Construction firm files $3.5-M lawsuit over renovation

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This article was published 28/09/2023 (738 days ago), so information in it may no longer be current.

A construction firm contracted to renovate St. James Civic Centre is suing the city, alleging it relied on shoddy information that caused delays and added costs.

The city-owned Ness Avenue facility, which features an indoor hockey arena, swimming pool, auditorium, weight room and other community-accessible spaces, was closed in April 2020 for major work originally slated to take just over a year.

But it took until last September to reopen. Mayor Scott Gillingham — then the councillor for St. James — blamed the lengthy closure on alleged contractor errors.

“It’s delayed primarily related to two (silica) dust-release events, where the contractors… didn’t have the proper barriers in place and the dust went through the whole facility,” Gillingham said last August, adding at the time that the city was going to seek money from the contractor.

But Canotech Consultants Ltd., whose subcontractor was blamed for the alleged releases of the hazardous dust in July and November 2021, alleged in a statement of claim filed in the Court of King’s Bench on Sept. 15 that no silica was actually released in either incident.

Inhaled silica dust can cause irreversible damage to the lungs and potentially lead to lung cancer, according to the Canadian Centre for Occupational Health and Safety.

Canotech is suing the city and one of its employees, who was the contract administrator for a concurrent project at the centre, for about $2.6 million in specific damages related to increased costs to complete its contracted work on a crawl space, as well as other damages and costs. The firm also wants the city to rescind fines it issued to Canotech, which work out to about $940,000.

“The silica allegations caused material disruptions, unnecessary and lengthy delays, extremely difficult working conditions, changes in soil conditions, and unreasonable expenses,” reads the statement of claim, which was filed by Thomas Frohlinger and Jeffrey King of PKF Lawyers on behalf of Canotech.

The alleged releases of silica dust at the civic centre — which Canotech claims were actually general non-hazardous construction dust produced by different contractors working on a different project in the centre — caused lengthy delays and significantly increased costs for the construction firm, according to the claim.

Canotech was contracted to conduct repairs and renovations to the centre’s crawl space under the arena in February 2021, then subcontracted work to another contractor.

The subcontractor, Carlson Commercial & Industrial Services Ltd., started sandblasting concrete in the crawlspace on July 26, 2021, following dust control measures as set out in contracts, the legal filings claim, while the city had different work underway in the building known as the systems project.

Carlson was using a sandblasting media, or abrasive material, called “Black Magic,” which does not contain silica and is not silicate based, the lawsuit claims.

About 45 minutes into the work, the systems contract administrator demanded the sandblasting be shut down, alleging that silica dust was escaping and contaminating the civic centre, without authorization from the administrator of the sandblasting project or the city itself, according to the lawsuit.

Canotech disputes that the dust was from the sandblasting, but was created by the systems project construction that the city employee was administering.

The city then retained another firm, Pinchin Ltd., to investigate the alleged release of silica dust, claim says. Pinchin took spot measurements for particulate matter, but it is alleged Pinchin did not rely on those measurements in its investigation, which Canotech said was not a meaningful probe.

“Pinchin summarized its assessment… explaining that it did not assess the Black Magic media or the readings. Instead, without further research, it simply relied on the city’s allegation, and accepted that Black Magic is a silicate-based sandblasting media and therefore assumed that some of its readings contained silica,” the Canotech filings claim.

The city, it is claimed, then represented Pinchin’s findings as bona fide, before notifying Manitoba Workplace Safety and Health, which relied, in turn, on the city’s allegation to issue an improvement order.

Canotech said in the filings that it retained firm Winnipeg Air Testing to test dust samples. The firm determined the dust contained no silica and that the sandblasting didn’t result in the release of the dust. Canotech, meantime, alleges that the city and Pinchin have never responded to the WAT report.

It’s then claimed that on July 30, 2021, the systems project administrator told Canotech that the city was now alleging, without evidence, that the concrete that was being sandblasted contained silica, not the Black Magic material.

The city then directed the crawl space project closed until Oct. 4, when subcontractor Carlson began work again, before more dust was released on Nov. 1, 2021. Canotech alleges the dust was released by other contractors cleaning ducts for the systems project — but that its subcontractor was again blamed.

Canotech claims that the city has not proven the Nov. 1 dust contained silica at all, nor that any release of dust was its subcontractor’s fault.

The city has not yet filed a statement of defence in response to Canotech’s allegations and city spokespeople did not comment on the lawsuit Wednesday.

The $10 million renewal and renovation project for the building, which was constructed in 1967, updated the facility’s envelope, arena slab and lighting, as well as electrical and mechanical systems.

erik.pindera@freepress.mb.ca