Place Fontainebleau (Coquitlam): Owners successful in adding defendants on second try

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Owners, Strata Plan LMS 343 v. Haseman Canada Corp.,

 

2006 BCSC 1457

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

Counsel for the Plaintiff:

A.L. Baker

Counsel for Haseman Canada Corporation:

S.G. Cordell

Counsel for Gauvin Construction Ltd.:

J.D. Morin

 

 

Counsel for Interplan Architecture & Planning Inc.

and John W. Scott:

 

H.B. Borlack

 

Place of Hearing:

Vancouver, B.C.

 

[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:


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Place Fontainebleau (Coquitlam): Owners too late in joining defendants; no "open season"

Place Fontainebleau, Coquitlam. RDH Photo.

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Owners SP LMS 343 v. City of Coquitlam et al.,

 

2005 BCSC 1150

Date: 20050808
Docket: L001792
Registry: Vancouver

Between:

The Owners, Strata Plan LMS 343

Plaintiff

And

City of Coquitlam, John Doe and others

Defendants


Before: The Honourable Mr. Justice Pitfield

Reasons for Judgment

Counsel for the Plaintiff:

Amy A. Mortimore

Counsel for the Proposed Defendants:

Interplan Architecture and Planning Inc. and John Scott

Christopher M. Rusnak

Gauvin Construction Ltd.:

James D. Morin

 

Indalex Limited:

David L. Miachika

 

Haseman Canada Corporation,

Kenji Hasegawa, Katsuo Ono, and  Allan Lee:

Scott G. Cordell

 

 

Starline Windows Ltd.:

Stacey L. Boothman

 

Date and Place of Hearing:

June 16, 17 and July 8, 2005

 

Vancouver, B.C.

[1]                The plaintiff represents the owners of Place Fontainebleau described as a leaky, 130- unit, nine-building, residential condominium project situated in Coquitlam, British Columbia.  On June 30, 2000, the eve of the repeal of the Condominium Act, R.S.B.C. 1996, c. 64 and its replacement by the Strata Property Act, S.B.C. 1998, c. 43, the plaintiff commenced an action naming the City of Coquitlam and John Doe and others as defendants.  The writ was endorsed in the following terms:

The Plaintiff, The Owners, Strata Plan LMS 343, is a Strata Corporation whose members are collectively the owners of condominium units located at 1201, 1205 and 1215 - 1225 Brunette Avenue, 203, 207 and 211 - 219 Begin Street, and 202 - 206 Laval Street, Coquitlam, British Columbia ("Place Fountain Bleu").

The Plaintiff, on its own behalf and on behalf of the Owners, claims pursuant to Section 15 of the Condominium Act, R.S.B.C. 1996, c. 64 as amended, against each of the Defendants for the cost to correct various construction deficiencies (including deficiencies in design, inspection, workmanship and materials) in Place Fountain Bleu, and resultant damage arising therefrom, in the strata lots, common property, common facilities and other assets of the Strata Corporation.

The Plaintiff claims against the Defendant, the City of Coquitlam, as the governing authority with respect to the issuance of development, building and occupancy permits and the enforcement of the British Columbia Building Code for Place Fountain Bleu.  On various dates, the City of Coquitlam issued development, building and occupancy permits and conducted inspections with respect to Place Fountain Bleu.

The Plaintiff claims that the City of Coquitlam owed a duty of care to the Strata Corporation and its owners to exercise all reasonable care, skill, diligence and competence in the inspection of and in the issuance of permits with respect to Place Fountain Bleu.  In breach of its duty of care, the City of Coquitlam negligently failed to exercise all reasonable care, skill and diligence and competence in inspection of and in the issuance of permits with respect to Place Fountain Bleu, with said negligence causing or contributing to the aforementioned constructions deficiencies and damages suffered by the Plaintiff.

The Plaintiff claims against John Doe and others which were the architect, consultants, subconsultants, developer, contractor or contractors, subcontractors, suppliers and others and which breached their duties of care to the Plaintiff in the design, inspection and/or construction and/or performed deficient work and/or supplied deficient material and/or supervised the deficient work carried out during the construction of Place Fountain Bleu with said negligence causing or contributing to the aforementioned construction deficiencies and damages suffered by the Plaintiff.

The Plaintiff claims for general damages, special damages, interest and costs against the Defendants and each of them as a result of design and construction deficiencies in Place Fountain Bleu, which design and construction deficiencies have caused the Plaintiff to suffer loss and damage.

[2]                The plaintiff applies for an order adding the following persons or entities as defendants:  the developer, Haseman Canada Corporation, and it principals Messrs. Kenji Hasegawa, Katsuo Ono and Allan Lee; the general contractor, Gauvin Construction Ltd.; the architects, Interplan Architecture and Planning Inc. and John Scott; two window suppliers, Starline Windows Ltd. and Indalex Limited; and a sub-trade, Columbia Waterproofing Ltd.   

[3]                The hearing of this application follows upon an adjournment granted May 19, 2005, when the proposed defendants appeared to oppose the plaintiff’s application to add them as defendants.   Seven other respondents did not appear on that date and they were added as defendants.   The plaintiff was unable to serve another six proposed defendants, four of which were companies that had been dissolved.   The plaintiff says it intends to restore the dissolved companies and perfect service so that the application to add those six defendants may proceed.

[4]                The plaintiff says that the requirements of Rule 15(5)(a)(iii) have been satisfied because the subject matter of the claim it wishes to advance against each proposed defendant is related to or connected with the relief claimed in, or the subject matter of, the proceeding commenced against the City of Coquitlam and the defendants John Doe and others, and it would be just and convenient to adjudicate those claims in that action.  Rule 15(5)(a)(iii) provides as follows:

15(5)(a) At any stage of a proceeding, the court on application by any person may...

(iii)       order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connected

(A)       with any relief claimed in the proceeding, or

(B)       with the subject matter of the proceeding,

which in the opinion of the court it would be just and convenient to determine as between the person and that party.

[5]                The proposed defendants, other than Columbia Waterproofing Ltd., oppose the plaintiff's application.  I was advised by plaintiff’s counsel that Columbia, which did not appear at the hearing, takes no position in relation to the application.  I have not been made aware of the nature and extent of Columbia’s involvement in the project and, in the absence of opposition, the plaintiff’s application to add it as a party will be granted.

[6]                In support of its application, the plaintiff says the following:

1.         The plaintiff did not know of a systemic water ingress concern and the need for remediation until January 2001. 

2.         The architects were notified of a potential claim on November 7, 2000, the developer and the general contractor were notified by letter dated June 5, 2001, and the window installers and suppliers were notified on August 26, 2004.

3.         The endorsement on the writ of summons discloses a reasonable cause of action against each of the proposed defendants.

4.         It is just and convenient to add each proposed defendant because few steps have been taken in the proceeding, remediation has only recently been completed, no date has been fixed for trial, the limitation period in respect of any proceeding against the proposed defendants has not expired, and there is no prejudice to any of the proposed defendants.

5.         Joinder of the parties should be preferred to the alternative of commencing a separate proceeding against the proposed defendants and thereafter applying for consolidation of separate actions.   

6.         Requiring the plaintiff to proceed by way of new action would result in increased administrative costs, unnecessary interlocutory applications, particularly if third party notices are issued in either of the proceedings, and will likely give rise to disputes with respect to the use of documents and evidence obtained in one proceeding in the conduct of the other.

[7]                The plaintiff commenced a separate action against the proposed defendants by writ filed July 7, 2005, the day before the hearing of this application concluded. 

[8]                The defendants collectively oppose the addition of any of them as a defendant on the following grounds:

1.         There has been excessive delay in bringing the application to join the proposed defendants.  Occupancy permits were issued April 6 and May 14, 1992, in respect of Phase One of the project comprised of 50 apartment and townhouse strata units.  Occupancy certificates were issued on July 22 and October 25, 1993, in respect of Phase Two comprised of 76 apartments and stacked townhouse strata units.  Occupancy permits were issued November 25, 1996, in respect of Phase Three comprised of 4 apartment and stacked townhouse units and a gatehouse for which a building permit had been issued in April 1996.  

2.         The commencement of the six year limitation period was not postponed beyond October 1996, when the plaintiff received advice from a professional engineer about shortcomings in the complex and a recommendation that a building envelope consultant be retained to advise on permanent remediation solutions.  The limitation period expired in October 2002.

3.         The names of the defendants which the plaintiff applies to add were known to or readily ascertainable by the plaintiff when the writ was filed on June 30, 2000, and the plaintiff has not adequately explained the delay in bringing this application to add defendants. 

[9]                Each proposed defendant advances additional arguments unique to their particular circumstances.  I will consider those arguments in due course.


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