Port Coquitlam, Newcastle Estates: Court adds 11 more defendants in leaky condo case

 

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Owners, Strata Plan LMS 3784 v. The City of Port Coquitlam, et al.,

 

2008 BCSC 508

Date: 20080428
Docket: S067042
Registry: Vancouver

Between:

The Owners, Strata Plan LMS 3784

Plaintiff

And

The City of Port Coquitlam,
Group of Eight Development Corp.,
Newcastle Development Corp.,
Canada 2 X 4 Housing Corp.,
Egil Lyngen,
Beesley Engineering Ltd.,
Tom Blackburn doing business as Blackburn
Engineering, James Hanley,
Gregory Allan Graham,
Brian George Kask,
Brian David Kask

Defendants


Before:  Master Taylor

Reasons for Judgment

Counsel for the Plaintiff:

A.L. Cameron

Counsel for the Respondent, Marian Szalajko
doing business as Mario’s Stucco:

K.J. Learn

Counsel for the Respondent, Lava Plumbing Ltd.:

R. Purewall and
S. Patro

Date and Place of Hearing:

April 3, 2008

 

Vancouver, B.C.

[1]                The plaintiff is the strata corporation with respect to a townhouse complex located at 2488 Pitt River Road, Port Coquitlam, B.C. known as “Newcastle Estates”.  The complex consists of eight buildings which contain a total of 31 strata lots.  The buildings are clad with a combination of stucco, vinyl siding and wood trim.

[2]                Construction of Newcastle Estates proceeded in two phases.  Phase 1 consisted of four buildings containing a total of 15 strata lots.  Construction of phase 1 began in or about June 1997 and was completed in or about July 1998.  Phase 2 consisted of an additional four buildings containing a total of 16 strata lots.  Construction of phase 2 began in or about December 1998 and was completed in or about May 2000.  The plaintiff alleges a number of design and construction deficiencies and defects in the construction of Newcastle Estates.  Accordingly, the plaintiff brings this action as a representative of all owners pursuant to s.171 of the Strata Property Act, S.B.C. 1998, c. 43 claiming damages and loss in connection with water penetration arising out of the deficiencies, including damage and loss relating to (a) the common property or common assets of Newcastle Estates; and (b)  the use or enjoyment of the strata lots at Newcastle Estates.

[3]                The plaintiff obtained a preliminary building envelope condition report from Aqua-Coast Engineering Ltd. which was completed and dated March 18, 2004.  Subsequent to that the plaintiff retained Dubas Engineering Inc. as a building envelope consultant.  Dubas Engineering prepared a lengthy report dated March 14, 2005.  The remediation of Newcastle Estates was commenced in or about July 2006.  As of the date of the hearing of this application repairs had not yet been completed.

[4]                The plaintiff commenced this action by filing the writ and statement of claim on October 31, 2006.

[5]                By notice of motion dated December 28, 2007 the plaintiff seeks an order permitting the addition of eleven more defendants to the style of cause and the necessary amendments to the writ of summons and statement of claim pursuant to Rule 15(5)(a) and (24)(1) of the Rules of Court.  All proposed defendants have been served except Bernard Boos doing business as A-1 Insulation Contractors Co.  The plaintiff relies upon Rule 15(5)(a)(ii) which reads as follows:

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

(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 connected

(A)       with any relief claimed in the proceeding, or

(B)       with the subject matter of the proceeding,

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

[6]                Currently there has been little or no document discovery, no examinations for discovery have been conducted and no trial date has been set.

[7]                Shortly after commencing the action, the plaintiff delivered interrogatories to the defendants, Gregory Allan Graham, Brian George Kask and Brian David Kask.  These interrogatories were dated January 3rd, 2007.

[8]                The defendant, Gregory Allan Graham, provided sworn answers to interrogatories on September 7, 2007.  It was as a result of receiving sworn answers to interrogatories that these proposed defendants were identified.

[9]                The law related to adding new defendants pursuant to Rule 15(5) is neatly set out in the decision of the B.C. Court of Appeal in Strata Plan LMS 1816 v. Acastina Investments Ltd., [2004] B.C.J. No. 2372, 2004 B.C.C.A. 578 where Mr. Justice Mackenzie, speaking for the Court, at paragraph 3 said:

[3]        The test for joinder under subrule (5)(a)(iii) has two branches.  The court must be satisfied: (1) that there is a question or issue between the parties relating to the relief, remedy, or subject matter of the suit; and (2) it is just and convenient to determine the issue in the proceedings in question.  The first branch of the test requires that the judge must be satisfied that a real and not frivolous issue exists between the plaintiff and the person sought to be added. The question before us is whether that determination can be made on the pleadings alone, without evidence. 

[10]            The main issue on appeal in Acastina Investments was whether some evidence was required to support the material facts as pleaded.  In reaching its conclusion that evidence is not required the Court of Appeal said this at paragraph fourteen (14):

The judge cannot weigh evidence on the application and there is little utility in imposing a minimal evidentiary threshold as a mandatory requirement in the circumstances.  Therefore, in my view, evidence is not required for joinder under Rule 15(5)(a)(iii) where the material facts as pleaded establish a real issue between the parties.

[11]            The first test as set out in Acastina Investments was not strenuously argued by either of the two proposed defendants, although Lava Pumping Ltd. did provide an affidavit in which it deposes that it did not have anything to do with anchor bolts, when the plaintiffs suggest otherwise in their pleadings.  As well, there is the affidavit of Gregory Allan Graham in support of the answers to interrogatories which is contrary to the affidavit provided by Lava Pumping.  Given that I am unable to weigh the evidence on an application such as this, I therefore conclude that the central issue for determination is whether it is just and convenient to add the proposed defendants in light of all the circumstances.

[12]            The two-part test was also given consideration by Madam Justice Gerow in Strata Plan LMS 1899 v. A.C.G. Developments Ltd., [2005] B.C.J. No. 1194, 2005 BCSC 776.  In dealing with the second branch of the test as to whether it is just and convenient that the proposed defendants be joined, Madam Justice Gerow said at paragraphs 17 & 18:

The factors to be considered in determining whether it is just and convenient to add a defendant differ depending on whether or not a limitation period has expired:  British Columbia Practice, 2nd ed., McLachlin & Taylor (Vancouver, Butterworths, 1979) at [paragraph] 15 to 33.

            The limitation period for a leaky condominium action is six years and may be postponed until the plaintiff has access to the information necessary to bring the claim.

[13]            When the limitation period starts to run turns on the discoverability provisions of s.6 of the Limitation Act where it provides, commencing at subsection 3:

(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):

(a)        for personal injury;

(b)        for damage to property;

(c)        for professional negligence;

(4)        Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that

(a)        an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and

(b)        the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action.

(5)        For the purpose of subsection (4),

(a)        "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require,

(b)        "facts" include

(i)         the existence of a duty owed to the plaintiff by the defendant, and

(ii)        that a breach of a duty caused injury, damage or loss to the plaintiff,

[14]            Mr. Learn, on behalf of the defendant, Marian Szalajko doing business as Mario’s Stucco, argues that if his client is added as a defendant in this action then his client is prejudiced by virtue of the fact that the limitation defence of his client is lost.  Further, he says this is the only prejudice that could be caused to the plaintiffs were I to disallow the plaintiffs’ claim insofar as his client is concerned.  He, therefore, submits that it would be just and convenient for me to dismiss the motion as it relates to his client, with the result that the plaintiff would have to commence a separate action against his client, thus preserving his client’s limitation defence.

[15]            Mr. Purewall, on behalf of Lava Pumping Ltd. (formerly Lava Concrete Ltd.), submits there would be prejudice to his client as a result of lost documents after so many years were I to allow the plaintiffs’ motion.  Accordingly, it is argued that it would be just and convenient to dismiss the motion as against his client.

[16]            With regard to the issue of missing documents, Mr. Purewall submits that Strata Plan LMS 1751 v. Fairchild Projects No. 12 Ltd., 2006 CarswellBC 2155, 2006 BCAC 1306 is of assistance where two proposed defendants swore to actually destroying documents some ten years after completion of the project.  That case is distinguishable from the case at bar where the best Lava Pumping Ltd. can do is to swear that due to the passage of time, documents pertaining to the project in issue cannot be found.  In other words, Lava Pumping cannot specifically say that the documents do not exist, but merely that they cannot be found.

[17]            As Finch, J.A. (as he then was) said in Teal Cedar Products (1997) Ltd. v. Dale Intermediaries Ltd. et al (1996), 19 B.C.L.R. (3d) 282 (C.A.) at paragraph 67:

In the exercise of a judge’s discretion, the length of delay, the reasons for delay and the expiry of the limitation period are all factors to be considered, but none of those factors should be considered in isolation.  Regard must also be had for the presence or absence of prejudice, and the extent of the connection, if any, between the existing claims and the proposed new cause of action.  Nor do I think that a plaintiff’s explanation for delay must necessarily exculpate him from all “fault” or “culpability” before the court may exercise its discretion in his favour.

[18]            On the assumption that the construction was completed in 2000, that would seem to indicate that the limitation period would expire, all circumstances being normal, in 2006.  The first report regarding the condition of the building envelope was received in 2004, which would, in all likelihood, delay the running of the limitation period from then for six years, or until 2010.

[19]            As I earlier indicated, the question I have to determine is whether the prejudice alleged by each of the 2 proposed defendants is such that I should find that it is not just and convenient to add them as parties to the litigation.

[20]             In regard to the loss of the limitation defence, Master Scarth made these observations in Yuen v. Onni Development (Firbridge) Corp., [2005] B.C.J. No. 89, 2005 BCSC 70, 46 B.C.L.R. (4th) 287 at para 28:

I am unable to conclude that the [defendant] will suffer prejudice beyond that arising from the limitation defence.  The court has held that this prejudice does not usually outweigh the prejudice to a plaintiff resulting from the loss of a cause of action: Takenaka v. Stanley (2000), 91 B.C.LR. (3d) 179; 2000 BCSC 242.

[21]            While I make no particular finding about the limitation period other than my earlier comments, I find that the determination not to give weight to the defendant’s claim to loss of the limitation defence is not prejudicial to them.

[22]            In regard to the missing documents, Lava Pumping cannot show that this alleged prejudice is as a result of anything the plaintiffs have done or arises due to delay on the plaintiffs’ part.  In fact, there is no evidence the documents would be available had Lava Pumping been added as a defendant when the action was first commenced.

[23]            Lastly, Mario’s Stucco submits it would be prejudiced because it would not be able to examine the deficiencies first hand since remediation is on-going.  Ballance, J. considered this in Strata Plan LMS 989 v. Port Coquitlam (City), [2003] B.C.J. No. 2216; 2003 BCAC 1398 where the same argument was raised.  The learned justice was of the view that there was no greater prejudice to the proposed defendants as those who were already named as defendants.  Accordingly, she found they would have “adequate opportunity to study the same document, reports and evidence pertaining to the deficiencies and will not be prejudiced by not having had a first-hand view of the alleged damage”.

[24]            In the case at bar, both reports from Aqua-Coast Engineering and Dubas Engineering are extensive and include photographs.  I therefore fail to see how Mario’s stucco could be prejudiced by having the reports at its disposal rather than having first-hand observations of the alleged deficiencies.

[25]            In the result, having weighed all of these factors, I conclude it is just and convenient to allow the plaintiffs’ application to add all eleven of the proposed defendants to this action and the statement of claim is to be amended accordingly.  The proposed defendant, Bernard Boos, doing business as A-1 Insulation Contractors Co., will have leave to apply to set aside this order as it pertains to him on 72 hours’ notice once served with the notice of motion and order.

[26]            Costs will be in the cause.

“Master G.C. Taylor”