PRACTICE |
Judgments and Orders |
Summary Judgment |
Chamberlain v. Capital City Yacht Club
T-846-97
Heneghan J.
27/11/00
9 pp.
Both defendant, District of North Saanich, and plaintiffs moving for summary judgment--In December 1996 as result of large quantity of snow on roof, boathouse located at marina on Vancouver Island in district of North Saanich submerged, damage resulted to several craft housed within--Plaintiffs, owners of damaged vessels, commencing action for negligence--Alleging District negligent in approving plans for marina, issuing building permits, despite obvious inadequacy of design--District arguing since application otherwise met technical requirements for issuance of permit, in absence of any specific preference in either National Building Code or by-law to flotation factors, no duty to address that issue--Says obliged to act in accordance with by-laws--Arguing standard of care expected from its building inspector in 1976 met, no negligence in issuing permit--Plaintiffs submitting not appropriate case for summary judgment in favour of District since genuine issues for trial, including scope of duty of care owed by District to plaintiffs, interpretation of relevant by-law, interpretation and application of National Building Code--Submitting summary judgment should be entered on their (plaintiffs') behalf, relying on Federal Court Rules, 1998, r. 216(3)--R. 216(3) providing where, on motion for summary judgment, Court deciding genuine issue with respect to claim or defence, may nevertheless grant summary judgment in favour of any party, either on issue or generally, if able on whole of evidence to find facts necessary to decide questions of fact, law--Plaintiffs relying on expert report prepared on their behalf in support of argument District negligent in matter of issuing building permit--Submitting that, notwithstanding no explicit reference to flotation or submergence factors in 1974 by-law and National Building Code then in effect, reasonably prudent building inspector employed by District would have been put on notice submergence factor of proposed building issue meriting attention--Furthermore, plaintiffs arguing course of conduct by District prior to construction of building showing District relied on National Building Code--Alleging reference on submitted drawings for proposed building to "roof snow at submergence" should have alerted District to consider section of building by-law dealing with climatic data--Motions dismissed--Principles governing grant of summary judgment under Federal Court Rules, 1998 set out in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.)--Plaintiffs' case against District not "so doubtful" should not proceed to trial--Arguments offered as to interpretation, effect of District's by-laws, National Building Code raising issues of fact, law which should be determined upon full adjudication at trial--Opposing expert opinions tendered by plaintiffs, District, other defendants properly deserve consideration by trial judge--Plaintiffs' motion for entry of summary judgment against District should not be granted without providing parties who may be affected by such order opportunity to present evidence, arguments--Entry of summary judgment in favour of plaintiffs against District, if granted at this stage would operate to prejudice of remaining defendants--Federal Court Rules, 1998, SOR/98-106, r. 216(3).