R.A.B. Properties Ltd. v Canadian Horizons (182A) Development Corp.

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R.A.B. Properties Ltd. v. Canadian

Horizons (182A) Development Corp.,

2022 BCSC 1716

Date: 20221003

Docket: S1813271

Registry: Vancouver

Between:

And

R.A.B. Properties Ltd.

Plaintiff/Defendant by Counterclaim

Canadian Horizons (182A) Development Corp.

Defendant/Plaintiff by Counterclaim

Before: The Honourable Mr. Justice Veenstra

(via videoconference)

Reasons for Judgment

Counsel for the Plaintiff/Defendant by

Counterclaim:

D.P. Church, K.C.

J. Zhong

Counsel for the Defendant/Plaintiff by

Counterclaim:

S. Griffin

K. Marsh

Counsel for the Attendee, John Robbie:

Place and Date of Hearing:

S. Warnett

Vancouver, B.C.

February 4, 2022

Place and Date of Judgment:

Vancouver, B.C.

October 3, 2022

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 2

Table of Contents

INTRODUCTION ....................................................................................................... 3

BACKGROUND FACTS............................................................................................ 3

The Contract........................................................................................................... 3

The Subdivision Process........................................................................................ 4

The Action .............................................................................................................. 5

The Role of Mr. Robbie .......................................................................................... 6

LEGAL CONTEXT................................................................................................... 11

Standard of Review.............................................................................................. 11

Rule 7-2(5)(c)(ii) ................................................................................................... 13

THE JUDGMENT APPEALED FROM..................................................................... 20

POSITIONS OF THE PARTIES............................................................................... 23

The Plaintiff .......................................................................................................... 23

The Defendant...................................................................................................... 24

Mr. Robbie............................................................................................................ 25

ANALYSIS............................................................................................................... 25

CONCLUSION......................................................................................................... 33

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 3

Introduction

[1]

The plaintiff appeals from an order of a Master made July 7, 2021, by which

the plaintiff’s appointment to examine Mr. John Robbie for discovery as a

representative of the defendant was struck. The Master, whose reasons for

judgment are indexed at 2021 BCSC 1320, concluded that Mr. Robbie was not

acting as the defendant’s agent within the meaning of Rule 7-2(5)(c)(ii) of the

Supreme Court Civil Rules.

[2]

The plaintiff asserts that the decision of the Master was wrong in law and

clearly wrong in its application of the law to the undisputed facts.

[3]

The defendant asserts that the Master identified the correct legal test, that her

application of the test to the facts of the case is not clearly wrong, and that as a

result, the appeal should be dismissed.

Background Facts

The Contract

[4]

The present action arises from a contract of purchase and sale with respect to

13 building lots (the “Building Lots”) in a subdivision that was being developed by the

defendant. The plaintiff intended to purchase the lots, construct homes on them, and

then resell them.

[5]

The contract was entered into on July 11, 2017, between the plaintiff as

purchaser and the defendant as vendor. It provided that the vendor would be

responsible for:

(i) obtaining the subdivision of the Parent Property in order to create the

Building Lots substantially as shown on the Subdivision Concept Plan

(provided, however, the Purchaser acknowledges, agrees and accepts

that each Building Lot may have to be changed slightly in size or

configuration if required by the Approving Officer for the City) (the

“Subdivision of the Property”);

(ii) completing the installation of the Site Services for the Building Lots (the

“Servicing of the Property”) as soon as reasonably practical following the

Subdivision of the Property and in any event, within 270 days after the

Subdivision of the Property; and

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 4

(iii) all costs and expenses related to the Subdivision of the Property and the

Servicing of the Property …

[6]

Completion was to take place the later of (i) 20 days after notice in writing that

the defendant had completed Servicing of the Property, and (ii) 20 days after notice

in writing that the City of Surrey (“the City”) had confirmed it is prepared to authorize

building permits for improvements on the remaining lots.

[7]

Pursuant to the contract, the plaintiff paid a deposit of just over $1.1 million.

Entitlement to that deposit is the main subject of this action.

The Subdivision Process

[8]

The defendant retained a firm of professional engineers, Aplin & Martin

Consultants Ltd (“Aplin & Martin”). Mr. Robbie acted as Project Manager on behalf of

Aplin & Martin with respect to the work done by Aplin & Martin for the defendant. The

exact scope of the retainer appears to be a matter of some dispute. Unfortunately,

no retainer agreement is in evidence. What can be gleaned from the documents in

evidence is discussed below.

[9]

The defendant also retained a contractor, B&B Contracting Group (“B&B”), to

perform site servicing work including site preparation of the lots and the installation

of site services. The B&B agreement was not in evidence, and it is not known

whether Aplin & Martin was assigned any role in administration or decision-making

with respect to the work of B&B.

[10] Subdivision was achieved on January 2, 2018. As a result, the defendant was

to complete Servicing of the Property by September 29, 2018 (270 days later).

[11] On July 2, 2018, the plaintiff wrote to the defendant “to bring to your attention

certain concerns”. After identifying various issues, the letter concluded that:

We understand the requirements of the City of Surrey however the state of

the current clearing is not acceptable from our perspective under the terms of

our Agreement of Purchase and Sale. We believe the intention of the Tree

Protection plan is for the area to be cleared of all vegetation down to the floor

surface of existing grade except for designated retained trees, designated

trees removed and a covering (5-10 CM) of wood chips spread.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 5

[12] There ensued a series of emails between the plaintiff and the defendant over

the balance of July 2018.

[13] On September 2, 2018, the plaintiff wrote a letter to the defendant, noting that

“we have a fundamental disagreement regarding the clearing of the Building Lots, as

demonstrated by our exchange of emails on the subject”. The letter concluded by

asserting that:

This letter constitutes notice under the Purchase Agreement that in their

current condition the Vendor has failed to meet its obligations under Section

4.1 of the Purchase Agreement to complete the Servicing of the Property. …

If the state of clearing of the Building Lots is not rectified within the relevant

period, RABP will consider such failure to be a repudiation of the Purchase

Agreement …

[14] On September 28, 2018, the defendant wrote to the plaintiff, referencing the

purchase agreement, and stating:

1. we hereby notify you that we have (a) completed the servicing of the

Property and (b) received confirmation from the City that the City is prepared

to authorize the issuance of building permits for improvements on the

Building Lot(s); and

2. we confirm that the “Completion Date” under the Purchase Agreement will

be October 18, 2018 (being 20 days after we have notified you of items 1(a)

and 1(b) above and being the date on which the completion of the purchase

and sale of the Building Lot(s) will take place).

The letter identified October 18, 2018, as the completion date.

[15] By letter dated October 10, 2018, the plaintiff advised that it refused to accept

the notice provided in the September 28 letter and set out six alleged failures of the

defendant to complete the servicing of the Building Lots.

[16] The contract did not complete and the defendant sold the subject lots to

others.

The Action

[17] The present action was commenced on December 11, 2018. Both the plaintiff

and the defendant (by way of a counterclaim) assert entitlement to the deposit.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 6

[18] The pleading before the Master was the amended notice of civil claim filed

April 2, 2019 (the “ANOCC”). In it, the plaintiff alleges that:

a) The defendant failed to complete the Servicing of the Property by the

deadline; and

b) The defendant failed to comply with conditions of an Erosion and

Sediment Control Permit.

[19] With respect to the September 28, 2018 letter asserting that Servicing of the

Property had been completed, the ANOCC asserts that:

a) Such servicing had not been properly completed at the time of the letter;

b) No Certificate of Completion had been issued by the City; and

c) To the extent the City had confirmed that it would authorize the issuance

of building permits, it did so based on inaccurate information provided by

the defendant to the City.

[20] The ANOCC pleads that it was an implied term of the purchase agreement

that information provided to the City would be accurate.

[21] In Part III of the ANOCC, the plaintiff pleads among other things that:

a) The defendant was required to complete Servicing of the Property within

270 days, it failed to do so, and as a result the agreement expired; and

b) The Building Lots were not graded in accordance with the approved Lot

Grading Plan.

The Role of Mr. Robbie

[22] As noted above, Mr. Robbie is a professional engineer employed by Aplin &

Martin. He was designated as Project Manager with respect to this project, applied

his seal to drawings where required, and was the signatory of key letters issued by

Aplin & Martin.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 7

[23] The documents in the materials include a “Letter of Authorization” from 2016

by which the owners of the development property authorized Aplin & Martin:

… to act as an authorized agent on my/our behalf on all matters pertaining to

the application for the above-noted property/properties and to act as Project

Manager for the application and therefore the sole person of contact.

[24] An “Online Development Inquiry” form with respect to the various applications

made to the City with respect to development of the subject properties describes

Aplin & Martin as the “primary contact” on behalf of the owners.

[25] The evidence includes the City of Surrey’s “Engineering Land Development

Customer’s Manual”. It appears to be common ground that this manual describes

the City’s expectations and requirements with respect to the development of a

subdivision like that in issue in this case. It describes the roles of various parties,

including the following:

3.0

Roles and Responsibilities

The Engineered Land Development process has three major “players” in

delivering the Servicing Agreement and all the other items required for a

complete development. They are: the Developer, his Consultants and his

Contractor; the Planning and Development Department; and the Engineering

Department. These groups work concurrently to complete the subdivision. It

is the responsibility of all these parties to work to deliver a quality

development. The roles of these parties are described in this section of the

Manual.

…

3.2

City

3.2.1 Engineering

…

… It is not the responsibility of the land development staff to complete the

design of the works and services or to approve the technical and financial

merits of the design. The design and construction of the accepted works and

services is the responsibility of the Developer and his Consultant.

…

3.4

Consultant – Professional Engineer

The Consultant is responsible for his design and meeting the works and

services requirements of the City prior to execution of the Servicing

Agreement. The consultant must be aware of the City’s by-laws, policies,

practices and procedures including the engineering design criteria and

supplementary specifications and standard drawings. The Consultant must

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 8

also meet the requirements of many external agencies as required in the

completion of his design. The City expects that the Professional Engineer will

carry out his work in accordance with the requirements of the Professional

Engineers and Geoscientists of BC. The City relies on the capabilities of the

professional to protect both his client and the City in the design of works and

services that will ultimately become the ownership of the City. High quality

submissions by the Consultant throughout the Servicing Agreement process

will be of great help in the timely processing of the project.

[26] An appendix to the manual includes a standard form “Letter of Responsibility”

to be provided by the developer’s consultant to the City. It includes the following:

1.

I have been retained by the Developer to prepare and certify designs

including as-constructed drawings and documents; to carry out construction

survey, construction field reviews and field coordination; to perform as the

Contract Administrator as defined in the Master Municipal Construction

Documents for the Project; and will make complete submissions in

accordance with the current process outlined in the City of Surrey

Engineering Land Development Customer Manual.

…

3.

I am responsible for representing the Developer with respect to all

technical aspects of the Project to the City of Surrey. I shall obtain all

necessary information to fulfill my responsibilities to the City of Surrey for the

Project.

…

10.

I understand and agree that the Developer will transfer all of the

Works and Services installed and constructed pursuant to the Project to the

City of Surrey and that the City of Surrey is relying on my expertise to design,

inspect, certify and commission these Works and Services in accordance with

the Servicing Agreement for the Project and this Agreement.

[Emphasis added.]

[27] The “Works and Services” referenced in s. 10 are presumably those installed

on or under the streets and sidewalks, rather than anything done on the lots to be

sold to builders like the plaintiff.

[28] During the course of the project, it appears that Mr. Robbie provided oversight

of the construction work undertaken by the defendant’s contractor, B&B, submitted a

number of inspection reports to the defendant and to the City, and completed

various certificates as required by the City.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 9

[29] There appears to be no dispute that all of the services provided by Aplin &

Martin were paid for by the defendant.

[30] Mr. Robbie, through counsel, participated in both the hearing before the

Master and the present hearing, opposing the application that he be examined for

discovery. He submitted an affidavit dated October 16, 2020, opining that he was not

an agent of the defendant. The Master correctly disregarded Mr. Robbie’s statement

of his opinion, but did consider the balance of his evidence.

[31] Mr. Robbie stated the following in his affidavit:

2. Aplin & Martin acts [as] an independent consultant in commercial,

industrial, and residential developments. Our role is that of a professional

consultant to engineering works. We act as the conduit between the

municipality and the developers.

3. The consultant is engaged to act on behalf of both the Developer and the

relevant municipality. For this project, our role is defined in the

Engineering and Land Development Manuel [sic] for the City of Surrey.

4. The City relies on the capabilities of the professional to both his client, in

this case, Canadian Horizons (182A) Development Corp. (“Canadian

Horizons”), and the City of Surrey.

5. Attached … is a true copy of the Engineering Land Development Manual

for the City of Surrey.

6. Our role is to help the Developer navigate the by-laws and guidelines of

the relevant municipality.

7. We do not act on the directive of the Developer, they provide us with a

plan for what they would like to achieve, we assist them to help determine

if it is in accordance with the by-laws and guidelines of the City.

8. In this matter we were engaged by Canadian Horizons. We acted strictly

in accordance with City and municipal guidelines as well as in accordance

with the Engineers and Geoscientists of British Columbia codes of ethics.

[32] The evidence indicates that Mr. Robbie prepared, or at least approved, the lot

grading plan and the erosion and sediment control plan.

[33] It indicates as well that Mr. Robbie provided various documents to the City,

including certifications, with respect to the sewer system, lot grading, and

construction deficiencies. These generally took the form of letters addressed to the

City and copied to the defendant.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 10

[34] Among the documents is a letter dated August 8, 2018, by which Mr. Robbie

wrote to the City certifying that the rough lot grading had been completed in

accordance with the lot grading design submitted to the City in December 2017 (with

one exception, being a lot not at issue in this action).

[35] It appears that disagreements subsequently arose between Aplin & Martin

and the contractor, B&B. The application materials include an email of

September 20, 2018 – some six weeks after the August 8, 2018, letter to the City –

from Aplin & Martin’s project coordinator to B&B, which was copied to Mr. Robbie as

well as representatives of the defendant. It stated:

A concern was raised by one of the builders regarding additional fills

seemingly deposited on his lots. Due to the nature of his concern, and how it

was raised, we felt it necessary to survey said lots (14-21) in question. Our

review indicates that there is approximately 625 cu. m of additional fill

materials on Lots 14-21. This material should be removed to ensure that the

lot grades are in compliance with the proposed design. This is a relatively

time sensitive matter, so your attention to this issue is appreciated.

Lots 14-21 are among the lots that were the subject of the contract between the

plaintiff and the defendant.

[36] B&B replied that same day, asserting it had met all of its contractual

requirements. Aplin & Martin responded, stating:

The intent of the drawings was to bring the lots back to the original grade(s)

condition. Per our road sections and grading plan, the interior of Lot 14-21

(after the 3:1 cut slope) was to maintain the existing lot grades. Based on the

survey data, this condition wasn’t met; additional fill over and above the

design drawings has been placed on these lots and must be removed.

[37] There ensued further email correspondence over the next several days. On

October 2, 2018, Mr. Robbie wrote to the defendant stating:

As discussed, Aplin Martin stands behind their review of Lots 14-21 and the

assertion that cut is required to get the site to original condition. Please see

attached sketches to back the claim.

[38] On October 16, 2018, the defendant wrote to B&B stating the following:

Hey guys, we are not going to undertake ant (sic) further lot grading at 182.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 11

[39] The plaintiff says that these emails indicate that Mr. Robbie is particularly

knowledgeable about the lot grading issue at the relevant time, as well as the City’s

other requirements. It is keen to explore that direct knowledge, rather than examine

an officer of the defendant who will be providing evidence based on what he has

been told by others (and in particular by Mr. Robbie).

Legal Context

Standard of Review

[40] This is an appeal from a Master.

[41] The leading statement of the applicable test on such an appeal is in Abermin

Corp. v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188, 1990 1352

(S.C.), where Justice Macdonald said:

An appeal from a Master's order in a purely interlocutory matter should not be

entertained unless the order was clearly wrong. However, where the ruling of

the Master raises questions which are vital to the final issue in the case, or

results in one of those final orders which a Master is permitted to make, a

rehearing is the appropriate form of appeal. Unless an order for the

production of fresh evidence is made, that rehearing will proceed on the basis

of the material which was before the Master. In those latter situations, even

where the exercise of discretion is involved, the judge appealed to may quite

properly substitute his own view for that of the Master.

[42] The approach where the appeal is based on an alleged error of law was

reviewed in Northland Properties Ltd. v. Equitable Trust Co. (1992), 71 B.C.L.R. (2d)

124, 1992 2360 (S.C.), where Justice Fraser stated:

The authorities reviewed by Macdonald J. deal with the appellate role in

reviewing a discretion exercised by a Master. There is a different procedural

dynamic in a judgment involving the exercise of discretion than there is in a

decision on a point of law, such as the one appealed from here. A decision

involving an exercise of discretion always involves consideration of the facts

and rarely has implications for the general law. The "clearly wrong" standard

recognizes this and is based on practical considerations having to do with the

proper allocation of court time. A decision on a point of law, by contrast, has

implications for other cases and other litigants. To adopt the "clearly wrong"

standard on an appeal from a decision on a point of law would mean that an

incorrect (but not clearly wrong) interpretation by a Master of a point of law

would stand ── and presumably be binding on other Masters ── but would

remain vulnerable to a different interpretation by a judge, in a later case.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 12

Why, the defendants ask, should the correct interpretation await a later case?

I find no answer to this question.

The policy concerns which call for limited judicial review of the decisions of

Masters do not apply to decisions of pure law. I conclude that a judge of this

court sitting in appeal on a point of law from a Master has a conventional

appeal jurisdiction, in which the legal issue may be argued and decided on

the merits.

[43] In that case, the order under appeal assessed the amount of conduct money

that was to be paid to a professional witness who was to be examined for discovery

as a former agent of the plaintiff. While the question was clearly interlocutory in

nature, its determination depended on a point of law – whether the court had

discretion to order a daily witness fee beyond the $20.00 amount provided in an

appendix to the Rules of Court. Justice Fraser allowed the appeal on the basis that

the Master had erred with respect to that point of law. He concluded that a Master

cannot exercise a discretion that does not exist, and the existence of a discretion is

a question of law reviewed on a correctness standard.

[44] To similar effect is the decision of Justice Williams in Joubarne v. Sandes,

2009 BCSC 1413. In that case, the Master had declined to order production of

documents from an earlier proceeding in which the plaintiff in the present personal

injury case had claimed against a former employer for wrongful dismissal. Justice

Williams concluded that the Master had erred in concluding that production was

barred by the implied undertaking rule. In dealing with the question of standard of

review, he noted the test as outlined in Abermin, and that the parties before him

disagreed on whether the order that had been made was “vital to the final issue in

the case”. At paras. 13-14, he described the approach he would take as follows:

[13]

In this case, I have concluded that the matter of the characterization is

not vital to the adjudication of the appeal. I will assume, without deciding, that

the decision is interlocutory and not final in nature. If it were final, I would

proceed as a re-hearing and would be permitted to substitute my own view

for that of the master. However, I decline to deal with the matter in that

fashion for the reasons I have indicated.

[14]

Nevertheless, even though I will treat the decision as interlocutory in

character, this Court is not necessarily obliged to defer to the master’s

conclusion. If the decision is one of straightforward discretion, then, certainly,

substantial deference is required. However, if the decision of the master

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 13

involves a question of law, the standard of review must be correctness even

though the matter involves an interlocutory issue such as the production of

documents.

[45] He noted that this approach was supported by the words of Fraser J. in

Northland Properties (as quoted above), and concluded at para. 16:

[16]

In the present case, the master made his decision based upon an

interpretation of the law as set out in the decision of the Supreme Court of

Canada in Juman. In my view, it follows that this Court, sitting on appeal,

should exercise a conventional appellate jurisdiction in which the legal issues

may be considered and decided on their merits.

[46] In Maedou Consulting Inc. v. 0887455 B.C. Ltd., 2016 BCSC 2246, Justice

Pearlman dismissed an appeal from an order of a Master which concluded that the

plaintiff had not waived privilege by filing an affidavit of its lawyer. At paras. 21-22,

Pearlman J. helpfully distinguished the applicable standard when errors of law are

alleged on such an appeal:

[21]

Failure to apply the correct legal test for waiver of privilege, or reliance

on irrelevant considerations would constitute an error of law, which is

reviewable on a standard of correctness: Cliff v. Dahl, 2010 BCSC 1998 at

para. 21.

[22]

The question of whether the Master misapplied the correct test for

determining whether there was an implied waiver of privilege is a question of

mixed fact and law, reviewable on a standard of palpable and overriding

error: Mayer v. Mayer, 2012 BCCA 77 at para. 188. On this question of

mixed fact and law, the appellant bears the onus of establishing the Master's

decision was "clearly wrong".

[47] In this case, the submissions of the parties raise questions of whether:

a) The error ultimately alleged involved application of an incorrect legal test

or misapplication of the correct legal test;

b) The decision of the Master is vital to the final issue in the case; and

c) The decision of the Master is, in any event, clearly wrong.

Rule 7-2(5)(c)(ii)

[48] Rule 7-2(5) provides that:

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 14

(5) Unless the court otherwise orders, if a party to be examined for discovery

is not an individual,

(a) the examining party may examine one representative of the party to

be examined,

(b) the party to be examined must nominate as its representative as

individual, who is knowledgeable concerning the matters in question in

the action, to be examined on behalf of that party, and

(c) the examining party may examine

(i) the representative nominated under paragraph (b), or

(ii) any other person the examining party considers appropriate and

who is or has been a director, officer, employee, agent or external

auditor of the party to be examined.

[Emphasis added.]

[49] Rule 7-2(5)(c)(ii) identifies the class of people that may be chosen by an

examining party as the representative of a corporate party to be examined for

discovery.

[50] The question of who is an “agent” for purposes of this provision has been the

subject of commentary in a series of judgments that have refined the applicable test.

[51] In Karl’s Sporthaus Ltd. v. Allstate Insurance Co. of Canada (1983), 44

B.C.L.R. 169 (C.A.), the plaintiff sued its insurer for refusing coverage after a fire

destroyed a retail store. The plaintiff sought to examine for discovery the insurance

adjuster hired by the defendant insurer to investigate the loss. The chambers judge

had declined to order that examination, concluding it was a discretionary matter and

that he would not make the order because the statements of the adjuster would not

be binding as admissions against the insurer. The appeal was allowed, with Craig

J.A. commenting at para. 6 that:

[6]

…A party wishing to examine a person who comes within the category

mentioned in the subrule may examine such a person as of right, subject, of

course, to the provisions of subrule (5). Any issue regarding an examination

will relate: (1) to whether a person comes within any of the categories

mentioned; or (2) to whether some person other than the one sought to be

examined should be examined. It may be, as counsel for the respondent

suggests, that the judge did not mean that the right to examine under subrule

(4) was subject to a discretion on the part of a judge but that is what he

appears to say. He seems to say, also, that the adjuster could be classified

as an "agent" within the meaning of the rule. If so, I think that he should not

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 15

have refused to make the order for the examination of Shalovel simply

because his evidence would not be "binding on the defendant". A

fundamental purpose of an examination for discovery is to obtain evidence in

the form of admissions which will assist the examining party's case or

prejudice the opposite party's case, but that is not the only purpose. An

important purpose, also, is to obtain information relating to the matters in

issue. This information may tend to narrow and define the issues between the

parties even though it may not necessarily be binding. It has been said

countless times that an examination for discovery is a searching cross-

examination limited to the issues raised by the pleadings. Such examination

properly conducted will tend to reveal the strength and weaknesses of each

party's case and will tend, therefore, to limit and define the issues.

[52] Justice Craig noted that the defendant’s position in the litigation would in large

part depend on what its adjuster had concluded. He concluded:

[7]

…Having regard to the fact that the avowed purpose of the new Rules

is to bring about the "just, speedy, and inexpensive determination of every

proceeding on its merits", I am inclined to think that the plaintiff should be

permitted to examine Shalovel for discovery …

[53] Having considered this and other authorities, in Uukw v. B.C. (1986), 7

B.C.L.R. (2d) 396 at 399, Locke J. (as he then was) commented:

It is my view that “agent” for the purposes of discovery is not necessarily to

be decided by the principles of classic agency but rather by decisions of this

Province made under the Rules of Court, examples of which I have

previously quoted …

[54] The scope of the word “agent” in the context of a representative for discovery

was again before the Court of Appeal in Penderville Apartments Development

Partnership v. Cressey Development Corp. (1990), 43 B.C.L.R. (2d) 57,

1990 CarswellBC 15 (C.A.), in which the plaintiff sought to examine a lawyer who

had acted for the defendants during negotiations of the impugned contract.

Southin J.A. concluded that:

The learned judge below founded his determination on Mr. MacRae having

no power to bind his client. That power does, of course, create one kind of

agency. But there is another kind. As Halsbury puts it in the 3d. ed., Vol. I, at

p.147:

The word "agent" in addition to meaning a person employed to create

contractual relations between two parties is used in at least two other

senses. Further, it is frequently used to describe the position of a person

who is employed by another to perform duties often of a technical or

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 16

professional nature which he discharges as that other's alter ego and not

merely as a conduit pipe between the principal and the third party. Thus a

solicitor is his client's agent for the purpose of instituting or continuing

legal proceedings on his behalf. Similarly where a person (not being a

servant) is permitted by the owner of a vehicle to drive it, whilst the owner

retains possession thereof, the driver is the owner's agent for the purpose

of rendering the owner civilly liable for driver's negligence or breach of

duty in driving. Generally, wherever one person lawfully delegates to

another his common law or statutory duties, that other person is in law his

agent for the purpose of rendering the principal civilly liable for the

defaults of the agent. Thus a person who carries out an extra-hazardous

operation for another is his agent for that purpose, as a contractor

employed by a local authority to perform any of the functions which it may

properly so delegate.

In my view, anyone who does something for another is for that very limited

purpose an "agent". That it seems to me is the rationale of the judgment of

this Court in Karl's Sporthaus Ltd. v. Allstate Insurance Company of

Canada (1983), 1983 385, 44 B.C.L.R. 169. In that secondary sense,

Mr. MacRae was, at the time in question, the agent of his client and, thus, is

within the literal meaning of Rule 27(4). It follows that the appellant is entitled

to obtain an appointment to examine Mr. MacRae. The appointment being

obtained and served, the Rule requires that the person to be examined "shall

attend and submit to examination".

[55] The case of Can-Dive Services Ltd. v. Pacific Coast Energy Corp., [1992]

B.C.J. No. 529 (S.C.), involved a complex marine construction project. Can-Dive

was a subcontractor whose job was to perform certain underwater work with respect

to structural support for an underwater pipeline. The project was owned by Pacific

Coast, which contracted with Westcoast Energy to manage the project. Westcoast

Energy in turn contracted with Intec Engineering to perform design work. It was

alleged that Intec Engineering designed the work that Can-Dive was to perform.

Can-Dive had claimed directly against Intec Engineering, but those claims had been

in part dismissed and in part stayed. However, Can-Dive sought to examine a

Mr. Foster, an engineer with Intec, as a representative of Westcoast Energy. Can-

Dive asserted that only Mr. Foster had direct knowledge of the matters raised by

Can-Dive’s claims of inadequate design. Can-Dive asserted that Mr. Foster was an

agent of Westcoast Energy as that term had been defined by Southin J.A. in

Penderville Apartments.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 17

[56] Master Tokarek concluded that Mr. Foster could be examined as an agent,

noting that in the documents before the court:

… Intec is referred to as being "employed" by Westcoast. Further, Westcoast

assigned Intec as its "duly authorized representative". The document further

provided that Intec was authorized by Westcoast to act only as Westcoast's

representative and not as principal. Intec was authorized to delegate. The

contractor was required to follow instructions from Intec "as if issued by"

Westcoast. Intec was also responsible for the supervision and inspection of

the design, construction, manufacturer, commissioning, start-up and testing

of the project and any subjects related to the design and construction plan of

the project were required to be approved by Intec "on behalf of" Westcoast.

Page 10 contains a number of other provisions relating to what authority Intec

had.

[57] In Borek Construction Ltd. v. South Peace Electric Ltd., [1999] B.C.J.

No. 3013, 1999 7017 (S.C), the defendant sought to examine two consultants

retained by or on behalf of the plaintiff to investigate the cause of a fire at the

plaintiff’s premises. Master Horn, in very brief reasons with no reference to past

authorities, concluded that:

[2]

These two persons were outside consultants retained by the plaintiff

for the purpose of determining the cause of a fire at premises owned by the

plaintiff. The plaintiff claims damages against several defendants including

South Peace Electric Ltd. arising out of that fire. These persons were not

employees of the plaintiff. They carried out no duties as the alter ego of the

plaintiff and they were not therefore agents of the plaintiff and cannot be

examined under Rule 27(4).

[58] The Owners, Strata Plan LMS 923 v. Appia Developments Limited, 2004

BCSC 233, was a leaky-condo case, in which a defendant wanted to examine for

discovery an engineer (Mr. Kyle) whose firm had been retained by the plaintiff strata

corporation to investigate water leaks, and later to provide design and administer

contracts for renovation work. Mr. Kyle was also the plaintiff’s main expert witness.

[59] Justice R.R. Holmes noted at para. 10 that:

[10]

It is clear that the agent within Rule 27(4) is to be defined and

interpreted in the broad view and in the context of the procedural aspect of

the Rules of Court and not confined to its general meaning in law.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 18

[60] Having cited the test in Penderville Apartments, Justice R.R. Holmes

concluded with respect to Mr. Kyle that:

[12]

I accept that Mr. Kyle did a wide variety of things for the plaintiff

encompassing many matters germane to the issue of building deficiencies,

remediation and damages of the plaintiff. I consider within the context of this

action and given the expansive interpretation, Mr. Kyle comes within the

meaning of an agent in Rule 27(4).

[13]

He was acting as the plaintiffs' agent to undertake and deal with many

matters that technically and administratively the plaintiffs could not perform

themselves. I do not accept that he could not be an agent for the plaintiff

when part of his contractual duties under his designation as consultant in the

remediation contract required that he be impartial between the plaintiff and

the contractor when adjudicating certain differences between the parties that

might arise.

[14]

I agree with counsel for the applicant that the agreement considered

as a whole placed Mr. Kyle, when acting as consultant, within the ambit of

agency with the plaintiff. At minimum his duties were mixed. He was there

as the plaintiffs' consultant to give directions and make decisions that the

plaintiffs were not capable of themselves. It is, of course, clear in respect of

the applicant that he is not to be examined in relation to his opinions, and it is

only in relation to his observations and knowledge of factual matters of

relevance.

[Emphasis added.]

[61] The most recent in the series of cases on the use of the word “agent” in

Rule 7-2(5)(c)(ii) is Rossco Ventures Ltd. v. British Columbia, 2006 BCSC 212; aff’d

2007 BCCA 36. Rossco performed a highway construction contract for the Province.

It commenced an action against the Province for damages and other relief arising

out of the contract. The excavation of the roadway, the placement of aggregate and

the installation of culverts were subcontracted by Rossco to Steelhead Excavating

Ltd. The Province took out an appointment to examine for discovery the principal of

Steelhead, Mr. Hinchliffe, on the basis that Steelhead was Rossco's agent. Rossco

applied to strike out the appointment and argued that its president, Mr. Smith, should

be examined instead. Justice McEwan’s order, set out at para. 15, was that:

[15]

…The appointment to examine Mr. Hinchliffe is set aside. It appears

that Mr. Smith is the appropriate representative to examine. The plaintiff shall

make him available, unless there is reason, within the Rule, for the defendant

to seek an appointment with someone else.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 19

[62] The order of McEwan J. was appealed. In the Court of Appeal, Lowry J.A.

noted at para. 6 that:

[6]

The judge recognized that the question of "agency" must be

addressed in accordance with the principles of law that have developed in

relation to the rule, which are broader than those of the classic law of agency,

citing Uukw v. British Columbia (1986), 14 C.P.C. (2d) 290 (B.C.S.C.), and he

quoted from Penderville Apts. Development Partnership v. Cressey

Development Corp. (1990), 43 B.C.L.R. (2d) 57 (C.A.) where Southin J.A.,

with whom Wallace J.A. agreed, expressed the view, at page 66, that "…

anyone who does something for another is for that very limited purpose an

'agent'."

[63] Justice Lowry noted at para. 7 the following excerpt from the reasons of

McEwan J.:

[13]

A sub-contractor is clearly someone "who does something for

another." That is the point of the contract. I think there is a distinction,

however, between someone who occupies the position, even ephemerally, of

an alter ego, and someone whose relationship is subordinated to contract. In

this case, Rossco's relationship to the defendant was defined by its

contract. Rossco remained responsible for the work it or its sub-contractors

performed as between it and the defendant. Absent an express or implied

delegation to Steelhead. [sic] It cannot be said that the contractual

relationship between Steelhead and Rossco makes Steelhead an alter ego or

a representative of Rossco. On that score, the evidence of Mr. Lewis that he

"considered" Mr. Hinchliffe to be acting on Rossco's behalf, based on his

interpretation of Mr. Smith's behaviour, and on a remark that the defendant

was free to speak to him on matters affecting Steelhead, falls short of

establishing any such delegation.

[64] Justice Lowry concluded at paras. 16-17 that:

[16]

I accept that, to the extent the words employed permit, it is desirable

the rule be interpreted in a manner that will best ensure efficiency in

discovery proceedings. However, I do not consider the relationship between

Mr. Hinchliffe and Rossco to be comparable to that between either the

solicitor or the adjuster and the parties that engaged them in the Penderville

Apts. and Karl's Sporthaus cases which, of the authorities cited, appear to

lend the greatest support to the Province's position. Mr. Hinchliffe was the

principal of the subcontractor, Steelhead. Neither he nor his company was

engaged to represent the party to be examined either in negotiations or to

obtain information, as were the solicitor and the adjuster respectively.

Mr. Hinchliffe's function was to administrate the performance of the

subcontract for Steelhead and, as such, he had, in the words of O'Halloran

J.A., no connection with Rossco that I consider could be said to render him

an "agent" of that company in any permissible sense for the purpose of

discovery.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 20

[17] I consider the broad statement made by Southin J.A. in

the Penderville Apts. case is to be taken to mean that anyone who does

something for another in a representative capacity (as in that case) is for that

very limited purpose an "agent" within the meaning of the rule regardless of

whether that person was authorized to affect contractual relations.

[65] The Court thereby limited the scope of the test, as previously enunciated by

the broad statement of Southin J.A. in Penderville Apartments, to require that the

alleged agent is doing something for another in a representative capacity.

The Judgment Appealed From

[66] The Master identified the matter at issue as being the scope of the word

“agent” as used in Rule 7-2(5)(c)(ii). At para. 19, the Master identified six key cases

that consider the meaning of the word “agent” for the purposes of Rule 7-2(5)(c)(ii).

Each of those cases is discussed above.

[67] The Master noted at para. 30:

[30]

A point of contention on this application is whether “alter ego” should

still be considered a part of the definition of “agent” or whether

“representative capacity” is the only phrase that survives to date. Counsel for

RAB submits that the definition of “agent” does not mean “alter ego”. Counsel

for Canadian Horizons submits that “alter ego” is incorporated into the

definition because of its inclusion in the Halsbury’s quote in Penderville, and

because no case authority since Penderville has determined that “alter ego”

is no longer a part of the definition. Rossco quotes Penderville which in turn

quotes Halsbury. It was in the context of the Halsbury quote that Southin J.A.

suggested that “anyone who does something for another is for that very

limited purpose an “agent”: Rossco, para. 14. Therefore, I conclude that “alter

ego” is still part of the definition of agent. However, the dispute on this point

is, in my view, inconsequential because there is little meaningful distinction

for present purposes between “alter ego” (literally, “other self” in Latin) and

“person acting in a representative capacity”. The essence of both phrases is

that a person acting in a representative capacity for another person has a

shared identity and a commonality of interests with that other person.

[Emphasis added.]

[68] Having referenced various documents referring to Mr. Robbie as an agent,

the Master commented at para. 37 that:

[37]

The words “authorized agent” and “project manager” do not, in and of

themselves, establish agency within the meaning of the examination for

discovery rule. The definition of “agent” has to do with what the

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 21

person does for another person, rather than how the person is labelled.

Whether Mr. Robbie is an agent must be determined from the entire context

of his relationship with both Canadian Horizons and the City, and the tasks

that he performed.

[69] She noted at para. 10 that examination for discovery is to be a searching

cross-examination but limited to the issues raised by the pleadings. Having reviewed

the pleadings, the Master commented at para. 17:

[17]

It is the certification process that lies at the heart of the allegations

against Canadian Horizons. Although Mr. Robbie is not named explicitly in

the amended notice of civil claim, it is his conduct and his statements to the

City that RAB attacks.

[70] She noted the importance of Mr. Robbie’s role and his evidence at para. 40:

[40]

RAB says that Canadian Horizons cannot escape the conclusion that

it is bound by the certifications Mr. Robbie submitted to the City. RAB’s expert

criticizes the certifications for lot grading and the installation of sodded

swales. Clearly, it is the certifications that counsel for RAB seeks to examine

Mr. Robbie on because the certifications are at the heart of the litigation. If

Mr. Robbie is ordered to submit to an examination for discovery, counsel for

RAB intends to question Mr. Robbie on his review and certification of the lot

grading. I doubt that the examination for discovery will be limited to “obtaining

information and narrowing the issues”.

[71] The Master returned to the “alter ego” issue at paras. 42 and 44:

[42]

The City requires a certification from a person who is not the

developer. The certification must be provided by someone who is

independent of the developer who cannot then be the developer’s

“representative” or “alter ego”. The requirement that the certifications be

marked with the engineer’s professional seal is an indication of the

importance of the opinion being provided by an independent professional and

not as a representative of the developer.

…

[44]

RAB points to a paragraph in the Letter of Responsibility that says: “I

am responsible for representing the Developer with respect to all technical

aspects of the Project to the City of Surrey. I shall obtain all necessary

information to fulfill my duties to the City of Surrey for the Project.” (emphasis

added). The word “representing” has the same root as “representative” in the

phrase “representative capacity” and may therefore lead to the erroneous

conclusion that “representing” as used in the Letter of Responsibility is the

same definition of “agent” within the examination for discovery rule. However,

the two sentences quoted above read together, and in the context of the

Letter of Responsibility as a whole, make it clear that the engineer (in this

case, Mr. Robbie) owes duties to the City to certify in his professional opinion,

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 22

under his engineer’s seal, that Canadian Horizons has performed the work

required by the City.

[72] The crux of the Master’s analysis is found at paras. 47-49:

[47]

In my view, when Mr. Robbie was providing certifications to the City,

he was not “doing something” for Canadian Horizons “in a representative

capacity”. Quite the opposite: he was “doing something” for the City, acting

independently from Canadian Horizons to fulfil duties owed to the City.

Although Canadian Horizons needed the certifications in order to move

forward with the project, Mr. Robbie did not act on the direction of Canadian

Horizons. Indeed, it would be a breach of Mr. Robbie’s professional duties to

follow Canadian Horizons’ instructions. (To be clear, there is no evidence that

Canadian Horizons attempted to influence Mr. Robbie in the fulfillment of his

duties to the City).

[48]

The certifications were provided as part of Mr. Robbie’s duties to the

City. The “misrepresentations” that RAB alleges Canadian Horizons made to

the City were the certifications provided by Mr. Robbie as an independent

professional engineer performing his duties to the City, not as Canadian

Horizons’ agent.

[49]

I have determined that Mr. Robbie was not Canadian Horizons’ agent

when he was providing certifications, including when he was performing tasks

necessary for the development of his professional opinions that went into the

certification process. The “facts” that counsel for RAB seeks to examine

Mr. Robbie on are inseparable from the opinions themselves. For example,

when Mr. Robbie, or other employees of Aplin & Martin, were advising B & B

about the lot grading required or when Mr. Robbie emailed Canadian

Horizons on October 2, 2018 stating Aplin & Martin “stands by their review of

Lots 14–21”, those tasks were part of the certification process.

[Emphasis added.]

[73] The Master acknowledged that Mr. Robbie also undertook inspections of the

work of the contractor. With respect to that, she concluded at para. 55:

[55]

In my view, the inspection role Mr. Robbie fulfilled is similar to his

certification role. When providing his professional opinions as “Inspector”,

Mr. Robbie was not acting as Canadian Horizons’ agent, but rather as an

independent advisor to the City in accordance with his duties to the City as

set out in the schedule to the Letter of Responsibility. The communications

between Mr. Robbie and the City about the facts underlying the remaining

allegations are inextricably intertwined with the development of Mr. Robbie’s

opinions and advice contained in his inspection reports and therefore do not

establish an agency relationship between Mr. Robbie and Canadian

Horizons.

[74] Thus, she concluded at para. 57:

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 23

[57] I have determined that Aplin & Martin and Mr. Robbie are not

Canadian Horizons’ agents within the meaning of the examination for

discovery rule. Therefore, the issue of the exercise of discretion to set the

appointment aside on the grounds of prejudice to Canadian Horizons or to

Mr. Robbie does not arise.

[58]

RAB’s appointment to examine Mr. Robbie for discovery is struck. I

order that Canadian Horizons’ representative, Gordon Cameron, will be

examined instead.

[75] There is no explanation as to why the Master simply substituted

Mr. Cameron, rather than provide the plaintiff with an opportunity to select an

alternative witness.

Positions of the Parties

The Plaintiff

[76] The plaintiff argues that the Master’s decision was wrong in law and clearly

wrong in its application of the law to undisputed facts.

[77] The plaintiff emphasizes the numerous documents in which Mr. Robbie and

his firm are identified as an “authorized agent” or as representing the developer.

[78] The plaintiff says that the Master was wrong in law in adding new legal

requirements for an agent pursuant to Rule 7-2(5)(c)(ii):

a) A requirement that the “agent” not concurrently owe duties to others, and

b) A requirement that the agent have a “shared identity and commonality of

interest” with the party to the litigation.

[79] The plaintiff says that the law requires simply that the “agent” for purposes of

Rule 7-2(5)(c)(ii) be someone who “does something for another in a representative

capacity”. The plaintiff says to add a new requirement that would prevent

examination of an agent who also owes duties to someone else is an error of law.

The plaintiff references cases in which lawyers, engineers and accountants have

been examined as agents despite owing duties as professionals.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 24

[80] The plaintiff also argues that the requirement of a “shared identity and

commonality of interest” goes beyond and is contrary to the results in earlier cases,

and would effectively eliminate most professionals as a potential “agent” within the

Rule.

[81] The plaintiff further argues that the Master’s order will restrict the plaintiff’s

ability to obtain proper discovery on issues that are of a detailed and technical

nature – knowledge which Mr. Cameron is unlikely to have. Specifically, the plaintiff

argues that a key issue in dispute in the action is the state of lot grading on

September 29, 2018 (that being the deadline for the defendant to complete Servicing

of the Property).

[82] The plaintiff says the Master’s order is clearly wrong on the facts, given the

documents clearly establish that Mr. Robbie was acting in a representative capacity

and that the only reason he had anything to do with the project was that the

defendant retained his employer to do so.

[83] Finally, the plaintiff says that ordering that Mr. Cameron be examined is

contrary to Rule 7-2(5) which gives the examining party the choice of representative,

and that even if Mr. Robbie is not an appropriate witness, it should be up to the

plaintiff to choose another representative of the defendant.

The Defendant

[84] The defendant says that the appeal must be determined on the “clearly

wrong” standard. A correctness standard of review applies only to (a) questions of

law, and (b) decisions that are vital to the final outcome of the case. The defendant

says that neither arises here.

[85] The defendant says that the Master made no legal errors in her identification

of the appropriate test and properly applied the legal test to the facts before her. It

says the Master properly noted that whether a party is an agent within the meaning

of Rule 7-2(5) is a fact-specific exercise that must be determined from the entire

context of the relationship and the tasks performed. Having reviewed all of the facts,

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 25

she correctly concluded on the evidence that Mr. Robbie acted in an independent

capacity. The defendant says the Master correctly observed that acting

independently is quite the opposite of acting as a representative, and that having

carefully reviewed the pleadings, the matters alleged by the plaintiff were

“inextricably intertwined” with Mr. Robbie’s opinion and advice provided to the City.

[86] Finally, the defendant notes that it is open to the plaintiff to seek information

from Mr. Robbie by written request pursuant to Supreme Court Civil Rule 7-5.

Mr. Robbie

[87] Mr. Robbie’s counsel generally adopted the arguments of the defendant. He

emphasized the independent role played by a professional engineer in issuing

certifications. He argued the fact that Mr. Robbie may well be an important witness

does not mean that he can be examined for discovery. The test is whether or not he

is an agent as that term has been interpreted for purposes of Rule 7-2(5)(c)(ii).

Analysis

[88] The purpose of an examination for discovery is to secure evidence that will

support the examining party’s case or disprove the case of the party being

examined, to understand the case to be met and discover the strengths and

weaknesses of the other’s case, and to secure admissions which may dispense with

more formal proof at the hearing: The Conduct of Civil Litigation in British Columbia,

s. 18.1. Its essence is to provide the parties a means to uncover the truth so that the

true facts may be presented at trial. In many cases, it narrows the divide between

the parties as to what is actually in dispute and informs and encourages resolution

through settlement.

[89] The Supreme Court Civil Rules generally permit one examination for

discovery of each named party (with limited exceptions). Where a corporation is a

party to an action, the determination of the appropriate witness to be examined is

governed by Rule 7-2(5).

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 26

[90] Rule 7-2(5) provides for the party being examined to nominate as its

representative an individual who is knowledgeable concerning the matters in

question in the action: Rule 7-2(5)(b). However, the examining party is not bound to

examine that person, but may select as the person to be examined any other

person, so long as that person “is or has been a director, officer, employee, agent or

external auditor” of the party being examined: Rule 7-2(5)(c).

[91] If the party to be examined objects to the person selected by the examining

party, it can do so either:

a) On the basis that the person does not fall within one of the roles listed in

Rule 7-2(5)(c)(ii); or

b) on the basis of the court’s discretion to override the examining party’s

choice of witness, reflected in the words “unless the court otherwise

orders” at the beginning of Rule 7-2(5).

[92] The decision under appeal turned on the first of these matters. Having ruled

that Mr. Robbie was not an “agent”, the Master concluded that she did not need to

consider whether to exercise her discretion to order that he not be examined.

[93] With respect to the second issue, I note that a party seeking to displace the

examining party’s choice of witness based on this discretion must demonstrate that

the choice of witness gives rise to overwhelming prejudice: XS West Construction

Group v. Brovender, 2021 BCSC 917 at paras. 18-19. As noted in MacDonald v.

Roth, 2000 BCSC 1670 at para. 26:

[26]

Our Court of Appeal has consistently recognized that the examining

party has "the right at first instance to select the representative who is to be

examined". In one decision adopted by our Court of Appeal, it was

recognized that "serious injustice might be done if the right of examination for

discovery was in any way to be regulated by the adverse party".

[94] It is noteworthy that when a corporate party to be examined is nominating its

representative, there is no restriction as to the role that individual played with respect

to that corporate party. The only requirement is that the party be “knowledgeable”.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 27

However, when the examining party elects to examine an individual of its own

choice, that individual must fall within the listed categories of director, officer,

employee, agent or external auditor. This list of categories has the function of

placing a limit on who may be chosen. However, as noted in Karl’s Sporthaus, the

categories have been interpreted broadly rather than narrowly.

[95] I turn then to the key questions on this appeal: whether the Master erred in

law or was clearly wrong in deciding that Mr. Robbie was not an agent.

[96] Justice Craig in Karl’s Sporthaus, in establishing the broad scope to be given

to the word “agent” in Rule 7-2(5)(c)(ii), referenced the object of the Supreme Court

Civil Rules, which now appears in Rule 1-3(1):

The object of these Supreme Court Civil Rules is to secure the just, speedy

and inexpensive determination of every proceeding on its merits.

[97] Providing a broad definition of agency for purposes of this discovery rule

eliminates the need for detailed consideration of the general law of agency in

advance of discovery in order to determine whether an individual meets the test of

agency. It eliminates the need to make a preliminary conclusion as to what may be a

disputed issue at trial (i.e., whether or not the person is an agent), best determined

after full discovery, and which may require consideration of viva voce evidence. In

this way, the approach contributes to the just, speedy and inexpensive determination

of proceedings.

[98] There is another important feature of the broad approach that also contributes

substantially to the just, speedy and inexpensive determination of an action “on its

merits”. Ultimately, discovery plays a truth-finding role and the ability to examine a

knowledgeable witness is key to uncovering the truth and thereby deciding a case

on its merits. The broad approach taken in cases like Karl’s Sporthaus reflects the

important role Rule 7-2(5)(c)(ii) plays in providing a reasonable limit on the range of

individuals that may be selected by an examining party for discovery, while

respecting the important truth-seeking function of an examination for discovery.

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 28

[99] The existing test to determine whether a person is an agent for purposes of

Rule 7-2(5)(c)(ii) requires consideration of whether the person does something for

the party in a representative capacity. In my view, the Master in this case added to

that test consideration of whether the person also has a shared identity and a

commonality of interests.

[100] To add such requirements is, in my view, contrary to the result in Appia, in

which Justice R.R. Holmes concluded that the engineer in that case was an agent

notwithstanding that the work performed by the engineer gave rise to mixed duties.

At para. 13 of Appia, Justice Holmes refused to:

[13]

… accept that [the engineer] could not be an agent for the plaintiff

when part of his contractual duties under his designation as consultant in the

remediation contract required that he be impartial between the plaintiff and

the contractor when adjudicating certain differences between the parties that

might arise.

[101] An engineer subject to such mixed duties would have neither a commonality

of interests or a shared identity.

[102] In Bell v. Klein (No. 3) (1954), 12 W.W.R. (N.S.) 206, [1954] B.C.J. No. 21

(S.C.), the court considered whether a partner of the accounting firm that was the

auditor of the defendant company could be examined for discovery. The case in part

turned on whether an auditor could be said to be an officer of the company. The

Rules of Court at the time did not include “agent” among the list of available

representatives. The subject matter of the action was allegations of fraud including

charges of falsification of books of account and concealment of profits. Justice Clyne

noted:

[4]

… As one of the chief functions of auditors is to present to

shareholders a true account of a company’s financial position I see no reason

why auditors should not be examined on discovery in an action which rightly

or wrongly challenges the good faith of directors in the management of

company affairs …

[103] An auditor, of course, owes duties both to the company (which retains it) and

to its shareholders. The fact that an auditor, in reviewing a company’s financial

records, owes dual duties was not seen by Clyne J. to be an obstacle to the auditor

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 29

being examined for discovery on behalf of a company. Those dual duties would have

related directly to the accuracy of the books of account and the extent of corporate

profits – the very matters at issue in the litigation.

[104] It is noteworthy that Rule 7-2(5)(c)(ii) now specifically includes an auditor as a

person who may be examined for discovery on behalf of a company. This is

inconsistent with the notion that the existence of mixed duties would make a

potential discovery witness inappropriate.

[105] Engineers and architects play important roles in construction projects. They

provide important services to the owner. They are often the primary contacts with

municipal authorities having jurisdiction. They are often empowered to issue site

instructions and design and contract clarifications. They are regularly required to

affix their seal to drawings and other construction documents, with respect to which

they are bound to professional duties to the self-governing professional bodies to

which they belong. They are often given the power to adjudicate differences

between the parties to construction contracts, which requires them to act in an

impartial manner. They are on some projects called upon to act as certified

professionals, undertaking duties in the course of both their design and site review

services to the authority having jurisdiction. Even if not acting as a certified

professional, an engineer or architect may well be required to certify various matters

to any one or more of the contractors, subcontractors and authorities having

jurisdiction with respect to a construction project. In undertaking these duties, the

architect or engineer is required to keep in mind the various duties owed to all those

relying on their professional judgment and decision-making.

[106] The decision in Appia recognizes the special role that architects and

engineers play in construction projects, while also recognizing that an architect or

engineer may well be an important source of information for the parties – especially

where important matters in issue are technical in nature.

[107] Nor is the sort of work that an engineer does easily attributable to one

particular aspect of an engineer’s role. An inspection of any aspect of a project may

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 30

well lead to a report to the owner, an instruction to a contractor, a certification to the

municipal authority having jurisdiction, and eventually a decision in respect of a

dispute between contractors or between the owner and contractors.

[108] Both paras. 42 and 47 of the judgment under appeal (cited above) focus on a

conclusion that the engineer, in providing a certification, is acting independently and

thus cannot be a developer’s representative. These paragraphs reflect the

application of an extended definition of agent – one requiring a “commonality of

interest” and excluding any consideration that (as in Appia) that professional may

owe multiple duties.

[109] I conclude the Master in effect extended the requirements for a potential

witness to be an “agent” for purposes of Rule 7-2(5)(c)(ii) in a matter that is

inconsistent with the underlying rationale of the rule and the broad approach taken in

the existing authorities. This was an error of law, and her decision should be set

aside on that basis.

[110] I am also of the view that the judgment was clearly wrong.

[111] In this case, as with Mr. Kyle in the Appia case, Mr. Robbie did a wide variety

of things for the defendant encompassing many matters germane to the key issue in

this case – being the state of lot grading on the lots that were to be sold to the

plaintiff. He was, to use the language in Appia, acting as the defendant’s agent to

undertake and deal with matters that technically and administratively the defendant

could not perform itself. He was there as a consultant retained by the defendant. His

role encompassed the design and preparation of works not only on the lots to be

sold to the plaintiff but also on and under the adjacent streets and sidewalks, which

were to be transferred to the City. He inspected the work performed by B&B and

gave instruction to B&B in respect of the work that he inspected. He drew

conclusions with respect to his inspections, which were communicated to the

defendant, B&B and the City. He communicated those conclusions to the City by

way of the letters that he prepared and sealed. In respect of the sealed letters, he

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 31

would have owed duties of competence and professionalism both to the City and to

the defendant as owner and the party by which he was retained.

[112] The documents set out above clearly identify Aplin & Martin as the

defendant’s agent. The 2016 authorization letter provided that Aplin & Martin was to

act as an authorized agent on the owner’s behalf on all matters pertaining to the

application for the above-noted property/properties. Paragraphs 1 and 3 of the

standard form letter of responsibility, quoted above, would have the engineer state to

the City that:

1. I have been retained by the Developer to prepare and certify designs

including as-constructed drawings and documents; to carry out construction

survey, construction field reviews and field coordination; to perform as the

Contract Administrator as defined in the Master Municipal Construction

Documents for the Project; and will make complete submissions in

accordance with the current process outlined in the City of Surrey

Engineering Land Development Customer Manual.

…

3. I am responsible for representing the Developer with respect to all

technical aspects of the Project to the City of Surrey. I shall obtain all

necessary information to fulfill my responsibilities to the City of Surrey for the

Project.

[Emphasis added.]

[113] These documents are prima facie evidence that the engineer is appointed to

act as agent with respect to a broad range of technical matters. The Master found

that Mr. Robbie was not an agent notwithstanding these. In my view, there are three

key aspects of the Master’s analysis in which she erred.

[114] The first was the Master’s conclusion that “the certifications are at the heart of

the litigation” (para. 40). The pleadings are clear that a major issue on which the

case will turn is whether the required Site Services for the Building Lots had been

completed by the contractual deadline. The certifications are important evidence

going to that issue. It is clear that in the weeks following the certifications, there were

ongoing email communications amongst Aplin & Martin, B&B and the defendant as

to the state of grading on Lots 14-21. Those ongoing discussions may well reflect

back on the accuracy of the certifications that were provided in August 2018, and the

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 32

completeness of the underlying inspections, but they also reflect the ongoing role of

Mr. Robbie and Aplin & Martin with respect to oversight of the Site Services work

and, specifically, the state of lot grading leading up to the contractual deadline. I am

of the view that the Master was clearly wrong to limit her focus to the certifications

given what is pleaded.

[115] More generally, it is my view that it was wrong for the Master to limit her focus

to just one aspect of Mr. Robbie’s work in connection with reviewing the state of lot

grading. Her reasons for judgment reflect a fine parsing of the work of Mr. Robbie,

and appear to reflect an assumption that only one party can be owed duties for each

aspect of the work. At para. 55, she comments that anything communicated with the

City with respect to the state of lot grading is “inextricably intertwined with the

development of Mr. Robbie’s opinions and advice contained in his inspection

reports”. I am of the view that the Master was clearly wrong to proceed on this basis

given the nature and multiple purposes of the work for which Aplin & Martin was

retained.

[116] Rather, it is my view that in performing his inspections and preparing his

certifications, Mr. Robbie owed duties of competence and professionalism not only

to the City, but also to the defendant who had retained him to act in a professional

capacity to advance the project. It is true, given Mr. Robbie’s obligations as a

professional engineer, that the defendant was not entitled to simply instruct him what

to say in documents to which he was attaching his engineer’s seal. In my view,

Appia establishes that does not prevent an engineer from falling within the scope of

the word “agent” for purposes of Rule 7-2(5)(c)(ii). I am of the view that the Master

was clearly wrong to conclude that in inspecting and certifying the state of lot

grading, Mr. Robbie was doing something only for the City.

[117] At para. 41 of her reasons, the Master relies on wording of the standard form

Letter of Responsibility with respect to the City’s reliance on the engineer’s expertise

with respect to the “Work and Services”. As noted above, Works and Services is a

defined term, and it relates to the services that are to be turned over to the City at

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 33

the conclusion of the project. To the extent the Master relied on this language to

determine the nature of the engineer’s work with respect to grading of the Building

Lots, this was also clearly wrong.

[118] I will deal briefly with the other ground of appeal advanced by the plaintiff: that

the Master’s judgment impacts in a final way on a matter at issue in the litigation. I

accept there may well be an issue at trial as to whether Mr. Robbie was an agent of

the defendant. That will presumably be determined on the general law of agency and

a full evidentiary record. Given that the cases clearly establish that the test to be

applied for determining whether a person is an agent under Rule 7-2(5)(c)(ii) differs

from that applied in the general law of agency, I do not think that anything said in the

Master’s judgment would impact that determination. As a result, I do not see the

judgment as determining in a final way a matter at issue in the litigation.

Conclusion

[119] For the reasons set out above, the appeal must be allowed. The order of the

Master is set aside.

[120] I conclude that Mr. Robbie falls within the scope of the word “agent” for

purposes of Rule 7-2(5)(c)(ii).

[121] As noted above, the court retains a discretion to order that a person who falls

within the language of Rule 7-2(5)(c)(ii) not be examined. The Master did not rule on

whether the court should exercise that discretion in this case, and the parties did not

address the issue before me. Should the defendant wish to pursue that matter, it

should renew its application to that effect in regular chambers.

[122] Given the result, I do not need to deal with the plaintiff’s submission that the

Master should not simply have ordered that Mr. Cameron be examined, which the

plaintiff says deprived it of the ability to choose an appropriate witness who does fall

within Rule 7-2(5)(c)(ii). I note that the order of Justice McEwan in Rossco was

structured to allow some scope for the examining party to select an alternative

witness. In light of the importance attached in cases like Macdonald v. Roth to the

R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 34

examining party having its choice of witness, that would appear to be the preferable

procedure.

“Veenstra J.”