Condo board going after municipality for damages

Source:, March 29, 2011
By: Shirley Lin

Days after a petition was launched by Penhorwood owners demanding action from the municipality, the condo board has released details about the ongoing lawsuit indicating why it feels the city is responsible.
An affidavit from October 2008 by condo board member Al Penner, the main liaison for the owners, was uploaded Monday following the statement of claim against the 24 defendants in the four and a half-year ongoing lawsuit. The condo board is seeking $5 million in general damages and or restitutions and $500,000 in punitive damages.
In the statement of claim, the Regional Municipality of Wood Buffalo and Alberta Permit Pro, which issues construction permits on behalf of RMWB, is being sued as one. The developers include Alberta Ltd., Prairie Communities Corp., and Dome Britannia Properties within whom Gary Nissen, Evan Welbourn, and builder David Marshall held positions in.
The engineers being sued is Earth Tech which was detained by the developers to certify engineering aspects of the building, including the permits drawings. Specifically identified are Michael Nolan, responsible for structural engineering, and Travis Henkel, for mechanical engineering at that time.
In the affidavit, Penner’s claims against RMWB is based on negligence and “conscious lack of good faith” and that it “failed in its duty to protect” the owners by neglecting responsibility in properly inspecting the buildings’ construction and failing or ignoring to response to deficiencies and ongoing violations of the permits.
RMWB issued the development permit in May 2002, and the building permit in July 2002.
Penner alleges that despite RMWB having knowledge of the deficiencies, unsafe conditions and violations, it and Permit Pro allowed construction to continue and people to occupy those units.
The document further notes several site inspection reports citing deficiencies. Penner stated in September 2003 he brought building inspector Dan Kuhn to the buildings and he noted several violations of the Alberta Building Code.
The document notes inspections conducted by the city and Permit Pro show safety issues relating to heating, ventilation and mechanical systems, water infiltration from the roofs, lack of professional certification regarding the foundation construction, framing, compliance with geotechnical report, inadequate insulation, and others.
Penner said “the municipal authorities’ lax approach to the permitting process had enabled the developers to force buyers to close their condominium deals before the deficiencies and unsafe conditions were rectified.”
“I feel strongly that Wood Buffalo and Permit Pro ought to have ordered the developers to stop all work on the project and to correct all deficiencies and unsafe conditions before proceeding with occupancy or further construction. At a minimum, I believe that Wood Buffalo and Permit Pro ought to have ordered an independent inspection to determine the extent of the problems,” Penner stated.
The condo corporation also claims that the developers failed to comply with the permits’ conditions and directives issued by RMWB. Those conditions include insufficient heating and ventilation systems, dangerous in-floor heating system, failed roofs, insufficient roof drainage, roof venting, foundation designed and built without control joints thus highly susceptible to cracking, exterior wall poorly finished, resulting in cracking and water penetration, and others.
Furthermore, the developers made changes to the design which were the basis for the granting of the building permit, it claims. Changes include floor joists, stud spacing, beams and site grading, and were never made known to the condo association, the condo board added.
Meanwhile Marshall is blaming the building failures to the design. He told Today that the supplier Nascor who designed the flooring and the failing joists is at fault.
“You have seven buildings built the same way, this is a design problem. it could be a software problem or it could be an input problem.”
He added the developers make sure the buildings are in compliance with the drawings. “When the design is wrong which honestly doesn’t happen , this is very, very odd circumstance where the design fails.”
Marshall added that the condo corporation was fully aware of the initial failure of the joists.
“These people had full knowledge of this at a time when it was very inexpensive and easy to fix and didn’t do anything to the fixes, to add some squash blocking.”
None of the allegations have been proven in court.

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