Legal issues grow at the Leaf; construction company files $17-M lawsuit By: Erik Pindera Posted: 6:21 PM CDT Monday, Oct. 23, 2023

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This article was published 23/10/2023 (1075 days ago), so information in it may no longer be current.

A $130-million horticultural attraction beset by cost overruns and design problems has triggered a new $17-million lawsuit — the latest in a string of legal issues plaguing the Assiniboine Park facility.

Bird Construction Group has filed suit against the Assiniboine Park Conservancy and the City of Winnipeg, which leases land to the conservancy, for the more than $16.8 million it claims it is owed under a builders’ lien for construction management services during the build of Canada’s Diversity Gardens, including the Leaf facility.

Lawyers for Bird filed a 29-page statement of claim in Manitoba Court of King’s Bench Oct. 16 alleging the conservancy breached its contract with the firm, misrepresented aspects of the project and breached trust.

The construction company is seeking judgment on those allegations, as well special and punitive damages to be proven at trial and legal costs.

The cost of construction was estimated at $75 million in 2017, but ultimately cost $130 million, about $60 million of which came from all three levels of government. The attraction opened in Assiniboine Park last December, two years later than planned.

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In the December 2016 request for proposal for construction management services Bird successfully bid on, total construction costs were estimated at $61 million, with work to be complete by October 2019. The construction management services contract was signed in 2017.

Conservancy communications director Laura Cabak said the non-profit “encountered some challenges” during construction of the Leaf.

“There is a disagreement among the project team members regarding responsibility for these issues and the associated costs,” Cabak said in an email Monday. “APC intends to file a defence to this claim, but will have no further public comment as this matter is before the court.”

City of Winnipeg spokesman Kalen Qually confirmed the city’s legal department had been served notice of the suit, but declined further comment.

Bird’s lawyers, Winnipeg law firm MLT Aikins LLP, argue that the conservancy breached the construction management contract in dozens of specific ways ranging from issues in the initial design and planning phase of the project and in the building phase, concerns with the overall administration of the project, delays during construction and subsequent costs and impacts on Bird and by failing in its contracted duties to pay Bird for the extended work and for legal claims against it.

That includes allegations the conservancy failed to engage “competent, knowledgeable, skilled and experienced” consultants for the initial design and testing phases of the project, for the design of the cable-net roof system and its plastic roof system and for its engineering services.

Bird also alleges the conservancy failed to complete the structural project design in a “good and workmanlike manner” and failed to ensure the design would not impact the project including by taking longer than planned.

Bird also alleges the conservancy misrepresented the project prior to Bird submitting its proposal, including by allegedly not finalizing the design and testing the viability of the project’s roof. Further, it is alleged, the conservancy did not inform Bird of subsequent information from later investigations and engineering that affected Bird’s ability to perform the work in a timely way.

When that subsequent information cast doubt on what had been previously given to Bird, it is alleged, the conservancy did not urgently provide Bird with the new information.

Bird also alleges that the conservancy and the city have breached their trust funds meant to pay for the project, as Bird is still owed millions of dollars.

The latest lawsuit is at least the fifth filed over issues with the construction of the Leaf that remain before the court.

Last October, Winnipeg-based architectural firm Architecture49 Inc. filed a statement of claim alleging that the conservancy owes it nearly $1 million in unpaid invoices after it was forced to do redesign work on the project caused by construction flaws.

Assiniboine Park Conservancy itself filed suit against Architecture49 Inc., KPMB Architects and engineering firm Blackwell Bowick Partnership, alleging that opening delays and high costs were caused by design defects.

Design defects in the 92,000-square-foot facility’s translucent roof resulted in the suspension of construction in June 2019, with remedial work not undertaken until Aug. 31, 2020, the conservancy alleged in its prior statement of claim.

In a separate, related lawsuit, the conservancy is suing its insurer, Royal & Sun Alliance Insurance Co., alleging it wrongly rejected Assiniboine’s claim for compensation related to the roof defects.

erik.pindera@freepress.mb.ca

Erik Pindera
Reporter

Erik Pindera is a reporter for the Free Press, mostly focusing on crime and justice. The born-and-bred Winnipegger attended Red River College Polytechnic, wrote for the community newspaper in Kenora, Ont. and reported on television and radio in Winnipeg before joining the Free Press in 2020.  Read more about Erik.

Every piece of reporting Erik produces is reviewed by an editing team before it is posted online or published in print — part of the Free Press‘s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.