2005 BCSC 71 Giant Kingdom Holdings v. Coupal Climbing Cranes et al

Before: Master Scarth

Reasons for Judgment

Counsel for the Plaintiffs:	S. L. Boothman
Counsel for Third Party, the City of Richmond	D. C. Russell
Date and Place of Hearing:	September 17 and October 4, 2004
	Vancouver, B.C.

[1] This application is a companion application to Yuen v. Onni Development (Firbridge) Corp. et al., Action No. S035494, Vancouver Registry, reasons on which were issued concurrently.

[2] Giant Kingdom Holdings (“Giant Kingdom”) also seeks to add the City to its action pursuant to Rule 15(5)(a)(iii) and to amend the writ of summons accordingly. The City opposes its joinder; the existing defendants take no position on the application.

Background

[3] The following facts are relevant on this application.

[4] Giant Kingdom also owns property adjacent to the Onni project development site on which a building is situated. On January 2, 2002, Giant Kingdom’s representative, George Loo, wrote to Onni advising that “due to the construction activities on your property, we are experiencing uneven settlement in our building.” He requested that the person in charge of construction contact him as soon as possible.

[5] Giant Kingdom commenced this action on November 25, 2003 alleging negligence, trespass and nuisance against various defendants, including Onni. At the time this application was heard, the writ of summons had not yet been served and no statement of claim had been filed.

[6] Mr. Loo deposes that until he read the allegations against the City set out in Onni’s statement of defence filed in the Yuen action, he did not know that the City had attended at the Onni construction site in response to concerns that the preload, development and construction were damaging adjacent properties.

[7] Giant Kingdom now seeks to add the City and to amend the writ of summons. The proposed amendments, attached to a motion dated August 17, 2004, are as follows:

At all material times, the Defendant the City of Richmond owed a duty to the Plaintiff to carry out reviews and inspections of the Work (defined as “preloading, development and construction”) to ensure that the Work would not negatively impact or damage neighbouring properties. The City of Richmond breached that duty by not carrying out proper reviews and inspections of the Work and in failing to prevent the Work from causing damage to neighbouring properties.

Law

[8] The following additional submissions were made on the law in relation to this application.

[9] In addition to relying on the two-year limitation in the Limitation Act, R.S.B.C. 1996, c. 266, the City cites the two-month notice period in s. 286 of the Local Government Act, R.S.B.C. 1996, c.323. Cursory submissions were made on this point.

[10] The City submits that this notice requirement is different from a limitation defence provided by the Limitation Act in that s. 286 does not create a bar to commencing an action through lapse of time but provides that the City is not liable unless the required notice is received. The City submits that it is beyond the scope of this application to determine whether this defence would be eliminated by the City’s joinder but that, if it is so eliminated, it is a factor to consider when assessing prejudice under the second branch of the test under Rule 15(5)(a)(iii).

[11] The plaintiff submits that the court has treated s. 286 as creating a limitation defence and that the defence would be eliminated by joinder in the same manner as a defence under the Limitation Act: Marelj v. Gosselin (2001), 94 B.C.L.R. (3d) 351, 2001 BCSC 1491, at para. 5; Kennedy (Guardian ad Litem of) v. United Lock-Block Ltd., [1997] B.C.J. No. 281 (S.C.)(Q.L.).

[12] I accept the submission of the City that there is a distinction to be made between the notice requirement in s. 286 and a provision as to the time within which an action must be commenced. Section 4(1) of the Limitation Act applies to the latter and operates to eliminate the limitation defence arising from the “lapse of time for bringing an action”: see Lui v. West Granville Manor Ltd. et al. (1987), 11 B.C.L.R. (2d) 273 (C.A.). It has not been established to my satisfaction that the City’s defence under s. 286 is eliminated by joinder and, as a result, I have not taken s. 286 into account when assessing prejudice under the second branch of the test.

[13] It is arguable that compliance with s. 286 is more properly considered under the first branch of the test. If the plaintiff has not provided the notice required under s. 286, the plaintiff has no cause of action against the City and therefore cannot satisfy the onus on it to show a “real issue” between it and the City. There remains the application of the saving provision in s. 286(3), however, which is properly determined at trial.

[14] I am satisfied that the plaintiff has satisfied the first branch of the test. In my view, the considerations on the second branch of the test - as to whether it is just and convenient to add the City to this action - are largely the same as on the Yuen application. While it appears that Giant Kingdom did not notify the City of the damage to its property, it is fair to conclude that the City had knowledge of alleged damage to property neighbouring on the Onni site acquired through Ms. Yuen’s complaints and the City’s investigation of them. Further, in my view, the fact that the City is not already involved in this action as a third party as it was in the Yuen matter does not alter the outcome of the analysis on the second branch of the test.

[15] I conclude, adopting the reasoning set out in the Yuen application, that it is just and convenient to add the City to this action. The style of proceedings may be amended accordingly and the writ of summons amended as attached to the notice of motion before the court.

[16] Costs will be in the cause.

“Master S. Scarth”

Citation:	*Giant Kingdom Holdings v Coupal Climbing Cranes et al,*
	2005 BCSC 71