0790482 B.C. LTD. v KBK No. 11 Ventures Ltd. 

The actions, brought against the developer, builder, architect, sub-contractors and home warranty provider, concerned alleged defects in the Shangri-La building’s glass curtain wall. The class proceeding alleged that the defects amounted to a breach of the implied warranty of fitness benefiting pre-sale purchasers, who had contractual privity with the developer.

The litigation was highly contested. Prior to certification, Ken McEwan obtained leave to cross-examine the developer’s expert witness [2021 BCSC 1203] and to strike the expert’s evidence [2021 BCSC 1301]. Justice Walker ruled that the expert’s affidavit was inadmissible, finding that his relationship to the developer and to another defendant in the litigation precluded him from providing independent and impartial expert opinion. After the class proceeding was certified in February 2022 [2022 BCSC 226], Ken McEwan and Emma Christian successfully defended the developer’s application to join the strata corporations as third parties in the class proceeding. Justice Walker’s decision was the first in this province to confirm that the Strata Property Act creates a “unique yet clear” agency relationship between a strata corporation and its individual owners [2022 BCSC 1095]. Applications for leave to appeal and stay the certification and third party decisions were also dismissed: 2022 BCCA 261. A global settlement of the five actions for $13,288,000 was approved by the Honourable Justice Walker in May 2023.