Defendant Oakvale Homes added to leaky condo lawsuit



The Owners, Strata Plan LMS 2532 v. Oakvale Homes Ltd.,


2005 BCSC 142

Date: 20050203
Docket: S045735
Registry:  Vancouver


The Owners, Strata Plan LMS 2532



Oakvale Homes Ltd.


Before: The Honourable Mr. Justice Bauman

Reasons for Judgment

Counsel for the Plaintiff

R. G. Boswall

Counsel for the Defendant

S. G. Cordell

Date and Place of Trial/Hearing:

10 December 2004


Vancouver, B.C.

[1]                 The defendant, Oakvale Homes Ltd. ("Oakvale"), brings application to dismiss this action as an abuse of process under Rule 19(24).

[2]                 This is leaky condo litigation.  The plaintiff began proceedings against a number of defendants in November 2000 (the "first action").

[3]                 On 5 October 2004, the plaintiff brought application to add Oakvale as a defendant in the first action.  It is alleged that Oakvale negligently installed the windows in the development and failed to properly attend to other aspects of the construction.

[4]                 The application was heard by Master Donaldson and he refused it.  These extracts capture the learned Master's analysis:

[16]       Counsel have referred me to a number of authorities including Brito v. Wooley, [1997] B.C.J. No. 2847, Letvad v. Fenwick, [2000] B.C.J. No. 2369 (B.C.C.A), Strata Plan LMS 597 v. Camsix Developments 2004 BCSC 312, Strata Plan LMS 837 v. Abbotsford (City) et al. 2003 BCSC 590, Strata Plan NW 2824 v. New Westminster (City) et al. 2003 BCSC 713.

[17]       I am satisfied that there has been such a delay and such a prejudice that it is not appropriate to order that Oakvale Homes Ltd. be added as a party to this action.  I am not satisfied that there is a sufficient explanation as to the delay in, if you will, identifying or locating Oakvale as being a party that should be sued.

[5]                 The plaintiff has filed a Notice of Appeal from the Master's decision in the first action, but that appeal has lain dormant pending this application in this action.

[6]                 Oakvale relies on the decision in The Owners, Strata Plan LMS 908 v. Polygon Town Centre Development Ltd. (15 March 2002), Vancouver C983598 (B.C.S.C.), an oral judgment of Justice Boyd in the course of a case management conference.

[7]                 Justice Boyd struck the second action, in the familiar fact situation, as an abuse of process (at ¶43 and 44):

[43]       While I am not in any way suggesting that this manner of proceeding amounts to anything underhanded or nefarious on Plaintiffs' counsel's part, or even an attempt to circumvent the stringencies of the Orders already made in the Case Management process, I must nevertheless find that in law, this manner of proceeding, constitutes an abuse of process.  The new action before the Court is essentially identical to or, at the very least, substantially similar to the first action and the NHW action.  The law is clear that if a second action is brought against a defendant who could have been joined as a defendant in the first action, where the same relief is soughtthis constitutes an abuse of process.  It is no answer to say that the new action names a new defendant.  (See Morgan Power Apparatus Ltd. v. Flanders Installations Ltd. (1972), 27 D.L.R. (3d) 249 (B.C.C.A.); Royal Canadian Legion, Hastings East Branch No. 185, [1990] B.C.J. No. 2907 (SC); Kentish v. Karasy, [1976] O.J. No. 790 (H.C.J.)).

[44]       Here the Owners could quite clearly have applied to join Winchester as a defendant in the first action.  They would have been put to the task of explaining their delay and the evidentiary foundation for their application─hurdles which they have avoided by proceeding in the manner they have.  It seems clear the Plaintiffs' counsel has conceded that it was specifically in order to avoid those "vagaries" that the election was made to proceed otherwise.

[8]                 Polygon was distinguished in Strata Plan KAS 1691 v. Kamloops (City), [2004] B.C.J. No. 2068 (QL), 2004 BCSC 1231, by Justice Rice (at ¶26):

[26]       However, the trial judge in that case was careful to add that the plaintiff was using the set up of a second application to avoid an order disallowing amendments sought in the first action:

[the plaintiff] ... deliberately chose this route since they would at least be saved the difficulty of obtaining the Court’s approval of the much broader pleadings which would have been rejected in the main action...  It is in this sense that the commencement of the Winchester action amounts to a legal abuse of process.

[9]                 A further point of distinction is advanced by the plaintiff before me; that is, that the case management in the first action before Justice Boyd would have been thrown into "complete chaos" and the trial date would be lost if the second action had been allowed to stand.

[10]             That is not the case before me.

[11]             In Kamloops, Justice Rice reviewed all of the applicable law, including Brito (Guardian ad litem of) v. Wooley (1997), 15 C.P.C. (4th) 255, [1997] B.C.J. No. 2487 (QL) (S.C.) and Strata Plan VR2603 v. Bardi, [2003] 7 W.W.R. 731, 2003 BCCA 414 and said this (at ¶24):

[24]       It was argued for the Second Defendants that Bardi is not authority for permissibility of Second Actions because the remarks to that effect made by Finch, C.J.B.C. were obiter.  That may be correct, but still, they are influential, and they reflect what seem to me to be an accepted practice of allowing second actions as long as there is no evidence otherwise of actual abuse.

[12]             In the case at bar, the potential abuse of process rests on the submission that this action is an indirect attack on Master Donaldson's order refusing to add Oakvale as a defendant in the first action and that it is a device to avoid the possibility of an unsuccessful appeal of that order in that action.

[13]             But that submission falls away when one learns that Master Donaldson specifically raised the possibility of this action with counsel before him as an eventuality if he refused the Rule 15 application in the first action.

[14]             I quote from the affidavit of Veronica P. Franco, who appeared for the plaintiff before Master Donaldson:

6.         During submissions with respect to the Plaintiff's application to add Oakvale Homes Ltd. to the Combined Equities Action, Master Donaldson specifically raised the possibility that, if Oakvale Homes Ltd. was not added to the Combined Equities Action, the Plaintiff could commence a new action against it.  Master Donaldson directly asked both Scott Cordell, counsel appearing on behalf of Oakvale Homes Ltd., and me whether there was anything keeping the Plaintiff from doing so in the event that Oakvale Homes Ltd. was not added to the Combined Equities Action.  I indicated that there was no reason that the Plaintiff could not start a separate action, but that it would be inefficient to do so.  Mr. Cordell did not indicate that the Plaintiff would not be able to start a separate action.  He simply stated that it was not a certainty the Plaintiff would decide to start a separate action.

[15]             In my view, Justice Rice's decision in Kamloops describes the current state of practice and, in the circumstances here, no abuse of process has been made out.

[16]             The application is dismissed and the plaintiff shall have its costs in the cause.

“R.J. Bauman, J.”
The Honourable Mr. Justice R.J. Bauman