Vancouver, Shon Yee Place, VR 2275: Architects claim CMHC responsible for leaks and rot; Court declares CMHC did not owe a duty of care to architects but did owe a duty of care to BC Housing Management Commission

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Strata Plan VR 2275 v. Davidson,

 

2008 BCSC 77

Date: 20080118
Docket: S77473
Registry: New Westminster

Between:

The Owners, Strata Plan VR 2275, Shon Yee Housing Society
and British Columbia Housing Management Commission

Plaintiffs

And:

John B. Davidson, David H. Simpson, Ronald Yuen,
Davidson/Yuen Partners, Northmark Projects Inc.,
Northmark Construction Ltd., 334888 B.C. Ltd. formerly
known as Northmark Construction Ltd., Concost Properties
Inc., DNG Services Inc., Robertson, Kolbeins, Teevan &
Gallaher Ltd. doing business as Robertson Kolbeins Teevan
Gallaher Associates and Robertson, Kolbeins, Teevan & Gallaher
Ltd., NDC Construction Ltd. and David Nairne & Associates Ltd.

Defendants

And:

Canada Mortgage and Housing Corporation

Third Party


Before: The Honourable Mr. Justice Butler

Reasons for Judgment

Counsel for the Plaintiffs

Scott MacKenzie

Counsel for the Defendants, John B. Davidson, David H. Simpson, Ronald Yuen and Davidson/Yuen Partners

Craig A. Wallace

Counsel for the Third Party

D. Ross Clark, Q.C.
Ryan Garrett

Date and Place of Hearing:

December 19 and 20, 2007

 

Vancouver, B.C.

[1]                In this action the plaintiffs make allegations of water ingress defects and deficiencies in a social housing project called Shon Yee Place (the “Development”).  The plaintiffs are the Shon Yee Housing Society (the “Society”), which administers and has a leasehold interest in the Development; the numbered strata corporation (“VR 2275”), which is owner of the real property the Development is built on; and the British Columbia Housing Management Commission (“B.C. Housing”).  The plaintiffs have claimed against, among others, the defendants John B. Davidson, David H. Simpson, Ronald Yuen and Davidson/Yuen Partners (collectively, the “Architects”) for damages caused by deficiencies in the Development.

[2]                The Architects have brought a third party claim against the Canada Mortgage and Housing Corporation (“CMHC”).  This claim is founded on the Architects’ assertion that CMHC owed a duty to the plaintiffs and to the Architects to disclose to them knowledge it allegedly possessed, or should have obtained, about the inadequacy of the design principles, construction methods and inspection procedures employed at the Development.

[3]                CMHC has brought this Rule 18A application seeking to dismiss the third party claims.  While the Statement of Claim was first filed in December 2002, the Third Party Notice against CMHC was not filed until August 2007.  Examinations for discovery of CMHC have been substantially completed by the Architects and document discovery has been substantially completed by these parties.  This application was heard on December 19 and 20, 2007.  The trial of the action is scheduled to commence on February 4, 2008.  Accordingly, the 18A application was heard one or two days more than 45 days before the date set for trial as required by Rule 18A (1.1).

Facts

[4]                The Development is a social housing project run by the Society to provide low cost accommodation to seniors.  The Development is a seven-storey building located at 628 East Hastings Street in Vancouver, B.C.  The building exterior uses a number of building envelope design types to protect the interior spaces from water ingress including an exterior insulation finish system (“EIFS”), a face-seal water penetration control strategy.  The building was designed in late 1987 and was substantially completed in October of 1988.  The Architects were retained by the developer, NDC Construction Ltd., to be the architects for the Development.

[5]                CMHC’s involvement in social housing arises as a result of an agreement entered into on April 23, 1986 between the Government of Canada (“Canada”) and the Government of British Columbia (the “Province”) for the administration and cost sharing of social housing programs (the “Global Agreement”).  On July 7, 1986, CMHC and the Province, as represented by the Minister of Lands, Parks and Housing, entered into an agreement to carry into effect the principles set out in the Global Agreement (the “Operating Agreement”).

[6]                Social housing programs funded under the Global and Operating Agreements were designed to assist needy households to obtain affordable accommodation.  The intent of the Global and Operating Agreements was to direct social housing funds to households in need, to implement an arrangement for cost sharing and to transfer responsibility for housing program delivery and administration to the Province.

[7]                Under the Global Agreement, Canada and the Province agreed, among other things:

(a)        that the Province would be responsible for the delivery and administration of social housing programs;

(b)        to undertake a joint planning process, which included the assessment of needs, income and priority groups in different geographic areas in the province and the creation of three-year plans based on the needs assessment;

(c)        to establish a Planning and Monitoring Committee (the “PMC”); and

(d)        to share the costs associated with certain social housing programs.

[8]                Under the Operating Agreement, CMHC and the Province agreed:

(a)        that the Province, through its agent B.C. Housing, would be the Active Party.  The Active Party was responsible for the delivery and administration of social housing programs.  Delivery and administration were defined to include all activity associated with any program including direct dealings with clients or sponsors as well as loan, project and agreement administration.

(b)        that two social housing programs would be sponsored:  the Non-Profit Housing Program, under which the Development was constructed, and the Rent Supplement Program.

(c)        that, as the Active Party, the Province would undertake the assessment of project feasibility, project selection, project development, inspection, client selection, development of occupancy guidelines, approval of project annual operating budgets, calculation of eligible project costs, and loan, subsidy and project administration.

[9]                Under the Operating Agreement, Canada’s responsibilities through CMHC were more limited.  CMHC was responsible for insuring loans made by approved lenders for capital financing for housing projects under Part I of the National Housing Act, R.S.C. 1985, c. N-11, for making loans under s. 37.1 of the National Housing Act for proposal development funding, and for making contributions pursuant to s. 56.1 of the National Housing Act to eligible contribution recipients to enable them to meet the costs of rental accommodation.

[10]            CMHC and the Province also agreed that they would jointly chair the PMC, which would meet to:

(a)        conduct a joint planning process to develop and monitor the implementation of the current three-year plan which identified the most cost-effective and appropriate social housing strategy to meet the objectives of the Global and Operating Agreements;

(b)        propose modifications to the social housing programs and program guidelines, including adjustments to market rents and Maximum Unit Prices (“MUP”);

(c)        provide a forum for the sharing of information resulting from research, studies, surveys and other activities; and

(d)        monitor compliance with the Global and Operating Agreements.

[11]            While Canada agreed to provide mortgage loan insurance through CMHC, under the Operating Agreement the Province was responsible for the underwriting process including site and plans examination, determination of loan amount and approval of financing terms and conditions.  The Province was also responsible for authorizing all loan advances and undertaking inspections to ensure compliance with the plans and specifications and to determine the value of the work in place.

[12]            The Province developed three-year plans under the auspices of the PMC.  The PMC also discussed and approved adjustments to MUPs.  MUP was an estimate of construction costs of modest housing, including land purchase, and was used to forecast the number of units which could be subsidized under the housing programs.

[13]            The quarterly PMC meetings were used so that the Province could keep CMHC informed of the progress of the current three-year plan.  The Province, as the Active Party, carried out the activities required to take a given housing project from concept through to completion including distribution of housing units by area within the province, allocation of funding, formal commitment of subsidies to housing sponsor groups, advancement of funds, inspection and project administration.

[14]            In British Columbia, CMHC did not take a direct role in the delivery or administration of any housing project during the relevant time period under the Non-Profit Housing Program.  The only information CMHC typically received about any particular project was when funding was committed by the Province on that project and when CMHC received undertakings to insure mortgage loans.

[15]            The Shon Yee Housing Association, which is a non-profit organization related to the Society, applied to the Province under the Non-Profit Housing Program for funding to build the Development.  As the Active Party, the Province had direct contact with those organizations throughout the planning and construction of the Development.  B.C. Housing approved the Development under the 1987 Non-Profit Housing Program.  The Province informed the Society of this in December 1987, and also informed the Society at that time that B.C. Housing would arrange for mortgage loan insurance and would act as overall administrator for the project.

[16]            The Development was constructed and occupied.  In March 1998, approximately ten years after occupancy, a consultant retained by the Society reported water damage, fungal growth, cracks in stucco finishing and concrete, roofing membrane failure and sealant failure in certain areas in the building.  Subsequent studies have been done and rehabilitation work with a cost of approximately $1.5 million has been recommended or performed.

[17]            The gist of the plaintiffs’ claims is that the Architects’ designs, plans and specifications were not adequate to prevent water ingress, that they failed to test or inspect the materials to ascertain if they were reasonably fit for the purpose intended, that they failed to ensure that the design conformed with applicable bylaws and other enactments, and that they failed to warn the plaintiffs of maintenance and inspection requirements of the building envelope system.  A significant part of the allegation rests on the assertion that there were significant shortcomings to the face-seal design that were known or should have been known by the Architects.

[18]            The Architects deny the plaintiffs’ claims but say that if they are at fault, CMHC, as a result of its extensive involvement in building envelope studies in British Columbia, also knew or should have known of the problems associated with a face-seal strategy and that it failed in its duty to let B.C. Housing and others know of these problems.

Position of the Parties

[19]            CMHC says that it does not owe a duty of care either to the plaintiffs or to the Architects. (More)

Media Alert: CTV's W-FIVE investigates leaky condos and other shoddy new homes

Media Alert November 1, 2007

COLCO: The Coalition of Leaky Condo Owners

 

“Leaky rotten condos and other defective residential construction issues continue to plague homeowners in British Columbia”, says James Balderson, spokesman for COLCO: The Coalition of Leaky Condo Owners.

 

An investigation of BC’s leaky condo problem and other shoddy work by developers across Canada is scheduled for the CTV W-FIVE programme on Saturday, November 3, 2007 at 7pm with a repeat broadcast on Sunday, November 4, at 5pm.  (Check local listings.)

 

“The boom in condo development and real-estate prices has not solved the Olympic-sized multi-billion dollar leaky condo problem in BC.  A $100,000 increase in the market value of a condo means the owner who sells after paying $100,000 for repairs actually loses money.  Meanwhile, government coffers spill over with taxes.  We can’t pay escalating leaky condo repair bills with propaganda from careless politicians, careless developers, careless architects, careless professional engineers, careless contractors and careless realtors.  We need real money, lots of it, just like the Vancouver 2010 Winter Olympic Games.” said Balderson. 

 

Balderson led the W-FIVE investigators to one of BC’s worst leaky condo disasters: Vancouver, Pendrell Place, VR 1008, 1819 Pendrell Street

   

For more information visit:

 

http://www.ctv.ca/wfive           CTV Broadband Network

W-FIVE

Watch complete episodes of W-FIVE on the CTV Broadband Network >

www.myleakycondo.com       myleakycondo.com's Blog

 

Contact:   JamesBalderson@myleakycondo.com

 

 

Condo purchaser wins in Glacier Lodge dispute; Cardel Resorts shrank unit size


IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Shumaker v. Cardel Resorts Ltd.,

 

2007 BCSC 22

Date: 20070313
Docket: 3296
Registry: Golden

Between:

Robert Shumaker

Plaintiff

And

Cardel Resorts Inc.

Defendant


Before: The Honourable Mr. Justice Melnick

Reasons for Judgment

Counsel for plaintiff

B.F. Fairley

Counsel for defendant

A. Etheridge

Date and Place of Hearing:

February 2, 2007

Golden, B.C.

 

February 5, 2007

Cranbrook, B.C.

[1]                Robert Shumaker (“Mr. Shumaker”) contracted to purchase a condominium prior to its construction from Cardel Resorts Inc. (“Cardel”).  He now seeks judgment for damages on a Rule 18A summary trial because the unit he purchased was not as large as represented in the original disclosure statement.  Mr. Shumaker also has a number of related claims for which he seeks compensation from Cardel. 

[2]                Cardel resists the claims of Mr. Shumaker, its principal argument being that, having been given notice and an amendment to the disclosure statement with respect to the size of the condominium, Mr. Shumaker had the opportunity to ask for and receive an adjustment of the purchase price at the time of closing but did not do so.  Thus, according to Cardel, any term of its contract with Mr. Shumaker with respect to adjusting the purchase price consequent on the area of the unit not being as originally represented merged on the completion of the transaction and registration of the strata lot into his name.  Thus, says Cardel, Mr. Shumaker’s only remedy is for damages for breach of warranty and its position is that he has neither claimed for breach of warranty nor has he provided evidence of damages.

I. BACKGROUND

[3]                On July 21, 2003, Mr. Shumaker contracted with Cardel to purchase a condominium in a development to be called Glacier Lodge.  At the time this contract was signed, Glacier Lodge has not been completed.  Prior to entering into the contract, Cardel provided Mr. Shumaker with a disclosure statement as required by s. 61 of the Real Estate Act, R.S.B.C. 1996, c. 397.

[4]                Among other terms, the contract provided that:

1.                  The condominium would be constructed substantially in accordance with the disclosure statement;

2.                  The condominium would be no more than 5% smaller than indicated in the disclosure statement when measured in accordance with the Strata Property Act, S.B.C. 1998, c. 43;

3.                  If the condominium was more than 5% smaller than disclosed, then the purchase price would be reduced by a percentage equal to the number of percentage points by which the condominium was more than 5% smaller;

4.                  The condominium would contain certain furnishings, equipment and appliances as described in the disclosure statement provided that Cardel could substitute furnishings, equipment and appliances of similar quality; and

5.                  Prior to completion, Cardel would prepare a conclusive list of defects and deficiencies (a deficiency list), give a date by which these would be remedied and would promptly repair or remedy such defects and deficiencies by the stated date for completion. 

[5]                Because it is central to these proceedings, I reproduce in full the provision in the contract with respect to the warranted size of the unit and related furnishings, equipment and appliances:

4.         Construction:  The Purchaser acknowledges that the Purchaser is buying a strata lot to be constructed substantially in accordance with the Disclosure Statement and the plans and specifications prepared by Poon McKenzie Architects or replacements therefor appointed by the Vendor as architects for the Development (the “Architect”), subject to such modifications as may be determined by the Architect from time to time, or as otherwise permitted herein or in the Disclosure Statement or accepted by the Architect upon certification of substantial completion of the Development, provided that the Vendor may make minor modifications in features, design, layout, window area and window location as in the opinion of the Vendor and the Architect are necessary, desirable or reasonable and may use materials other than as prescribed in the plans and specifications if they are reasonably similar to that which is prescribed.  The Property will contain the furnishings, equipment and appliances described in the Disclosure Statement and the Vendor’s feature sheet to be included in the Property, provided that the Vendor reserves the right to substitute furnishings, equipment and appliances of a reasonably similar standard.  The Vendor represents and warrants that the Property will be no more than 5% smaller than indicated in the Disclosure Statement when measured in accordance with the Strata Property Act (British Columbia) or successor legislation.  If the Property is more than 5% smaller, then the Purchase Price will be reduced by a percentage equal to the number of percentage points by which the Property is more than 5% smaller.  If requested by the Purchaser, the Purchaser will be entitled to inspect the Property with a representative of the Vendor at a reasonable time prior to the Completion Date determined by the Vendor.  At such time, the parties will prepare and sign a conclusive list of any defects and deficiencies and the date following the Completion Date by which corrections are to occur.  The Vendor will promptly repair or remedy any such defects and deficiencies by the stated date for completion thereof in such list and the Purchaser will not be entitled to hold back any portion of the Purchase Price in respect of such defects or deficiencies.  In the event of any dispute, the decision by the Architect will be final and binding on the parties.  In all other respects the Purchaser will be deemed to have accepted the physical condition of the Property. 

[6]                The contract also provided that there was an obligation on Cardel to deliver to Mr. Shumaker an amendment to the disclosure statement setting out particulars of Cardel’s construction financing.  The contract provided that it was terminable at the option of Mr. Shumaker for a period of seven days after receipt by him of this amendment if it materially affected the offering or if the amendment had not been received by him within nine months after the filing of the disclosure statement.  This portion of the contract appears to contemplate only that the amendment in question will address the question of financing. 

[7]                In fact, by what was a first amendment to the disclosure statement dated in January 2004 and provided to Mr. Shumaker some time in February 2004, Cardel indicated by the insertion of a new figure for square metres of the unit included in a plan of the entire floor on which the unit was located, that the size of the unit had been reduced from 147 square metres to 126 square metres (it is agreed for this litigation that the actual final size of the unit is 128.6 square metres).  Mr. Shumaker appears not to have appreciated that this was Cardel’s manner of providing him with notice of a rather significant change to the size of the unit he proposed to purchase.  Cardel appears not to have taken any other steps to draw the change in size to his attention. 

[8]                Sections 61(8) and (9) of the Real Estate Act provide that a developer such as Cardel cannot offer for sale a condominium such as that Mr. Shumaker agreed to purchase unless it first provides to the purchaser a prospectus (what I have referred to as the disclosure statement) in a form dictated by the Real Estate Act and that a receipt is received from the purchaser acknowledging that the purchaser has been afforded the opportunity to read the prospectus.  That appears to have been done with respect to the original disclosure statement but not with respect to the first amendment to the disclosure statement nor a second one that Cardel purported to deliver to Mr. Shumaker by email in September 2004 on the date that Cardel claims was the date of closing (a date disputed by Mr. Shumaker). 

[9]                The second amendment to the disclosure statement apparently contained certain advice relating to the quantity of furnishings and equipment to be provided for the condominium unit.  Mr. Shumaker says, and I accept, that although he received an email attaching this second amendment to the disclosure statement, the attachment was corrupted and he did not read it before ultimately closing on October 15, 2004.  It would appear, however, that Mr. Shumaker’s conveyancing solicitor received a copy of the second amendment prior to closing. 

[10]            Mr. Shumaker was given notice by Cardel in a letter dated August 1, 2004 that Glacier Lodge had a projected completion date of between September 15 and September 30, 2004.  He was asked to make arrangements to inspect the unit.  He made an appointment to do so on September 29, 2004.  At that time, he found workmen still in the unit working on the heating system and, in his view, his unit was not fit for occupancy.  He did stay for the night of September 29 having no other accommodation arrangements but then moved to a nearby lodge.  On the other hand, Tony McWilliams, an architect, gave evidence that Unit #112, the unit purchased by Mr. Shumaker, was substantially completed and ready for its intended use on or before September 15, 2004. 

[11]            In fact, the argument between Mr. Shumaker and Cardel as to when his unit was fit for occupancy may be a red herring in any event because, on September 29, 2004, Cardel was not in a position to give title to Mr. Shumaker because it had not yet completed the necessary registrations in the land title office to enable them to do so.  That did not happen until October 8, 2004.  As noted, Mr. Shumaker completed one week later on October 15, 2004, a very reasonable time thereafter given the distances separating the parties and their solicitors. 

[12]            When Mr. Shumaker did inspect his condominium on September 29, 2004, he did not appreciate that the size of the unit was smaller than he had contracted to purchase, concentrating instead on going through the numerous chattels and equipment to see that everything was present and accounted for.  It is his evidence that many items had not been simply substituted by Cardel (to which he had agreed) but rather deleted all together (to which he had not agreed).  It was not until some months after he closed the transaction and paid the purchase price (subject to sorting out the differences respecting the equipment and chattels) that he actually caused the unit to be measured and then appreciated that it was smaller than what he had understood he would be purchasing. 

[13]            The smaller size of the unit, claims Mr. Shumaker, creates an additional problem in that it is difficult to negotiate what is now a narrow space between the foot of a king size bed in the master bedroom and a nearby wall.  He seeks compensation by way of damages for what he describes as a “path of travel deficiency”. 

[14]            When he attended to do his inspection of the unit on September 29, 2004, Mr. Shumaker, who lives in New York City, was accompanied by a female architect, Ms. Kimberly Harshman, who then lived in Washington, District of Columbia.  She assisted him in completing a punch list as to what he claims to be deficiencies.  Ms. Harshman originally filed an affidavit in these proceedings but, because she has since moved to New Zealand, Mr. Shumaker apparently chose not to use her evidence as part of this summary trial.  He is still claiming, however, for what he says he paid her for her work.  Cardel disputes any suggestion that the relationship between Mr. Shumaker and Ms. Harshman was an arm’s length professional one and maintains that, notwithstanding his having produced an invoice from her which he says he has paid, he has failed to produce the contract between them, which, when he was examined for discovery, he claimed existed and undertook to produce.  He says the contract is in the possession of Ms. Harshman on a ship somewhere between the United States and New Zealand. 

[15]            Mr. Cardel also advances a claim for punitive damages to which counsel for Cardel objects saying that notice of such a claim was not included in the notice of motion.  Further, it is the position of Cardel that the circumstances do not give rise to a claim for punitive damages in any event and, at most (although Cardel vigorously disputes this) such a claim would be for aggravated damages which has not been claimed by Mr. Shumaker.  Following on that, counsel for Mr. Shumaker sought to amend the statement of claim to advance a claim for aggravated damages.


 (More)

Court rules six-year limitation clause protects architects against liability for leaks and rot at Sayward Elementary School

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Board of School Trustees of School District No. 72 (Campbell River) v.,

 

2007 BCSC 280

Date: 20070228
Docket: SO42535
Registry: Vancouver

Between:

The Board of School Trustees of School District No. 72 (Campbell River)

Plaintiff

And:

IBI Group Consultants Ltd., IBI Group Architects, N.A. Irwin Consulting Limited,
Beinhaker Design Services Ltd., Ewen S. Fisher Management Inc.,
M. Blumberg Design Services Ltd., Scott Stewart & Associates Limited,
DHA Design Group Inc., E.A. Patton Design Services Inc., Peter Zurawel Design
Services Ltd., TJ McIntyre Design Group Ltd., Precision Civil Installations Ltd.,
J.F. Butler & Sons Ltd., Status Electrical Corporation, Sky-Tech Products Ltd.,
 Standard Roofing Corporation and Sunco Drywall Ltd.

Defendants

 

And:

Torry & Sons Plumbing & Heating Ltd. and Bill Torry Holdings Corp.

 

Third Parties


Before: The Honourable Mr. Justice Rice

Reasons for Judgment

(In Chambers)

Counsel for the Plaintiff:

Brian M. Samuels

Counsel for the IBI Defendants:

Gregory S. Miller

Date and Place of Trial:

December 14 and 15, 2006
January 25, 2007

 

Vancouver, B.C.

INTRODUCTION

[1]                This application is brought pursuant to Rule 18A by a group of the defendants for dismissal of the plaintiff’s claims against them in this action.  The group alleges that the plaintiff’s right to commence action was statute barred by a limitation clause in an agreement between the plaintiff School Board and the defendant IBI Group Consultants Ltd.

[2]                The applicant defendants (collectively the “IBI Group”) include IBI Group Consultants Ltd., IBI Group Architects, N.A. Irwin Consulting Limited, Beinhaker Design Services Ltd., Ewen S. Fisher Management Inc., M. Blumberg Design Services Ltd., Scott Stewart & Associates Limited, DHA Design Group Inc., E.A. Patton Design Services Inc., Peter Zurawel Design Services Ltd. and TJ McIntyre Design Group Ltd.

[3]                The respondent plaintiff is a British Columbia School Board which owns Sayward Elementary School at 690 Kelsey Way, Sayward, British Columbia, including the land, the school building and other facilities.

[4]                The dispute concerns leakage problems at Sayward Elementary School which the School Board contends are due to the faulty design and construction of the School by the IBI Group in 1993 and 1994. The question is whether a six year limitation clause in the parties’ construction agreement (Article 3.9.6) now bars claims against the IBI Group because the six-year limitation period began from the certified date of substantial completion, or whether the time began to run not until when the faults were discovered or became discoverable. If the agreement was subject to “discovery” or “discoverability”, as the School Board contends, the action is not barred.

FACTS

[5]                The School Board entered into a contract with IBI in a form called the Canadian Standard Form of Agreement Between Client and Architect (1989 edition) (the “Client-Architect Agreement”), under which IBI was to provide architectural services for design and construction of the school.

[6]                As requested by the Ministry of Education of British Columbia, IBI submitted the Client-Architect Agreement to the plaintiff subject to review by the Ministry of Education.  The Ministry of Education subsequently advised the respondent that it was “OK to sign”, and the parties executed it with effect from November 6, 1991.   Construction commenced in about 1993 and IBI certified substantial performance of its work as of March 21, 1994.

[7]                The School Board’s expectation was that the building would last for 50 years.  Unfortunately, water leakage problems developed, and after 10 years, the School Board discovered that those problems were due to major defects such that by 2004, as a result of water ingress through the building envelope, some of the structural posts and members had become so rotted that they were in danger of collapsing, and it was too dangerous for students or staff to occupy the building.

[8]                The School Board did not commence this action until May 6, 2004 because the defects were not discovered and were not discoverable until that time.

[9]                The IBI Group agrees that for the purposes of this application only, and without prejudice to its right to dispute the issues at trial, the court may assume that there has been negligence, a breach of contract, or a fundamental breach and a breach of duty to warn on the part of the defendant applicants.

 (More)

Open letter to AIBC regarding Dr. Freda Pagani MAIBC

Dr. James Balderson Ph.D., Q.S.

2006 October 13

AN OPEN LETTER TO:

The Executive Council

The Architectural Institute of British Columbia (AIBC)

Re: Dr. Freda Pagani, Ph.D., MES, B. Arch., FRAIC, MAIBC

Dr. Freda Pagani describes Freda Pagani as follows:

"Architect Freda Pagani is the founding director of Canada's first university sustainability office, located at UBC."

(See: Green buildings are still rare, freda pagani, Georgia Straight, 2005 November 03, at

http://www.straight.com/content.cfm?id=13894 )

Dr. Freda Pagani, MAIBC, "maintains that universities...must demonstrate the path to sustainability."

(See: Education for sustainability, Freda Pagani, at

http://www.efswest.org/about/Bios/PaganiF.php )

Owners who purchased leaky rotten condos designed by members of the AIBC, some of whom may have received instruction from Dr. Pagani, were deceived into believing that their homes were sustainable and fit for habitation.

As an instructor of architecture at UBC, Dr. Pagani enjoys "academic freedom" while searching for the path to sustainability.

However, as a member of the AIBC, Dr. Pagani parrots propaganda disseminated by other members of the AIBC when she says:

"The leaky-condo crisis, for example, occurred partly because the Ottawa-based building code changed in ways that weren't appropriate for our rainy climate; neither the California architecture craze of omitting roof overhangs nor the imported stucco systems helped either."

Our research has failed to find any evidence whatsoever to support the allegation that leaky condos are the result of changes to building codes in Ottawa, British Columbia or elsewhere.

Our leaky condos were not designed in Ottawa; registered members of the AIBC designed almost all of them.

As for Dr. Pagani's allegations regarding the "California architecture craze" and the "imported stucco systems", our research shows that members of the AIBC prescribed both features when designing British Columbia's leaky rotten condos without ensuring the integrity of the building envelope as required by the applicable British Columbia, not Ottawa, building codes.

Please provide any information that supports the propaganda promulgated by Dr. Pagani and other members of the AIBC.

Please determine if Dr. Pagani's statement is in accordance with Dr. Pagani's declaration as a member of the AIBC that she will uphold the science of architecture (AIBC Bylaw 9).

Please determine if Dr. Pagani, by having adopted and promulgated the above-cited false explanation for leaky condos, has conducted herself in a manner that reflects unfavourably on the profession as a whole (AIBC Bylaw 34.5).

As a mitigating factor, we recognize that Dr. Pagani did provide excellent advice to homeowners interested in achieving sustainability when she identified that "making sure its not leaky" is one of the most important attributes of a sustainable dwelling. Thousands of leaky condo owners come to the same conclusion as they watch large chunks of their architect-designed rotten mouldy homes carted off to the dump.

(See: Enviro-friendly by design, Georgia Straight, 2006 May 25 at

http://www.straight.com/content.cfm?id=17946 )

Yours for better architects and better, more sustainable, condos,

Dr. James Balderson, Ph.D., Q.S.
COLCO: The Coalition of Leaky Condo Owners
www.myleakycondo.com

E JamesBalderson@myleakycondo.com

AIBC Executive Council

(front row, left to right) AIBC ED Dorothy Barkley, Sean Ruthen, Gordon Richards, Patrick Stewart, Peter Levar, Grant Longhurst, Lori Mathison and Geoff Nagle. (back row, left to right) Edmund Lee, David Wilkinson, Joan Hendriks, Janet Lutz, David Hewitt, Elisa Brandts, Stuart Howard, and Eamonn Percy. Missing: Christopher Macdonald, Russell Hollingsworth


Patrick R. Stewart MAIBC (President)
Minten & Stewart Architects
204, 10190 152A Street
Surrey, British Columbia V3R 1J7
T: (604) 628-0025 F: (604) 580-1004 info@patrickstewartarchitect.com

David R. Wilkinson MAIBC (Vice President)
Cannon Johnston Architecture Inc.
#300 - 990 Fort Street
Victoria, BC V8V 3K2
T: 250/388- 0115 F: 250/388-4275
dwilkinson@cannondesign.com

Geoff Nagle MAIBC (Treasurer)
Morguard Investments Ltd.
400, 333 Seymour Street
Vancouver, BC V6B 5A6
T: 604/681-9474, F: 604/681-0161
gnagle@morguard.com

Pierre Gallant MAIBC
Morrison Hershfield
610- 3585 Graveley Street
Vancouver, BC V5K 5J5
T: 604/454-2032 F: 604/454-0403
PGallant@morrisonhershfield.com

Veronica Gillies MAIBC
Busby Perkins + Will
1220 Homer Street
Vancouver, British Columbia V6B 2Y5
T: 604/684-5446 F: 604/684-5447 Veronica.Gillies@busbyperkinswill.ca

Lisa Kwan IA (Intern Architect Representative to Council)
Soren Rassmussen Architects
450 - 375 Water Street
Vancouver, BC V6B 5C6
T: 604/681-4292 F: 604/681-4257
lkwan@srarch.net

Stuart Howard MAIBC (Past President)
Stuart B. Howard Architects Inc.
#401 1040 Hamilton Street
Vancouver, BC V6B 2R9
T: 604/688-5585 F: 604/688-7486
showard@stuarthoward.com

Elisa Brandts MAIBC
PBK Architects
200 - 1770 West 7th Avenue
Vancouver, BC V6J 4Y6
T: 604/736-5329 F: 604/736-1519
ebrandts@cochrane-group.ca

Gordon Richards MAIBC (Registrar)
Gage-Babcock & Associates
#228 - 1195 West Broadway
Vancouver, BC V6H 3X5
T: 604/732-3751 F: 604/732-1277
g_richards@gbacan.com

Peter Levar MAIBC
Peter Anthony Levar Architect
9168 Briar Road
Burnaby, BC V3N 4X1
T: 604/451-6965 F: 604/526-9754
plevar@aibc.ca

Janet Lutz MAIBC
Lutz Associates Architects Ltd.
#414 - 545 Clyde Avenue
West Vancouver, BC V7T 1C5
T: 604/922-9684 F: 604/922-7684
janet.lutz@lutzarch.com

Eamonn Percy, B.Eng MBA
The Percy Group
6656 East Boulevard
Vancouver, BC V6P 5R1
T: 604/662-3054 F: 604/222-1604
epercy@telus.net

Dr. Ray Cole
UBC School of Architecture
402 6333 Memorial Road
Vancouver, BC V6T 1Z2
T: 604/822-2377 F: 604/822-3808
rcole@interchange.ubc.ca

David Hewitt MAIBC
Hewitt + Kwasnicky Architects
10th Floor, 609 West Hastings St.
Vancouver, BC V6B 4W4
T: 604/688-0893 F: 604/688-3192
dh@hka.bc.ca

Edmund Lee, BCom, MBA
LaSalle Investment Management
Oceanic Plaza 760-1066 West Hastings St
Vancouver, BC V6B 3X2
T: 604/608-0806 F: 604/608-0896
edmund.lee@lasalle.com

Lori Mathison BCom (HONS), BCL, CGA, LL.B
Fraser Milner Casgrain LLP
The Grosvenor Building 15th Floor
1040 West Georgia Street
Vancouver, BC V6E 4H8
T: 604/443-7118 Fax: 604/683-5214 lori.mathison@fmc-law.com

Grant Longhurst MA
High Performance Communications Inc.
218 - 1311 Howe Street
Vancouver, BC V6Z 2P3
T: 604/926-6848 F: 604/926-6849
grant@highpci.com

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