancouver Registry file no. S022713 between Le Soleil Hotel and Suites Ltd. as plaintiff and substantially all of the plaintiffs in this proceeding as defendants;

3.         Vancouver Registry file no. S045961 between Executive Inn Inc. as plaintiff and substantially all of the plaintiffs in this proceeding as defendants.

[7]                Those actions are being case-managed by other judges.  

[8]                Mr. Holmes argues that the result in those other proceedings will not be a bar to the application he wants to set down.  He says that, at best, the defendants’ position only raises possible defences that can and should be heard at the same time as the plaintiffs’ summary trial application. 

[9]                Mr. Sewell says that although he could raise the arguments as defences at a summary trial application, in terms of judicial economy, the better approach, he argues, is to deal with the question of a stay in advance. 

[10]            With a view to determining the issues between the parties in the most expeditious and cost-effective manner, I have decided that before the plaintiffs’ summary trial application is set down for hearing, I should hear the defendants’ application that this proceeding be stayed pending determination of the other proceedings that I referred to.  I recognize that the plaintiffs argue that a stay is not appropriate, but I am persuaded that it is appropriate to hear the stay application first.  That appears to be the logical, just, and efficient way to proceed. 

[11]            As the plaintiffs are concerned that this scheduling will cause unnecessary delay, I direct that the defendants bring their application for a stay before me promptly.  If the plaintiffs find the delay unreasonable they have liberty to apply to vary this direction.

[12]            At the time of the stay application, if it is unsuccessful, I will fix the schedule for further applications, including directions whether there should be oral discovery and further document production before any summary trial application.  Given my decision at the time I remitted this petition to the trial list, I think that it is appropriate, pending the stay application, that the arrangements for oral discovery continue to be made.

[13]            Scheduling of any further applications, as I indicated, will await the outcome of the stay application.

“J.S. Sigurdson J.”
The Honourable Mr. Justice J.S. Sigurdson