Leaf blows lawsuit back at construction firm

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This article was published 29/12/2023 (618 days ago), so information in it may no longer be current.

The Assiniboine Park Conservancy has filed a statement of defence and counterclaim in a lawsuit launched by the construction firm that built the Winnipeg park’s long-delayed, $130-million horticultural attraction Leaf.

The conservancy filed its court documents Nov. 6 at the Manitoba Court of King’s Bench, in response to Bird Construction Group’s October lawsuit — at least the fifth filed over the indoor botanical garden that opened December 2022, two years later than planned.

Cost of construction of the Leaf was estimated at $75 million in 2017, but ultimately cost $130 million — about $60 million of which came from three levels of government.

Bird’s lawsuit, which is seeking $16.8 million it claims it is owed under a builders’ lien, alleges the conservancy breached its contract with the firm, misrepresented the project and breached trust.

The park authority and Bird signed a construction management services contract in 2017, after Bird successfully bid on it in December 2016.

In its November court filing, the conservancy asked the court to dismiss Bird’s lawsuit and grant it court costs.

The non-profit further denied the allegations, arguing it was Bird that represented it was experienced, skilled and knowledgeable enough to build the project or would employ people who could, including the cable-net roof structure and translucent roof.

Delays were largely tied to design defects in the 92,000-square-foot building’s translucent roof, which stalled construction in June 2019 until August 2020, the conservancy has claimed.

In the statement of defence, Assiniboine Park Conservancy claims Bird was responsible for the work completed and not completed by its subcontractors, according to the contract inked between the non-profit and the firm.

Further, the conservancy claims, the contract stipulated any defective work was Bird’s responsibility to fix, at its own expense.

Assiniboine Park Conservancy also claims the contract allowed it to deduct from money owed to Bird — up to $2.737 million in liquidated damages — if the project wasn’t substantially completed by August 2020.

The conservancy argues Bird breached the contract with various construction errors, omissions, defects and deficiencies — including in the construction of the roof and heating and ventilation and air conditioning systems, among others — and by failing to oversee and co-ordinate the work of its subcontractors.

In its counterclaim, Assiniboine Park Conservancy argues Bird owes it general damages; damages to be proven at trial to indemnify the conservancy for remedial work, over payments, project delays, maintenance costs and operational losses; special damages; liquidated damages for $2.737 million; interest and court costs.

The counterclaim alleges Bird knew or should have known it was contracted to perform the work well, without defects and deficiencies, and failing to do so would damage the conservancy. It also alleges Bird is directly or vicariously liable for the work of its employees and subcontractors.

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Assiniboine Park Conservancy claims as a result of Bird’s breach of contract, failure in its duty of care and the firm’s negligence, the conservancy is still being damaged.

The conservancy’s lawyer, Jonathan Woolley, of Winnipeg firm Thompson Dorfman Sweatman LLP, requested case management in the latest suit and three others currently before the court related to the development of the project, to co-ordinate and organize the “factually and legally complex” actions.

Those include the conservancy’s suit against Architecture 49 Inc. and others; Supreme Steel LP versus Bird Construction Group and others; and Architecture 49 Inc. versus Assiniboine Park Conservancy.

In response to the request, Chief Justice Glenn Joyal ordered the matters be subject to case management, which will be presided over by Justice Candace Grammond at a later date.

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.