The Gardens (Maple Ridge): Judge suppresses publication of a leaky condo case

The Gardens Cover-up

A B.C. Supreme Court Judge has tried, and failed, to suppress publication of a leaky condo case on the Internet.

In mid-August, 2006, we became aware that the Honourable Madam Justice Gerow had rendered a decision regarding a lawsuit launched by dentist and part-time developer Dr. James (Jim) Findlay against purchasers who bought a leaky rotten condo from his numbered company.

We were quite familiar with the Gardens in Maple Ridge and the torture various leaky condo owners endured.

The Gardens was on COLCO’s Leaky Rotten Condo List for good reason.

We had conducted several site visits to the Gardens during botched repair jobs, the failure of the New Home Warranty Program, abandonment of repairs by the Preferred Construction Group, and later efforts to fix the building envelope correctly.

Dr. Findlay’s company had not only sold the leaky rotten condo to the purchasers in 1997, it helped the purchasers in this case by loaning $55,000 to be used as part of the purchase price and secured the loan with a second mortgage. Dr. Findlay caused his company to try and extract that money from the purchasers.

This was a leaky condo case that we wanted to know more about, including why it was not available on the Internet.

We determined that the correct citation for the Docket was S025437 and the citation for the Reasons for Judgment was 413255 B.C. Ltd. v. Jesson et al., 2006 BCSC 1070 and that the Reasons for Judgment were dated 20060710 (July 10, 2006).

We were surprised that our methodical daily monitoring of the Supreme Court website by using Reasons for judgment released this week had failed to detect Judge Gerow’s Reasons on or after July 10.

We immediately searched for the Reasons on the Supreme Court database. The database is described as follows at About the Reasons for Judgment

Supreme Court

This Web database contains decisions of the Supreme Court of British Columbia since 1990. Judgments are released every weekday. This database is updated daily. Judgments will be available, at the earliest, one day after they are released to counsel. Judgments released outside Vancouver will be available after they are received.

With the exception of a small number of oral judgments which have been circulated, this database does not include oral judgments from the Supreme Court.

The official version of the Supreme Court reasons for judgment is the signed original in the court file. In the event that there is a question about the content of a judgment, the original of the judgment in the court file takes precedence. Copies of the original judgment can be obtained by contacting the court registry shown at the top right hand corner of the first page of the judgment. A photocopying charge is payable.

There is nothing in the description of the database to indicate that some written decisions are published and some are not.

In fact the database contains many decisions clearly marked as being subject to a ban on publication.

The court database also contains many decisions by Justice Gerow since she was appointed to the Supreme Court, following a successful career as an insurance lawyer with Harper Grey Easton.

We have now determined that the Court did not publish the Reasons for Judgment in this leaky condo case involving Dr. Findlay because the Honourable Madam Justice Gerow issued a “do not publish” instruction.

Why Judge Gerow issued the instruction to not publish the case on the Internet is still not clear.

We made a series of inquiries to the Court and to the office of Attorney General Wally Oppal, himself a former judge, and the Minister responsible for the Courts.

We were often told that answers to our questions would be forthcoming, but they never arrived.

Heidi McBride, a Law Officer at the Trial Division section of the Vancouver Courthouse, confirmed that yes, publication had been “banned”, her word, and promised to find out why and get back to us with an answer, but never did.

What Ms. McBride did do was to stop taking our calls and become “not available”. Ms. McBride began replying through intermediaries that she would “get back to us when she had more information”. But she never did, despite repeated requests to her office.

On Thursday (September 7, 2006) we used Court Services Online and determined that Reasons for Judgment had indeed been filed July 10, 2006.

However Court Services Online, which is operated by the provincial government and which charges user fees, provides a very disconcerting disclaimer that the information for any one file may not be complete and may not be correct.

On Friday (September 8, 2006) we asked Sylvia at the Court House Library if they could provide a copy of the Reasons for Judgment.

Sylvia was confident that they would be able to provide a copy.

However, after conducting several searches of various electronic databases, including a search of their private database containing “unreported cases” and after consulting with other staff members, Sylvia reported they had not found the case.

As far as staff at the Vancouver Courthouse Library knew on Friday, the Reasons for Judgment by Madam Justice Gerow were not available without actually checking the court file. The Library prides itself in being able to locate such documents.

Later in the day, a Deputy District Registrar of the Court returned our call and confirmed that the publication ban, if there were one, would definitely be noted “in the file”.

He also mentioned that to publish in the face of a ban would be contempt of court. However, if the ban was not in the file then we could not be held in contempt of court because the court is obligated to make the ban known.

We had already requested that the file be pulled from storage.

The file was to be ready for viewing at three o’clock.

When we asked for the file we learned that it was not available because it had been transferred to Trial Division because of a scheduled Hearing on Tuesday.

Ouch! This had happened before in another leaky condo case and we knew that once the Judge had the file we wouldn’t be able to see it until sometime after the Hearing on Tuesday.

We were told to go to Trial Division and determine if they still had the file.

Trial Division had the file ready for delivery to Judge Gerow.

It was now about 3:20 pm with the Courthouse due to close at 4 pm.

The file contained the “Original” signed copy of Madam Justice Gerow’s Reasons for Judgment and other documents but no Order that publication was banned.

At 3:45 pm we returned the file and inquired at Trial Division if Heidi McBride was available.

We explained to the staff person that a Deputy District Registrar had told us that, if there was a ban it would be in the file but the file did not contain a “publication ban”.

Not wanting to be found in contempt of Court for disobeying a “publication ban”, whether it was in the file or not, we asked the staff person to ask Heidi McBride to explain why she had told us there was a “publication ban” when the ban was not in the file.

Just as Sheriffs began locking the doors at 3:57 pm the staff person returned to us at the counter.

She stated that Heidi McBride was not available to meet with us.

Furthermore she said that Heidi McBride said to tell us that there was no Order to ban publication of the Reasons for Judgment, despite telling us previously that her computer showed that a ban was in place.

McBride’s story this time was that Judge Gerow had issued an “instruction” that the Reasons not be published on the Internet.

Furthermore, she wanted us to know that it was within the Judge’s discretion to instruct Court staff to not publish the Reasons on the Internet.

We were provided with no reasons why Judge Gerow exercised her as yet unsubstantiated discretion to instruct that the case not be published on the Internet.

At 3:59 we stated to the staff person that we intended to do exactly what Judge Gerow obviously did not want done.

Here are some excerpts from the Reasons for Judgment by Madam Justice Gerow:

[44] … However, by October 1996, Dr. Findlay was aware of water leakage into the building. Although Dr. Findlay attempted to minimize the leaks, his evidence that the leak in unit 203 was caused by a plumbing mishap in a unit above was contradicted by Mr. Smith. I accept Mr. Smith’s evidence that the leak in unit 203 was not due to a minor plumbing mishap as described by Dr. Findlay, but rather water ingress from the exterior. Approximately 80 square feet of ceiling was removed, and water was found in the ceiling. The water ingress was traced to a balcony area above the unit. The issue was reported by Mr. Smith in detail at the strata council meeting Dr. Findlay attended.

[45] I did not find Dr. Findlay to be a reliable witness. His testimony that he was unaware of any problems in the Atrium [another leaky rotten condo complex on COLCO’s List] is unbelievable given the evidence of Ms. Jesson and Mr. Smith that it was apparent that tarps were on the building and that work was being done to the Atrium for at least two years. Dr. Findlay testified that he was not aware that the Atrium was a leaky condominium because his wife never discussed any problems with him. However, the evidence is that the Atrium was in the same block as Dr. Findlay’s office. It is reasonable to infer that Dr. Findlay would have noticed the tarps, particularly in light of the fact that his wife was one of the developers of the property.

[46] I accept Ms. Jesson’s evidence that there was awareness in the public of the leaky condominium phenomena because of the media reports. It is reasonable to infer tht Dr. Findlay was aware of the concern regarding leaky condominiums. Despite his awareness of the water ingress problems in the Gardens and the fact he was unaware if the leaks had been fixed, Dr. Findlay, [sic] took no steps to investigate the problem further, nor change the Disclosure Statement.

[48] … In my view, it is reasonable to infer that Dr. Findlay would be aware that water ingress problems in a new condominium building were important changes that individuals buying a unit should be made aware of. I have concluded that the representations made in the Disclosure Statement were untrue, inaccurate and misleading at the time it was given to the purchasers. Further, 413255 B.C. Ltd. was negligent in not advising the purchasers of important changes to the representations in the Disclosure Statement signed by Dr. Findlay, namely that 413255 B.C. Ltd. had become aware that the Gardens had suffered from water damage and roof leaks and that there was unrepaired damage.

[50] … I accept Mr. Conroy and Ms. Jesson’s evidence that neither Mr. Conroy nor Mr. Jesson would have purchased the unit if they were aware of the water ingress problems because of the scare of leaky condominiums through out the media.

[51] The purchasers have also established that they suffered damage as a result of the negligent misrepresentations.

[59] Accordingly, the purchasers are entitled to damages for negligent misrepresentation in the amount of $106,434.90 ….

For the greater good of leaky condo owners everywhere, and in the interest of seeing that justice is done, and seen to be done, we intend to post the complete Reasons for Judgment that Justice Gerow did not want you to read on the Internet at

myleakycondo.com's Blog

NOTE:

A Hearing regarding the costs of this case is scheduled for 9:30 am Tuesday morning, September 12, in the Supreme Court, in Vancouver.

We intend to attend.