Vancouver, Pendrell Place: Realtors Burnham and Barker provided false information; requested to provide full disclosure regarding sale of 202 1819 Pendrell St.

 

 

www.myleakycondo.com

* Leaks, Rot, Mould and Fraud *

 

March 19, 2008

 

Dick Burnham and

Lorne Barker

Royal Pacific Realty

Vancouver, BC

www.dickandlorne.com

info@dickandlorne.com

 

Dear Dick and Lorne,

 

Re:    Your Listing For Sale at Pendrell Place

202 1819 Pendrell Street

 

You will remember my recent phone call in which I requested that you provide full disclosure to potential purchasers of condominiums in Pendrell Place.

 

Lorne said that you were both “professional realtors” and “of course full disclosure would be provided”.

 

You have provided blatantly false and misleading information on your website which states:

 

  • $499,000
  • Property Address 202 1819 Pendrell Street, Pendrell Place, Vancouver, BC, V6G 1T3, Canada
  • Type Apartment
  • Style strata titled
  • Garage 1 car
  • Year Built 1981
  • Est. Property Tax $1263.43
  • Square Feet 855
  • Bedrooms 2
  • Bathroom 1 full
  • School District Vancouver

West End Address

202 1819 Pendrell Street, Pendrell Place, Vancouver, BC, V6G 1T3, Canada

Description

We are proud to present this rare 'west of Denman' property. It's just 1/2 block to popular English Bay beach and the seawall walk to Stanley Park. This south facing two bedroom suite is located in a fine concrete building that has been totally rainscreened in recent years, as well as new windows and a newer roof. This bright suite has a large deck that is ideal for relaxing and enjoying your favourite book or impressing your guests at an intimate barbeque. The layout of the apartment is unique: the livingroom, dining area and kitchen have been redesigned as an'open' concept which allows for the maximum use of space,and depicts a truly West Coast lifestyle. Add to this the fact that the building is just two blocks to world famous Stanley Park and just steps to all the shops and restaurants along Denman, Robson and Davie Streets, and you have your own private oasis. Pets and rentals are welcome. We're having an OPEN HOUSE this Friday, Mar. 14th, from 10 a.m. to noon. Come by and see this beauty for yourself...it may just be your dream home.

Features

insuite laundry, fridge, stove with a separate cooktop, dishwasher, window coverings. Pets and rentals are welcome, and its just s stroll to the beach and shopping.

Amenities

Elevator, south facing deck.

 

Pendrell Place has not been “totally rainscreened in recent years”.

One of the condominiums in the building has been uninhabitable for eight years because of leaks rot and mould caused by the failure of the building envelope.  See the CTV W5 program From Haven to Hell .

Expensive building envelope work recommended by Levelton Engineering has not been done.

 

There is much unresolved litigation involving the Strata Corporation, present owners and past owners.

 

The Financial Statements were fraudulent.

 

Form B Information Certificates were fraudulent.

 

Mr. R.S. (Rick) Dickson, President, Ascent Real Estate Management Corporation wrote: “The council approved the financial statements each month, aware that the amount stated in the CRF and the amount shown on the balance sheet in the cash account did not match”.

 

J. Garth Cambrey of Stratawest Management and J.P. Daem of Strataco are also fully aware of the sordid details.

 

A recent Information Certificate issued by the current property management firm and signed by W. D. (Bill) Blackall, Strata Manager, Century 21 Prudential Estates (RMD) Ltd. was woefully inadequate in describing the legal battles.  You can contact him directly at 604-273-1745 for more details. 

 

The photos you provide on your website show that 202 was recently updated with a new open-kitchen-living room.

 

The work inside 202 1819 Pendrell St. was done without permits.  You can check with the City of Vancouver by calling 604-873-7613. 

 

For more information about Pendrell Place go to: Vancouver, Pendrell Place, VR 1008, 1819 Pendrell Street .

 

Please provide full, complete and plain disclosure regarding the continuing fiasco at Pendrell Place.

 

Yours truly,

 

 

James Balderson PhD, QS

JamesBalderson@myleakycondo.com

 

myleakycondo.com's Blog

Leaky Rotten Condos and defective residential construction issues.

 

 

Riverbend, Coquitlam: Marion Lochhead Disciplined by Real Estate Council of BC for failing to correctly provide disclosure statement while marketing Riverbend

 

 

REAL ESTATE COUNCIL OF BRITISH COLUMBIA

In the matter of the Real Estate Act

R.S.B.C. 1996, c. 397 As Amended

AND in the matter of a Consent Order pursuant to Section 31 of the Real Estate Act

Respondent:   MARION SHIRLEY LOCHHEAD

File:  141-03

Date of Consent Order:  April 27, 2005

Complaint                 
Breach of section 61(9) of the Real Estate Act  

Issue                         
Marion Shirley Lochhead, Representative, Sutton Group 1st West Realty, Coquitlam breached section 61(9) of the Real Estate Act in that she failed to deliver a copy of the disclosure statement to the prospective buyers and afford them an opportunity to read the disclosure statement, and obtain a receipt from the buyers, acknowledging that they had been afforded the opportunity, prior to the buyers entering into the Contract of Purchase and Sale with the developer. 

Penalty                     
Marion Shirley Lochhead was reprimanded for the breach described above after an Agreed Statement of Facts, Proposed Acceptance of Findings and Waiver was entered into between the Real Estate Council and Ms. Lochhead and a Consent Order was issued.  In addition, as a condition of continued licensing, she is required to successfully complete Chapter 2 (Real Estate Services Act) of the Real Estate Trading Services Licensing Course and pay costs to the Council in the amount of $500. 

P: June 3, 2005 R: June 3, 2006

VR 1280: Appeal Court confirms leaky condo strata corporation suing Oberti Oberto Architecture must produce evidence of authorization to sue

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

The Owners, Strata Plan VR 1280 v. Oberto Oberti Architecture and Urban Design Inc., et al.,

 

2003 BCCA 213

Date: 20030408


Docket: CA030541

Between:

The Owners, Strata Plan VR 1280

Appellant

(Plaintiff)

And

Oberto Oberti Architecture and Urban

Design Inc., Oberto Oberti, Def Co. Ltd.

And XYZ Co. Ltd., #1 through XYZ Co. Ltd. #10

Respondents

(Defendants)


Before:

The Honourable Mr. Justice Esson

(In Chambers)

D.B. Gleig

Counsel for the Appellant

(Plaintiff)

C.E. Hirst

Counsel for the Respondents

(Defendants)

Place and Date of Hearing:

Vancouver, British Columbia

2 April 2003

Place and Date of Judgment:

Vancouver, British Columbia

8 April 2003


Reasons for Judgment of the Honourable Mr. Justice Esson:

[1]         This is an application seeking leave to appeal an interlocutory ruling by Mr. Justice Henderson ordering the plaintiff to produce “evidence of the special resolution and copies of the written consents required pursuant to section 15(7)(b) of the Condominium Act RSBC 1996”.

[2]         Counsel for the plaintiff submits that the order raises questions of general importance regarding the conduct of the business of Strata Councils and, in particular, the degree of confidentiality attaching to such documents.

[3]         In my view, the order is a straightforward application of the Supreme Court Rules relating to discovery of documents.  In any event, the claim to privilege in respect of them is now effectively moot, the plaintiff having produced to the defendants a copy of the special resolution and copies of all of the written consents which are in its possession.

[4]         Accordingly, the application for leave to appeal is dismissed.

“The Honourable Mr. Justice Esson”

VR 1280: Court orders leaky condo owners suing Oberto Oberti to produce evidence of special resolution and written consents

Citation:

Strata Plan VR 1280 v.

Oberti Architecture et al

Date:

20030110

 

2003 BCSC 112

Docket:

S001082

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

Oral Reasons for Judgment

The Honourable Mr. Justice Henderson

January 10, 2003

 

BETWEEN:

THE OWNERS, STRATA PLAN VR 1280

PLAINTIFF

AND:

 

OBERTO OBERTI ARCHITECTURE AND URBAN DESIGN INC.

OBERTO OBERTI, DEF CO. LTD., and XYZ CO. LTD.

#1 THROUGH XYZ CO. LTD. #10

 

DEFENDANTS

 

 

Counsel for the Plaintiff:

B.D. Gleig

Counsel for the Defendants:

Oberto Oberti Architecture and Urban Design Inc. and Oberto Oberti

 

C.E. Hirst

No other appearances

 

 

 

[1]            THE COURT:  The defendants ask for production of certain documents which are said to be relevant to the capacity or authority of the plaintiff to bring the action and a stay of proceedings pending production of those documents.  The plaintiff is described as “The Owners, Strata Plan VR 1280”.  This is what has come to be called a “leaky condo” case.

[2]            The endorsement on the writ of summons recites that the strata corporation is bringing the action on its own behalf and on behalf of the owners.  It goes on to refer to a claim for damage suffered by the strata lots, the common property, the common facilities, and the other assets of the strata corporation.

[3]            The statement of claim is long and detailed.  It sets out a number of claims for compensation caused by damage to the common property.  It also makes certain claims which are clearly advanced on behalf of individual owners.  For example, paragraph 15(f) of the statement of claim asks for damages for diminution in value of strata lots.  Paragraph 15(g) asks for damages for the loss of use and enjoyment of strata lots.  Those are claims which, in the absence of special provision made by legislation (to which I will refer in a minute), could be advanced only by the individual owners.  No individual owners are named as plaintiffs.

[4]            It is my view, therefore, that Mr. Gleig’s first argument in opposition to disclosure must fail.  He argued that, when the endorsement and statement of claim are read reasonably and as a whole, they advance no more than a claim for damages by the strata corporation itself with respect to damage caused to the common property.  The plain language of the writ and statement of claim demonstrate otherwise.

[5]            There are two Acts bearing on the capacity in law of a strata corporation to commence civil action. 

[6]            The Condominium Act addresses the topic in s. 15.  Section 15(1) provides that:

A strata corporation may, as representative of the owners of the strata lots included in the strata plan, bring proceedings for damages and costs for any damage or injury to the common property, common facilities and the assets of the strata corporation caused by any person.

 

Section 15(7)(a) provides that:

A strata corporation may sue, on its own behalf and on behalf of an owner, about matters affecting the common property, common facilities and other assets of the strata corporation.

 

[7]            Those provisions are clearly limited to a claim for damages arising from damage to the common property.  They permit the strata corporation to act as a representative of the owners as a whole.  They would permit the strata corporation to bring the present claim, insofar as it is a claim for damages arising from damage to the common property, but they say nothing about the right of the strata corporation to step into the shoes of an individual unit holder and advance a claim which is personal to that unit holder.

[8]            Section 15(7)(b) of the Condominium Act goes further.  It permits a strata corporation to sue:

...on behalf of those owners who consent in writing to the strata corporation so doing, about matters affecting individual strata lots... 

 

The first requirement, as the section indicates, is that the individual owner, who enjoys the right of action concerning his or her individual strata lot, must consent in writing prior to the commencement of the action. 

[9]            The section contains another stipulation.  The action must be “authorized by special resolution of the strata corporation.” 

[10]        In my view, those are necessary preconditions to the advancement of any claim made on behalf of an individual owner.  That is so whether or not the claim is coupled with a claim by the strata corporation relating to the common property.

[11]        The second statute bearing on the question is the Strata Property Act.  In ss. 171 and 172, that Act provides for a right of action in terms which are very similar (but not identical) to the Condominium Act.

[12]        It follows from what I have said that this plaintiff has no capacity or authority to advance some of the claims it makes unless, at the time the writ was filed, there was in existence a special resolution of the strata corporation; and unless there was a consent in writing from each of the individual owners whose units are the subject of the claim or claims.

[13]        The question, then, is whether the plaintiff has a legal obligation to disclose evidence of the special resolution and copies of the written consents. 

[14]        The plaintiff argues that such documents are privileged.  It says they were created for the dominant purpose of this litigation and are not discoverable. 

[15]        In my view, that submission misconceives the nature of the documents.  The special resolution of the strata council and the written consents of the owners come into existence for the very purpose of authorizing the action to begin.  They are evidence of the strata corporation’s exceptional right to sue on behalf of someone else, that is to say, the owners.  That evidence must be available to any who would question the right or capacity of the strata corporation to sue.  It was created for that very purpose.  It is true that the documents were created for the purpose of this litigation, but there was never at any time a reasonable expectation on anyone’s part that the documents would remain private or confidential.  I find that the concept of privilege has no application to such documents.

[16]        Traditionally, courts have accepted without question the proposition that a plaintiff who brings an action has the capacity or authority to bring it.  However, when that authority or capacity is called into question, the courts have never been slow to require the production of evidence to justify the claimed authority or capacity.

[17]        I make no criticism of this plaintiff for failing to disclose the special resolution or the written consents in the first instance.  Now that the defendant has placed the matter in issue, those documents must be disclosed.  It is particularly important that the defendants know which of the unit holders has consented to this action being brought on his or her behalf and which have not, so that the defendants may appreciate the scope of the liability to which they are exposed.

[18]        In argument, counsel suggested that the plaintiff might prefer to amend the statement of claim so as to remove any claim for damages on behalf of an individual unit holder rather than make the requested disclosure.  I think the plaintiff should be permitted that option. 

[19]        My order is as follows. The plaintiff is to produce evidence of the special resolution and copies of the written consents within 21 days or, in the alternative, the plaintiff is to amend its statement of claim so as to remove the individual claims of the unit holders within 21 days. 

(DISCUSSION BETWEEN THE COURT AND COUNSEL)

 

[20]        THE COURT:  The application was somewhat unusual.  It is not what I would call routine disclosure.  I will leave costs in the cause.

“A.G. Henderson, J.”
The Honourable Mr. Justice A.G. Henderson

Vendors' attack on purchasers' solicitor-client privilege fails in sinking house case

Kenna v. Fellman, 1996 CanLII 423 (BC S.C.)

PDF Format
Date:1996-05-24
Docket:5179

Decisions cited

  • Rogers v. Bank of Montreal, (reflex-logo) reflex[1985] 4 W.W.R. 503 • (1985), [1986] 57 C.B.R. 251 • [1985] 61 B.C.L.R. 239
  • Rogers v. Bank of Montreal, 1985 CanLII 141 (BC C.A.) — [1985] 4 W.W.R. 508 • (1985), [1986] 57 C.B.R. 256 • [1985] 62 B.C.L.R. 387

Date of Release:  May 24, 1996                       No. 05179

                                             Nanaimo Registry

 

 

 

            IN THE SUPREME COURT OF BRITISH COLUMBIA

 

 

                                 )

BETWEEN:                          )

                                 )REASONS FOR JUDGMENT

   THOMAS WILLIAM KENNA          )  

   and JOSEPHINE KENNA           )

                                 )

                     PLAINTIFFS   )OF THE HONOURABLE

                                 )  

AND:                              )

                                 )

   KURT FELLMAN,                 )   MR. JUSTICE R.M.J. HUTCHINSON

   LYDIA FELLMAN,               )

   COAST REALTY GROUP LTD.,      )

   DARWIN MAHLUM                 )

                                 )(IN CHAMBERS)

                     DEFENDANTS   )

                                 )

 

 

 

 

Counsel for the Plaintiffs:      Donald E. Taylor

 

Counsel for the Defendants

Coast Realty Group and Mahlum:   Peter C.P. Behie

 

Date and Place of Hearing:May 6, 1996 at

Nanaimo, B.C.

 

 

 

1            The plaintiffs bought a house owned by the defendants Fellman in 1993.  The vendors' agent was the defendant Mahlum, employed by the defendant Coast Realty.  The plaintiffs issued this process, alleging that the defendants failed to disclose the house was built on pillars and was subsiding, causing damages.  The plaintiffs claim rescission or damages.  The defendants Mahlum and Coast Realty allege that during negotiations between the solicitors for the parties a compromise was reached.

 

2            This application was brought by the defendants to compel the solicitor for the plaintiffs to produce all documents in their possession prepared by their former solicitor, Robert Garrett, relating to an offer to settle made on November 28, 1994, including notes, memoranda or letters sent by Garrett to the plaintiffs, and memoranda prepared by Garrett for the plaintiffs' present solicitor, Donald Taylor.  The plaintiffs claim solicitor-client privilege and the defendants say the privilege was waived.  Garrett was examined for discovery and refused to answer questions relating to instructions received from his client and Taylor claimed the solicitor-client privilege.

 

3            The allegation of compromise arises from correspondence between Garrett and Cheryl Spratt, the former solicitor on the record for Coast Realty and Mahlum.  On November 28, 1994, Spratt wrote a letter to Garrett, headed "Without Prejudice", in which she set out certain facts, and then gave her opinion that the plaintiffs had no good cause of action.  She suggested that if the plaintiffs were to consent to an order dismissing the action and execute a full release, the defendants Coast Realty and Mahlum would waive all costs and disbursements.  On February 22, 1995, Garrett wrote a letter to Spratt offering to discontinue the action, on condition that those defendants forgo costs.  On February 28, 1995, Spratt wrote to Garrett the following letter:

 

 

We write further to the writer's telephone conversation with your secretary regarding your letter of February 22, 1995.  We confirm your clients are prepared to execute a consent dismissal order without costs to dismiss their claims against Darwin Mahlum and Coast Realty Group Ltd.

 

If this is the case, we are prepared to agree to this.  We enclose a consent dismissal order without costs for execution by you.  We look forward to receipt of this document at your earliest convenience.

 

4            After that letter was written, the plaintiffs instructed Taylor to take over conduct of the file and he wrote to Spratt on July 19, 1995, stating that his clients had not instructed Garrett to consent to the dismissal of the action.

 

5            The basis of this application is that where the pleadings put in issue facts that cannot be decided without evidence being admitted of the legal advice given, then the privilege is waived.  The authority for that proposition is Rogers et al. v. Bank of Montreal et al.  (reflex-logo) reflex, (1985), 61 B.C.L.R. 239; aff'd. 62 B.C.L.R. 387 (B.C.C.A.).  In his reasons for judgment on the original application, Taylor J. said at pp. 241-242:

 

 

 

     The receiver denies that the bank's instructions were given in reliance on its advice.  It says the bank took advice on the relevant matters from the bank's own solicitors and relied on that advice and that if the bank relied on the advice of accountants rather than on the advice given by solicitors retained for that purpose it acted unreasonably and cannot use such reliance as a defence.

 

     The bank does not say whether it received relevant advice from the solicitors.  It says that its communications with its own solicitors are privileged and that it has done nothing to waive that privilege.

 

     In Nowak v. Sanyshyn (1979), 23 O.R. (2d) 797, 9 C.P.C. 303 (H.C.), Grange J., was faced with a somewhat similar situation.  The plaintiff there sought to avoid a mortgage and guarantee which she signed after consulting solicitors on the ground that she had not properly understood the documents.  On examination for discovery she refused on grounds of privilege to say what she was told about the documents by her solicitors.  Observing that it was "a matter of vital importance whether and in what manner the plaintiff was advised", Grange J. directed her to answer.  He rejected the contention that the defendants should wait until trial for the plaintiff to waive the privilege by giving evidence about her legal advice.

 

     Counsel for the bank says the Nowak decision stands alone and that it turns in any event on the fact that counsel conceded in that case that the plaintiff would testify at the trial about the advice she received while in this case the bank has made no such disclosure of its intentions.

 

     I think the Nowak decision stands for a broader proposition.  I think it says that a party may waive privilege by a pleading as well as by actually giving evidence of a privileged communication.  It shows that where a party makes a plea which cannot be tried in the absence of evidence of the legal advice which that party received a court will not necessarily deny discovery concerning such advice simply because the client has not yet testified about it.  The pleading of such claim or defence may in certain circumstances itself be enough to waive privilege so that the discovery of solicitor-client communications may then be ordered.

 

                                (Emphasis added)

 

6            In the Court of Appeal, at 1985 CanLII 141 (BC C.A.), (1985), 62 B.C.L.R. 387, Hutcheon J.A., for the Court, said at p. 392:

 

 

     The issue is whether the bank was induced to take certain steps in reliance upon the advice from the receiver on legal matters.  To take one instance, the receiver, according to the bank, advised the bank that it was not necessary to allow Abacus time for payment before the appointment of the receiver.  A significant legal decision had been rendered some months earlier to the opposite of that advice.  The extent to which the bank had been advised about that decision, not merely of its result, is important in the resolution of the issue whether the bank relied upon the advice of the receiver.

 

7            The privilege was not waived there because the issue was raised in the pleadings, but because the legal advice given the bank caused it to take certain steps.  By raising the issue of its corporate state of mind, the court held it became necessary to determine whether the bank had relied on the advice it had been given, so the court held the privilege to have been waived.

 

8            In Vance v. Peglar et al., [1991] B.C.J. No.2877, Trainor J. came to a similar conclusion.  He said:

 

 

This is not a failure to recognize the existence of the solicitor-client privilege, but it is a decision that in the circumstances of this case where the Plaintiff has elected to put those matters in issue he made the decision at that time, not only that he could be asked about his state of mind, his knowledge, and his means of knowledge, but also he put in issue the documents which were in his solicitor's file which are relevant to that very issue.  The fact that this can be done is recognized by the British Columbia Court of Appeal in the Rogers v. Bank of Montreal case for a different reason there, not only with respect to the state of mind insofar as the waiver is concerned and the possibility that a waiver can take place in this fashion.

 

 

9            That is not the situation here.  On the face of the correspondence, there was no compromise.  The plaintiffs did not accept the defendants' offer, but advanced a counter-offer.  This in turn was not accepted.  The defendants plead a compromise and, in that way, suggest the plaintiffs' state of mind is in issue.  I do not agree.

 

10           The plaintiffs claim their privilege, and have not put in issue their own state of mind to justify their conduct.  At all times they have asserted their right to keep confidential advice given them by their solicitors.  By raising the issue in its pleadings, the defendants cannot compel production of documents or advice given to the plaintiffs by their solicitor.  It is only if the plaintiffs raise the issue of their state of mind that the privilege can be found to have been waived: that is not the case here.

 

11           In these circumstances, I find they have not expressly or implicitly waived the privilege.  I dismiss the application with costs on Scale 3 to the plaintiffs in any event of the cause.

 

 

 

 

 

 

 

 

 

 

 

                     Signed:  "Mr. Justice R.M.J. Hutchinson"

 

 

 

 

 

Nanaimo, British Columbia

May 24, 1996