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Statement of claim Ottawa v MP Lundy et al Goulbourn Rec Complex


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Statement of claim filed in June 2006 over deficiencies at the Goulbourn Rec Centre pool.
The item was settled out of court.

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Statement of claim Ottawa v MP Lundy et al Goulbourn Rec Complex

  1. 1. e E ' ‘K’, /E291:-nj. Court: File No. O6~CV~ l '7 Ly *€2I‘sJTA£{If() SUPERIOR COURT OF }USTICE V! _£. «‘; ‘. . 4 ' 4“; THE CITY OF OTTAWA I Plaintiff . . 3 ~ and ~ MP. LUNDY CONSTRUCTION LIMITED, DAVID MAILING ARCI-II’. I'ECi" INC. and WGD WONG GREGERSEN DABRUS ARC}-IITECTI‘ S INC, formerly known as WGA WONG GREGERSEN ARCI-IITECIS INC. Defend ants S'it’ATEMEN’I_’ OFICLAIM TO THE DEF EN DAN TS A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINS’I‘ YOU by the Plaintiff. The claim made agairst you is set out in the f. '>I. I:3wing pages. IF YOU VSTISH TO DEFEND THIS PRQCEEDING, you or an Ontario lawyer acting for you must prepare a Stzitement of Defence in Form 18A prescribed by the Rules of Civil Pmcecfure, serve it an the Plaintiffs’ lawyer or, "where the Plaintiffs dc: not have a lawyer, serve it on the Plaintiffs, and file it with proof of service, in this Court Office, VVITHIN TWENTY DAYS after this Statement: of Claim is served on you, if you are served in Ontario. If you are served in another province. or territory of Canada or in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.
  2. 2. E E E § Instead of serving and filing a Statement of Defence, you may serve and file a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more Hays within which to serve and file your Statement of Defence. IF YOU PAY ’I'I~'tiEI PI. AI. N'I‘i. FIiS’ CLALEM, and $5,000.00 for costs, Within the time for servinghand filing your Statement of Defence, you may move to have this proceeding dismissed by the Court. If you believe the amount claimed for costs is excessive, you may pay the Piaintiffs’ ciaim and $100.00 for costs and have the costs assessed by the Court. II’ YOU FAIL TO DEFEND THIS PROCEEDING, }‘UDGE'M, ENT IWAY BE GIVEN A. GAI. NS'lC YOU IN YOUR ABSENCE AND V371THOU'I' FURTHER NOTICE TO YOU. IF YOU ‘WISH TO DEFEND THiS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY AVAILABLE TO YOU BY CONTACTING A I. .'_O, ‘(_: ':A1. LEGAL AID OFFICE. ' I v : . ' J. ,- » . ‘ . ’ . y / _ '1 i . .; a Q ,2 , ,/4r/ :/ . -I /53. 5/0.. DElféS_£; '_’ '2' / " issuedby yl-’ "" W: I X / Local E! g1Sl‘.1'ZlI‘ Adciress of Court office: 161 Elgin Street Ottawa, Ontario TO: 1%/1.1’. LUNDY CONSTRUC'I‘ION LEMITED 375 Metcaife Street Ottawa, Ontario K21’ 187 TO: WBD WONG GREGERSEN DABRUS ARC}-I1"£‘EC'I‘S EN C. 401-240 Richmond Street West Toronto, Ontario MSV 1V6 TO: DAVID MAILING ARCHITECT INC. 57 Kyle Avenue Stittsville, Ontario K28 1G9 ‘
  3. 3. CLAIM 1. The Plaintiff claims as against the Defendants: (a) General damages for breach of contract and/ or negligence in the sum of ONE MILLION ($1,000,000.00) DOLLARS; (b) Special damages, the particulars of which wit} be provided to the Defend ants prior to the conunencement of trial; (c) Pre-judgment interest pursuant to Section. 128 of the Courts ofjustice Act, 12.8.0. 1990, C. C-43, amended; (cl) Costs of this action on a substantial indemnity basis; and (0) Such further and other relief as to this Honourable Court may seem just. The Parties 2. The Plaintiff, the City of Ottawa, (hereinafter ”Ottawa”) is a municipality incorporated pursuant to the City of Ottawa Act, SO. 1999, C. 14, Schedule B (the "City of Ottazva Act”) and is the successor of the Township of Goulbourn, (hereinafter "GouIbourn”) which was dissolved and replaced by the City of Ottawa on January 1, 2001, pursuant the City of Ottawa Act.
  4. 4. r 3. The Defendant, WC-IA Wong Gregersen Architects Inc. (now W GD Wong Gregersen Darbus Architects Inc. ) (hereinafter "the Defendant WGD Wong”) was at all material times an architectural firm with its office in ‘Toronto and which operated in the Ottawa area in the Province of Ontario. 4-. The Defendant, David Mailing Architect lnc. , (hereinafter ”the Defendant Mailing”) was at all material times an architectural firm with its head office in Stittsville, Ontario, and operating in the Ottawa area in the Province of Ontario. 5. The Defendant, .M. P. Lundy Construction Limited, (hereinafter ”the Defendant Lundy”) was at all material times a general contractor operating in the Ottawa area in the Province of Ontario. Background 6. In the early 1990's, the Plaintiff predecessor Goulbourn was the ovmer of a parcel of land which was located at 1500 Shea Road, Stittsville, Ontario. At that time, it decided to construct a large recreational complex for the public use of its constituents (hereinafter " the recreational complex”). 7. To that end, Goulbourn retained the services of architects Mailing and WGD Wong, which architects prepared the plans and specifications for the erection of a recreational superstructure on i ts property. 8. In addition, Goulbourn retained Lundy to construct the recreational complex on the property. 9. On‘ or about November 2000, the recreational complex was completed, which cornprised of swimming pools, an ice skating arena and associated support rooms and
  5. 5. plant. On or about November ‘I0, 2000, substantial performance of the recreational complex was certigfi ed. 10. Goulbourn relied entirely upon the aforesaid Defenclants with respect to all stages of the construction of the project, including its conception, p. la. n.’niI1g, design, construction and supervision of the construe-Hon of the recreational complex on its property. In performing their work, each of the Defendants assumed both conh"ac: tual liability well as a duty of care at law to the Plai_nt‘l. {f to perform their obligations in a good and worlcmanlike manner. Building Deficiencies/ P1‘oble. ms 11. The arena. and pool of the rer. '.realio11a1 complex were opened and occupied as of November '25, 2000. '12. As early as December 2002, the Plaintiffs staff (now the City) noticed some evidence of efflorescence visible on the masonry exterior pool wall. The situation at this area of the building envelope slowly worsened over the next two years, and in the summer of 2004, in order to protect both the integrity of the complex as Well as the safety of its users, the City was forced to complete an in—depth independent investigation of the problems. 13. In August 2004, the preliminary results of the investigation cleterrnined that both design and construction deficiencies existed which were leading to deterioration of various elements of the building envelope. 14. Further investigafion into the problems ensued and is ongoing. in particular, the Plaintiff has determined that serious problems exist with the design and/ or constructi on of the building envelope, including but not limited to the following:
  6. 6. U a) Premature deterioration of the stone masonry on the exterior walls of the pool, caused by, inter alia, improper installation of AB membranes at stmctural steel in the Walls; b) Premahire deterioration of pool high roof structure, parapet and soffits, caused by, infer alirz, improper or inadequate design methodology to deal H _ with condensation conditions; Vksk. y C) Water penetration at the feature wall and main skylight of the building, Q caused by, irmrr cilia, improper design and construction methodologies; cl) Ongoing lealdng ("dripping") from the entrance canopy caused by E improper design methodologies; ~. e) Deterioration of bulkheads at arena lobby doors caused by improper or E7 inadequate design methodologies to deal with condensation conditions; 1‘ Deterioration of dr wall at sk li hts due to condensation; Y Y 8 g) . l’onding' at the pool slope roof, caused by faulty and inadequate E C‘O. TlS‘h'11Cl. ‘lOl'l and design, including the failure to provide for sufficient 4. number of roof drains at that loca lion. 15. In addition to the above, the Plaintiff continues to discover problems with the design and construction of the complex, including its discovery in or about September 2005 that the pool roof may require complete replacement as a result in the adequacy of I the air barrier which exists between that roof and the pool wall. Investigation into this problem is ongoing and the particulars will be provided prior to the trial of this action.
  7. 7. 16. The construction and design deficiencies referred to above were caused by the negligence and / or breach of contract of the Defendants. The particulars of such negligence and / or breach of contract include the following: 3) b) The architects were at all material limes responsible for the preparation of the plans and specifications for the complex, and following the commencement of and throughout construction of the complex, for the inspection of the constructi on of its buildings located on the property. The architects owed a duty of care to the Plaintiff to ensure that the complex and its buildings were designed, erected, constructed and inspected in conformity with all applicable statutes, municipal by-laws, as well as the appropriate industry standards in effect at that time; The architects failed to prepare and deliver adequate plans and specifications (adequate design) and to provide appropriate and adequate supervision which was required in order to prevent the occurrence of the existing problems as they are currently known. In that regard, the a. rch. ilects were negligent and breached their contractual obligations, implicit and explicit, toward the Plaintiff; The Defendant, Lundy, as contractor provided to the Plaintiff an explicit and/ or implicit warranty that the buildings of the complex would be constructed in a competent manner and in accordance with the provisions of the various building codes, municipalby-la'ws and prudent industry standards at the time. The Plaintiff, at all material times, relied upon Lundy to meet their contractual and legal obligations in that regard;
  8. 8. F1) The Defendant Lundy, as CO1’1lJ'aC. ‘l'01‘, owed a furtller duty of care to the Plaintiff to assist in the design, as well as construct and/ or supervise the construction of the buildings at the complex in a proper manner and in accordance with the provisions of all applicable Codes, by—laws and prudent industry practices which then existed. The Plaintiff relied upon 'L. undy at all material times to discharge that duty; The Defendant Luncly, as contractor, designed, constructed and / or supervised the constmclion of the building at the complex in a negligent manner with poor workmanship and / or material of poor quality and/ or failed to comply with the provisions of all applicable codes, municipal by- laws and / or prudent industry practices for the relevant time period. Remedial Work and Damages The Plaintiff has incurred and continues to incur significant costs in order to remedy and repair the problems caused by the breaches of contract and/ or the negligence of the Defendants. AS a result of the negligence and/ or breach of contracts of the Defendants, the 8) Plaintiffs‘ have suffered or will suffer damages as claimed in paragraph 1 of the Statement of Claim and more particularly described as follows: The costs related to the repair of the problems referred to above and damages caused by the consequences of the deficiencies related to poor design and construction;
  9. 9. b) The inspection costs and the fees of the engineers and consultants with respect to the ide: ntifica'ti. on, analysis and rectification of the problems previously mentioned; C) The hiring of employees of the Plaintiff for the management of administrative tasks related to the remedial work; (1) Damages resulting from the reduction in the value of the complex; and e) Any and all other costs and/ or damages arising as a result of the breach of contract and / or negligence of the Defendants. 19. To date, the Plaintiff has incurred remedial <:0:3:ts in the. approximate sum of $150,000.00 and additional costs are estimated at approximately $850,000.00. 20. Tile Plaintiff request‘; that the action be heard at Ottawa. Dated: ivjyy/ ti; / /0U Williams Mciznery _’ Barristers & Solicitors / ' 169 Gilmour Street '’ Ottawa, Ontario K21’ UN8 Mark O. Charron LSUC# 024333V (613) 237-0520 (613) 23'7~3163 (facsimile) Solicitors for the Plaintiffs
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