Date: 19990222 Docket: C956420 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: THE OWNERS, STRATA PLAN NO. VR 1720 PLAINTIFFS AND: BART DEVELOPMENTS LTD., GALLERIA II DEVELOPMENTS LTD. PARTNERSHIP, MOLNAR CONSTRUCTION LTD., SPACEWORKS ARCHITECTS (A PARTNERSHIP), PETER REESE, THADDEUS YOUNG, GORDON SPRATT & ASSOCIATES LTD., TAMM/TACY AND ASSOCIATES LTD., SCOTT CALVERT, SPECTRUM INDUSTRIES LTD. (FORMERLY WESTERN WATERPROOFING & MEMBRANES LTD.), CSA BUILDING SCIENCES LTD., CSA BUILDING SCIENCES WESTERN LTD., RALPH JECK, MURRAY FRANK and CHRISTIAN SKENE DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE E.R.A. EDWARDS Counsel for the Plaintiff: Ian G. Schildt Counsel for the Defendants Ralph Jeck, Murray Frank & Christian Skene: Craig A.B. Ferris Place and Date of Hearing: Vancouver, B.C. February 18, 1999 [1] Messrs. Jeck, Frank and Skene, "the personal defendants', apply for summary dismissal of the action against them on the basis they owed no duty of care to the defendants. [2] Mr. Skene, a professional engineer, is the principal of the defendant CSA ["Christian Skene Associates'] Building Sciences Ltd. ("CSA"). He and the other two personal defendants are employees of CSA. [3] The plaintiffs contracted with CSA to conduct a condition survey of their building, in response to CSA's proposal which bore the letterhead "CSA Building Sciences Ltd. Consulting Engineers' and contained the statement "The engineers, architects and technologists staffing this firm and the associated firm of Christian Skene Associates, Ltd. Architects and Engineers, focus their interests and efforts exclusively upon resolving the problems affecting existing buildings as opposed to engaging in the design of new buildings' [original emphasis]. [4] The building was a "leaky condo" complex which this proposal characterized as "plagued with problems ranging from extreme window condensation, moisture penetration through concrete, odour transfer, electrical and fire system failures, etc." [5] The condition survey reported problems, primarily with the roof, which the plaintiffs took steps to rectify. A later condition survey by another firm "JNA" disclosed much more significant and widespread problems with the fabric of building. [6] The plaintiffs allege that CSA and the personal defendants were negligent in failing to discover and report these additional problems and that as a consequence the cost of repairs was needlessly exaggerated. [7] Relevant portions of the Statement of Claim are these: 28. In or about July 1989, the defendant CSA undertook a condition survey of Galleria II (the "Survey"). The defendant Skene was the professional engineer responsible for the survey. In undertaking the Survey, the defendants CSA and/or Skene were under a professional duty to review Galleria II and properly identify the deficiencies which were the cause of the leakage problems. The Survey identified the deficiencies in the roof system, but failed to identify the majority of the building defects. 29. As a result of the Survey, the Strata Corporation undertook the repair of the roofing system during the course of 1991, but failed to address the other major building defects present at that time. 33. As a result of the defects and By-law violations set out above, all of which were caused or contributed to by the breach of warranty and/or negligence of the defendants, Galleria II has suffered significant damage, primarily due to the water leaks and premature deterioration of the external walkway. The resulting damage has resulted in a reasonable apprehension of harm to the life and safety of the occupants of Galleria II, including the danger of collapse of the external walkway. 34. The plaintiff claims against the defendants CSA and its successor CSA Western, Jeck, Frank and Skene for damages for breach of contract and professional negligence arising out of the failure to undertake a proper survey and/or inspection of Galleria II in or about July 1989. As a result of the negligence of the defendants CSA, Jeck, Frank and Skene, the deficiencies were not identified until the review undertaken by JNA in 1995. The cost of identifying and repairing the defects is significantly higher than it would have been had the deficiencies been properly identified in 1989. [8] The personal defendants' position that they owed no duty of care to the plaintiffs rests on what might be described as Mr. Justice LaForest's concurring "explanation" of the unanimous judgment of the Supreme Court of Canada in Edgewater Construction Ltd. v. N.D. Lea & Associates (1993), 83 B.C.L.R. (2d) 145 at 154, paragraphs 23 and 25. I need not quote those passages. [9] The Court of Appeal considered the Supreme Court of Canada's Edgewater decision in British Columbia v. R.B.O. Architecture Inc. (1994) 94 B.C.L.R. (2d) 96 and in Boss Developments Ltd. v. Quality Air Maintenance Ltd. (1995), 5 B.C.L.R.(3d) 209. In the latter case Gibbs J.A. distinguished Edgewater and found an engineer could be personally liable to an aircraft purchaser for signing a report indicating an aircraft was properly maintained when it was not, although his employer, not he, had a contractual relationship with the vendor to inspect the aircraft. [10] In Boss, as in this case, there was nothing in the relevant contract purporting to limit the tort duty of the defendant or its employees. [11] With respect to the individual employee, Gibbs J.A. noted in Boss that the he was liable because "Only an individual can be qualified as an aircraft maintenance engineer in this field of special skill and knowledge ... it follows that it is the individual mechanic who certifies whose skill is being relied upon." [12] While it is true that the plaintiffs did not engage CSA because they intended to rely on the skill of any individual they could identify by name, it is equally true that CSA held itself out as a firm of "consulting engineers', with "engineers, architects and technologists ...[who] focus their interests exclusively upon resolving" the very problem, building deficiencies, the plaintiffs contracted with CSA to address. [13] There is no question that all three of the personal defendants had a degree of experience and technical skill nor that each was actively involved in the survey and preparation or presentation of the report to the plaintiffs. The personal defendants must have known the plaintiffs would rely on their report. The extent of their involvement distinguishes them from the engineers in Edgewater, who merely affixed a seal "without more". [14] This case is indistinguishable from Boss. It cannot be plausibly argued that a limited company purporting to offer professional services of "consulting engineers' and indicating that its employees have special skill and experience is not inducing its clients to rely on those individuals' expertise. It is immaterial whether the client can identify that expertise with individual employees of the firm. [15] Limited companies cannot exercise professional functions except through qualified individual employees. Those employees must realize it is their skill and experience the clients are engaging and will rely on. They therefore owe a concomitant duty of care to those clients and are potentially liable in tort if they fail meet that duty. [16] As Macfarlane J.A. pointed out in R.B.O at paragraph 42, it is open to a limited company to limit its and its employees' exposure in tort by appropriate contract language. No such language was brought to my attention here. [17] The application is dismissed with costs on Scale 3. "E.R.A. Edwards, J." __________________________ Mr. Justice E.R.A. Edwards