Valley Agricultural Society v. Behlen Industries Inc. et al., 2004 MBCA 80

• Judge: Scott, C.J.M., Twaddle and Steel, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 12, 2004
• Jurisdiction: Manitoba
• Citations: 2004 MBCA 80;(2004), 184 Man.R.(2d) 263 (CA)

Valley Agricultural Soc. v. Behlen Ind. (2004), 184 Man.R.(2d) 263 (CA);

    318 W.A.C. 263

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. MY.034

Valley Agricultural Society (plaintiff/appellant) v. Behlen Industries Inc. and Frank Deniset (defendants/respondents) and Norco Industries Ltd., Crane Steel Structures Ltd. (formerly known as Argyle Steel Construction Ltd.) (defendants) and Leslie Frovich (third party)

(AI 03-30-05607; 2004 MBCA 80)

Indexed As: Valley Agricultural Society v. Behlen Industries Inc. et al.

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Steel, JJ.A.

May 25, 2004.

Summary:

The plaintiff owned an exhibition hall/curling building complex. Nine years after the complex was completed, the hall roof collapsed, causing damage to the structure and contents and business interruption. The plaintiff sued, among others, the complex's designer and engineer. The designer and engineer moved to strike out the claim relating to damage to the structure on the ground that it was statute barred.

The Senior Master of the Manitoba Court of Queen's Bench, in a decision reported at 164 Man.R.(2d) 156, dismissed the motion. The defendants appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 172 Man.R.(2d) 248, allowed the appeal and dismissed the action. The plaintiff appealed.

The Manitoba Court of Appeal allowed the appeal.

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - The plaintiff owned an exhibition hall/curling building complex - Nine years after the complex was completed, the hall roof collapsed, causing damage to the structure and contents, and business interruption - The plaintiff sued, among others, the complex's designer and engineer - The designer and engineer sought summary judgment based on a limitation period defence - The Manitoba Court of Appeal held that summary judgment was not available - To be actionable, a defect must pose a "substantial danger" to the health and safety of the occupants of the building - This raised the question of whether a structure that was "susceptible to failure" from the very beginning, as the designer and engineer argued, could be considered a substantial danger - Additional evidence was needed.

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - [See Limitation of Actions - Topic 207 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or appropriate - [See Limitation of Actions - Topic 207 ].

Cases Noticed:

Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. et al., [1995] 1 S.C.R. 85; 176 N.R. 321; 100 Man.R.(2d) 241; 91 W.A.C. 241, refd to. [para. 3].

Mount Albert Borough Council v. Johnson, [1979] 2 N.Z.L.R. 234 (C.A.), refd to. [para. 14].

Askin v. Knox, [1989] 1 N.Z.L.R. 248 (C.A.), refd to. [para. 14].

Hamlin v. Invercargill (City), [1996] 1 All E.R. 756; 194 N.R. 16 (P.C.), refd to. [para. 14].

Council of the Shire of Sutherland v. Heyman et al. (1985), 157 C.L.R. 424 (Aust. H.C.), refd to. [para. 14].

Hawkins v. Clayton et al. (1988), 164 C.L.R. 539 (Aust. H.C.), refd to. [para. 14].

Blacklaws et al. v. 470043 Alberta Ltd. (2000), 261 A.R. 28; 225 W.A.C. 28; 187 D.L.R.(4th) 614; 2000 ABCA 175, refd to. [para. 15].

Sentinel Self-Storage Corp. v. Dyregrov et al. (2003), 180 Man.R.(2d) 85; 310 W.A.C. 85 (C.A.), refd to. [para. 15].

Roy v. Thiessen (2003), 234 Sask.R. 218; 2003 SKQB 249, refd to. [para. 16].

Podkriznik v. Schwede (1990), 64 Man.R.(2d) 199 (C.A.), refd to. [para. 16].

Vaughan v. Warner Communications Inc. et al. (1986), 56 O.R.(2d) 242 (H.C.), refd to. [para. 17].

Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. et al. (1999), 131 Man.R.(2d) 283; 187 W.A.C. 283 (C.A.), folld. [para. 21].

Counsel:

M.G. Finlayson, for the appellant;

T.E. Bock, for the respondent, Behlen Industries Inc.;

R.S. Literovich and R.E. Shannon, for the respondent, F. Deniset.

This appeal was heard on January 12, 2004, by Scott, C.J.M., Twaddle and Steel, JJ.A., of the Manitoba Court of Appeal. Scott, C.J.M., delivered the following decision for the court on May 25, 2004.