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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