Vancouver, LMS 1134: Award winning leaky condo project designed by James Cheng was built in 1981


Strata Plan LMS 1134 v. Cheng




2003 BCSC 1776



Registry: Vancouver


Oral Reasons for Judgment

Master Barber

October 31, 2003








Counsel for Plaintiffs

L. Broshko

Counsel for Proposed Defendant Austin Terrazzo & Tile Ltd. (phonetic)

J.P. Hamilton

Counsel for Proposed Defendant Jones Kwong Kishi

S.P. Coyle

S. Chaskar

No other appearances

Place and Date of Hearing:

Vancouver, B.C.

October 31, 2003

[1] THE COURT: This is an application by the plaintiff to add certain parties to this action. With respect to those who have not appeared, I add them. With respect to the ones who have appeared, namely, Jones Kwong Kishi and Austin Terrazzo & Tile Ltd., there is an issue to be discussed.

[2] This is another one of the leaky condo actions and the plaintiffs are claiming damages with respect to the remedial action they had to take and other damages that they say they have suffered as a result of the leaks which occurred to this building. The building was built in 1981 and completed at that time. In 1993, they first considered the issue of water ingress, and the council at that time took some action. The building was completely remediated by 1998.

[3] Between 1993 and 1998, the council sought various opinions from professionals and had their expert reports completed by March 20, 1997. They did not, they say, know anything about the two defendants who are opposing this motion until they received a report -- sorry, until they received a list of documents and a list from one of the defendant architects in the year 2002 in which these two defendants are named. Put a different way, the plaintiffs say it was not until 2002 that they should be seen to have known that these two particular defendants were involved in this matter.

[4] Both defendants argue that the limitation period has expired. They do not accept the plaintiffs’ suggestion that the limitation period only started in the year 2002, or perhaps sometime earlier. The plaintiff says the six-year period has not expired regardless whether you take the year 2002 or some earlier date. Even if it has expired, the plaintiff says that it would be appropriate in these circumstances to add these proposed defendants as there has been no real undue delay in attempting to add them, and, therefore, it is just and convenient that they be added at this time.

[5] Dealing with the defendant, Austin Terrazzo & Tile Ltd., first of all. That defendant says that the delay in the application to add it will cause it substantial prejudice. The affidavit material in front of me shows that not only the owner of the company at the time when this building was constructed in 1981 is deceased, but also all the workers of that company who worked on the unit are also deceased.

[6] Further, the person who swears the affidavit, Mr. Kevin Deere Austin (phonetic), says that the action was started after the limitation period. He says there was no notice. That the company had not been involved in the proceeding or settlement negotiations, and he threw away all the records respecting the work done by Austin on the property about a year or so ago. The affidavit is sworn the 30th day of June, 2003.

[7] He says that he kept the company active simply out of respect for his father for the time being, but he says now it would be difficult for the company to defend itself because the crucial witnesses and the documents are no longer available. He goes on to say that he did not think Austin was responsible for the waterproofing, but, of course, he cannot say that exactly with assurance because he was not involved in it at that time. He does say he was aware of the project, but he never worked on it.

[8] In my opinion, it would be hard to see how there could be more prejudice to a defendant than what there is to this particular proposed defendant in this case. There is the issue, also, as to whether, in fact, the limitation period has expired and that is another consideration.

[9] With respect to the other defendant who opposes this application, the argument is somewhat different but there are similar aspects to it. The argument is set forth in the brief of counsel for the proposed defendant, Jones Kwong Kishi, and I adopt the argument as set forth in the brief. I propose to only touch on highlights of it, but, in adopting it, I ask that it be considered as part of my reasons, unless I depart from it.

[10] The case here is somewhat different in that the argument is that there is no cause of action showing. It is true there is a bald allegation of negligence, but the reason, it is submitted, that is not sufficient is as shown in paragraph 21 and 24 of the argument that the materials, namely, the expert reports or other materials other than page 34 of the affidavit of Kent Heiman (phonetic), do not point to any deficiencies in the building caused by the defects in JKK structural designs or field reviews, nor do these materials suggest in any way that JKK as structural engineer was responsible for the building envelop problems.

[11] Now, I go particularly to that page 34 of the affidavit. It is a letter from Jones Kwong Kishi, dated October 7, 1980, and it is to the City of Vancouver, City Building Inspector. Part of the plaintiffs’ argument is that they could not have earlier determined who was involved fails when one looks at this letter.

[12] The council knew in 1993 that they had problems. As I say, I do not know who they sought advice from in the beginning, but it is reasonable to consider that they did seek advice and they certainly have had advice, as can be seen from the materials, since that time. It was incumbent upon them, in my view, to make a reasonable search to determine who the appropriate parties might be at an earlier date; certainly, long before six years from today.

[13] The reason I say that is that the building was completed in 1981. With a building that old it is clear that there will be difficulties in getting all of the materials together on everybody’s part, but it is incumbent upon them to do their best to find out who would be involved and to make them aware, so that they could see what the issues were, determine for themselves whether or not they thought something ought to have been done that had not been done, and I am speaking of defendants as well as plaintiffs, and then to take the appropriate action.

[14] All that someone had to do was go down to the City Building Inspector’s office and look for records and they would have found this one, I am sure, and others, or, putting it a different way, there is nothing in the material in front of me that indicates why they could not have done so. Therefore, I find that as being something that they ought to have done, they did not do, and it does not explain the delay because those materials, so far as I would know, would be there.

[15] Another way of putting it is, it is not sufficient to say, when the matter is this old, that we waited until we got a list from the architect defendant saying who the other defendants might be in 2002 to actually make this motion. Steps should have been taken long before then. The delay is extreme and, in my view, has not been adequately explained.

[16] In my view, the limitation period has expired and there is no reason, so far as I can see, to add these two defendants. First of all, with respect to the one I mentioned the tile people, because of the extreme prejudice that I think would be visited upon them if they were to be added at this time. With respect to the other defendant, because they could have been discovered at an earlier date and could have been involved in this action so they could have seen what the damages were and taken the steps to take their own view as to what the appropriate result would be, so they could participate fully in the action if necessary. Therefore, the motion is dismissed with respect to these defendants.

[17] Anything else, counsel?

[18] COUNSEL: Your Honour, costs?

[19] THE COURT: Yes. I assume you want to speak about that. I would think costs to these defendants forthwith after taxation thereof, or, I should say, after assessment thereof. Any comment on that, Ms. Broshko?

[20] MS. BROSHKO: No, thank you, Your Honour.

[21] THE COURT: Thank you.

“Master R. Barber”