Date: 20001127
Docket: T-846-97
BETWEEN:
HUGH CHAMBERLAIN, STEVEN and MARJORIE DENROCHE, WILLIAM and PAT EASSIE, CLIVE FARMER, RICHARD and ROSEMARY GILL, GORDON HUNTER,
GERALD HUTCHISON, JOHN HUTCHISON, RUSSELL JOHNSON, ART
and DIANE KELLY, FREDERICK LEAK, GORDON McALLISTER,
LAWRENCE PIMLOTT, MILES PRIMROSE, ROD TIDMAN,
IAN and JOAN WALLACE, JACKIE WHITEHEAD,
R. GILBERT, C. HEWITT, E. PAGE, JACK
SCHADDELEE, A. FAREY, S. MUCKAY, DAVID
COOPER, BRUCE CLARKE, ROBERT COLEMAN,
LAURENCE MARTYN, GEORGE BURROWS, JAMES
HORVATH, LAWRENCE SMITH, and 423230 BC LTD.
Plaintiffs
- and -
CAPITAL CITY YACHT CLUB, READ JONES CHRISTOFFERSEN LTD.,
W. CAMPBELL LTD. and THE DISTRICT OF NORTH SAANICH
Defendants
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
1. This is a motion by the Defendant, the District of North Saanich (the "District") for the entry of summary judgment against the Plaintiffs pursuant to Rules 213 to 218 of the Federal Court Rules,1998. The Plaintiffs also seek the entry of a summary judgment against the District. By Order made November 6, 2000 the motions were dismissed. These are the Reasons for Order.
FACTS
2. On December 29, 1996, a large quantity of snow fell on the roof of a boathouse located at a marina on Vancouver Island in the District of North Saanich, in the province of British Columbia. The boathouse submerged and damage resulted to several craft housed within it. The Plaintiffs, as owners of the damaged vessels, commenced this action.
3. According to the Amended Statement of Claim, the Defendant, Capital City Yacht Club ("Capital City") is the operator of the marina in question. The Defendant, Read Jones Christoffersen Limited, acted as an engineering consultant for the construction of the marina. The Defendant, W. Campbell Limited and Campbell Construction Limited (together "Campbell Construction") were involved in the construction and design of the marina. Finally, the Defendant, the District, which, through its servants and agents, inspected and approved construction of the boathouse.
4. On July 10, 1974, Capital City Yacht Club applied to the District of North Saanich for a building permit to erect covered moorage shelters at Blue Heron Road, Cowichan District. This application referred to "plans submitted and approved". The application incorporated, by reference, the National Building Code then in effect and the by-laws of the District. The application for the permit also provides as follows:
| ...Further, all work and conditions shall conform to the National Building Code and to the District of North Saanich by-laws, all to the satisfaction of the municipal building inspector. |
5. The relevant by-law is by-law no. 157, 1974, entitled "A By-law for the Administration and Enforcement of the Building Code" (the "building by-law"). This by-law defines "building" in section 2(ix) as follows:
| "building" means any structure used or intended for supporting or sheltering any use or occupancy and need not be permanent structure nor need it be attached to land or places thereon. |
6. The powers of the authority, described in section 5, include the ability to refuse to issue a permit pursuant to section 5(b) as follows:
| 5. The authority having jurisdiction: |
| (b) may revoke or refuse to issue a permit where the results of tests or materials, devices, construction methods, structural assemblies or foundation conditions are not satisfactory, in its opinion... |
7. Section 6 of the by-law deals with the issuance of permits. It states:
| (a) an application has been made, and |
| (b) the proposed work set out in the application conforms with this By-law and all other applicable By-laws; |
| (c) the applicant for a permit has paid the fee prescribed and as set out in appendix "A" attached hereto, |
| the authority having jurisdiction shall issue the permit for which the application is made. |
8. The preamble to the by-law also incorporates by reference certain parts of the National Building Code of Canada, specifically Parts 2, 3, 5, 6, 8 and 9.
9. Following application the permit was issued on August 21, 1974. The actual permit is the lower part of the application for permit. The permit was signed by one T.A. Crack, Building Inspector for the District of Northern Saanich.
10. The permit, dated July 10, 1974, was for the construction of covered moorage shelters "as per plans submitted and approved".
11. The moorage shelter, consisting of a number of covered berths with inter-connecting roofs constructed in a T-shaped design, was subsequently built. It stood without incident until December 1996 when following the snow storm, the structure submerged, resulting in damage to the property of the Plaintiffs.
ISSUE
12. The cause of action is framed in negligence. The specific allegation of negligence against the District is set out in the Further, Further, Amended Statement of Claim in paragraph 11(j) as follows:
| Particulars of the negligence of the Defendant now known to the Plaintiffs include the following: |
| (j) in the case of the District, approving plans for the Marina, and issuing building permits for the Marina, despite the obvious inadequacy of the design presented to the District. |
13. The parties have conducted discovery examinations. Expert opinions have been prepared and exchanged. The District now brings its motion for the entry of summary judgment, which if granted, would have the effect of dismissing the Plaintiffs' claims against the District.
ARGUMENTS
14. The District argues that it had no choice in the matter of issuing the building permit in question. It argues that in the absence of any specific provisions in either the National Building Code or by-law to flotation factors, the District had no duty to address that issue. Since the application otherwise met the technical requirements for issuance of a permit, the District was bound to do so.
15. The District says that it was obliged to act in accordance with its by-laws. The relevant by-law is no. 157 of 1974. The District, relying on the expert report prepared by Mr. George Humphrey, submits that a building inspector in 1976 was not expected to have the knowledge to question the technical design of the proposed building. The District says that in order to comply with the requirements of the building by-law, the building inspector reasonably relied on the plans which were submitted, in accordance with section 6(4) of the by-law.
16. In short, the District argues that the standard of care expected from its building inspector in 1976, taking into account the absence of a specific reference to flotation standards in both the building by-law and the National Building Code, was met. Accordingly, there was no negligence by the District in issuing the permit and furthermore, no right of the District to refuse issuance of the permit.
17. The Plaintiffs' response to the District's motion is two-fold. In the first place, the Plaintiffs submit that this is not an appropriate case for summary judgment in favour of the District, since there are genuine issues for trial, including the scope of the duty of care owed by the District to the Plaintiffs, the interpretation of the relevant by-law and, the interpretation and application for the National Building Code particularly as it applies to snow loading and submergence factors.
18. Second, the Plaintiffs submit that summary judgment should be entered on their behalf against the Defendant District. In that regard, the Plaintiffs rely on the wording in Rule 216(3) which provides as follows:
| 216 (3) Where on a motion for summary
judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of
fact and law.
|
(3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit.
|
19. The Plaintiffs rely on the expert report prepared on their behalf in support of their argument that the District was negligent in the matter of issuing the building permit. The Plaintiffs submit that, notwithstanding that there was no explicit reference to floatation or submergence factors in the 1974 by-law and the National Building Code then in effect, a reasonably prudent building inspector employed by the District would have been put on notice that the submergence factor of the proposed building was an issue that merited attention. Furthermore, the Plaintiffs argue that there was a course of conduct by the District, prior to construction of the building which shows that the District relied on the National Building Code.
20. The Plaintiffs say that this building inspector should have paid attention to the notation on the submitted drawings for the proposed building. These drawings, prepared by the Defendant Read Jones Christoffersen, included a reference as follows:
| Roof snow at submergence . . . . . . . 7 P.S.F."1. |
21. The Plaintiffs say that this reference should have alerted the District to consider section 11 of the building by-law dealing with climatic data. This establishes a maximum snow load on the ground of twenty-five pounds per square foot. The Plaintiffs argue that the notation on the submitted plans, when considered in relation to the relevant by-law and applicable building codes, was sufficient to alert the District to give more careful consideration to the safety and stability of the proposed building.
22. The Plaintiffs also refer to the opinion of Mr. Nikleva, a meteorologist with Pacific Meteorology Inc. in Richmond, British Columbia.
23. This opinion, contained in a report from Mr. Nikleva, calculates the amount of snow which fell on December 29, 1996. The Plaintiffs submit that, according to the opinion of Mr. Nikleva and having regard to the actual amount of fallen snow, the most probable actual submergence factor for this building was seven pounds per square foot. The Plaintiffs further argue that there is no evidence that any discussion took place between an employee of the District and a design engineer, or anyone else, concerning the safety implications of constructing the proposed building with a snow submergence factor of seven pounds per square foot.
ANALYSIS
24. The issue of negligence on the part of the District, in issuing the building permit in question, is critical to the Plaintiffs' action against the District. In order to succeed on a motion for summary judgment against the Plaintiffs, the Defendant District must show that there is no genuine issue for trial arising from the claim against it. The key questions in determining whether a motion for summary judgment will succeed are whether there is no genuine issue for trial (see Feoso Oil Ltd. v. "Sarla" (The), [1995] 3 F.C. 68, 184 N.R. 307 (C.A.)), or whether the case is so doubtful that it does not deserve consideration by a trial judge (see Paige Innovations Inc. v. Noma Inc. (1997), 77 C.P.R. (3d) 194, 135 F.T.R. 277 (T.D.)). The principles governing the grant of summary judgment under the Federal Court Rules, 1998 are set out in Granville Shipping Co. v. Pegasus Ltd. S.A., [1996] 2 F.C. 853, 111 F.T.R. 189 (T.D.).
25. In my opinion, it cannot be said that the Plaintiffs' case against the Defendant District is "so doubtful" that it should not proceed to trial.
26. The Plaintiffs' claim against the District is framed in negligence. The opposing arguments offered as to the interpretation and effect of the District's by-laws and the National Building Code, raise issues of fact and law which should be determined upon a full adjudication at trial. The opposing expert opinions tendered by the Plaintiffs, the District and other Defendants properly deserve consideration by the trial judge.
27. As for the Plaintiffs' motion for the entry of summary judgment against the District, this should not be granted without providing other parties, who may be affected by such order, an opportunity to present evidence and arguments. The entry of summary judgment in favour of the Plaintiffs against the District, if granted at this stage, would operate to the prejudice of the remaining Defendants.
28. The motions for summary judgment are dismissed, with costs in the cause.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
November 27, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: HUGH CHAMBERLAIN, STEVEN and MARJORIE DENROCHE, WILLIAM and PAT EASSIE, CLIVE FARMER, RICHARD and ROSEMARY GILL, GORDON HUNTER, |
| GERALD HUTCHISON, JOHN HUTCHISON, RUSSELL JOHNSON, ART and DIANE KELLY, FREDERICK LEAK, GORDON McALLISTER, LAWRENCE PIMLOTT, MILES PRIMROSE, ROD TIDMAN, IAN and JOAN WALLACE, JACKIE WHITEHEAD, R. GILBERT, C. HEWITT, E. PAGE, JACK SCHADDELEE, A. FAREY, S. MUCKAY, DAVID COOPER, BRUCE CLARKE, ROBERT COLEMAN, |
| LAURENCE MARTYN, GEORGE BURROWS, JAMES HORVATH, LAWRENCE SMITH, and 423230 BC LTD. |
Plaintiffs
- and -
| CAPITAL CITY YACHT CLUB, READ JONES CHRISTOFFERSEN LTD., W. CAMPBELL LTD. and THE DISTRICT OF NORTH SAANICH |
Defendants
| DATE OF HEARING: THURSDAY, JULY 20, 2000 |
| PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: MONDAY, NOVEMBER 27, 2000
| APPEARANCES BY: Mr. Donald Smith, and |
Mr. Vernon Pahl
| SOLICITORS OF RECORD: McEwen Schmitt and Company |
Barristers and Solicitors
P.O. Box 11174
Suite 1615
1055 West Georgia Street
Vancouver, British Columbia
V6E 3R5
Barristers and Solicitors
P.O. Box 49170
200-595 Burrard St.
Vancouver, British Columbia
V7X 1R7
Harper Grey Easton
Barristers and Solicitors
Suite 3100
650 West Georgia St.
Vancouver, British Columbia
V6B 4P7
FEDERAL COURT OF CANADA
Date: 20001127
Docket: T-846-97
Between:
| HUGH CHAMBERLAIN, STEVEN and MARJORIE DENROCHE, WILLIAM and PAT EASSIE, CLIVE FARMER, RICHARD and ROSEMARY GILL, GORDON HUNTER, |
| GERALD HUTCHISON, JOHN HUTCHISON, RUSSELL JOHNSON, ART and DIANE KELLY, FREDERICK LEAK, GORDON McALLISTER, LAWRENCE PIMLOTT, MILES PRIMROSE, ROD TIDMAN, IAN and JOAN WALLACE, JACKIE WHITEHEAD, R. GILBERT, C. HEWITT, E. PAGE, JACK SCHADDELEE, A. FAREY, S. MUCKAY, DAVID COOPER, BRUCE CLARKE, ROBERT COLEMAN, |
| LAURENCE MARTYN, GEORGE BURROWS, JAMES HORVATH, LAWRENCE SMITH, and 423230 BC LTD. |
Plaintiffs
- and -
| CAPITAL CITY YACHT CLUB, READ JONES CHRISTOFFERSEN LTD., W. CAMPBELL LTD. and THE DISTRICT OF NORTH SAANICH |
Defendants
__________________
1District's Motion Record, Affidavit of Vernon J. Pahl, Exhibit F.
Email this Content