Bersohn v. Mountain West Property Holdings Inc.

2016 BCSC 641 Bersohn v. Mountain West Property Holdings Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bersohn v. Mountain West Property Holdings Inc., 2016 BCSC 641 Date: 20160413 Docket: S158322 Registry: Vancouver Between: Joanne Bersohn, in her own capacity and in her capacity as the Trustee of the Estate of Malcolm Bersohn Plaintiff And Mountain West Property Holdings Inc. Defendant Before: Master Muir Reasons for Judgment Counsel for plaintiff: G.G. Plottel Counsel for the plaintiffs in Vancouver Registry action S157557, 5277095 Manitoba Ltd., 5277109 Manitoba Ltd., Ernie Christman, Ron Christman, Robert Bennett: M.L. Palleson Counsel for the defendant, Mountain West Property Holdings Inc. and for the defendants in Vancouver Registry action S157557, 333 Wale Road Management Inc., 1011 Management Inc., Comox Harbour Centre Management Inc., Mountain West Properties Inc., Daniel Fisher and Patricia Anderson, also known as Patricia Fisher: I.G. Nathanson, Q.C. Place and Date of Hearing: Vancouver, B.C. March 16, 2016 Place and Date of Judgment: Vancouver, B.C. April 13, 2016 introduction [1] This is an application by the plaintiff, Joanne Bersohn, in her own capacity and in her capacity as the Trustee of the Estate of Malcolm Bersohn, for orders that 1) The notice of civil claim filed in the within action be amended in accordance with the amended notice of civil claim attached as schedule "A" to the notice of application; 2)

There be leave to add Comox Harbour Centre Management Inc., 333 Wale Road Management Inc., 1011 Management Inc., 5277095 Manitoba Ltd., 5277109 Manitoba Ltd., Ernie Christman, Ron Christman, Robert Bennett, Morrison Creek Commons Limited Partnership, Mountain West Properties Inc., Daniel Fisher and Patricia Anderson, also known as Patricia Fisher, as defendants to this action by filing an amended notice of civil claim in substantially the same form as attached as Schedule "A" to the notice of application; 3) The style of cause be amended accordingly; 4) This action be tried and heard at the same time as the following action: 5277094 Manitoba Ltd. v. Morrison Creek Commons Limited Partnership, Supreme Court of British Columbia, Vancouver Registry action S157557 (the "Initial Action"), subject to directions of the trial judge; and 5) In relation to the order that the two actions be tried and heard at the same time: a) all documents produced from the exchange of documents in each of the actions shall be made available to any named party in both actions; b) all transcripts from the examinations for discovery conducted in either of the actions, including further requests for documents and information arising from such examinations for discovery, responses to such requests, and any answers to interrogatories in the actions, shall be made available to any named party in both of the

actions upon request and can be used as evidence in both of the actions; c) counsel in either of the actions shall keep advised all other counsel in both actions of the date and time for any examination for discovery that has been scheduled; and d) counsel in either action can adopt and use against any adverse party at trial any questions and answers from any transcript of an examination for discovery pursuant to Rule 7-2 of the Supreme Court Civil Rules of that adverse party, any answers to interrogatories pursuant to Rule 7-3 provided by that adverse party, and any responses to notices to admit pursuant to Rule 7-7 made by that adverse party. [2] As a preliminary matter, some confusion arose when I reviewed the notice of application and the response of the defendants: 1) According to the notice of application, one of the parties sought to be added was Wale Road Management Inc. It is also referred to by that name in the application response of the defendants. It is my understanding that the proper name for that company is 333 Wale Road Management Inc. and I have referred to it as such in these reasons.

2) In the application response of the defendants, they do not indicate that the response is made on behalf of Mountain West Properties Inc. I note that Mr. Nathanson is counsel for Mountain West Properties Inc. in the Initial Action and assume that he intended to appear for them in this application as well, and that is reflected in these reasons.

3) If I am in error, the parties may make written submissions on these points. [3] This is a companion application to the application in the Initial Action. Both applications were heard at the same time. Separate reasons have been issued in the Initial Action. [4] The plaintiffs in the Initial Action who responded to this application consent to the granting of the orders sought in paras. 1 - 5 of the notice of application. [5] The defendant in this action and the defendants in the Initial Action who responded to this application consent only to the order sought in para. 1 of the notice of application. [6] The order sought in para. 1 of the notice of application is therefore granted. [7] The balance of the orders sought mirror the relief sought in the application in the Initial Action. As noted, they were argued together. The applications were resisted by the defendants on the same basis. [8] For the reasons set out in regard to the application in the Initial Action, the orders sought in paras. 2 - 5 of the notice of application in this action are granted in the terms sought other than paras. 5(b) and 5(d), to which "subject to the direction of the trial judge" will be added to the end of each paragraph. [9] Thus, the application is allowed as set out above, with costs to the plaintiff in the cause from the defendant Mountain West Property Holdings Inc. in this action and from the following defendants in the Initial Action: 333 Wale Road Management Inc., 1011 Management Inc., Comox Harbour Centre Management Inc., Mountain West Properties Inc., Daniel Fisher and Patricia Anderson, also known as Patricia Fisher. "Master Muir"