Regatta, Vancouver: Polygon's Regatta (formerly named San Remo and Venice Court) condo project damaged by leaks and rot

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Owners, S.P. VR 2402 v. R. 118 Developments Inc. et al

 

2004 BCSC 903

Date: 20040706
Docket: C996431
Registry: Vancouver

Between:

The Owners, Strata Plan VR 2402

Plaintiff

And:

R. 118 Developments Inc., R. 120 Developments Inc.
and Grand Adex Developments Ltd. doing business as The Grand Adex Group,
R. 120 Developments Inc., Grand Adex Developments Ltd., Polygon Ventures Limited,
Cheung Kong Real Estate Agency Limited, Lawrence Doyle doing business as
Hamilton Doyle & Associates, the said Lawrence Doyle, Paul Loewen & Associates Ltd.,
Pro Pacific Management Ltd., Starline Windows Ltd., CMJ Heating Ltd. and
191766 Holdings Ltd. previously known as Seymour Drywall (1979) Ltd.

Defendants

And:

Peter Ross Limited and John-Charles Ltd.

Third Parties

 

 


Before: The Honourable Madam Justice Baker

Reasons for Judgment

(In Chambers)

Counsel for the Plaintiff

Robert L. Lesperance
& Sandra Stolz

 

Counsel for the Defendants, R. 118 Developments Inc., R. 120 Developments Inc. and Grand Adex Developments Ltd.

 

Charles F. Hough

 

Counsel for the Third Party, Peter Ross Limited

 

Patrick T. Gordon

Counsel for the Respondents, Pacific Skylights Ltd. and Marzen Artistic Aluminum Limited

 

David J. Bilkey

 

Counsel for the Defendant, Polygon Ventures Limited and the Respondents, Mara Properties Ltd. and Polygon Services Ltd.

 

Elizabeth Lui
& Terence W. Yu

Date and Place of Hearing:

February 26

& March 2, 2004

 

Vancouver, B.C.

[1]            The plaintiff applies to add the following 10 companies or businesses as defendants in this action:  Peter Ross Limited, Vancouver Foundation Spray and Waterproofing Ltd., Marzen Artistic Aluminum Ltd., Pacific Skylights Ltd., Viron Construction Ltd., Mara Properties Limited, Polygon Services Ltd., John Doe Flashing Installer, John Doe Window Installer and John Doe Caulking Contractor.  The plaintiff also seeks to amend the statement of claim to include claims against these proposed defendants. 

[2]            The plaintiff relies on Rule 15(5) of the Rules of Court.  The relevant subsections are 5(a)(ii) and (iii) which provide:

(5)(a)      At any state of a proceeding, the court on application by any person may

   (ii)     order that a person, who ought to have been

joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added or substituted as a party, and

(iii)     order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connection

(A)     with any relief claimed in the proceeding,

 or

(B)     with the subject matter of the proceeding,

which in the opinion of the court is would be just and convenient to determine as between the person and that party.

[3]            On this application, the plaintiff relies primarily on sub-rule 15(5)(a)(iii).

[4]            Of the existing defendants, only R. 118 Developments Inc., R. 120 Developments Inc, Grand Adex Developments Ltd., and Starline Windows Ltd. appeared through counsel.  Counsel for R. 118, R. 120 and Grand Adex took no position on the application.  Counsel for Starline also appeared on behalf of proposed defendants Pacific Skylights Ltd. and Marzen Artistic Aluminum Ltd.  Starline took no position on the application to add those defendants, although both of the proposed defendants oppose the joinder application.  No other defendants appeared and those who filed written responses indicated they took no position on the application.  I presume, therefore, that none of the existing defendants are concerned that the addition of these new defendants will adversely affect the proper and timely conduct of the action.

[5]            One of the proposed defendants - Vancouver Foundation Spray and Waterproofing Ltd. - did not appear and did not oppose the application and I order that it be joined as a defendant.

[6]            No one appeared, of course, on behalf of the three proposed “John Doe” defendants.  If and when an application is made to substitute an identified party for a John Doe party, submissions may be made by any proposed substituted defendant. Therefore, the primary issue on this motion is whether the addition of “John Doe” defendants is likely to prejudice efforts by the present defendants to get this action to trial in an efficient and timely manner.  Plaintiff’s counsel said that the plaintiff expects to identify the John Doe defendants from the documents of the other proposed defendants.  To address the concern that the later substitution of identified parties for the John Doe defendants might delay the trial, I order the addition of the John Doe parties, but on the basis that the John Doe parties must be identified and an application brought to substitute any identified party no later than October 31, 2004.  That date should give the plaintiff sufficient time to identify the John Doe defendants if they exist, and bring an application for substitution.

[7]            The remaining six proposed defendants oppose the plaintiff’s application.

[8]            The members of the plaintiff strata corporation are the owners of units in a condominium complex known as “The Regatta” in Vancouver, British Columbia.  Construction of the complex was completed in 1989 and owners moved into units starting in 1989.  The complex is composed of two four-storey wood frame buildings. 

[9]            Water ingress problems were reported by some residents soon after the complex was occupied, and repairs were effected at various times over a period of several years.  In 1995, the owners passed a special resolution to assess a special levy of $150,000 to paint the interior and exterior of the buildings, and upgrade the lobbies.  Mr. Church, a representative of the plaintiff deposed that this was considered routine maintenance.

[10]        There were a series of problems with the building after 1995 – including roof bubbling, deteriorating deck membranes, cracking caulking and stucco cracks.  In 1996, there were problems with water leaking into 4th floor units and further roof repairs were done.  In January 1998, walls adjacent to the 4th floor walkways were opened up and dry rot was discovered in many areas.  It was at this point that it was recommended to the owners that a building envelope review be done by a structural engineer.  An engineering firm was retained to investigate the cause of water ingress and a Building Envelope Condition Assessment Report was prepared on March 10, 1998.  The plaintiff says that it was this report that told the owners that the problems they had been experiencing were caused by construction deficiencies and that the deficiencies had led to structural damage to the buildings.  This report stated that there had been significant water penetration into the exterior walls of the buildings.  The report attributed the water ingress to deficiencies in the design and construction of the buildings.  Between March and September 1998, further investigations were done, and the owners were advised that the extent of the deficiencies and damage was greater than originally anticipated.  A permit to do remedial work on the building was obtained from the City of Vancouver on July 14, 1998 and the permit was amended later that year.  The remedial work commenced in November 1998 and was completed in July 2000.

[11]        The plaintiff says that it was not until the owners received the March 10, 1998 assessment report, and had an opportunity to consider its ramifications, and obtain legal advice, that the limitation period began to run.  The defendants submit that the limitation period began to run earlier, when problems with water ingress in some parts of the building were first identified and addressed.

[12]        On December 7, 1999, the plaintiff filed a writ of summons and statement of claim naming as defendants, R. 118 Developments Inc., R. 120 Developments Inc. and Grand Adex Developments Ltd. doing business as the Grand Adex Group, R. 120 Developments Inc., Grand Adex Developments Inc., Polygon Ventures Limited, Cheung Kong Real Estate Agency Limited, Lawrence Doyle doing business as Hamilton Doyle & Associates and the said Lawrence Doyle.

[13]        John Church, one of the owners of a strata unit in the building, provided an affidavit on behalf of the plaintiff in support of the joinder application.  He deposed that when the action was commenced, the plaintiff did not know that the stucco contractor, flashing installer, membrane installer, inspectors, caulking contractors, mechanical contractor, window supplier, window installer, structural engineer, or framing contractor, were responsible for the deficiencies.

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