Bosworth v. Jurock (British Columbia Court of Appeal)

Serious construction deficiencies were discovered in the common property of the strata corporation.  One of the owners asserted a claim against the developer, its directors, and anyone who signed or authorized the filing of the disclosure statement under the Real Estate Development and Marketing Act.  The claim alleged negligent and fraudulent misrepresentation; and was asserted as a class action on behalf of all original strata lot purchasers. 

The defendants argued that a class action was not available because a representative proceeding could be brought by the strata corporation on behalf of the same class, under the Strata Property Act.  The Chamber’s Judge held that the owner’s class action could proceed.  [See Condo Cases Across Canada Part 37- February 2012.]  This was upheld by the Court of Appeal.  The Court of Appeal noted that the plaintiff was not himself able to bring a representative proceeding under the Strata Property Act.  Therefore, Section 41(a) of the Class Proceedings Act was not a bar to certification of the action as a class action.