Winnipeg Condominium Corp. No. 613 v. Concord Date:, 2015 MBCA 49

Citation: Winnipeg Condominium Corp. No. 613 v. Concord Date: 20150505 Projects Ltd. et al., 2015 MBCA 49 Docket: AI14-30-08293 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella BETWEEN : WINNIPEG CONDOMINIUM ) CORPORATION NO. 613 ) ) (Plaintiff) Respondent ) ) - and - ) ) RAYMOND S.C. WAN ARCHITECT INC. ) and RAYMOND S.C. WAN ) K. T. Williams and ) K. L. Dear (Defendants) Appellants ) for the Appellants ) - and - ) R. A.

McFadyen ) for the Respondent CONCORD PROJECTS LTD., DYNASTY ) DEVELOPMENT OF CANADA LIMITED ) and DYNASTY LAND CORPORATION ) Appeal heard and carrying on business under the firm name ) Decision pronounced: and style of THE DYNASTY GROUP, ) May 5, 2015 THE DYNASTY GROUP AND ) EDGEWATER GP LTD. ) ) (Defendants) ) ) - and - ) ) PENTA PROTECTIVE COATINGS LTD., ) QUALITY GLASS & ALUMINUM LTD., ) WINTER’S PLUMBING AND HEATING )

(1995) LTD., PENNER DOORS & ) HARDWARD LTD., TRANSCONA ) ROOFING

(2000) LTD., S &

J) CONSTRUCTION LTD., AND ANDE ) LOYER carrying on business under the ) firm name and style of COVENANT ) ALUMINUM AND GLASS COMPANY ) ) (Third Parties) ) MAINELLA J.A. (for the Court): [ 1 ] The appellants, an architectural firm and its principal, appeal an order refusing them

summary judgment on a claim

against them in negligence for economic losses caused by a dangerous defect. The allegation is that of a faulty design of a parkade in acondominium building by failing to ensure the installation of an elastomeric traffic-bearing waterproof membrane on the main floor ofthe parkade. [2] The appellants moved for

summary judgment on the basis that the decision to not install the waterproof membranewas a cost saving measure approved by the project developers, and the failure to install the waterproof membrane was not a dangerousdefect. The respondent produced evidence on the motion for

summary judgment from an expert witness that, if not corrected, the failureto install the waterproof membrane may lead to structural compromise of the integrity of the parkade, albeit the potential danger may notoccur until decades in the future. The appellants say the alleged defect, the absence of a waterproof membrane in the parkade, wasvisible to the naked eye and therefore was patent, as opposed to latent, and therefore not actionable according to Winnipeg CondominiumCorporation No. 36 v.

Bird Construction Co., (SCC), [1995] 1 S.C.R. 85. [3] The motion judge, in her short endorsement, adopted the decision of the Master that whether or not a latent, asopposed to a patent, defect is a pre-requisite for a claim of a pure economic loss according to Bird Construction, is a genuine issuerequiring a trial on a complete record, because the law on liability for pure economic losses is still developing (see Brett-Young SeedsLtd. et al. v. K.B.A. Consultants Inc. et al., 2008 MBCA 36, 225 Man.R. (2d) 291).

The motion judge also was satisfied that the expert’sevidence as to the foreseeability of the danger arising from the failure to ensure installation of the waterproof membrane was sufficient torequire the matter to go to trial. [4] We are not persuaded the motion judge either misdirected herself or that the decision she arrived at was wrong, letalone clearly wrong as to amount to an injustice (see Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81, 245 Man.R. (2d) 70). [5] The appeal is dismissed with costs. J.A. J.A. J.A.