Whitehorse Daily Star

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SUBJECT OF DISPUTE – The Whitehorse Condominium Corp. says it asked the builder of the development at 27 Stan McCowan Place in Porter Creek to repair the problems. The builder, Audette Construction, refused, the corporation says in court documents.

Condo complex problems spur lawsuit

The Whitehorse Condominium Corp. has filed a civil lawsuit against Audette Construction and the City of Whitehorse.

By Gord Fortin on October 22, 2018

The Whitehorse Condominium Corp. has filed a civil lawsuit against Audette Construction and the City of Whitehorse.

Marj Eschak, the corporation president, and Jim Tucker, its lawyer, have filed the litigation and statement of claim.

The lawsuit stems from alleged construction deficiencies of two condominium complexes located at 27 Stan McCowan Place in Porter Creek. There are 12 units in total.

The buildings were erected between April 2010 and June 2011, after the former Stan McCowan Arena was removed.

Tucker said, in the claim, that Audette built or supervised the construction.

Audette owned the condos during construction. Once complete, the builder sold the units individually.

Tucker said Audette was responsible “for all aspects of the design” of the two complexes. This included the buildings’ foundations, back filling, grading of the ground and installing eavestrough.

He said the builder was required to take all reasonable steps and due care to ensure that the structures were built properly. This included following all building codes, city bylaws and regulations, as well as architectural and construction standards.

He mentioned specifically the Yukon Building Standards Act, the 2005 National Building Code of Canada and the city’s Building and Plumbing Bylaw needed to be followed.

The corporation became aware of alleged construction deficiencies during the summer of 2016.

Water was entering the crawl space under one of the buildings. Mould was discovered, affecting the space beneath several units.

Eschak pointed out that the original design plans called for permanent wood foundation (PWF) plywood to be used for the foundation.

The foundation also required a waterproof membrane lining as well as polystyrene insulation.

The corporation investigated the flooding in August 2016. It alleges that the builder did not use the PWF plywood, the waterproof membrane or the polystyrene.

After an additional investigation, in August 2017, the corporation discovered there was no positive drainage for runoff surface water.

This meant water was not drawn away from the building. Tucker argued this was negligent on Audette’s part.

The corporation further alleges that the flooding and mould were caused because faulty materials and poor workmanship by the builder. It also alleges that the builder didn’t follow the proper building codes nor the original designs.

The corporation approached Audette on June 16, 2017, asking the builder to fix the issues. Tucker alleges that Audette refused.

As for the city, Tucker argued it had a duty of care as well: to inspect the builder’s work during construction.

He felt this should have ensured that the builder was conforming to both the design and the building codes.

The corporation argues that the city breached its duty since it failed to ensure the builder followed regulations.

Tucker alleges that as a result of both parties’ negligence, the corporation suffered property damage and the loss of the use of its property due to the flooding and mould.

The corporation alleges both parties are liable for:

• failing to build or ensure that the two buildings were constructed in compliance with the original design drawings and all regulations;

• failing to exercise proper due care or diligence during the construction and inspection of both buildings;

• failing to properly design, construct or inspect both structures, which should have ensured the buildings would not suffer property damage as a result of deficiencies;

• failing to ensure the builder’s, sub-trades’ and suppliers’ work was performed in a manner free of defects that could result in property damage;

• failing to use the best possible methods available to properly build and properly inspect the two buildings;

• failing to make sure that the builder’s, sub-trades’ and supplier’s work and materials were fit for use in the construction of a residential premises and complied with all regulations;

• failing to use the proper building materials, called for in the building’s design, during construction;

• failing to fix any deficiencies, defects or damage; and

• any further issues that could arise or be proven during a trial.

“The builder and the city owed to the plaintiffs a duty of care to ensure that the buildings would be fit for occupation without risk of external and internal damage or detriment to the health of the intended occupants,” Tucker said.

Tucker argued that his client has suffered as a result of Audette’s construction techniques and the city’s alleged negligence. This alleged suffering continues, the lawyer said.

Moisture is still entering the crawl space. That continues to cause further damage and poses a threat to the condo occupants’ health and safety.

The corporation is seeking several rulings:

• inspection and investigation costs;

• professional advice about the building issues and property damage caused;

• the cost resulting from repairing the deficiencies and the damage (which will be assessed);

• consulting and engineering costs;

• compensation for the loss of the use of the property as a result of the deficiencies;

• legal costs; and

• anything further the court decides is fair.

Comments (7)

Up 14 Down 2

MIke H on Oct 25, 2018 at 2:56 pm

Good thing the City shut down Audette's plan for a similar complex in Whistle Bend and saved a dozen more families from shoddy workmanship and tens of thousands in potential repairs.

If I was in one of his builds I'd get it independently inspected.

Up 18 Down 0

Heather Saggers on Oct 23, 2018 at 7:32 pm

I would rather have proper construction inspectors to ensure safety for home owner and future home owners, the some other expense, like paved walk/bikeways. I'm sure there are other areas our desires could be cut for areas of need.

Up 19 Down 0

woodcutter on Oct 23, 2018 at 12:10 pm

What a terrible situation for these homes owners. I can't believe the construction company did not use pressure treated wood for their foundation. I know from my experience building homes in Whitehorse the inspectors were on site several times, inspect footing, inspect framing,, inspect wood stove, inspect plumbing, inspect insulation. All during these inspections they looked closely, provided advice and were generally helpful and courteous. Saying that however when it came to occupancy, the young lad spent about 2 minutes in my home and did not even test the railing on the deck.

I would think that not using proper material on the foundation would stick out like a sore thumb and would not require more then a casual glance to spot the issue. Being too busy is not a good excuse in this matter, last time I recall an article on a family dying from carbon monoxide poisoning and the history of the home indicated the chimney had been lined, however the contractor only put the top pipe in place and the inspector did not verify that the job had been done properly. I would have thought after this tragedy that things would have changed to protect the public. I feel the inspectors are our strongest defense and should be given the manpower and tools to do their job adequately, then however you have people sniveling about taxes and bloat and all the B.S. of people who don't want to pay.

The result now, is that Tucker is going to make a fortune, someones going to pay and if it's the city, I bet it's going to be more then the cost to adequately equip our inspectors.

Up 2 Down 10

Martin on Oct 22, 2018 at 7:55 pm

It is my understanding that CoW doesn't inspect construction. They do 2 visits to the site and they are for electrical & mechanical code compliance.

Up 5 Down 27

builder on Oct 22, 2018 at 6:13 pm

Dont blame the city's inspectors.
The city doesn't have enough inspectors to be there for all phases of construction. It's the responsibility of the contractor to either follow plans or to build to part 9 of the NBC.
People always complain about taxes, the city's not doing enough etc, but if the city was to hire more building inspectors to cover more of the inspection phases, that's going to cost taxpayers.
You can bet that if the city was to require that ALL new construction required a sign off by an engineer(s), there would sure be some squawking.

Up 19 Down 2

MissWonderful on Oct 22, 2018 at 6:12 pm

This shouldn’t surprise anyone. Cookie cutter housing. Build them fast and sell them.

Up 67 Down 3

The_Dude on Oct 22, 2018 at 4:04 pm

I'm not surprised by either that contractors short cuts or the city's inept inspectors.

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