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Re-piping or Epoxy Coating

Pursuant to the City of Vancouver seeking an Order in the Supreme Court of BC striking out the Claim please note the following highlights in point form from the Court decision of April 12, 2002;

• The City of Vancouver (the "City") sought an order striking out the claim brought against it by the plaintiff on the ground that it discloses no reasonable claim.

• The Cities of Richmond, New Westminster and Port Coquitlam and the Municipality of West Vancouver were represented by counsel at the hearing, but took no part in it and have no position with regard to the City's application.

• The claim against the City was based on the assumption that the City has a duty of care to inspect for compliance of its code and that in breach of that duty the City has failed to require epoxy applicators to obtain permits, to insure that they are properly trained, to inspect plans and to inspect the work done.

• The plaintiff says that it has lost re-piping contracts to epoxy coating contractors who have been allowed to operate unfairly without facing the costs of demonstrating compliance with the City's applicable codes. The plaintiff claims damages and declarations concerning what it alleges are the City's obligations with regard to epoxy contractors, as well as detailed injunctive relief.

• The City points out, that the plaintiff is neither the owner nor prospective purchaser of property where epoxy pipe coating is used. The plaintiff is not a contractor working on such property. Rather the plaintiff is a contractor competing with epoxy pipe coating contractors and alleges only economic loss as a result of the City's alleged failure to enforce it's bylaws.

• The City advanced the position that there is no duty on the City to protect the plaintiff from such loss resulting from its failure to regulate epoxy coating contractors as alleged in the statement of claim. The foreseeability of economic loss does not itself impose a duty of care to avoid such loss.

• Justice Caitiff stated, “It is plain and obvious to me that the City does not and did not owe the plaintiff a private duty of care in the circumstances set out in the statement of claim. It follows that the statement of claim does not disclose a reasonable claim against the City.”

• Justice Caitiff concluded “it is plain and obvious that the statement of claim discloses no reasonable claim against the City either on the basis of negligence or of other causes of action that have not been pleaded. Nor is there any basis for a claim to injunctive relief. The application is therefore granted, the plaintiff's statement of claim is struck out and the action is dismissed with costs.”

• The future direction of this Action involving the other municipalities at this time is uncertain but any future events will be recorded as part of this article

a Mandatory Injunction requiring the Municipalities to order the removal of epoxy coated piping which does not meet Code

The Plaintiff is also seeking General and Punitive Damages and Damages for economic loss plus Special and General Costs.

Notwithstanding the potential merits of the "epoxy" solution, one primary concern is the lack of regulations, inspections, and performance standards for the epoxy coating solution and the training and supervision of the epoxy contractors.

Again, as with the "leaky condo" syndrome it appears that the parties charged with exercising a duty of care to protect the public have not met minimum performance criteria.

It is hoped that this matter be addressed as quickly as possible by the Municipalities involved to ensure we do not have another disaster in the making, similar to the faulty design and construction methods utilized which resulted in the leaky condo crisis.

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About the Author: Ben G. Larsson

Ben G. Larsson, B.A., CPM, RPA, FRI, CMOC is President and Chief Executive Officer, Interlink Realty Corporation, Richmond, British Columbia and a frequent contributor to many publications. Mr. Larsson currently serves as a member of the Property Management Advisory Board, Real Estate Council of British Columbia, Mr. Larsson is also a Past Chair, Institute of Real Estate Management, Canada, and has served on the Board of Directors, Real Estate Institute of Canada, Governing Council, Regional Vice Presidents Committee and Executive Committee of the Institute Real Estate Management-USA and has been directly involved in the property management industry throughout Western Canada since 1975.

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