IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Wei v. Alcon Construction Co. Ltd.,
	2018 BCSC 421

Date: 20180316

Docket: VLC-S-S-1510100

Registry: Vancouver

Between:

Jiang Wei and Xiu Qing Hu

Plaintiffs

And

Alcon Construction Co. Ltd., ABC Co. #1, ABC Co. #2,
ABC Co. #3, ABC Co. #4, ABC Co. #5, and ABC Co. #6

Defendants

Before: Master Wilson

Reasons for Judgment


Counsel for the Defendant, Alcon Construction Co. Ltd.:	A.W. Buckley
Counsel for Zhi Yong Zhang aka Brian Zhang	D. Hepburn
Place and Date of Hearing:	Vancouver, B.C. March 6, 2018
Place and Date of Judgment:	Vancouver, B.C. March 16, 2018

[1] The defendant Alcon Construction Co. Ltd. (“Alcon”) seeks leave to file and serve a third party notice against two parties, Preet Plumbing, Heating and Sprinkle Ltd. (“Preet”) and Zhi Yong Zhang aka Brian Zhang (“Zhang”).

[2] By way of brief background, the plaintiff homeowners commenced this claim against the defendant Alcon and a number of unidentified parties arising out of a water escape at the plaintiffs’ home believed to have been caused by frozen pipes. The defendant Alcon was the construction manager at the time the plaintiffs’ home was built.

[3] The water escape occurred in December 2013 and the plaintiffs commenced this claim on December 7, 2015. Alcon was served on March 1, 2016, and the plaintiff obtained default judgment on August 20, 2016. The default judgment was set aside on August 9, 2017 by consent and Alcon’s response to civil claim was filed on October 24, 2017.

[4] The two proposed third parties were served with the notice of application. Preet is alleged to be the designer and installer of the sprinkler system and does not oppose the filing of the proposed third party notice. An order permitting the third party claim to be filed against Preet was made at the hearing.

[5] The proposed third party Mr. Zhang opposes the application. The incident that gives rise to this claim occurred while the plaintiffs were away from their home. The proposed third party notice includes the following allegation:

8. In or around December 2013, Zhang was responsible for supervising and taking care of the Property, including the adequate provision of heat, in the Plaintiff’s absence.

[6] The relief sought against Mr. Zhang is for contribution and indemnity pursuant to the Negligence Act, R.S.B.C. 1996, c. 333.

[7] The legal basis as it relates to Zhang includes the following allegations:

9. Zhang owed statutory, common law and/or contractual duties of care to the plaintiffs, including, but not limited the following:

a. to exercise reasonable care, skill and diligence in taking care of the Property, including but not limited to ensuring that adequate heat was provided to the Property;

b. to regularly and adequately monitor and inspect the Property to ensure that the Property maintained an appropriate level of warmth, including, but not limited to ensuring that no doors or windows were left open;

c. to ensure that all services, including the Property’s heating system and/or the Sprinkler System, were in good and proper working order at all material times;

d. to warn the plaintiffs that the Property’s heating system and/or the Sprinkler System were not in proper working order, resulting in the pipes in the Sprinkler System being susceptible to freezing in cooler temperatures; and

e. such further and other duties as become known to the Claiming Party.

10. Particulars of negligence and breach of statutory, common law and/or contractual duties owed to the plaintiffs by Zhang include, but are not limited to:

a. failing to regularly monitor and inspect the Property, or at all;

b. failing to ensure any heat, or adequate heat, was provided to the Property;

c. failing to ensure that all windows and doors to the Property were kept closed;

d. failing to properly or regularly monitor the property to ensure that all services, including the Property’s heating system and/or the Sprinkler System were in proper working order;

e. failing to warn the plaintiffs that the Property’s heating system and/or the Sprinkler System were not in proper working order;

f. acting outside the scope of his authority by misusing his access to the Property; and

g. such further and other particulars of negligence and fault as they become know to the Claiming Party and may be proved at trial.

Legal Basis

[8] Because it has been more than 42 days since Alcon was served with the amended notice of civil claim, leave is required pursuant to Rule 3-5(4), which reads as follows:

(4) A party may file a third party notice

(a) at any time with leave of the court, or

(b) without leave of the court, within 42 days after being served with the notice of civil claim or counterclaim in which the relief referred to in subrule (1) is claimed.

[9] The parties agree that the test on an application is the same as under the summary judgment rule, Rule 9-5, such that any proposed third party who opposes the application must establish that the pleadings disclose no cause of action or are bound to fail (Steveston Seafood Auction Inc. v. Bahi, 2013 BCSC 1072). In Steveston, Abrioux J. summarized the applicable principles as follows:

[19] These can be summarized as follows:

(a) The test on this application is the same as under Rule 9 – 5. The proposed third party must establish beyond doubt that the pleadings discloses no cause of action. The court is permitted to reject proposed claims only if the action is “bound to lose” or there is no bona fide triable issue.

Drummond v. Moore, 2012 BCSC 496 at para. 25.

(b) In exercising its discretion as to whether leave ought to be granted, the court can consider factors such as prejudice to the parties, the expiration of a limitation period, the merits of the proposed claim, any delay in the proceedings and the timeliness of the application.

Clayton Systems 2001 Ltd. v. Quizno’s Canada Corporation, 2003 BCSC 1573 at para. 9.

Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980.

Dhillon v. Coape and Hockaday, 2004 BCSC 1208 at paras. 17-18.

(d) An important consideration is whether it is “just and convenient” in all the circumstances of the case to grant leave to file the third party notice.

Symes v. Knooihuizen, 1998 B.C.J. No. 611 at paras. 38-39.

Clayton Systems 2001 Ltd. at para. 9.

(e) A third party claim will not lie against another person with respect to an obligation belonging to the plaintiff which the defendant can raise directly against the plaintiff by way of defense.

Adams v. Thompson et al. (1987), 15 B.C.L.R. (2d) 51 at para. 20.

Laidar Holdings Ltd. v. Lindt& Sprungli (Canada) Inc., 2012 BCCA 22 at para. 1.

[10] Some of the factors that are identified in paragraph 19(b) from the Steveston decision can be dealt with in relatively short order. I am satisfied that the application has been brought in a timely manner as the evidence is that Alcon was not aware of Mr. Zhang’s possible involvement until December 2017. This application was brought promptly thereafter.

[11] As for the issue of the limitation, s. 16 of the Limitation Act, S.B.C. 2012, c. 13, provides that the limitation for a claim for contribution and indemnity is two years following the later of:

(a) the day on which the claimant for contribution or indemnity is served with a pleading in respect of a claim on which the claim for contribution or indemnity is based;

(b) the first day on which the claimant knew or reasonably ought to have known that a claim for contribution or indemnity may be made.

[12] While the limitation would clearly have expired for the plaintiffs to bring a claim against Mr. Zhang, that is not something I need to consider here. While it is perhaps somewhat unfortunate from Mr. Zhang’s perspective that he may now be faced with the possibility of a claim some four years after the event, I am satisfied that the limitation has not expired.

[13] I am also satisfied that there is no particular prejudice to Mr. Zhang in terms of the status of the litigation which, despite the effluxion of time, is still in its infancy. To that end, I am advised that neither discoveries nor a trial date have yet been scheduled. Since the limitation for Alcon’s claim for contribution and indemnity as against Mr. Zhang did not start to run until December 2017, no obvious benefit would result from having Alcon start a separate claim; as such, if a claim for contribution and indemnity is to be permitted to proceed, it is logical that it occur by way of third party proceeding in the extant action.

[14] Mr. Zhang raises two arguments that warrant closer consideration as to whether the third party claim should be permitted to proceed:

a) Mr. Zhang was the plaintiffs’ agent such that his errors and omissions, if any, can be raised by the defendant directly as against the plaintiffs by way of a defence; and

b) Mr. Zhang was a volunteer housesitter, and as such there is no prospect that the court would find that he owed a duty of care to the plaintiff.

[15] I will deal with each of these arguments in turn.

a) Mr. Zhang was the plaintiffs’ agent such that his errors and omissions, if any, can be raised by the defendant directly as against the plaintiffs by way of a defence

[16] In support of this proposition, Mr. Zhang refers to the decision of Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Inc., 2012 BCCA 22, where Newbury J.A. writing for the court summarized the principle as follows:

[1] This appeal involves a rule that straddles the line between substantive law – the law of contribution between tortfeasors, codified in the Negligence Act – and procedure – the court rules governing third party notices. The rule has been considered several times and is well settled in this province. It was described by McLachlin J.A. (as she then was) on behalf of this court in Adams v. Thompson, Berwick, Pratt & Partners (1987) 15 B.C.L.R. (2d) 51 as follows:

It thus may be stated with confidence, in my view, that a third party claim will not lie against another person with respect to an obligation belonging to the plaintiff which the defendant can raise directly against the plaintiff by way of defence. Where the only negligence alleged against the third party is attributable to the plaintiff, there is no need for third party proceedings since the defendant has his full remedy against the plaintiff.

[17] In Adams, the proposed third party was the plaintiff’s solicitors; the defendant applicant was an engineering firm who sought to add the solicitors on the basis that they breached their duty to the plaintiffs. McLachlin J.A. (as she then was) held that the solicitors were the plaintiff’s agents and that the failure to mitigate the plaintiff’s losses was a defence that the engineers could raise directly as against the plaintiff and third party proceedings were unnecessary.

[18] In Laidar, the proposed third parties were also solicitors; the application to add the solicitors was dismissed for the same reason the application in Adams was dismissed, namely that the allegations the defendant wished to make could be and should be raised directly as against the plaintiff and that third party proceedings were unnecessary.

[19] As the Court of Appeal said in paragraph 12 of Laidar, the first branch of the Adams test has been applied in several cases where the proposed third party claim is as against the claiming party’s solicitors. However, it is a well-established principle that solicitors are generally agents for their clients. The relationship here is different. Mr. Zhang says that the allegations here, being a failure to ensure that the property was heated leading to the freezing and subsequent damage, are all defences that can be raised by Alcon as against the plaintiffs. This may be so, but it is not because of an established agency relationship between Mr. Zhang and the plaintiffs.

[20] It is important to keep in mind that the law requires that only the pleadings be considered and that the pleaded facts should be assumed to be true. The allegations as set out in the proposed pleading here are that Zhang was responsible for supervising and taking care of the property, including adequate provision of heat, and that he failed to monitor and inspect the property, and failed to ensure adequate heat, etc. It is certainly possible that Mr. Zhang was the plaintiffs’ agent for some purposes, but it does not necessarily follow that he was agent for all purposes or that he acted within the scope of his authority. More importantly, the nature of Mr. Zhang’s relationship with the plaintiffs has not yet been established and is not one of those relationships such as the one between solicitor and client where agency can be assumed.

b) Mr. Zhang was a volunteer housesitter, and as such there is no prospect that the court would find that he owed a duty of care to the plaintiff.

[21] Mr. Zhang says that the concept of a duty of care owed by a volunteer housesitter is a novel one for which no authority has been provided. He invites consideration of the principles of reliability established in Anns v. Merton London Borough Council, [1978] A.C. 728.

[22] The defendant says the closest analogy to the case at bar is the decision of the Ontario Court of Appeal in Douglas v. Kinger (Litigation Guardian of), 2008 ONCA 452, where the Ontario Court of Appeal upheld a lower court’s dismissal of a negligence claim brought by the plaintiff against the 13 year-old defendant who had been hired to perform chores on a part-time basis for $8.00 per hour at the plaintiff’s cottage. Even though the infant had been prohibited from using power equipment unless an adult was present, he nonetheless tried to refuel the plaintiff’s gas powered lawnmower, the result of which was a fire that destroyed the plaintiff’s boathouse and contents. The proposed claim was a subrogated claim that was brought by the plaintiff’s insurer.

[23] The Ontario Court of Appeal concluded that there was no duty of care under both prongs of the Anns test. First, while the court concluded that the loss was reasonably foreseeable, it concluded that there was insufficient proximity. At paragraphs 50 and 51, Lang J.A., held the following:

50 Accordingly, the question of sufficient proximity asks whether the relationship between the parties was of such a nature that it would be just and fair to impose the employer's loss on the employee based on the parties' expectations, representations and reliance. As I have already discussed, this analysis does not focus only on whether the respondent was skilled or unskilled, but instead looks at the overall parameters of the relationship.

51 Thus, it is preferable to consider the parties' relationship by focussing on the expectations they had of each other and to situate the negligence under consideration within the parameters of those expectations.

[24] In the following paragraphs, the court went on to conclude that a relationship of employer and employee was not one for which a duty of care would be appropriate.

[25] The second stage of the Anns test requires consideration of residual policy factors. The court further discussed the employer and employee relationship and held that it would make no economic sense to require both the employer and employee to obtain and maintain insurance coverage.

[26] The difficulty I have with Mr. Zhang’s arguments at this point in the claim is that the nature of the relationship between the plaintiffs and Mr. Zhang has not yet been established. Whether that relationship was as volunteer, employee, or something else is undoubtedly a factor that the court will consider in terms of determining whether Mr. Zhang owed a duty of care and if so, the extent or scope of that duty. However, based upon the facts alleged in the proposed pleading, which I am required to assume are true, I cannot conclude that Mr. Zhang has established beyond doubt that he owed no duty of care to the plaintiffs, or that no cause of action has been disclosed.

[27] The defendant will therefore have leave to file the third party proceeding against Mr. Zhang.

“Master Wilson”