Princess Gate, Coquitlam: A Case Study by Anonymous

The Leaky Condo Case Study below was extracted from

Dr. James Balderson, aka, Dr. CondoRot, was in attendance when the submission was made to the Public Inquiry known as the Barrett Commission. is pleased to provide the following  information:

The name of the leaky condo complex is Princess Gate.

Princess Gate is located in Coquitlam, British Columbia.

Princess Gate is one of many leaky condo developments by Polygon.

The name of the author, although known to this writer, is not presented here because he prefers to remain anoymous to the public at large.



Dear surfers:

Below, you will find a submission made to the Barrett Commission on leaky condominiums from a strata corporation in British Columbia. The strata council of this complex has been kind enough to give permission to present this report to our readers. We have, however, deleted the name of the complex, strata number, and the name of the developer in order not to bring adverse publicity to the Owners.


Please read this report. We're sure you will find it quite thought provoking. is also considering a "chat line" on the site. Please E-mail us if you would be interested in this free service.


Technical, Financial and Social Impact Submission Paper to the Barrett Commission.


  • We are legally registered and identified as Strata Corporation LMS 000. Ours is a multi-residential building built at an approximate capital cost of $14,350,000, by "ACME" Developments Ltd. on approximately 6 acres of land. This structure was a showcase multi-residential facility, targeted and built specificallly for an age group of 45 and older in a suburb of British Columbia. It was built close by to featured amenities and was resplendant in it's reputation as a quality lifestyle condominium development.

  • We have identified that we have water ingress throughout our building envelope that is acutely damaging the structural integrity of the building. We have also identified certain irregularities in the building foundation that upon close examination, may prove to be an additional impairment to the structural integrity of the building.

  • We have and continue to exercise due diligence in or assessment and approach to making our building structurally sound and in our investigation of technologies that will solve the problem of water ingress through what has been described as a poorly constructed, inappropriate architectural features of our building. The strata corporation is encountering significant difficulty obtaining plans, specifications, and other relevant technological data rom the developer/builder also referred to as the "Acme Group/Acme Developments Ltd." "Acme Developments Ltd.[the company formed to develop this strata corporation] is no longer an active company.

  • Council is considering its options at this time with respect to recovery of costs and unspecified damages, however council being cognizant of its responsibilities both legally and morally, is applying due diligence in as much as undertaking the rehabilitation of the facility. Council is of the opinion that our obligation is to rehabilitate the facility and not wait for any results that may be in our favour as a result of the findings of the commission and our pending legal actions.

Technical Component.
  • The strata corporation is a wood framed building built on a typical low rise multi- residential concrete foundation that includes a below grade parkade. The architectural style is Georgian. The exterior cladding system is principally stucco/mesh/tyvek/oriented stranboard over untreated dimensional green lumber, presumably hemlock or fir. The roof system is principally tar and gravel, with the balance being painted corrugated steel. The structure is complicated by Georgian influenced architectural details that are not indigenous to the West Coast of British Columbia. These details would impose a severe challenge under ideal conditions, to even the most experienced professional tradesman. Give that the influencing factors for developers in the condominium market are: location, price and cost to bring to market. It is now painfully clear that in the building of LMS 000 we had a recipe for inattention to detail, poor workmanship, lack of supervision, lack of inspection by competent personnel and civic authorities.

  • The 187 unit complex was built in two phases. Phase 1 was completed in the spring of 1993. Fire completely destroyed the initial Phase II of wing shortly after lock-up was initiated. Phase II was subsequently completed in the fall of 1994. Purchsers of Phase I bought their suites site unseen. A similar site developed by "Acme" in another suburb of the lower mainland, was proffered by the developer as the model of quality that purchasers could expect to discover at our strata corporation when they moved in. Interestingly enough, we have it on competent authority that this other development has been repaired twice up until now and need to be repaired for a third time at a staggering cost to the remain- ing owners. We understand that the strata corporation is considering litigation.

  • For various reasons Council became suspicious that a problem may exist with the building envelope. After some discussion Council elected to investigate the building envelope for moisture content. The contractor selected probed the building envelope utilizing semi- invasive technology and provided conclusive evidence of moisture and humidity levels in excess of tolerable limits in a number of locatins around the building perimeter. Upon receipt of the investigatin report, Council further commissioned full exposure of' suspected "hot spots" that warranted further investigation. Utilizing fully invasive technology the contractor exposed the suspect areas of the building envelope and discovered structural damage in the form of wood rot in various stages of development caused by ingress of water from unknown sources.

  • Investigation and observation of the building exterior has given rise to much speculation as to the areas of the structure that could provide access for rain water and ground water to penetrate the cladding system. Flashing, conspicuous by its absence, on horizontal stucco details are immediately suspect. We have a proliferation of such architectural details present in our building design. Failure of caulked seams and joints is also cited as a potential for water ingress and is strongly suspected. Window details are suspect as are balcony details. In addition anywhere that two walls meet is also a concern. It is also suspected that improper drainage and possibly inappropriate civil design or lack of due consideration to locally influenced, seasonal hydrological events has contributed significantly to the problem. Lack of full consideration for these signficant design components may be providing for collection of ground water into pools which then wich up the wall structure.

Financial Component.
  • Residents have been recently informed of a cost estimate submitted by the contractor for repair of the exterior envelope. The repair estimate is formatted in a best case worst case scenario. The average worst case cost per resident approaches $10,000/suite. The cost estimate submitted does not reflect any potential cost recovery from "Acme" who acted as both the developer and the builder or potential cost recovery from the home warranty program. This cost estimate also does not take into consideration any third party costs for engineering, specification writing, drawings, bid process, inspection, permits or structural repair to the building foundation.

Legal and Other Considerations.
  • Developers, builders, architects, the warranty program, insurers and other participants in condominium building programs count on the fact that condominium councils are not equipped to identify building code violations, poor workmanship, inappropriate coordination of trades or other factors that contribute to water ingress to the building envelope. They also count on the fact that very few strata councils have the knowledge and stamina to issue a writ or engage in protracted legal battle.

  • Many developers quite often practice coercion, intimidation and council infiltration tactics in order to stem legitimate complaints. It is not uncommon practice for the developer to retain a number of suites in a building and then populate those suites with sympathetic owners who have been profoundly encouraged, by the granting of favours either during construction, or upon purchase of their home. Some of these owners may even be, upon close examination, found to be directors or employees of the developer.

Psychographic Profile.
  • While there is a range of age groups at our strata corporation, it was marketed and sold as a 'mature lifestyle' development. That meant you had to be aged 45 or older to purchase here although the average age is older. We have many amenities such as an English style pub, a social lounge, a crafts room, a woodworking shop, a grandchildern's playroom, a swimming pool, and a hot tub. There is an active social committee that arranges various regular activities for our residents such as Whist, poker, bingo, movie nights, pub nights, dances, etc. Many of our senior residents sold their family home and purchased here to enjoy a carefree, active social life in their senior years. Ironically, although we have all the makings of the real community we thought we had bought into, we have instead become individual combatants in a war that can have no winner. Something that none of us expected when we purchased our homes.

  • Many of our residents, both our seniors and those who are still working, will find it extremely difficult, if not impossible, to find the money to pay the large assessments that we may shortly receive. Most of our seniors are on fixed incomes and have no prior experience with condominium living. Some suffer from ill health and/or disabling conditions. In general, they find it difficult to understand how a four year old, multi-million dollar building, built by a supposedly reputable developer, could have problems of this magnitude. They don't understand how you can have afive year home warranty program that does not cover the costs of the needed repairs.

  • Much like when one receives a diagnosis of terminal illnesses, our residents are each in various stages of grief such as denial, anger, sorrow, only a very few have achieved acceptance of our current situation. This has created an atmosphere of distress resulting in friction between owners, accusations and threats being made by one another, and assertions made by some that they will not pay any assessments. Regretfully, the Condominium Act requires us to perform due diligence and make the necessary repairs.

  • The current state of confusion, disbelief, anxiety, and tension has resulted in a distrust of the Strata Council, the property manager, and of each other. In a time when we all need to pull together and support each other, we are instead threatened by the enemy within; an unstable chaotic state of paranoia.

Demographic Profile.
  • Of the 187 strata units in our complex, one is owned by the Strata Corporation. It was originally used to house a resident building manager. It is presently being rented out at the current market rate. The assessment for this unit will e an additional burden to the owners.

  • The complex was the first of four two-phased developments to be built on this cul-de- sac by the same developer. Subsequently, a fifth two-phase complex was built directly behind us once again by the same developer. Some residents of our neighbouring complexes have told us that they have no money to undertake an investigation of their buildings. It is reasonable to assume that they too will be forced to experience financial burdens similar to ours in the near future.

  • There are currently nine suites listed for sale in our complex. All were listed before we knew we had a problem in our building. Realistically, the owners of these suites have no hope of finding a buyer. At least one of these suites is for sale due to a job related relocation.

Local Economic Impact.
  • Our complex is located in close proximity to major shopping malls. It is also close to recreational/educational and enteratainment facilities. We are one of five complexes in close proximity and it is estimated that in combination that they introduce $500,000/ month into [the] local economy. It is reasonable to assume that all of these strata corporations will face similar water ingress issues to our building. In that event, it is quite likely that the local economy will suffer from the immediate loss of disposable income.

  • The average yearly property taxes paid by each individual suite owner is $1200.00. Using that average our residents have contributed $11,000,000.00 to the municipal coffers over the past five years. We will be petitioning our City council for a reductionin our tax assessment because of the reduced market value of our homes caused by our current situation.

B.C. Economic Impact.
  • The ripple effect of this crisis is incalculable. It is an enormous problem. Almost beyond comprehension. We have attempted, however, to list some of the more strikingly obvious effects in this submission.

  • The current "leaky condo" crisis is basically having the effect of freezing the real estate market. The normal progression in the housing market is that, a condominium owner moves up to a townhouse, a townhouse owner moves up to a house. Conversely, many house owners sell their family home to purchase a condominium for the quiet enjoyment of their senior years. With the much needed publicity surrounding the drama associated with this crisis purchasing a condominium has become something no one with any small degree of mental agility would consider. This effectively breaks the cycle.

  • The ripple effect is felt by Realtors, Financial Institutions, moving companies, department stores, decorating services and so on. All of [the] levels of commerce and business will be affected by the current situation. In addition, the government will lose significant tax dollars normally collected from thePST and GST on the sale of products and services. There will also be a loss of revenue from a resultant decline in collection of the property purchase tax.

  • The loss of confidence in the competence of our building trade workers and the many Developers involved in the building industry will have far-reaching and long-term impact. There are currently thousands of people employed in the building industry, all of whom have families to support and bills to pay. Fewer sales will translate to loss of earning and purchasing power. The Governments of The Province of British Columbia and Canada will also lose much needed Provincial and Federal Income Tax dollars.

  • Many individuals living through this nightmare will suffer from some form of stress- related physical or cognitive health problems. This will place an increased burden on our over-taxed healthcare system and result in reduced productivity as condominium owners take advantage of workplace policies that provide for stress-related absenteeism.

  • In our age of instant communication and a shrinking global village, prospective investors, and those seeking to relocate to Canada, will be reluctant to consider B.C.

  • It is clear that the impact of the 'leaky condo crisis' will extend far beyond the private hardship of the individual homeowners affected. It will affect citizens who are many steps removed from the tragedy.

  • Developers should not be able to set up shell companies that they then shut down when all the units have been sold. This leaves the purchaser with no one to seek redress from in the event of a problem, even when they know the principals of that shell company are continuing to profit under another name.

  • There should be a halt to the issuance of any further occupancy permits to Developers until the Developers have repaired all their problem buildings to an approved remediation standard. They should not be allowed to continue to make a profit when they are responsible for the financial ruin of tehir former customers.

  • The industry should not be allowed to self-regulate. There has been nothing stopping them from doing that prior to these hearings. They have proven themselves unworthy of our trust.

  • There should be an independent, mandatory Alternative Dispute Resolution process for every Developer and the applicable Strata Councils.

  • There should be three separate districts in B.C. for building codes.

  • Every Developer should have to post a performance bond equal to a certain percentage of the overall building cost. This bond should be held in trust for a period of ten years. This bond would be available to the Strata Corporation in the event of building defic- iencies such as water ingress.

  • Under Section 123 of the Condominium Act a Developer must call the first annual general meeting of the Strata on the earlier of the date on which 60% of the strata lots have been sold or a date 9 months after registration of the strata plan. This situation results in the developer having control of the business at that meeting as he has more votes than any other homeowner. Developers should not have voting rights at any Strata meeting.

  • The home warranty program has proven itself to be utterly useless and should be replaced with a government regulated warranty program.

  • The companies that are now reaping a windfall from the horrors of this situation should be the first to be regulated. There are too many stories of strata's that have had to go through this nightmare two and three times due to incompetent work.

Final Comments.
  • This crisis is proving to be one of enormous proportion. Mr. Dave Barrett commented to many homeowners who took thetime to speak at the public hearings he presideded over "this is not your fault, you did nothing wrong." It is not our fault and we did nothing wrong! We don't want low interest loans or tax breaks! We want those responsible, those who profited when they sold us our homes and governments who insisted on a building code that is inappropriate to our environment, to correct the problem.

  • When you buy a new car and it is determined to have a "design defect", the manufacturer usually issues a recall and then proceeds to fix the problem. Whout any cost to the car owner! If they fail to do so, government will step in and enact legislation to protect the consumer. Why is it that when the problem is related to the roof over our heads those in the building industry have the audacity to blame the buyer for not making themselves aware of the potentials of the problems associated with the building code, etc.? The buyers are victims in this instance and for some unknown reason the Developers have adopted a policy that expects each victim to pay.

  • Will our Provincial and Federal government wait until this problem drives someone to an irreversible desperate act before they take action right the worng done to its citizens? Lets hope they don't wait to find out.


The Madison (Coquitlam): Court rules leaky condo owners waited too long to sue window manufacturer




The Owners, Strata Plan LMS1212

v. City of Coquitlam et al





2005 BCSC 245



Registry:  Vancouver


Oral Reasons for Judgment
Master Barber
January 26, 2005






formerly Polygon Group Limited, POLYGON TOWN CENTRE
DEVELOPMENT LIMITED, formerly Polygon Development VII





Counsel for Plaintiff

V.P. Franco

Counsel for Proposed Defendant

J. Doyle

[1]                 THE COURT:  This is an application by the plaintiff to add NAP Building Producers, who was a window supplier for this building which comprises of 71 residential units in Coquitlam. 

[2]                 The building was built and completed between ’93 and March of ’94.  It is conceded that the company provided windows for the building.  Leaks were noticed almost immediately in the building in other areas other than the windows.  And there was some remedial work done by Polygon.  At any rate, by September of 1998 there was some concern about the windows, which concern was evidenced in the report that was done at that time by Morris & Hirschfield Limited.  It is in the material found at Exhibit B to the affidavit of C. Friesen sworn April 27th, 2004.  The comment with respect to the windows, doors and other wall penetrations is found at page 16 and following.  And there on page 17 it says,


The Madison (Coquitlam): Michael Audain loses in court; Winchester Investments added as defendant in leaky condo suit against Polygon companies



The Owners, Strata Plan LMS 1212 v. Winchester Investments Ltd.,


2004 BCCA 500

Date: 20041001

Docket: CA032139


The Owners, Strata Plan LMS 1212




Winchester Investments Ltd.






The Honourable Mr. Justice Smith

(In Chambers)


R.L. Basham, Q.C.

Counsel for the Appellant

V.P. Franco

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

9 September 2004

Place and Date of Judgment:

Vancouver, British Columbia

1 October 2004


Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]            This is an application for leave to appeal from an interlocutory order by which the Chambers judge added the appellant as a defendant pursuant to Rule 15(5)(a)(iii) of the Rules of Court.

[2]            I observe at the outset that the impugned order was discretionary and that leave to appeal such an order will be granted only where the order is clearly wrong, a serious injustice will occur, or the discretion was not exercised judicially or was exercised on a wrong principle: Strata Plan LMS 2019 v. Green, [2001] B.C.J. No. 741 at para. 6 (QL), 2001 BCCA 286, Proudfoot J.A. (In Chambers); Yang v. Yang, [2000] B.C.J. No. 1765 at para. 3 (QL), 2000 BCCA 486, Saunders J.A. (In Chambers).

[3]            The appellant has the burden of establishing the necessary conditions for leave.  They are described by Saunders J.A. in Goldman, Sachs & Co. v. Sessions, [2000] B.C.J. No. 998 at para. 10 (QL); 2000 BCCA 326 (In Chambers):

[10]  The criteria for leave to appeal are well known.  As stated in Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.) they include:

(1)  whether the point on appeal is of significance to  the practice;

(2)  whether the point raised is of significance to the action itself;

(3)  whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and

(4)  whether the appeal will unduly hinder the progress of the action.

[4]            In the appellant’s memorandum of argument, it states the point in issue in this way:

The learned Chambers Judge erred in law and was clearly wrong in deciding that there was some evidence to establish a possible partnership between Winchester Investments Ltd. (the “Appellant”) and Polygon Town Centre Development Ltd. and Polygon Construction Ltd. sufficient to add the Appellant as a Defendant to the proceedings.

[5]            Before discussing that issue, I will deal with a second issue raised during oral submissions by counsel for the appellant that she urged should be considered on the basis of its general importance.  The question is whether an application to add a party under Rule 15(5)(a)(iii) may be granted on the basis of pleaded allegations alone, or whether the applicant has the burden of establishing by affidavit evidence that a real issue exists between it and the proposed new party.  Counsel for the appellant submits that there are conflicting decisions on the point in the Supreme Court.  She wishes to argue that the cases holding that no affidavit evidence is required have been decided incorrectly.

[6]            However, as counsel for the respondent points out, the Chambers judge did not grant the application in this case on the basis of the allegations in the proposed amended pleading; rather, she relied on filed affidavits to reach her decision.  She said:

[14]  There is evidence before me through affidavits as to the existence, or not, of an issue between the parties.  As a result, I do not find it necessary to delve into the legal debate as to whether evidence is required on an application under Rule 15(5)(a)(iii).  I am satisfied that the plaintiff has put forth some evidence to take this matter beyond a bare assertion contained in the pleadings, as alleged by Winchester.

[7]            Thus, the issue identified by the appellant does not arise in this case and, for that reason, I refuse leave to appeal on this issue.  However, as counsel for the appellant stressed the general importance of the question, I add, as a matter of interest, that leave to appeal has been granted on this issue in The Owners, Strata Plan LMS 1816 v. Acastina Investments Ltd. and Marjon Investments Ltd. (16 July 2004), Vancouver Registry, CA032029 (C.A.), a case in which the chambers judge added a party on the basis of pleaded allegations alone and rejected the submission that affidavit evidence was necessary.  The appeal is set for hearing next month.

[8]            I turn now to the issue as framed in the appellant’s memorandum of argument.

[9]            The action may be described as a “leaky condo” case.  The owners of a building known as "The Madison" claim damages for breach of contract and negligence; they allege that construction deficiencies resulted in water damage to The Madison.  The action, as it was initially constituted, included as defendants Polygon Town Centre Development Limited (previously known as Polygon Development VII Limited) and Polygon Construction Ltd.  The plaintiff claimed against the Polygon companies as "the developer and general contractor for The Madison". 


The Madison (Coquitlam): This is another Polygon leaky condo case; court orders Winchester Investments Ltd. added as a defendant



The Owners, Strata Plan LMS 1212 v. Coquitlam (City of) et al.,


2004 BCSC 852

Date: 20040625
Docket: L013696
Registry: Vancouver


The Owners, Strata Plan LMS 1212



City of Coquitlam, Polygon Town Centre
Development Limited (previously known as
Polygon Development VII Limited),
Polygon Construction Ltd., Graham F. Crockart,
Graham F. Crockart, Architect Inc. and
John Doe One through John Doe Nine


Before: The Honourable Madam Justice Dillon

Reasons for Judgment

Counsel for the Plaintiff

V.P. Franco

Counsel for the Defendants

R. Basham, Q.C.

Date and Place of Trial/Hearing:

June 17, 2004


Vancouver, B.C.


[1]            The plaintiff seeks to add two parties to this action, John Doe Ten, and Winchester Investments Ltd., formerly known as Polygon Group Limited.  The application to add John Doe Ten is allowed as there was an error in the numbering on the writ of summons.

[2]            The application to add Winchester Investments Ltd. (hereafter “Winchester”) is based on Rule 15(5)(a)(iii) of the Rules of Court.  The plaintiff seeks to add Winchester to plead that Winchester acted as developer and general contractor of “The Madison”, a 71 residential unit condominium owned by the plaintiff and located at 2990 Princess Crescent, Coquitlam, B.C.  The plaintiff also seeks to plead that Winchester, as one of the “Polygon defendants”, “was at all material times a partner together with the other Polygon Defendants in a partnership and their businesses were inextricably interwoven together as a partnership, in that each of the Polygon Defendants carried on the business of real estate development and construction, including, without limitation, the design, development and construction of The Madison, in common with each other with a view to a profit, under the name of “Polygon” and maintained for that purpose a common office at 1800 Spyglass Place, Vancouver, British Columbia, V5Z 4K8.”

[3]            The plaintiff claims against all Polygon Defendants for breach of contract, negligence, breach of duty of care, negligent misrepresentation, breach of warranty and breach of duty to warn.

[4]            Winchester opposes the application and says that there is only a bald assertion of a partnership between Winchester and the Polygon Defendants, so that the plaintiff has failed to establish a cause of action against Winchester.  Winchester further says that if there exists a real issue or question to be tried, it is not just and convenient in all of the circumstances for Winchester to be joined.

Background Facts

[5]            The plaintiff is a Strata Corporation commonly known as Harbour House and located at 2990 Princess Crescent, Coquitlam, British Columbia (the “Madison”).  The Madison consists of 71 residential units and was constructed between July 1993 and March 1994.  Complaints of leaks were noted as early as April 26, 1994.  Throughout 1994, 1995, 1996, and early 1997, the Strata Corporation relied upon the Polygon Weather Shield Warranty to deal with the water leaks that had appeared.  Because the efforts of the developer and general contractor failed to adequately address the water leakage problems that were occurring at the Madison, the Strata Corporation retained Morrison Hershfield (“MH”) in the spring of 1998 to review the condition of the building envelope.  On September 14, 1998, MH provided its Building Envelope Report, which suggested significant problems with water ingress and associated deterioration.  MH suggested further investigations and widespread repairs.  The results of MH’s further investigations were noted in their report dated December 30, 1998 and entitled “Further Assessment of the Balconies:  The Madison”.  This report confirmed MH’s advice that the face sealed stucco cladding on all of the balconies required replacement with a rainscreen or drained cavity system.

[6]            Polygon Town Centre Development Limited (“Polygon Development”) and Polygon Construction Ltd. (“Polygon Construction”) were given copies of the MH Building Envelope Report and invited to address the water ingress problems.  They offered to conduct their own alternate building envelope remediation which was contrary to MH’s recommendations.  The Strata Corporation did not take them up on their offer.  The Strata Corporation retained MH to prepare specifications to remediate the building envelope as per their specifications.  Phase I of the repairs were undertaken between October 1999 and August 2000.  Phase II of the repairs were undertaken between March 2001 and January 2002.  The total cost of the remediation to the building envelope was approximately $900,000.

[7]            The plaintiff argued that the earliest the Strata Corporation could have discovered that there was a cause of action with respect to construction deficiencies and resultant damage was with the receipt of the September 14, 1998 MH Building Envelope Report, which revealed the systemic failure of the Madison building envelope.  The defendant says that the deficiencies were first apparent in April 1994.


The Jefferson (Coquitlam): Court declares effect of the judgment is to render the action a nullity



The Owners, Strata Plan LMS 888  v. The City of Coquitlam et al


2003 BCSC 1311

Date: 20030825

Docket: S015129

Registry: Vancouver


The Owners, Strata Plan LMS 888



The City of Coquitlam, Winchester Investments Ltd., Polygon Town Centre Development
Limited, Polygon Construction Ltd., Graham F. Crockart, Graham F. Crockart Architect Inc.,

Dec Design Mechanical Consultants Ltd., W.T. Vaughan, Thomas Leung Structural Engineering Inc., Thomas Leung, Inter-provincial Inspectors (1982) Ltd., East & West Alum Craft Ltd., W.L.S. Forming & Framing Ltd., Centra Siding Ltd., Metro Roofing & sheet Metal Ltd.,
Peter Ross Limited, L & S Stucco Ltd., Almetco Building Products Ltd., 481516 B.C. Ltd.,
Dueck Cobblestones Ltd., Systems I Mechanical Limited, Team Glass Co. Ltd., Alliance Sheet Metal Works Ltd., and H. Van Leeuwan Landscaping Ltd.

Defendants and Third Parties


Matthew Mok

Third Party




Before: The Honourable Mr. Justice Cohen

Addendum to Reasons for Judgment

Counsel for the plaintiff

A. De Jong

M.S. Oulton


Counsel for the Defendants Winchester Investments Ltd., Polygon Town Centre Development Limited and Polygon Construction Ltd.

R. Basham, Q.C.

Date and Place of Hearing:

January 27 – 29, 2003


Vancouver, B.C.


[1]            In my Reasons for Judgment dated June 17, 2003 I postponed the granting of an order to strike the plaintiff’s action pending receipt of further submissions on the plaintiff’s leave application, pursuant to Rule 15(5), to substitute an owner (or owners) as a plaintiff in the action.

[2]            By letter dated July 24, 2003, Mr. W.S. Berardino, Q.C., wrote to the court, as follows:

Counsel have now reached the following agreement which is subject to consideration by your Lordship.  The agreement is as follows:

(a)   The plaintiff will not make submissions at this time as to the substitution of individual owners as parties to this proceeding;

(b)   The plaintiff will be at liberty to make submissions with respect to the effect of Rule 19(6) on the submissions made by the Polygon group of defendants on appeal;

(c)   This procedure will not prejudice what rights any of the parties may have with respect to all other issues; and

(d)   Any pronouncement that you should make with respect to the effect of your judgment is without prejudice to all of the parties to make submissions with respect to costs.

Counsel suggest that your Lordship draft an addendum to the judgment which confirms that the judgment now has full force and effect in light of the above and that the effect of the judgment is to render the action a nullity as against all of the defendants.

[3]            By further correspondence dated August 6, 2003, Mr. Berardino wrote:

All counsel of record have confirmed that they are in complete agreement with the suggested procedure outlined in our letter of July 24, 2003, including Ms. Basham and Mr. De Jong.

[4]            Accordingly, by this Addendum to my Reasons for Judgment, I confirm that, in light of the agreement reached between all counsel of record, the judgment now has full force and effect and that the effect of the judgment is to render the action a nullity as against all of the defendants.

“B.I. Cohen, J.”
The Honourable Mr. Justice B.I. Cohen

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