[1]            HUDDART J.A.: This appeal from the dismissal of an application for certification as a class proceeding asks whether British Columbia or Canada owes a private law duty of care to owners of residential strata units in a condominium complex constructed in 1990 in Saanich, known as "The Willows".  The building in which the applicant’s unit is situated suffered building envelope failure, allegedly because it was constructed in compliance with the National Building Code requirement that the exterior walls be sealed by two vapour proof barriers.  The alleged effect of this requirement on buildings in coastal British Columbia was to trap moisture between the barriers with consequential structural damage and health hazard.

[2]            The applicant alleges the National Research Council (NRC) was negligent and failed in its duty to warn when it drafted and published, as the agent of Canada, the National Building Code of Canada (NBC) containing that requirement, and that British Columbia was negligent in its implementation of the Legislature’s policy decision to enact by regulation a building code with the effect of a municipal bylaw.

[3]            The applicant’s building was required to be constructed in compliance with the British Columbia Building Code, 1987 (BCBC 1987).  That code was established by regulation made under the authority of s. 692(1) of the Local Government Act, R.S.B.C. 1996, c.323.  It adopted by reference the NBC, as it existed on December 30, 1985, with changes the designated minister considered necessary.  The BCBC, 1987 applied throughout British Columbia and had the same force and effect as a validly enacted municipal bylaw until it was replaced with a revised code in 1992.

[4]            The chambers judge, for reasons reported at (2002), 9 B.C.L.R. (4th) 139, 2002 BCSC 1645, found it was plain and obvious the action could not succeed against either Canada or British Columbia because the pleadings did not establish a private law duty of care on either government, nor could they be amended to do so.  Applying the test developed in Anns v. Merton London Borough Council, [1978] A.C. 728 as applied in Cooper v. Hobart, [2001] 3 S.C.R. 537, he concluded the applicant could not demonstrate sufficient proximity to establish a prima facie duty of care on either British Columbia or Canada.  He noted that neither claim fell within a category of cases where a private law duty of care had been recognized, and concluded in both cases that policy considerations negated the recognition of a new duty of care, even were a prima facie duty of care to be established.

[5]            The appellant submits the approach of the chambers judge to the determination of the certification issue was “essentially sound,” but that he erred in result.  In her factum these issues were identified:

1. Did the trial judge err in dismissing the plaintiff’s application for certification in finding that there were considerations that ought to or did negative or reduce or limit the scope of the duty that British Columbia owed to the proposed class, or the damages to which a breach of it may give rise?

2. Did the trial judge err in holding that there was a valid policy consideration that ought to negative the duty of care that British Columbia owed the proposed class because the BCBC was a policy decision and not its operative implementation and that any negligence in creating the BCBC is not actionable?

3. Did the trial judge err in holding that there was a valid policy consideration that ought to negative the duty of care that British Columbia owed the proposed class because the spectre of indeterminate liability negates the prima facie duty of care owed by British Columbia to the proposed class?

4. Did the trial judge err in holding that there was a valid policy consideration that ought to negative the duty of care that British Columbia owed the proposed class because the fact that the Local Government Act does not set any limit on the type and amount of claims that might be advanced against British Columbia negates the prima facie duty of care owed by British Columbia to the proposed class?

5. Did the trial judge err in holding that there was no relationship of sufficient proximity between Canada and the Plaintiff or members of the proposed class so as to create a duty of care?

6. Did the trial judge err in holding that there was a valid policy consideration that ought to negative the duty of care that Canada might owe the plaintiff and the proposed class because the spectre of indeterminate liability negates any prima facie duty of care?

[6]            As I view the case against British Columbia, there is only one issue.  In my view the chambers judge correctly found the creation and establishment of the BCBC to be an act of lawmaking.  See Welbridge Holdings Ltd. v. Metropolitan Corporation of Greater Winnipeg, [1971] S.C.R. 957.  Immunity from the application of tort law flows from that fact.  As the chambers judge noted at paragraph 63 of his reasons for judgment, “[t]o the extent a government negligently governs, the voting public may impose a political consequence at an election.”  It follows I would not accede to the grounds of appeal that apply to British Columbia.

[7]            Nor would I accede to the grounds of appeal with regard to the claim against Canada.  I am not persuaded the chambers judge erred when he held that the National Research Council was not in a relationship of sufficient proximity with the appellant to give rise to a private law duty of care.  The appellant presented no authority establishing a duty of care on any advisor to a legislative body.  And that is the role of the National Research Council with regard to the NBC.  The National Research Council is a creature of statute.  Parliament created it to have “charge of such matters affecting scientific and industrial research as the Governor in Council may assign to it” National Research Council Act, R.S., c. N-14, s. 4.  Included in such matters was the development of a model building code to assist municipalities in enacting building bylaws and the construction industry by having uniform national building standards.

[8]            To the extent the appellant and others in her very unhappy situation may have been injured by the alleged negligence in the preparation or dissemination of the NBC, their reliance can only be on British Columbia, whose Legislature authorized the making of the regulation adopting the NBC by reference, with the effect of a municipal building bylaw, an act of lawmaking, as I have said, beyond review by a court in the conduct of tort law.

[9]            I would dismiss the appeal.

[10]        MACKENZIE J.A.: I agree.

[11]        THACKRAY J.A.: I agree.

[12]        HUDDART J.A.: The appeal is dismissed.

“The Honourable Madam Justice Huddart“