Vancouver, The Palladain / Palladian: Court of Appeal dismisses appeal by Ms. Grabarczyk; supports finding that she deliberately contravened noise by-laws

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Owners, Strata Plan VR 2000 v. Grabarczyk,

 

2007 BCCA 295

Date: 20070523


Docket: CA034690

Between:

The Owners, Strata Plan VR2000

Respondent

(Plaintiff)

And

Isobel Grabarczyk

Appellant

(Defendant)


Before:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Thackray

The Honourable Mr. Justice Lowry

 

I. Grabarczyk

Acting on her own behalf

P. Mendes

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

May 17, 2007

Place and Date of Judgment:

Vancouver, British Columbia

May 23, 2007

 

Written Reasons by:

The Honourable Madam Justice Prowse

Concurred in by:

The Honourable Mr. Justice Thackray

The Honourable Mr. Justice Lowry

Reasons for Judgment of the Honourable Madam Justice Prowse:

[1]                The appellant, Ms. Grabarczyk, is appealing from the order of a chambers judge, pronounced December 15, 2006, finding that she had contravened the noise by-laws of the respondent strata corporation by repeatedly and deliberately making loud noises.  The chambers judge granted an injunction against the appellant, and ordered her to pay the strata corporation $2,500 in fines, to be set off against an amount held by the strata corporation to the credit of the appellant.

[2]                The appellant submits that the chambers judge erred in failing to give sufficient weight to her evidence, and to the affidavit evidence of witnesses on her behalf.  She says that much of the evidence offered on behalf of the respondent strata corporation was not true, and she expresses concerns that the order was made against her because she was unrepresented and did not present her documents in proper form.  She says that the complaints against her arose out of false statements made against her by members of the strata corporation based on past events involving herself and her now deceased mother, and that the purpose of this proceeding was to intimidate her and to force her to move.  She has also brought an application to lead new evidence on appeal which she believes supports her submission that she did not engage in the type of conduct which resulted in the order being made against her.  In summary, she says that the chambers judge’s decision is simply wrong, and she seeks damages in this Court for the stress she has been caused as a result of these proceedings.

[3]                I have reviewed the materials filed by the appellant.  It is clear that she has had an unfortunate relationship with the strata corporation leading to the events giving rise to the order against her.  In my view, however, there was persuasive evidence to support the conclusions reached by the chambers judge and it was open to him to reject the contrary evidence given by the appellant and others who provided evidence on her behalf.  The chambers judge found that while the appellant believed that members of the strata council were engaged in a conspiracy against her, that belief “is not based on reason or a realistic appraisal of the evidence or facts at issue”.  (para. 31)  I can find no basis for the appellant’s apparent belief that she was treated unfairly because she was not represented by counsel or because her documents were not in order.  On the contrary, the chambers judge carefully applied the law to the facts with the result that the fines he upheld in the amount of $2,500 were substantially less than those claimed by the respondent.

[4]                Finally, I have reviewed the “new evidence” tendered by the appellant on this appeal and, in my view, it does not affect the result reached by the chambers judge.  I am not persuaded that he erred, either in his assessment of the evidence, or otherwise.  I would, therefore, dismiss the appeal.

“The Honourable Madam Justice Prowse”

I Agree:

“The Honourable Mr. Justice Thackray”

I Agree:

“The Honourable Mr. Justice Lowry”

The Palladain/Palladium (Vancouver): Judge quashes series of fines imposed on noisy leaky condo owner; warns she could land in jail if noise continues

 

[50]            Ms. Grabarczyk, I have made findings against you on this petition.  One of the things I have found is that you have deliberately and over time made noise that -- I have found this.  It is no good shaking your head.  The evidence before me is clear.  Your evidence does not raise even a doubt.  The other people in your strata corporation are entitled to live their lives in peace and quiet without you manifesting your anger through making noise in your apartment to bother them.  That is the essence of my finding here.  I am trying to reduce it to its absolute simplest form.

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Owners v. Grabarczyk,

 

2006 BCSC 1960

Date: 20061215
Docket: L053103
Registry: Vancouver

Between:

The Owners, Strata Plan VR 2000

Petitioner

And:

Isobel Grabarczyk

Respondent

Before: The Honourable Mr. Justice Cullen

Oral Reasons for Judgment

In Chambers
December 15, 2006

Counsel for the Petitioner

P. Mendes

Appearing on her own behalf

I. Grabarczyk

Place of Trial/Hearing:

Vancouver, B.C.

 

[1]                THE COURT:  The petitioner, the owners of Strata Plan VR 2000, bring this petition against Isobel Grabarczyk, seeking the following relief --

[2]                MS. GRABARCZYK:  Excuse me, My Lord.

[3]                THE COURT:  Yes?

[4]                MS. GRABARCZYK:  May I say a couple of last statements before you make a judgment?

[5]                THE COURT:  All right. 

[6]                MS. GRABARCZYK:  Thank you very much, My Lord.

[SUBMISSIONS]

[7]                THE COURT:  I will just carry on.  What the petitioner is seeking is a declaration that the respondent has breached the petitioner's noise by-law, an order that respondent cease and desist from certain noisy behaviour in her suite and an order that she pay the petitioner $22,928.69 in fines that the strata corporation has imposed on her for breaches of the strata corporation's noise by-laws.

[8]                The petitioner is a strata corporation known as the Palladain located at 1705 Nelson Street in the West End of Vancouver.  It has 40 units housed in three buildings of four stories each.  The three buildings are connected by walkways.

[9]                The respondent owns suite 208, having moved there in April 2001 following her mother's death.  The respondent has, by notice of motion dated November 6, 2006, made application that the petitioner's application be struck and that the petitioner pay to the respondent the sum of $4,000 in home warranty proceeds and $2,000 in what she described as toilet fraud "as summarized in respondent's summary closing statement, numbers 1 to 25."

[10]            The petitioners seek an order setting aside an order granting the respondent indigent status.

[11]            The allegations made by the petitioner against the respondent consist primarily of the evidence of Elizabeth Sears contained in two affidavits, the first sworn March 17, 2006 and the second sworn September 19, 2006, and the evidence of Phyllis Johnston sworn September 19, 2006. 

[12]            Ms. Sears' affidavits attest to loud, disruptive ongoing noises coming from the respondent's unit from the time she moved into in April 2001 until September 29, 2006, the date of her most recent affidavit.  The sounds described by Ms. Sears include loud yelling, crying, stamping, jumping up and down, apparent movement of furniture back and forth, and the washing of metal objects in the bathtub of the respondent.  Since December 2005 when this petition was filed, according to Ms. Sears the noise has changed to consist mainly of loud stamping coming from the respondent's suite, or stomping in one place for varying periods of times after midnight.  Ms. Johnston in her affidavit deposes as follows:

My daughter-in-law, Rebecca Johnston, and I are the owners of suite 207 of Palladian.  My son rents the suite for business purposes but makes it available to family members and friends, and of course I stay there frequently.  On many occasions when I have stayed in the suite I have heard loud and disturbing noises coming from suite 208.  These noises including thumping, yelling, crying, furniture being moved around and what sounds like objects being washed in the tub.  When I have heard the noise, it usually occurs between 1:00 and 5:00 in the morning.  The voice appears to be that of a woman.  I know the noise is coming from suite 208 because the bedroom in our suite shares a common wall with suite 208.  This noise cannot be coming from any other suite other than 208.  The noise does not sound like normal apartment living noises.  The noise is not being caused by squeaking hardwood floors.

[13]            Ms. Sears' sister, Jean Hamilton, also swore an affidavit dated November 17, 2006.  The pertinent paragraphs of her affidavit read as follows:

For the past three years I have visited my sister in Vancouver and stayed with her in her apartment, unit 106.  I usually visit in the fall around Thanksgiving.  My last visit was from September 24, 2006 to October 14, 2006.  I stayed in the apartment with Elizabeth for three weeks.  Every time I have stayed with my sister I have noticed loud thumping or stomping noises coming from the suite directly above my sister's bedroom.  The noises are so loud that I refer to the person residing there as Thumper.  During my last visit this past fall the noise occurred every night of varying durations, usually between 11:00 p.m. and 1:00 a.m.  Sometimes it sounded as though the person was stomping on one spot and then moved to stomp in another spot.  Sometimes the stomping would sound as though the person upstairs was marching back and forth or around in circles.  Occasionally the stomping would start up again between 2:00 a.m. and 4:00 a.m.  The noise would last anywhere from 15 minutes to half an hour.

[14]            The petitioner also filed three affidavits of Vlad Postelnicu, an employee of Vancouver Condominium Services Ltd., the managing agent of the plaintiff.  The respondent takes issue with the admissibility of significant portions of his affidavits to the extent that they are based on information and belief and constitute hearsay evidence.  The petitioner submits that the evidence is not being adduced to prove the truth of what is asserted, but in effect to establish the state of the record of complaints made against the respondent and actions taken in relation to those complaints. 

[15]            In resistance to the petitioner's application and in support of her own application the respondent has sworn five affidavits and has adduced by affidavit the evidence of Margaret Geoffrey.  She also adduced evidence in the form of letters from Marie Lafreniere from suite 206 of the Palladian and Tim and Hillary Temple from suite 309 to the effect that they heard no noise emanating from Ms. Grabarczyk's unit.

[16]            By affidavit sworn May 15, 2006, Anna Temple, the daughter of Tim and Hillary Temple, deposed that she signed the letter on behalf of her parents, in effect misunderstanding what she was signing and attesting that suite 309 was not directly above suite 208, the respondent's suite.

[17]            There is evidence that Ms. Lafreniere's unit is in another building and it therefore does not appear that her evidence of an absence of noise is of relevance to this case.

[18]            This matter was brought before Justice Edwards on May 5, 2006, and he ordered that the respondent and Ms. Geoffrey be cross-examined on their respective affidavits.  The respondent failed to attend the cross-examination originally set for May 18, 2006.  Another date was set on June 16, 2006.  Although Ms. Grabarczyk attended, she left after 23 minutes. 

[19]            Ms. Geoffrey was cross-examined on her affidavit, which attested that although her unit is adjacent to the respondent's she heard no noise emanating from the respondent's unit.  Under cross-examination Ms. Geoffrey conceded that she was a very heavy sleeper and under medication, that her bedroom does not share a common wall with the respondent's suite and that she would not likely hear noise from the respondent's unit if it occurred between 12:00 and 5:00 a.m. because of her heavy sleeping and the situation of her bedroom.

[20]            I have read through the respondent's five affidavits.  They are lengthy and contain many attachments.  I am satisfied that the petitioner's summary of the theory they espouse is an accurate one and reflect the essential assertions relied on by the respondent in advancing her application and resisting the petitioners.  That summary reads as follows:

Over the course of these affidavits Ms. Grabarczyk develops the theory of this case that may be summarized as follows:

(a)        she is not making the noise;

(b)        the noise is being caused by hardwood flooring in other units and the wood frame structure of the building;

(c)        the noise complaints are fabricated by the strata council and the property manager as part of a conspiracy she refers to in her material interchangeably as the toilet fraud or the chain of causation;

(d)        the toilet fraud and the chain of causation are part of a retaliatory conspiracy to defraud Ms. Grabarczyk of her home and money.  Ms. Grabarczyk alleges that the toilet fraud was the cause of her mother's death in 2001 and that the present noise complaints are being made against her in retaliation for her previous complaints about minor deficiencies in her suite.

(e)        the toilet fraud and chain of causation is a conspiracy between the following parties with the strata council, the property manager and Ms. Sears at the top of the conspiracy, the public guardian and trustee, her former legal counsel Mr. David Mossop, Q.C., Legal Aid staff, Car 87 of the Vancouver Police Department, the RCMP, the court registry staff, a plumbing contractor, Coast Drop-In Centre and the Kettle Friendship Society.  The complaints alleged against these various parties include conspiracy, malice, defamation, contributory negligence, libel, false pretences, malicious prosecution, sedition, perjury, theft, trespassing, kidnapping, home invasion and breach of trust.

[21]            I note that in addition to what is summarized in the petitioner's memorandum of argument the respondent has also included in her materials letters from her doctor, Dr. Barzelai, from the Kettle Friendship Society and from the Ministry of Human Resources attesting to an absence of any misconduct engaged in by the respondent while involved with them.

[22]            The "toilet fraud" allegation made by the respondent upon which in part she bases her resistance to this petition, characterizing it as part of an overall conspiracy against her involves water entering Ms. Sears' suite apparently caused by a leak in the respondent's mother's toilet line in 1998.  The repairs in question were charged to the respondent's mother, a fact which Ms. Grabarczyk attributes as contributing to her mother's death in 2001.

[23]            The state of the respondent's belief as to the toilet fraud is relied on by the petitioner as a motive for the respondent's conduct in causing the noises complained of.  The petitioner relies on further evidence of that motive in some of Ms. Grabarczyk's materials in which she expresses animosity towards Ms. Sears as the cause of her difficulties.

[24]            The issues before me as identified in the plaintiff's memorandum of argument are as follows:

1.         Whether the respondent has contravened the strata corporation's noise by-law;

2.         Whether the court should impose an injunction in the terms proposed by the strata corporation;

3.         Whether Ms. Grabarczyk should be ordered to pay the fines claimed by the strata corporation;

4.         Whether a claim for an injunction and a claim for unpaid fines can be joined under a petition pursuant to s. 173 of the Strata Properties Act; and

5.         Whether the evidence in the strata manager's affidavit and paragraph 16 and 33 of Ms. Sears' are inadmissible as being hearsay.

 

[25]            The relevant provisions governing the issues read as follows:

4.1       A resident or visitor must not use a strata lot, the common property or common assets in a way that

(a)     causes a nuisance or hazard to another person,

(b)     causes unreasonable noise,

(c)     unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot,

(d)     is illegal, or

(e)     is contrary to a purpose for which the strata lot or common property is intended as shown expressly or by necessary implication on or by the strata plan.

27.2     The council must, if it determines in its discretion that a resident is in repeated contravention of any bylaws or rules of the strata corporation, levy fines and the fines so levied shall be immediately added to the strata fees for the strata lot and shall be due and payable together with the strata fees for the strata lot in the next month following such contravention.

[26]            Section 135 of the Strata Properties Act reads as follows:

(1)        The strata corporation must not

(a)        impose a fine against a person,

(b)        require a person to pay the costs of remedying a contravention, or

(c)        deny a person the use of a recreational facility for a contravention of a bylaw or rule unless the strata corporation has

(d)        received a complaint about the contravention,

(e)        given the owner or tenant the particulars of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant, and

(f)         if the person is a tenant, given notice of the complaint to the person's landlord and to the owner.

(2)        The strata corporation must, as soon as feasible, give notice in writing of a decision on a matter referred to in subsection (1) (a), (b) or (c) to the persons referred to in subsection (1) (e) and (f).

(3)        Once a strata corporation has complied with this section in respect of a contravention of a bylaw or rule, it may impose a fine or other penalty for a continuing contravention of that bylaw or rule without further compliance with this section.

[27]            Section 171 of the Strata Properties Act reads as follows:

(1)        The strata corporation may sue as representative of all owners, except any who are being sued, about any matter affecting the strata corporation, including any of the following matters:

(a)        the interpretation or application of this Act, the regulations, the bylaws or the rules;

(b)        the common property or common assets;

(c)        the use or enjoyment of a strata lot;

(d)        money owing, including money owing as a fine, under this Act, the regulations, the bylaws or the rules.

(2)        Before the strata corporation sues under this section, the suit must be authorized by a resolution passed by a 3/4 vote at an annual or special general meeting.

(3)        For the purposes of the 3/4 vote referred to in subsection (2), a person being sued is not an eligible voter.

(4)        The authorization referred to in subsection (2) is not required for a proceeding under the Small Claims Act against an owner or other person to collect money owing to the strata corporation, including money owing as a fine, if the strata corporation has passed a bylaw dispensing with the need for authorization, and the terms and conditions of that bylaw are met.

(5)        All owners, except any being sued, must contribute to the expense of suing under this section.

(6)        A strata lot's share of the total contribution to the expense of suing is calculated in accordance with section 99 (2) or 100 (1) except that

(a)        an owner who is being sued is not required to contribute, and

(b)        the unit entitlement of a strata lot owned by an owner who is being sued is not used in the calculations

[28]            Section 173 of the Strata Properties Act reads as follows:

On application by the strata corporation, the Supreme Court may do one or more of the following:

(a)        order an owner, tenant or other person to perform a duty he or she is required to perform under this Act, the regulations, the bylaws or the rules;

(b)        order an owner, tenant or other person to stop contravening this Act, the regulations, the bylaws or the rules;

(c)        make any other orders it considers necessary to give effect to an order under paragraph (a) or (b).

[29]            Dealing with the first issue, did the respondent contravene the noise by-law?  Having read through the material adduced by both the petitioner and the respondent and considered the arguments advanced by the petitioner and by the respondent through her outline of argument, I am satisfied on a balance of probabilities that the respondent has contravened the strata corporation's noise by-law by deliberately and repeatedly making loud noises highly disruptive to Ms. Sears' entitlement to enjoy her property with a reasonable threshold of peace and quiet.

[30]            In electing to accept Ms. Sears' version of the events I rely on her careful documentation of extensive and repeated instances of noise emanating from the respondent's suite at hours of the day when the normal noises of living are unlikely to be heard.  I also accept that in her materials the respondent has revealed anger or antipathy towards Ms. Sears for reasons which, although they may seem real to the respondent, are not based on reason.  I also accept that when this petition was launched against the respondent the noises changed and decreased to some extent, reflecting a confirmation that the respondent was indeed responsible for the noises and that she exercised some control over them.  I further accept as corroboration of Ms. Sears' evidence the evidence of Ms. Johnston and Ms. Hamilton and I do not find that Ms. Geoffrey's evidence or that of Ms. Temple or Ms. Lafreniere the basis for even a doubt about the cause, source or nature of the noise complained of. 

[31]            So far as the respondent's evidence of conspiracy is concerned, it, like her antipathy towards Ms. Sears, may be rooted in her beliefs but it is not based on reason or a realistic appraisal of the evidence or facts at issue.  Thus, I find her explanation of the reasons for the complaints brought against her to be fanciful and lacking in reliability and I similarly find her denials of involvement to be unreliable and I reject them.

[32]            On the second issue, whether the court should impose an injunction on the terms proposed by the strata corporation, the respondent submits the court has a discretion to issue the order sought.  It is her submission that there are a number of factors that militate against the court imposing an injunction. 

[33]            Firstly, there has been a delay of some four years between giving notice of an intent to bring proceedings and in issuing the petition, that is, between December 2001 and December 2005.

[34]            Secondly, there is evidence that the noise situation has improved, and here the respondent relies on paragraph 33 of the affidavit of Ms. Sears.  Secondly, that in 2006 it has further lessened, and here the respondent relies on paragraph 34 of the affidavit of Ms. Sears.  Thirdly, the respondent relied on evidence that Ms. Sears for a period was not living in her apartment and that the Johnstons do not regularly inhabit their unit.  Those are the two sources of complaint.

[35]            In my view, the issues raised by the respondent do not individually or collectively justify declining the order sought.  The delay in bringing these proceedings has not prejudiced the respondent.  She has received many warnings concerning her conduct and cannot be said to have been lured into a sense of complacency about what she was doing.  If anything, the delay in proceeding against the respondent was prompted by a concern for her well-being.  The delay could not, in my view, be regarded by any reasonable person as amounting to acquiescence in the conduct which has been complained of, or in giving rise to any meaningful prejudice to the respondent.

[36]            Although there is some evidence that the noise situation has improved, it has clearly not been resolved and it is dependant on the respondent's willingness to become and remain cooperative and abide by the terms of the strata corporation's by-law.  The fact that she failed to appear at one court-ordered cross-examination on her affidavit and left after the other one before it was concluded suggests that if left unaddressed Ms. Grabarczyk's conduct may not only continue but may increase in intensity.

 

 (More)

The Palladain/Palladium (Vancouver): New Home Warranty Program collapses after settling, but before paying leaky condo owners

 

                                               Date: 19990616
Docket: C946094
Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

THE OWNERS, STRATA PLAN VR 2000


PLAINTIFF
AND:

STEPHEN DOUGLAS SHAW, ERIC CAMPBELL,
GEORGE REIFEL, 1705 NELSON HOLDINGS LTD.,
ALLAN MILLIGAN ENGINEERING LTD., SARANGI
AND RODGER CONSULTANTS LTD., THADDEUS YOUNG
carrying on business as SPACEWORKS ARCHITECTS,
and the said SPACEWORKS ARCHITECTS, MIERAU
CONSTRUCTION LTD., WESTCOAST STUCCO INC., GORDON
SPRATT & ASSOCIATES LTD., and
PACIFIC NEW HOME SERVICES, INC. carrying on
business as NEW HOME WARRANTY PROGRAM OF BRITISH
COLUMBIA AND THE YUKON, and the said NEW HOME
WARRANTY PROGRAM OF BRITISH COLUMBIA
AND THE YUKON

DEFENDANTS
AND:

JONET CONSTRUCTION LTD., JEM SUNDECKS LTD.
LEVELTON ENGINEERING LTD.

THIRD PARTIES

REASONS FOR JUDGMENT

OF THE

HONOURABLE MR. JUSTICE VICKERS
(IN CHAMBERS)

Counsel for the Plaintiff: D.F. Sutherland

Counsel for the Defendants,
Allan Milligan Engineering Ltd.,
Sarangi and Rodger Consultants
Ltd., Thaddeus Young carrying on
business as Spaceworks Architects,
and Gordon Spratt & Associates
Ltd.: J.R. Singleton, Q.C. and
S. Robertson

Place and Date of Hearing: Vancouver, B.C.
June 2 & 3, 1999[1] This is an application by the plaintiff pursuant to
s. 10 of the Law and Equity Act, R.S.B.C. 1996, c. 253 seeking
an order:
i) amending the statement of claim to allege a
settlement of the proceedings;
ii) declaring a binding settlement between the
plaintiff and certain defendants;
iii) declaring that the liability of certain
defendants under the terms of the settlement
agreement is joint;
iv) judgment against certain defendants in the
amount of $1,600,000; and
v) costs.

[2] In this action the plaintiff seeks to recover damages
arising out of the construction of a condominium. The
plaintiff alleges construction deficiencies resulting in
extensive water damage. The trial of the action was scheduled
to commence in March of this year. Settlement discussion
between counsel began in or about January 1999.

[3] A mediation, assisted by Mr. Gary Fitzpatrick,
mediator, took place on January 26 and 27, 1999. Prior to
mediation, the plaintiff offered to settle for the sum of $4
million inclusive of costs. In the course of mediation, the
plaintiff offered to settle for the sum of $2.5 million plus
costs estimated at $300,000. In response, certain defendants
offered the plaintiff the sum of $1.5 million. As between
these defendants, contribution to the settlement was to be as
follows:

New Home Warranty $500,000
Spaceworks Architects $510,000
Milligan $210,000
Sarangi and Rodger $100,000
Mierau and West Coast $180,000

[4] Counsel for the plaintiff was aware the total amount
offered was the result of contributions from these defendants.
He was not given the precise breakdown of the offer as noted
above. In addition, he understood the offer was for the sum of
$1,500,000 by all above-noted defendants or, $1.4 million
without the participation of Sarangi and Rodger Consultants
("Rodger and Sarangi").

[5] Prior to mediation, counsel for the defendant Allan
Milligan Engineering Ltd. ("Milligan") delivered a formal offer
to settle in the amount of $4,227.54 to counsel for the
plaintiff.

[6] In the course of mediation, counsel for the plaintiff
was advised that the limits of liability under a policy of
insurance owned by Spaceworks Architects ("Spaceworks") was
$500,000 and that those funds had been committed to the
settlement offer. In addition, during mediation, counsel for
the plaintiff was advised that the limits of Milligan's
insurance policy had also been committed to the settlement and
little, if any, additional funds were available from Milligan
or its insurer. At the same time, counsel for the plaintiff
was also advised that New Home Warranty was making a
substantial contribution in the settlement offer.

[7] I have no difficulty in concluding that at all
material times it was the intent of these defendants that the
obligation to pay was several. Each of them would not have
participated in this offer to settle except upon the
understanding that their contribution was limited to the
amounts set out above.

[8] After the offer of $1.5 million was made, counsel for
the plaintiff advised that a settlement might be achieved at
the level of $1.5 million if costs of $250,000 were paid in
addition. This offer was not acceptable to all of these
defendants.

[9] On January 29, 1999 counsel for the plaintiff and
counsel for Spaceworks had a further discussion in which
plaintiff's counsel disclosed that he was not sure that he
could prove the plaintiff's claim against Milligan and,
accordingly, consideration was being given to accepting
approximately $4,000 earlier offered by Milligan. At this
time, counsel for Spaceworks was not aware that counsel for the
plaintiff had been advised that Milligan's contribution was
near its policy limits.

[10] The parties attended a settlement conference before
Lowry J., on March 1 and 2, 1999. Lowry J. expressed the view
that damages might be assessed at approximately $2.5 million.
He said that for settlement purposes that figure ought to be
discounted by the plaintiff because of the many legal issues
which had to be addressed relating to liability. In the course
of the settlement conference, Lowry J. was provided a list of
the contributors to the offer of $1.5 million as set out in
paragraph 3. Lowry J. advised that the parties who faced the
most exposure had limited resources and that "smaller players"
should not be asked for more than the contribution already
tendered. He referred to the fact that the contractors had no
insurance available to them.

[11] After the settlement conference concluded, counsel
and clients remained in the court house and continued in their
efforts to resolve the matter. At some point in time,
representatives of Mierau and Westcoast Stucco left the court
house and negotiations continued with the representatives of
New Home Warranty, Milligan, Sarangi, Rodger and Spaceworks.
Counsel on behalf of these remaining defendants then made an
offer to settle to plaintiff's counsel in the amount of
$1,405,000. Again, plaintiff's counsel understood that
contributions were to be made by the remaining defendants but
was unaware of the precise amounts which were as follows:

Spaceworks Architects $540,000
Sarangi and Rodger $100,000
Milligan Engineering $210,000
Jonet Construction $15,000
New Home Warranty $540,000

[12] Jonet Construction Ltd. was a third party in the
action, having been joined in the proceedings by New Home
Warranty.

[13] Counsel for the plaintiff then made another offer on
behalf of his client in the amount of $1,600,000, inclusive of
costs. The remaining defendants discussed the offer and
revised the contributions they were each prepared to make
towards the settlement. This final list of contributors was as
follows:

Spaceworks Architects $580,000
Sarangi and Rodger $140,000
Milligan Engineering $250,000
Jonet Construction $50,000
New Home Warranty $580,000

[14] Counsel for the plaintiff was then told the counter
offer was accepted. At that time other terms of the settlement
requiring documentation were discussed. Representatives of the
parties discussed the need to protect settling defendants from
the claims of remaining defendants, the need for a covenant not
to sue, co-operation with the plaintiff in its continuing case
against the contractors and the need for a suitable indemnity.
There was specific reference to a "B.C Ferries" agreement,
preserving the rights of the plaintiff in the continuing action
against the remaining contractors.

[15] The following day, March 3, 1999, plaintiff's counsel
wrote to defendants' counsel who had participated in the
settlement on the preceding day. In that letter, plaintiff's
counsel advised the defendants to forward their "cheque or
cheques" to his firm in trust. Throughout the month of March
letters were exchanged, telephone conversations were held and
the documentation was being settled in an orderly way.

[16] Before the trial was set to commence, the plaintiff
reached a settlement with the remaining defendants, namely,
Mierau and Westcoast Stucco. In his letter to counsel acting
for Mierau Construction Ltd. and the principles of that
company, the plaintiff listed a term of the settlement to
include the joint and several commitment of the company and Mr.
and Mrs. Mierau to pay a sum of money.

[17] During the month of March 1999, several drafts of the
covenant not to sue were exchanged. An issue arose as to the
inclusion of Jonet in the document, counsel for the plaintiff
preferring to exclude that firm and have the settling
defendants document separately their private arrangements with
that firm. In all of the drafts exchanged there was no written
covenant calling on the settling defendants to pay $1.6 million
or any amount of money.

[18] On or about March 30, 1999, New Home Warranty advised
of its intention to seek protection from its creditors. When
it became apparent that New Home Warranty was insolvent, this
dispute arose. Counsel for the plaintiff says the promise to
pay $1.6 million was a joint promise. Counsel for the
defendants entering into the settlement arrangement, except New
Home Warranty, state that the promise to pay was several. In
the alternative, he says the court should imply a term in the
contract of settlement that the promise to pay was several and
in the further alternative, he says no agreement was reached.
Counsel agree that there is no need to set the issue on the
trial list and that on the material before the court, the
matter is capable of resolution. I agree with them in that
regard as there is no conflict on the material portions of the
evidence. The issues for the court to determine are whether
there was an agreement and if so, was the promise to pay $1.6
million joint or several.

 

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The Palladain/Palladium (Vancouver): Court refuses to adjourn scheduled trial; leaky condo owners will not pusue toxic mould claims

 

                                                Date:  19990108
Docket: C946094
Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA


BETWEEN:

THE OWNERS, STRATA PLAN VR 2000

PLAINTIFF

AND:

STEPHEN DOUGLAS SHAW, ERIC CAMPBELL, GEORGE REIFEL, 1705
NELSON HOLDINGS LTD., ALLAN MILLIGAN ENGINEERING LTD.,
SARANGI AND RODGER CONSULTANTS LTD., THADDEUS YOUNG
carrying on business as SPACEWORKS ARCHITECTS, and the said
SPACEWORKS ARCHITECTS, MIERAU CONSTRUCTION LTD.,
WESTCOST STUCCO INC., GORDON SPRATT & ASSOCIATES LTD., and
PACIFIC NEW HOME SERVICES, INC. carrying on business as
NEW HOME WARRANTY PROGRAM OF BRITISH COLUMBIA AND THE YUKON,
and the said NEW HOME WARRANTY PROGRAM OF BRITISH COLUMBIA
AND THE YUKON

DEFENDANTS

AND:

JONET CONSTRUCTION LTD., JEM SUNDECKS LTD., and
LEVELTON ENGINEERING LTD.

THIRD PARTIES


REASONS FOR DECISION

OF THE

HONOURABLE MADAM JUSTICE LEVINE


Counsel for the Plaintiff: D. Sutherland
K. Singer

Counsel for the Defendants, Sarangi & Rodger D. Garner
Consultants Ltd. and Gordon Spratt & Associates Ltd.: C. Hirst

Counsel for the Defendant, Mierau Construction Ltd: R. Wattie

Counsel for the Defendant, New Home Warranty Program: R. Kuhn
M. Prohl

Counsel for the Defendant, Westcoast Stucco Inc.: J. Beggs
Counsel for the Defendants, K. Short
Thaddeus Young and Spaceworks Architects:

Counsel for the Defendant, Milligan Engineering Ltd.: S. Coyle


Place and Date of Hearing: January 5, 1999
Vancouver, B.C.



I. INTRODUCTION

[1] The trial of this action, which concerns a "leaky
condominium", is set to commence March 1, 1999 for 80 days. The
litigation is subject to the case management process for long
trials. The first case management conference was held on
September 10, 1997, when the trial date was set with the
agreement of all parties.

[2] The defendants, Sarangi and Rodger Consultants Ltd. and
Gordon Spratt & Associates Ltd., supported by the other
defendants, apply for adjournment of the trial. They raise the
following issues in support of their application:
(a) There are outstanding appeals of rulings made in
response to interlocutory applications and it is
unlikely the appeals will be heard and
determined before March 1, 1999.
(b) There is no urgency to hear this case.
(c) The defendants are uncertain about the
plaintiff's position concerning claims relating
to toxic mould in the building.

[3] The defendant, New Home Warranty Program, claims that the
case is not ready to proceed to trial because of the issues
identified by Sarangi and Spratt, and raises as a further issue
that a "Scott Schedule" requested by the defendants has not
been completed by the plaintiff in the form agreed to by the
parties.

[4] The plaintiff opposes the application to adjourn. Counsel
says that the case is ready for trial. He argues that it is not
necessary that the appeals be resolved before the trial
proceeds; there is urgency to have the case heard as scheduled;
and the Scott Schedule is moving towards completion. Further,
in his outline for this application, plaintiff's counsel
states:


Provided the action proceeds as scheduled, the
plaintiff will not claim for any damages due to the
health risks associated with mould, nor for damages
associated with precautions in respect of those
risks.


At the hearing of this application, plaintiff's counsel advised
that the plaintiff and owners of strata units would not be
seeking any damages arising from the presence of toxic mould
and he would not rely at trial on any experts' reports relating
to toxic mould. He advised further that at the close of
evidence, the plaintiff and owners will consent to dismissal of
all claims for personal injury relating to toxic mould.

II. PRINCIPLES OF LAW

[5] All counsel are in agreement with the principles
applicable to an application for adjournment. These are stated
in Sidoroff v. Joe (1992), 76 B.C.L.R. (2d) 82 at 84 (C.A.):


...the question of granting an adjournment is a
matter of discretion, it is a discretion that has to
be exercised in accordance with settled principle.
The settled principle is that the interests of
justice must govern whether to grant an adjournment.
The interests of justice always require a balancing
of interests of the plaintiff and the defendant.

[6] The Court of Appeal went on to say that one of the
elements to be considered in balancing the interests of justice
is the expeditious and speedy bringing to a conclusion of
matters. This factor reflects Rule 1(5) of the Rules of Court
which provides that:


The object of these rules is to secure the just,
speedy and inexpensive determination of every
proceeding on its merits.

[7] In Novak v. Bond, [1998] B.C.J. No. 2034 (S.C.) (QL),
Martinson J. said at para 11:


The paramount consideration that must be maintained
in the exercise of that discretion is to ensure that
there will remain a fair trial on the merits of the
action: Cal-Wood Door v. Olma, [1984] B.C.J. No. 1953
(C.A.).

III. DECISION

[8] I have reviewed and considered the submissions of counsel
and the authorities cited and have concluded that the interests
of justice in this case will be served by dismissing the
application for an adjournment of the trial.

IV. ANALYSIS

[9] I will deal in turn with each of the defendants' concerns.

 

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The Palladain/Palladium (Vancouver): Court rules leaky condo case against architects and constuction company can proceed; new owners taken to have the knowledge of previous owners

 

                                                Date:  19980519
Docket: C946094
Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

THE OWNERS, STRATA PLAN VR 2000

PLAINTIFF
AND:

STEPHEN DOUGLAS SHAW, ERIC CAMPBELL, GEORGE REIFEL,
1705 NELSON HOLDINGS LTD., ALLAN MILLIGAN ENGINEERING LTD.,
THADDEUS YOUNG carrying on business as SPACEWORKS ARCHITECTS,
and the said SPACEWORKS ARCHITECTS, MIERAU CONSTRUCTION LTD.,
and PACIFIC NEW HOME SERVICES, INC. carrying on business as
NEW HOME WARRANTY PROGRAM OF BRITISH COLUMBIA AND THE YUKON,
and the said NEW HOME WARRANTY PROGRAM OF BRITISH COLUMBIA
AND THE YUKON

DEFENDANTS


REASONS FOR JUDGMENT

OF THE

HONOURABLE MADAM JUSTICE LEVINE


Counsel for the Plaintiff: D.F. Sutherland


Counsel for the Defendant: S. Coyle
Allan Milligan Engineering Ltd.

Counsel for the Defendants: M. Prohl
Pacific New Home Services Inc.
coba New Home Warranty Program of
B.C. and the Yukon ats New Home
Warranty Program of B.C. and the Yukon

Counsel for the Defendants: K.A. Short
Thaddeus Young coba Spaceworks
Architects ats Spaceworks Architects

Counsel for the Defendant: R.A. Wattie
Mierau Construction Ltd.

Date and Place of Hearing: March 26 & 27, 1998
Vancouver, B.C.

Written Submissions Received: April 20, May 1, 4, 6
& 11, 1998




I. INTRODUCTION

[1] On November 10, 1994, the plaintiff commenced this action
for damages with respect to alleged construction deficiencies
in the condominium development known as the Palladian, located
in Vancouver, B.C. The condominium development was constructed
starting in March 1987 and was declared substantially complete
on December 4, 1987. The defendant contractor, Mierau
Construction Ltd., and the defendant architects, Spaceworks
Architects, plead in their defence that the action is statute-
barred and rely upon the provisions of the Limitation Act,
R.S.B.C. 1996, c. 266.

[2] The plaintiff applies under Rule 34 of the Rules of Court
for the determination of two points of law arising from the
pleadings. These are:
(a) Do the "postponement provisions" in sections 6(3) to
(6) of the Limitation Act apply to this action?
(b) Is the commencement of the limitation period
determined in relation to the strata corporation or
the individual owners of strata units?

[3] Rule 34 provides for the determination of a point of law
before trial with the consent of all parties or by order of the
court. In this case, all of the parties have not formally
consented, but none objected to the procedure. I was invited by
plaintiff's counsel to make an appropriate order after hearing
argument. Having heard the arguments on behalf of the
plaintiff, the architects and the contractor and reviewed
written submissions from these parties and the defendant,
Pacific New Home Services, Inc. (the other defendants not
making submissions), I order that these points of law be heard
and disposed of before trial.

II. POSTPONEMENT
A. The Limitation Act

[4] The provisions of the Act which are relevant to the first
question, whether the postponement provisions apply to this
action, are sections 3(2)(a), 3(5) and 6(3)(b):


3.(2) After the expiration of 2 years after the
date on which the right to do so arose a person may
not bring any of the following actions:

(a) subject to subsection (4)(k), for damages
in respect of injury to person or property,
including economic loss arising from the
injury, whether based on contract, tort, or
statutory duty;

. . .

3.(5) Any other action not specifically provided
for in this Act or any other Act may not be brought
after the expiration of 6 years after the date on
which the right to do so arose.

6.(3) The running of time with respect to the
limitation periods set by this Act for any of the
following actions is postponed as provided in
subsection (4):

. . .

(b) for damage to property;

. . .

[5] Counsel for the defendant architects submits that the
plaintiff's claim against them qualifies for postponement under
section 6(3)(c) of the Act as an action for "professional
negligence". Counsel for the architects submits that section
6(3)(c) also applies to the defendant contractor, which the
contractor disputes. The plaintiff made no submissions with
respect to the application of section 6(3)(c) of the Act to
the architects or the contractor; his submissions were directed
solely to the application of section 6(3)(b). I will limit my
decision to the point raised by the plaintiff: the application
of section 6(3)(b) to this action.

B. The Issue

[6] The question for determination is whether an action for
"damages for injury to...property" is an action for "damage to
property". If it is, there is no postponement available. If it
is not, postponement is available.

[7] Whether the limitation period is two years (under section
3(2)(a)) or six years (under section 3(5)) is not before me on
this application. If no postponement is available under section
6(3)(b), the plaintiff is out of time under both provisions in
respect of those of its claims which are for "damage to
property".

C. Case Law

[8] There is a body of authority in British Columbia that
establishes that "injury to property"


refers to the situation where property is damaged by
some extrinsic act, and not to the situation where a
claim is made for damage occasioned by defects in the
property itself.


(W.C.B. (B.C.) v. Genstar Corp. (1986), 24 B.C.L.R. (2d) 157 at
161-2 (C.A.), citing Alberni Dist. Credit Union v. Cambridge
Properties Ltd. (1985), 65 B.C.L.R. 297 (C.A.)). This reasoning
was adopted in Zurbrugg v. Bowie (1992), 68 B.C.L.R. (2d) 322
(C.A.); Ridley Terminals Inc. v. Mitsubishi Canada Ltd., [1993]
B.C.J. No. 443 (S.C.) (QL); and Privest Properties Ltd. v.
Foundation Co. of Canada, [1995] 10 W.W.R. 385 at 431-3
(B.C.S.C.).

[9] The effect of these decisions is that where the claim does
not relate to direct damage from an extrinsic act or an
identifiable external event, it is not a claim for "injury to
property". The claim does not fall within the two-year
limitation period in section 3(2)(a), but within the six-year
limitation period in section 3(5).

[10] I understand that the plaintiff's claims with respect to
"damage to property" arise not from an external event but from
inherent defects in the construction of the condominium and
will assume that to be the case for the purposes of this
application.

[11] If a claim is not for "injury to property", can it be a
claim for "damage to property" in order to qualify for
postponement under section 6(3)(b)? In Ridley, Holmes J.
considered this question and found at para 27 that "section
6(3) does not apply to inherent defect; only to "damage to
property." That is, he equated "injury to property" to "damage
to property".

[12] The court also considered the question in Privest. Drost
J. concluded at p. 436 that on the facts of that case:


Whatever the different meanings intended by the use
of the phrase "damage to property" (in s. 6) as
opposed to that of "injury to property" (in s. 3), I
am satisfied that this claim is one for the recovery
of pure economic loss, and accordingly, does not fall
within the ambit of either of the two phrases.

[13] Plaintiff's counsel encourages me to distinguish Privest
and reconsider Ridley.

[14] Plaintiff's counsel distinguishes Privest on the basis
that this case is not a claim for pure economic loss. He claims
that the plaintiff's claims for damages in respect of economic
loss resulting from the defects in the condominium are
recoverable because the defects are so serious as to constitute
a potentially dangerous situation (Winnipeg Condominium Corp.
No. 36 v. Bird Construction Co. (1995), 121 D.L.R. (4th) 193
(S.C.C.)).

[15] Plaintiff's counsel argues that in Ridley, Holmes J. did
not consider whether "injury" and "damage" to property are the
same, but assumed that to be so. In Ridley, Holmes J. said (at
para 27) that:


I have previously found the damage to be caused from
inherent defect and rejected it occurred as a result
of "damage to property".


Plaintiff's counsel points out that in the previous decision
referred to (Ridley Terminal Inc. v. Mitsubishi Canada Ltd.,
[1993] B.C.J. No. 443 (S.C.) (QL)), Holmes J. had decided that
the claim in respect of inherent defect was not in respect of
"injury to property", within the meaning of section 3(2)(a)
(then section 3(1)) of the Act. He did not expressly decide
that it was not the result of "damage to property".

[16] Plaintiff's counsel argues that as a matter of statutory
construction, different words used in the same statute should
be given different meanings. He says that Holmes J. failed to
recognize that the test for "injury" is narrower than that for
"damage" to property, as stated by McLachlin J. in W.C.B. at p.
162:


Whether the action is brought in contract or tort,
damage is an essential element of it. The question in
each case in whether that damage comes within the
phrase "injury to property".

[17] Plaintiff's counsel argues further that if Ridley is
correct, if the limitation period runs from the date the
contract for the delivery of property is complete and there is
no knowledge of an inherent defect in the property for six
years, no action can be brought. He submits that this runs
counter to the policy considerations enunciated by McLachlin J.
in W.C.B. at p. 162:


Policy considerations support the conclusion that
"injury to property" refers to damage caused by an
identifiable external event. A short limitation
period of two years is appropriate where the claim is
based on an event which causes direct injury to
property. Such a short limitation period may not be
appropriate for a claim based on defects in the
property which may not manifest themselves clearly
for some time, even though with the benefit of
hindsight one may be able to say that their onset was
revealed at an earlier date.



[18] It is anomalous and inappropriate, according to
plaintiff's counsel, that the decisions interpreting section
3(2)(a) of the Act, which have the effect of lengthening the
limitation period for actions in respect of inherent defects
from two to six years, should be applied to limit the
limitation period by excluding the postponement provisions.

[19] Plaintiff's counsel points out that in W.C.B., the Court
of Appeal agreed with the chambers judge that the issue of
postponement was to be decided at trial, and argues that, by
implication, this supports his position that postponement is
available for an action in respect of inherent defects although
the action is not for "injury to property".

[20] "Damage" and "injury" are defined in Black's Law
Dictionary, Fourth Edition, as follows (at p. 466):


DAMAGE. Loss, injury, or deterioration, caused by the
negligence, design, or accident of one person to
another, in respect of the latter's person or
property. The word is to be distinguished from its
plural,--"damages,"--which means a compensation in
money for a loss or damage. An injury produces a
right in them who have suffered any damage by it to
demand reparation of such damage from the authors of
the injury. By damage, we understand every loss or
diminution of what is a man's own, occasioned by the
fault of another....The harm, detriment, or loss
sustained by reason of an injury.

INJURY. Any wrong or damage done to another, either
in his person, rights, reputation or property....An
act which damages, harms, or hurts.

[21] There is an obvious overlap between the definitions of the
two words. They may be and often are used synonymously. But I
can see no logical reason why that should be assumed to be the
case here. From the definitions quoted above, it appears that
"injury" is used to connote an act, something that is done to
another. Certainly that is the judicial interpretation: "injury
to property" means damage caused by an extrinsic act. The
damage is the result of the injury -- loss, deterioration, or
diminution. The specific type of damage may or may not be
recoverable at law. In Privest the court found that it was not.
Arguably, that is also the explanation for the result in
Ridley, though Holmes J. did not express his conclusion in that
manner. McLachlin J. recognizes this distinction when she says
in W.C.B., at p. 162, that "the question is "whether the damage
comes within the phrase 'injury to property'".

[22] The effect of the authorities is that the limitation
period for an action that is not an action for damages for
"injury to property" is six years and the postponement
provisions available for actions for "damage to property" do
not apply. I am bound to follow the decisions of other judges
of this court unless I find that subsequent decisions have
affected the validity of their decisions, they did not consider
binding authority or the judgment was unconsidered (Re Hansard
Spruce Mills Ltd. (1954), 13 W.W.R. (NS) 285 (B.C.S.C.)).

[23] On my reading of the courts' reasons in Privest and
Ridley, neither court addressed the question of whether there
is a distinction in meaning between "injury" and "damage" to
property in the context of sections 3(2)(a) and 6(3)(b) of the
Act. Nor did either court provide any reason or justification
for the postponement provisions not to apply to actions in
respect of inherent defects in property.

[24] It may be argued that allowing the postponement provisions
to apply to claims in respect of inherent defects will allow
actions to be brought against builders for a time long after
their involvement with the project has ended and result in
uncertainty as to their liability. The legislature has dealt
with this concern under section 8 of the Act by providing an
ultimate limitation period of 30 years. In Bera v. Marr (1986),
1 B.C.L.R. (2d) 1 at 27 (C.A.), Esson J.A. pointed out:


Sections 6 and 8 are obviously designed to work
together with s. 3(1) to provide relief against the
injustice which can be created by hidden facts and,
on the other hand, to provide reasonable protection
against stale claims.

[25] Similar arguments were made in Winnipeg Condominium.
Although that case did not deal with the limitation period, the
Supreme Court of Canada dealt with the argument that allowing
recovery for economic loss for a contractor's negligence for
dangerous construction defects "will subject a defendant
to...'liability in an indeterminate amount for an indeterminate
time to an indeterminate class'." (at p. 217). The Court said
at pp. 219-18:


...no serious risk of indeterminate liability arises
with respect to this tort duty. In the first place,
there is no risk of liability to an indeterminate
class because the potential class of claimants is
limited to the very persons for whom the building is
constructed: the inhabitants of the building....

Secondly, there is no risk of liability in an
indeterminate amount because the risk of liability
will always be limited by the reasonable cost of
repairing the dangerous defect in the building and
restoring that building to a non-dangerous state.

Finally, there is little risk of liability for an
indeterminate time because the contractor will only
be liable for the cost of repair of dangerous defects
during the useful life of the building.

[26] In light of the policy reasons enunciated by the Supreme
Court of Canada in Winnipeg Condominium for allowing recovery
for economic loss for dangerous defects, it would be anomalous
if an action in respect of a defect which the plaintiff alleges
is dangerous was statute-barred before the plaintiff had
knowledge of it, on the grounds that the defect is not "damage
to property".

 

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