New Westminster, Carnarvon Towers: Built in 1994-1995; condo owners noticed leaks in October 1996; defects had given rise to a dangerous condition by September 1998; legal action commenced December 23, 1999; court excludes developers Stoneman and Muller in their personal capacity



The Owners Strata Plan LMS 2262 v. Stoneman Developments Ltd. et al.,


2004 BCSC 828

Date: 20040623
Docket: C996826
Registry: Vancouver


The Owners, Strata Plan LMS 2262



Stoneman Developments Ltd., Bayou Developments Ltd.,
S & B Developments Ltd., James Hancock Architects Inc.,
Eric Pattison, Read Jones Christoffersen Ltd., Diana Klein, R.A. Mossakowski,
Sterling, Cooper & Associates Ltd., Myles Sterling,
Dec Design Mechanical Consultants Ltd., Alliance Roofing Systems Ltd.,
Eltex Enterprises (1990) Ltd., Preswitt Manufacturing Ltd., Cryovac Canada, Inc.,
City of New Westminster, Steven Moskalyk, Intertec Testing Services NA Ltd.,
Clan Glass & Metals Ltd., Preferred Restoration & Emergency Services Inc.,
and B.C. Building Science & Engineering Ltd.



Stoneman Developments Ltd., Bayou Developments Ltd.,
James Hancock Architects Inc., Eric Pattison,
Read Jones Christoffersen Ltd., Diana Dlein,
R.A. Mossakowski, Sterling, Cooper & Associates Ltd.,
Myles Sterling, Steven Moskalyk
and Intertek Testing Services NA Ltd.

Third Parties


Stoneman Developments Ltd., Wade Stoneman
and Bayou Developments Ltd.

Third Parties


Belgrove Construction Ltd.,
Inter-Coast Consultants Ltd. and McArthur Vantell Limited

Third Parties

Before: The Honourable Madam Justice Garson

Reasons for Judgment

Counsel for the plaintiffs

J.G. Mendes and

V. Critchley


Counsel for the defendants Bayou Developments Ltd. and Arnold Muller


J.J. Campbell


Counsel for the defendants James Hancock Architects Inc. and James Hancock


G. Miller


Counsel for the defendants Stoneman Developments Ltd. and Wade Stoneman


T. Peters


Counsel for the defendants McArthur Vantell Limited


S. Dumont


Counsel for the defendant Preferred Restoration & Emergency Services Inc.


M. Worfolk


The defendant Rudolf Kevesdi appearing in person for himself and R.K. Engineering Ltd. 



Date and Place of Hearing:

May 10-11, and May 25, 2004


Vancouver, B.C.


[1]            The applications before the court are to add several corporations and individuals as defendants in this action concerning alleged defective construction of a condominium.  The applications are opposed by some respondents on various grounds, including delay, prejudice, and a lack of evidence of an arguable case. 

[2]            The following individuals and companies are proposed defendants in this action:

(a)   Ericson Window Corporation;

(b)   Ericson Glass Industries Ltd.;

(c)   McArthur Vantell Limited;

(d)   Rudolf Kevesdi;

(e)   R.K. Engineering Ltd.;

(f)   Avalar Caulking Services Ltd.;

(g)   Wade Stoneman;

(h)   Arnold Muller;

(i)   All-Span Engineering and Construction Ltd.;

(j)   Key Glass & Aluminum Ltd.; and

(k)   James Hancock;

(collectively, the “Proposed Defendants”).

[3]            The plaintiffs also apply for an order that the style of proceeding, the further amended writ of summons and fourth further amended statement of claim be amended in accordance with the proposed draft amendments. 

[4]            The following parties were served with the applications to add them as defendants but have not filed any response and did not appear at the hearing: 

(a)   Ericson Window Corporation;

(b)   Ericson Glass Industries Ltd.;

(c)   Avalar Caulking Services Ltd.;

(d)   All-Span Engineering and Construction Ltd.; and

(e)   Key Glass & Aluminum Ltd. 

[5]            In order to add a defendant, the applicant plaintiffs must establish that there exists between the proposed party and the original party a question or issue relating to or connected with the relief claimed in the action or with the subject matter of the action and that there is a real question or issue to be tried in the sense that it is not entirely frivolous.  The plaintiffs must also establish that there is a good and sufficient reason for any delay in adding these defendants. 

[6]            There is evidence that Ericson Window Corporation and Ericson Glass Industries Ltd. were the suppliers of windows and doors to the condominium and that water leaked through the windows and doors, requiring repair and replacement. 

[7]            There is evidence that All-Span Engineering and Construction Ltd. was retained by the developers to design and conduct field reviews of the condominium steel stud framing, which studding is now alleged to be defective. 

[8]            There is evidence that Key Glass & Aluminum Ltd. was retained by the defendant, Preferred Restoration, to undertake repair work to the windows.  There is evidence that the repair work was defective and increased the damage to the condominium.

[9]            I am satisfied on the evidence that: there exists, as between the plaintiffs and these proposed defendants, issues connected to the relief claimed in the original action, there has not been inexcusable delay in seeking to add these defendants, and it is just and convenient to add these defendants, pursuant to Rule 15(5)(a)(iii).

[10]        I therefore order that the defendants Ericson Window Corporation, Ericson Glass Industries Ltd., Avalar Caulking Services Ltd., All-Span Engineering and Construction Ltd., and Key Glass & Aluminum Ltd. be added as defendants and the pleadings be amended in accordance with Schedule A to the notices of motion dated June 6, 2003, October 31, 2003, and April 29, 2004. 

[11]        The application to add the defendant James Hancock was consented to. 

[12]        The remaining Proposed Defendants oppose the applications to add them as defendants.  These defendants have the following general involvement with the condominium development that is the subject matter of this action. 

[13]        McArthur Vantell Limited ("McArthur Vantell") was retained as a consultant by Preferred Restoration & Emergency Services Inc. ("Preferred Restoration"), who were initially retained by the developer to remedy what was then considered to be a problem of some leaking windows.  It is alleged that McArthur Vantell failed to ensure that the remedial work was carried out in a proper manner and/or failed to perform adequate inspection of the remedial work. 

[14]        The allegation against Rudolf Kevesdi and R.K. Engineering Ltd. is that R.K. Engineering was retained as a window structural engineer and that it owed a duty to exercise reasonable care in reviewing and approving the structure and design of the windows and sliding doors used in construction of the condominium.  There is evidence that water ingressed through the windows and sliding doors and it is alleged that there are structural problems with the windows, which caused or contributed to the leakage. 

[15]        The allegations against Arnold Muller and Wade Stoneman are that they acted as project managers in respect of the construction of the condominium and participated in and supervised the design, development and construction of the condominium.  As well, it is alleged that the disclosure statement contained misrepresentations for which Stoneman and Muller are liable under s. 75 of the Real Estate Act, R.S.B.C. 1996, c. 397. 

[16]        I turn to a consideration of the applications which are defended by the Proposed Defendants.  But before doing so, I will briefly outline the facts which form the background to this action. 


[17]        The members of the plaintiff Strata Plan (collectively known as the “Owners”) are owners of the strata lots in the condominium development known as Carnarvon Towers, located at 720 Carnarvon Street in New Westminster (the “Condominium”).  The strata plan is composed of 87 strata lots (80 residential units and 7 commercial lots). 

[18]        The Condominium was built during 1994 and 1995.  The first date of possession as noted in the New Home Warranty Program (“NHW”) Special Project Possession Certificates was December 28, 1995.  (The last owner of a residential unit took possession on November 3, 1998). 

[19]        The developer of the Condominium was S & B Developments Ltd., a joint venture between Stoneman Developments Ltd. and Bayou Developments Ltd. (the “Developers”). 

[20]        Water ingress problems were first noted by the Owners in or about October 1996.

[21]        When the water ingress problems were first noted by the Owners, the Developers obtained a Moisture Ingress Investigation Report from McArthur Vantell dated December 4, 1996.  The Condominium was covered by the warranty made available to purchasers through the NHW.  The Developers subsequently advised the Owners that they would honour the warranty. 

[22]        The Developers retained Preferred Restoration and McArthur Vantell to undertake and oversee the repairs thought necessary in 1997. 

[23]        In about December 1996 the plaintiffs received legal advice suggesting that they should independently investigate the water ingress problems.  The plaintiffs subsequently received an Exterior Envelope Preliminary Option report dated March 31, 1997, prepared by Morrison Hershfield Limited. 

[24]        The remedial work undertaken by the Developers was not completed until late 1997 or early 1998.  Ongoing water ingress was experienced.  Consequently, the Owners retained Morrison Hershfield to undertake a building envelope condition assessment.

[25]        A Building Envelope Condition Assessment report dated September 4, 1998 was prepared by Morrison Hershfield Limited.  A summary of this report was given to the Owners in October 1998.  This was the first report which indicated in any way that any of the defects in the Condominium had given rise to a dangerous condition. 

[26]        The plaintiffs retained counsel in October 1999 and commenced this action on December 23, 1999.  The parties included as defendants were those that counsel for the plaintiffs thought might be found liable based on the Building Envelope Assessment report of Morrison Hershfield dated September 4, 1998. 

[27]        The statement of claim was issued on November 15, 2000. 

Principles of Law That Govern This Application

(a)   Statutory Framework

[28]        An application to add a party is governed by Rule 15(5)(a)(ii), which reads as follows: 

(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. 

[29]        Where as here, it is alleged that a limitation period has expired, the application is also governed by s. 4(1)(d) of the Limitation Act, R.S.B.C. 1996, c. 266, which provides:

s. 4(1)     If an action to which this or any or act applies has been commenced, the lapse of time limited for bringing an action is no bar to …

(d)   adding or substituting a new party as plaintiff or defendant,

under any applicable law, with respect to any claims relating to or connected with the subject matter of the original action. 

[30]        The inter-relationship between these two statutory provisions has been the subject of much judicial commentary.  Here, it is alleged by the Proposed Defendants, that the applicable limitation period expired after the issuance of the writ and prior to the filing of this application to add the Proposed Defendants. 

[31]        The following principles emerge from the authorities which govern this application. 

[32]        First, the plaintiffs must establish a degree of connection between the cause of action in the existing writ and statement of claim and the cause of action against the Proposed Defendants and that there is a real question or issue to be tried as between the plaintiffs and the Proposed Defendants.  

[33]        Second, the plaintiffs must establish that it is just and convenient to add the Proposed Defendants.

[34]        The determination of what is just and convenient where it is alleged there is an accrued limitation defence includes considerations of the extent of the delay, the reasons for the delay, any explanation put forward to account for the delay, prejudice in defending the action caused by the delay, as well as the extent of the connection between the existing claims and proposed new causes of action (Letvad v. Fenwick (2000), 82 B.C.L.R. (3d) 296 (C.A.) and Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. et al. (1996), 19 B.C.L.R. (3d) 282 (C.A.)). 

[35]        In Brito v. Wooley (1997), 15 C.P.C. (4th) 255 (B.C.S.C.), Master Joyce (as he then was) conveniently summarized the principles that govern the determination of what is just and convenient where it is alleged that a limitation period has expired.  At ¶ 10, 11 and 12 he said:

I will begin my analysis with a summary of the applicable legal principles: 

1.    The addition of a party to an action under Rule 15(5) eliminates any limitation defence which might otherwise be available to the defendant if separate proceedings were brought:  see Lui v. West Granville Manor Ltd. et al. (1987) 11 B.C.L.R. (2d) 273 (C.A.) (“Lui No. 2”) at 295;

2.    The court may add a new party to an action notwithstanding that its effect will be to eliminate a limitation defence if it is just and convenient in all the circumstances to do so.  The existence of a limitation defence is a factor for the court to consider in determining whether it is just to add a party but is not determinative:  see Lui No. 2, supra, at 302; 

3.    The degree of interrelationship between the claim that is sought to be brought through the addition of the party and the existing claim is a factor to be considered as is the delay in making the application and any reasons which are advanced to explain the delay:  see Cementation Co. (Can) Ltd. v. Amer. Home Assur. Co. (1989), 37 B.C.L.R. (2d) 172 (C.A.); 

4.    If a limitation period has expired, then it may be that prejudice to the defendant is to be presumed.  However, prejudice to the defendant, whether presumed or demonstrated, is only a factor; it is not necessarily fatal to the application.  In the end, the court has a broad discretion to do what is just; see Teal Cedar Products (1977) Ltd. v. Dale Intermediarries Ltd., (1996) 19 B.C.L.R. (3d) 272 (C.A.) per Finch J.A.  In Tri-Line Expressways v. Ansari (1997), 143 D.L.R. (4th) 100 (B.C.C.A.) Lambert J.A. said that any presumption of prejudice (which was first mentioned in Lui v. West Granville Manor Ltd. (1985), 61 B.C.L.R. 315 (C.A.) (“Lui No. 1”) “should be confined to the sort of context in which it was first mentioned, namely the context of third party proceedings against a new party on an entirely new cause of action”. 

In my view, the proper approach to applications such as this is as follows: 

3.    If the defendant alleges that there is an accrued limitation defence and the plaintiff denies that fact and the court cannot determine that issue on the interlocutory application, then the court should proceed by asking this question:  assuming that there is a limitation defence, would it nonetheless be just and convenient to add the party even though by doing so the defence is taken away?  If the answer to that question is yes then the order should be made. In that event it does not matter whether or not, in fact, a limitation period has expired because in either case it would be just and convenient to add the party and any limitation defence will be gone. 

[Emphasis added.]

If the conclusion is that, assuming a limitation defence has accrued, it would not be just and convenient to deny the defendant the benefit of that defence, then the order should not be made. 

[36]        In this case, all the Proposed Defendants who contested the application allege that there is an accrued limitation defence.  The plaintiffs deny this fact and I cannot determine the issue on this interlocutory application.  I shall therefore proceed on the basis that there is a limitation defence available in each case and I will consider the factors mentioned above. 

[37]        The length of the delay is one of the factors to be considered, although even an extraordinary length of delay is not necessarily determinative of the outcome (Yablonski v. Cranbrook, 2002 BCSC 1875).  The reasons in Teal, however, do not indicate how the length of delay is to be determined.  The plaintiffs and the Proposed Defendants advance different approaches for measuring the length of delay.  

[38]        Plaintiffs’ counsel contends that the significant period is the delay that accumulates beyond the expiry of the limitation period, plus one year for service.  

[39]        The Proposed Defendants, on the other hand, maintain that the relevant period is the lapse of time beginning upon the plaintiffs' acquisition of facts upon which it would have been reasonable to commence an action against the Proposed Defendants, which in this case appears to have occurred before the expiry of the limitation period. 

[40]        The cases submitted by the parties indicate that both approaches have been used in recent Supreme Court decisions.  Therefore it is difficult to determine whether one method is to be preferred over the other.  In my view, however, it would be inappropriate to adhere rigidly to either one of these methods of calculating the delay, given the discretionary nature of the Court’s power to allow addition of parties and the holistic approach to joinder advocated in Teal

[41]        In Teal Finch J.A. held at ¶ 41 that:

. . . neither the defendant’s interest in being secure against claims after a limitation period had expired, nor the plaintiff’s deliberate dilatory conduct in applying to add parties, are decisive of whether the application should be allowed. Both considerations may be important factors, but neither would prevent the court from exercising its discretion in the plaintiff’s favour.

[42]        For the Court to constrain its consideration of delay by exclusively relying on one of the methods of measuring delay advocated by the parties would be contrary to the guidelines set in Teal.

[43]        To focus only on delay that occurred after the limitation period and the period for service would place emphasis on the prejudice caused to the defendants’ interest in not being vulnerable to claims that are out of time.  According to this approach, delay before the limitation period expired would not feature in the court’s reasoning, despite the potential impact that this delay might have on the justness and convenience of adding the party in question.  Similarly, to measure delay exclusively from the date at which the plaintiffs learned the facts upon which it could have reasonably launched an action necessarily focuses the court’s attention on the plaintiffs’ fault or lack of fault in delaying its claim.

[44]        An approach that would more closely conform to the guidelines set in Teal would be to look at the entire delay, and consider factors such as the circumstances surrounding the delay, the expiry of the limitation period, and the prejudice to the parties when determining whether in the circumstances of the particular case it would be just and convenient to add the proposed defendant, despite the delay.  As dictated by Teal, none of these factors should be considered as having overriding importance, absent a clear evidentiary basis for doing so (¶ 45).  

[45]        I now turn to each of the applications before me with the aforementioned legal principles in mind. 


New Westminster, Rialto: Court rules owners of leaky condo complex developed by Molnar can sue subcontractors

Date: 19991015
Docket: C981500
Registry: Vancouver





















Counsel for the Plaintiff:

G. Walker

Solicitors for the Third Party, Price & Whalley Plastering and Stucco Contractors Ltd.:


D.H. Murray

Place and Date of Hearing:

Vancouver, B.C.

October 8, 1999



[1] The plaintiffs, who are the owners of what they allege to be a "leaky condo", appeal from the order of a Master dismissing their application to add various subcontractors as defendants to this action against the developer and the contractor who constructed the building. They maintain that the Learned Master erred in holding as he did that, because there was a potential limitation problem, the plaintiffs were required to commence a separate action against the proposed new defendants. The question is whether the Master was clearly wrong in disposing of the application as he did.

[2] The building, called the "Rialto" in New Westminister, was completed in 1992 and fully occupied by the end of 1993. Discreet incidents of water ingress were addressed as they arose until 1995 when the plaintiffs engaged a consultant to make an assessment of what was seen by then to be a substantial problem. Various deficiencies in the building envelope were subsequently identified. Remedial work began in mid 1997 and this action was commenced. The plaintiffs found it necessary to change counsel in 1998 and did not conduct discoveries until the beginning of this year. The action is now set to be tried in six months time. The trial is expected require 50 days to complete.

[3] During the course of discoveries, the plaintiffs determined the identity of 17 subcontractors that had worked on the building. They applied before the Master to add them as well as the provincial Crown as defendants. The application was entirely ex parte save for the appearance of the developer and Price & Whalley Plastering and Stucco Contractors Ltd., a subcontractor named as a third party by New Home Warranty of British Columbia Inc., a defendant against which the action has been stayed by virtue of intervening insolvency proceedings.

[4] The addition of parties is governed by Rule 15(5). In particular, Rule 15(5)(a)(iii) affords a discretion to order the addition of any person to an action where there may exist an issue relating to the subject matter of the action or the relief claimed between that person and a party which it would be just and convenient to resolve.

[5] It appears clear that there are issues related to the subject matter of the action between the plaintiffs and the proposed defendants. The Master expressed no view as to whether it would be convenient to have them resolved in this action. Rather, as indicated, he took the view that the claims could be time-barred and regarded that as sufficient reason to dismiss the application. In so doing, while he did not say so, he appears to have been following what he understood to be prescribed in such circumstances in Brito (Guardian at litem of) v. Wooley (1997), 15 C.P.C. (4th) 255 (B.C.S.C.). He expressed concern that, if he were to allow the application, the raising of any limitation defence would then be precluded as being res judicata.

[6] While he declined to order that any of the subcontractors be added as defendants, the Master said that his analysis of their position did not apply to the Crown and he ordered that it be added. He then awarded costs of the application payable forthwith to all of the subcontractors, specifically those who were not, and would not become, parties.

[7] On this appeal, the plaintiffs first say that the Master erred in not allowing them to amend to replace "John Doe and others" named in the style of cause with the names of the 17 subcontractors on the basis of a misnomer, employing Rule 24(1). They rely on Jackson v. Bubela and Doe, [1972] 5 W.W.R. 80 (B.C.C.A.) and Oldridge v. North West Vancouver Hospital Society (c.o.b. Lions Gate Hospital), [1997] B.C.J. No. 2639 (S.C.). However, the application was not framed as one to cure a misnomer, and, more importantly, no evidence to the effect that the identity of the subcontractors could not be determined when the action was commenced has been adduced. On the authority cited, it appears clear that a plaintiff must establish that no reasonable exercise of diligence would have revealed the true identity of the defendant very long before the application is made. I do not consider that the application could have succeeded as one to cure a misnomer.

[8] The plaintiffs then say that the Master was clearly wrong in dismissing the application as one to add defendants under Rule 15(5) and, in my respectful view, there they are on much better ground. I consider the Master was in error in expressing the concern that, if the application was allowed, subcontractors who had not been served and did not appear could be precluded from raising a limitation defence without ever having been heard. The cases where the inability to raise a limitation defence was viewed as a consequence of a Rule 15(5) order are cases where, as in Brito, the proposed defendant appeared. Here only one of the 17 subcontractors was served and appeared and, as it appears from the reasons, counsel say that the question of what, if any, limitation defence may be applicable to Price & Whalley was not fully argued. The Master appears to have simply determined that there may be a limitation problem and dismissed the application with respect to all of the subcontractors but, as indicated, not with respect to the Crown.

[9] In my view, it was open to the Master to make the order sought if, on the face of the material, it appeared to him that there were issues between the owners and the subcontractors that are convenient to be resolved in this action. Under Rule 44(8), those affected could then have applied to have it set aside and may then have raised such limitation issues as there may be. Given that this might have led to a large number of applications being brought by various of the subcontractors at different times before different judges, it appears to me the better course would have been to direct the plaintiffs to serve all of the proposed defendants with sufficient notice of the application to enable them to obtain and brief counsel.

[10] I conclude that the plaintiffs are entitled to succeed on this appeal. The Master's order is to be set aside in its entirety. The plaintiffs will be directed to give appropriate notice of their application to all of the proposed defendants.

[11] There will be an order accordingly.

[12] Costs in the cause.

"Lowry J."


Cressey trespassed and knowingly disregarded neighbour Epstein's rights while developing the Fifth Avenue

No. C884229

                                      Vancouver Registry










BETWEEN:                           )


     LILLIAN ELIZABETH             )

     FINE EPSTEIN                  )


          PLAINTIFF                )     REASONS FOR JUDGMENT


AND:                               )     OF THE HONOURABLE



     CORPORATION and               )



          DEFENDANTS               )






Counsel for the Plaintiff:             Darrell E. Burns, Esq.


Counsel for the Defendants:            John Marquardt, Esq.



DATES OF HEARING:                      June ll and l2, l990.   






     The Plaintiff seeks damages against the Defendants for trespass.   




1.The Plaintiff is an elderly lady and the registered owner of the lands and premises having a civic address of 442 -446 6th Street, New Westminster (the "Epstein property").


2.The Epstein property measures approximately 83 feet on 6th Street (the commercial front of the property) and 99 feet on 5th Avenue.    There is a one storey building on the property rented out as shops.    At the rear of the Epstein property is a parking lot.


3.The Defendant, Cressey Development Corporation (the "Developer"), is the developer and general contractor of a project known as "The Fifth Avenue".    The project is on lands that abut the rear property line of the Epstein property and has a civic address of 612 - 5th Avenue, New Westminster, B.C. and is comprised of a 20 storey, ll0 apartment condominium complex (the "project").


4.The Defendant, Norman Edward Cressey ("Mr. Cressey") is the President of the Developer.


5.During the spring of l988, the Developer applied for and obtained a development permit to construct the project.


6.The Developer's plans included the construction of an underground parking lot and excavation up to the property line between the Epstein property and the project.


7.On or about May 27, l988, the Developer sought Mrs. Epstein's approval of its encroachment on the Epstein property.    At this time, the Developer's plan called for vertical shoring of the excavation.    The shoring consisted of anchor rods and shotcrete occurring at approximately 3 ft. inside the rear property line of Mrs. Epstein's property.


8.Mrs. Epstein declined permission for any encroachment, although the Developer offered her $5,000.00 for her execution of the proposed encroachment agreement.


9.The Developer revised its plans for shoring the excavation at the rear of the Epstein property with a view to avoiding encroachment on the Epstein property. The Developer designed a shoring scheme using soldier-piles, with lagging and struts.    General excavation of the site began in July, l988.


10.On or about July l2, l988, during the auguring for the soldier piles, it became apparent to the Developer that considerable water flows were occurring in sandy soil at a certain depth.    The Developer attempted to auger three holes for each of the piles but encountered the problem of collapsing sides of the holes and heavy water flows. The attempt to auger for the soldier piles was terminated on or about July l2, l988.


11.The Developer then took a different approach to install the soldier piles.    A slope was cut approaching the Epstein property line, starting from three feet on the Developer's side, and sloping downward into the development site at 4 vertical and 3 horizontal.    Then, a slot was cut into the slope at a location where a soldier pile could be installed at the back of the slot, just clear of the Epstein property line.    After the trench reached the water bearing stratum, rapid caving of the sides occurred.    Any attempt to clean the slot only resulted in further collapse.    This attempt was then terminated.    The trenches were then temporarily backfilled.


12.On July 26, l988, after consultation with SCS Engineering, the soils and foundation consultants, the Developer decided to return to the shotcrete and anchor-rod shoring method of supporting the walls of the excavation.    This entailed installing 25 foot rods into the subsoil of the Epstein property.


13.The implementation of shotcrete and anchor-rod shoring proceeded over the course of July 29, 1988 to August l2, l988.


14.During this time, neither the Developer nor Mr. Cressey took any steps to advise Mrs. Epstein or her agent, Mr. Ens, of the developments at the site, including the decision to insert the rods under the Epstein property. This activity was discovered by Mr. Ens on August ll, l988.    The surface of the Epstein property was not disturbed by the insertion of the rods.


15.Mrs. Epstein brought this action on August l5, l988.


16.By November 4, l988, the anchor rods were removed although there remain in place under the Epstein property holes or columns containing hardened portland cement, grout, plastic sleeves and small pieces of steel which functioned as the bottom connection for the anchor rods. This debris will not impair Mrs. Epstein's use or development of her property.


17.Subsequently, the Developer completed construction of the project.


     The undisputed evidence establishes that the Defendants (the Developer) trespassed on the Plaintiff's lands.


     On June 2, l988, a Mr. A. H. Ens, agent of the Plaintiff, wrote a letter to her which in part states:


"Cressey Development Corporation, the company who will be developing the property behind your stores in New Westminster, has presented to us an Encroachment Agreement for the purpose of entering your property to install rods and anchors into your property for their wall.    They intend to construct a 22 ft. wall into the ground for the garage of the apartment project they are developing.    Should you, or anyone, wish at a future date to develop your property to its fullest extent, the wall, which they are wanting to place on their property would act as a retaining wall for the development on your property.    The rods, which are l5 to l7 ft. long and go into the ground area of your property up to 22 ft. as a depth shown, can be removed at such a time as development of your site takes place."




     On June 8, the Plaintiff wrote to Mr. Ens and stated in part:


"Pursuant to our phone conversation on June 7, l988, and the plans you sent to me, the answer is an emphatic 'NO'. Why doesn't the developer erect less units and be within the prescribed set-back rather than to squeeze, encroach and use the property of adjacent owner - namely me?    The answer is simple - more units, more profit. I take a dim view of persons whose uppermost desire is for more profit at any cost."