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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