LMS 1400 (Vancouver): Court upholds Vancouver's immunity clause, dismisses claim; City not liable for faulty inspections but may have duty to warn the world of known defects

 

Citation:

The Owners, Strata Plan LMS1400 v. Objekt Properties Corp. et al.

Date:

20021007

 

2002 BCSC 1420

Docket:

C995675

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

THE OWNERS, STRATA PLAN LMS1400

PLAINTIFF

AND:

 

OBJEKT PROPERTIES CORP., BRENTON CONSTRUCTION LTD.,

ROBERT LESHGOLD, ARCHITECT,

JONATHAN STOVELL, CITY OF VANCOUVER,

RELIANCE HOLDINGS LTD., READ JONES CHRISTOFFERSEN LTD.,

A.V. WESTERN STUCCO LTD., MCLAUGHLIN CONSTRUCTION,

JACK LESHGOLD, LEIBA LESHGOLD,

MICHAEL BRENT ALSTON, SALLY ANN F. ALSTON

 

DEFENDANTS

 

 

REASONS FOR JUDGMENT

 

OF THE

 

HONOURABLE MR. JUSTICE BROOKE

           

 

 

Counsel for the Plaintiff:

Garth M. Evans

Counsel for the Defendants, Robert Leshgold, Architect, Jonathan Stovell, Reliance Holdings Ltd., Jack Leshgold and Leiba Leshgold:

 

D. Scott Lamb

Counsel for the Defendant,

City of Vancouver:

 

Brent D. Jordan

Date and Place of Hearing:

August 22, 2002

 

Vancouver, BC

 

[1]            The defendant, City of Vancouver, seeks dismissal of the action against it pursuant to Rules 18A, 19(24) and 25(1) of the Rules of Court.  The application is resisted by the plaintiff and by the defendants, Robert Leshgold, Architect, Jonathan Stovell, Reliance Holdings Ltd., Jack Leshgold and Leiba Leshgold.

[2]            By way of background, the plaintiff claims against 13 defendants, including the defendant, City of Vancouver, for damages for construction defects in a condominium development undertaken between 1993 and 1994.

[3]            The claims against the City of Vancouver are specifically set out in paragraphs 40 and 41 of the statement of claim, and generally against all of the defendants in paragraph 33 of the statement of claim.

[4]            Paragraph 40 says this:

The City of Vancouver was negligent in its inspections of the Building and failed in its duty to ensure that the Building was constructed to and complied with the City of Vancouver Building By-laws, the British Columbia Building Code and the National Building Code and was further negligent in issuing the Occupancy Permit without ensuring that the Building had been constructed in compliance with the City of Vancouver Building By-laws, the British Columbia Building Code and the National Building Code.

 

[5]            Paragraph 41 says:

In breach of the duty of care owed to the Plaintiff by the City of Vancouver the Building was not constructed in accordance with the City of Vancouver Building By-laws, the British Columbia Building Code and the National Building Code which resulted in structural defects, water leaks, rotting and other damage to the Building.

 

[6]            Paragraph 33 says:

The Defendants, and each of them, owe a duty to warn the Plaintiff of any potential or actual defects, deficiencies and/or damages in the construction of the Building.  In breach of their duty to the Plaintiff, the Defendants, and each of them, failed to warn the Plaintiff of the Defects and Deficiencies which were known to the Defendants and each of them.  As a result of the said failure to warn, the Plaintiff has suffered damages.

 

[7]            On the hearing of the notice of motion the defendant, City of Vancouver, abandoned its application under Rule 25(1), adjourned its application for summary trial under Rule 18A, and proceeded with its application under Rule 19(24).  Rule 19(24) provides:

(24)  At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

 

(a)   it discloses no reasonable claim or defence as the case may be, ...

 

[8]            In Hunt v. Carey Can. Inc. (1990), 49 B.C.L.R. (2d) 273, the Supreme Court of Canada said this at p. 289:

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?  As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.  Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

 

[9]            The defendant City of Vancouver relies upon s. 294(8) of the Vancouver Charter, S.B.C. 1953, c.55 which provides:

(8)   The city, or any officer or employee thereof, in inspecting and approving plans or in inspecting buildings, utilities, structures or other things requiring a permit for their construction, has no legal duty, on which a cause of action can be based, to ensure that plans, buildings, utilities, structures, or other things so constructed, comply with the by-laws of the city or any other enactment.  The city, or any officer or employee thereof is not liable for damages of any nature, including economic loss, sustained by any person as a result of neglect or failure of the city or officer or employee thereof to discover or detect contraventions of the by-laws of the city or other enactment or from the neglect or failure, for any reason or in any manner, to enforce such a by-law or enactment or for any damage from a failure to recommend, or resolve to file a notice in the land title office pursuant to section 336D.

 

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