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PROCEEDINGS - Practice and procedure

Friday, November 06, 2020 @ 6:05 AM  


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Appeal by the plaintiff, Siebring, from dismissal of his claim against the defendant Strata Plan for compensation for water damage. The appellant was a self-represented litigant who alleged his unit was damaged by water from leaking pipes situated in common property. In 2014, his small claims action was dismissed for want of jurisdiction with leave to proceed in the Supreme Court. In 2015, the appellant filed his notice of claim in Supreme Court. In 2016, he applied for judgment by way of summary trial and the respondent applied to dismiss the claim. The applications did not proceed, as a master ordered the appellant to file an amended notice of civil claim. The appellant complied but was unable to set the matter for summary trial due to delay in obtaining the necessary supporting affidavit evidence. In 2019, the respondent applied to dismiss the claim. The application judge found that the pleadings were indecipherable and disclosed no cause of action, that the appellant caused his own loss due to his refusal to allow the respondent’s repair contractors to complete remediation, and that there was no proof of damage. The plaintiff appealed.

HELD: Appeal allowed. The reasons for judgment did not adequately address the appellant’s claim. The conclusion that the pleadings did not disclose a cause of action resulted from consideration of the evidence rather than the pleadings alone. Specific concerns related to deficiencies in the pleadings were not identified. No explanation was provided for why the respondent’s limitation defence would succeed. No explanation was provided for whether the case was suitable for determination by way of summary trial, and if so, how credibility would be determined. The finding of no proof of loss was not possible without resolving conflicting evidence. The plaintiff was not provided an opportunity to respond to new evidence adduced by the respondent. As the pleadings contained an allegation of a breach of a duty of care to maintain the common property and resultant damage to the appellant’s unit, the pleadings disclosed a cause of action. The appeal was allowed without prejudice to the respondent’s right to reapply for judgment by way of summary trial.

Siebring v. Strata Plan NW2275, [2020] B.C.J. No. 1547, British Columbia Court of Appeal, L.A. Fenlon, S.A. Griffin and G.B. Butler JJ.A., September 28, 2020. Digest No. TLD-November22020010