Litigation Lawyer Wanted

We are looking for an experienced litigation lawyer to join us at Robson Carpenter LLP. RCLLP is a small but modern and dynamic “boutique” firm that practices almost exclusively in the areas of land development (condo and subdivision), construction law and litigation, real estate litigation, and insurance (primarily title) defence. Check out our website at www.rcllp.ca to learn a bit about who we are and what we do.

The position we’re looking to fill is suited to someone who:

  • is an 8-14 (give or take a couple) year call with an established and portable construction/real estate/insurance litigation (any or all) practice;
  • would be interested in helping us round out and grow our litigation team;
  • prefers a direct relationship between hard work and higher compensation (over the strange/complicated schemes of many large firms);
  • considers excellent client service to be near-religion;
  • truly values the team around him/her; and
  • is maybe a bit tired of the well-beaten path.

The position will initially be an associate or associate counsel sort of arrangement but, ultimately, we are looking for someone who is a good fit to join our partnership within a short period of time.

If you’re at all interested, give me a call or send me an e-mail to connect (or if you know someone else who might be, please pass this along). All inquiries will be treated with absolute confidentiality.

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Aging condos – bright days ahead for glazing trades?

Patty Winsa’s article Degrading condo windows expected to trigger major wave of replacements in thestar.com, published March 20, 2014, discusses the potential (and sobering) costs associated with large scale glazing (glass) replacement on high-rise condo buildings as window systems approach their expected 30-35 year lifespan.

Failure and replacement isn’t imminent for many condos but if the replacement costs approach what University of Waterloo professor Dr. John Straube predicts, this is a future problem and cost that condominium corporations are going to want to get well out in front of.

Scanning the downtown skylines of Vancouver, Calgary, Toronto, and Montreal (and so on) gives one an appreciation for the prospective magnitude of the amount of money at stake.

Leaky Condos – Lessons from British Columbia – A Few Things Every Property Manager Should Know

As promised in my January 25, 2014 post – the following is an article I wrote that was originally published in the Association of Condominium Managers of Ontario’s (ACMO) CM Magazine in 2009:

I’m a litigation lawyer and practice primarily in the area of construction law.  In particular, I seem to have a natural affinity for construction deficiency claims – I like them and they like me.  Not only do deficiency claims usually have complex and interesting factual and legal issues, they are often meaningful for the parties involved.  This makes for satisfying legal work.

I grew up in Kitchener, Ontario but packed up in 1993 and headed out west to go to school in Vancouver.  I eventually ended up going to law school and practicing law at a large Vancouver law firm where I joined that firm’s Construction Law Practice Group in early 2002 to help with the incredible workload that the “leaky condo crisis” had generated.  Until returning to Ontario in 2008, I worked on numerous files arising from leaky buildings, representing primarily condominium owners, but also single-family home owners, a large building product manufacturer, and residential developers.

Most people, certainly in condominium management circles, have some degree of awareness and understanding about British Columbia’s “leaky condos”.  It was a real phenomenon and socio-economic crisis that had a profound and lasting impact on the lives of tens of thousands of homeowners and the practices of builders, developers, architects, and municipal inspectors.  To get a sense of the magnitude of the effect and fall-out, one only need consider that it resulted in the financial collapse of B.C.’s provincial new home warranty provider of the day, a significant re-writing of parts of the B.C. Building Code, and an international renaissance in building envelope science.

I should say at the outset that I don’t think for a minute that Ontario is likely to experience a leaky condo experience anything akin in magnitude to that in B.C. – the climate is different, there’s less moisture here and warmer drying periods, and the architecture is somewhat different.  That said, buildings that suffer water ingress are not by any means a uniquely coastal phenomenon and Ontario’s heavy seasonal (and often wind-driven) rains, the rapid rise in multi-unit residential construction in Ontario and late-coming changes to the Ontario Building Code (approximately eight years behind those in the B.C. Building Code), certainly create the possibility.

While not everyone will be genuinely interested in the “leaky condo” story, what is, in my view, of utmost importance is that people – homeowners, property managers, builders, and designers – heed the lessons that were learned in B.C. as a result of the experience.  For homeowners, property managers, and condominium boards, the most important of these lessons is recognizing the early signs of a problem and acting on them.  This article is not intended to provide legal advice and neither is it intended to be a comprehensive playbook or checklist – what it is intended to do is to offer a few of the suggestions that I wished over the years I had been able to provide to owner/manager clients who, unfortunately, didn’t seek advice (legal, engineering, etc.) until long after the problem had been discovered.

Most often, the early signs of a “leaky condo” are first evident to the owners of individual units in the building.  These owners will report wet carpets, water on window sills, drywall or ceiling staining, or similar problems to the condominium board or the management company.  Sometimes these reports will begin very shortly after a new building is occupied and other times the reports won’t start until years after a building was constructed.  From a legal point of view, it is critical that those involved in the management of the building take these reports seriously and act on them quickly.

Property managers are almost always heavily involved in both the investigation of construction deficiencies and the management of the remediation work.  Similarly, if the condominium corporation votes to raise funds and pursue cost recovery litigation, the property manager will almost always serve as the primary liaison between legal counsel and the condominium’s board of directors.  Given these realities, there are a few things that every property manager should consider and keep in the back of his or her head to be well positioned to both identify issues and to respond effectively and appropriately in the face of the discovery of a design or construction deficiency.

  1. Even without signs of leaks, for new buildings, one of the best things a condominium’s management can do is to retain a building science professional (generally an architect or an engineer) to conduct an investigative building envelope assessment of the subject building within the first year of the Tarion warranty coverage.  If the investigating expert discovers Building Code violations, substandard workmanship in the building envelope construction, or significant deviations from building manufacturer’s details, specifications, and installation instructions, these should be reported to Tarion right away so that Tarion can assess whether warranty coverage applies.  While incurring the cost of a building envelope assessment on a new building can be a hard sell to the owners, taking this pro-active and preventative measure will be some of the best money the condominium corporation ever spends if a serious problem is discovered.
  2. Even if a building is not new and there’s no warranty coverage, bringing in an expert to assess the construction and condition of the building envelope can be a good investment.  If a major problem is discovered, the condominium corporation can start budgeting to carry out repair work and consult with a lawyer to see whether legal action is warranted. If no major problems are discovered, the consultant will be able to provide advice with respect to required maintenance and identify any areas that should be monitored.
  3. Regardless of whether it is a newer or an older building being assessed, encourage the condominium board to hire a premier building science firm to carry out the investigation.  First, the old adage that “you get what you pay for” often holds true in this case.  Second, the preliminary assessment may be one of the most important pieces of evidence if litigation later follows and premier building envelope consultants will generally be better expert witnesses than consultants with less experience or weaker qualifications.
  4. Educate owners within the building about what to look for and set up a protocol for reporting problems.  This suggestion may sound a little pedestrian but you’d be surprised how many times I’ve seen unit owners wait months or years before reporting the problem and acting upon it.  A necessary component to this suggestion is that the management (the condo board, the property manager, etc) needs to follow up with these reports, investigate the causes, and watch for patterns (i.e. leaks or moisture at the balcony doors of more than a couple of units may indicate a defective sliding door design or installation, a membrane problem, or slope deficiency that might affect most or all units in the complex).
  5. Establish a system of inspecting and maintaining the exterior of the building. While a window and a wall assembly might be reasonably expected to last for 20-30 years (or much more), caulking and other seals generally are not.  One excellent building envelope consultant that I worked with often in Vancouver told me that, ideally, caulking should be inspected every 1-2 years and completely replaced every few years.  If a building has systemic water ingress problems and significant design or construction flaws, this usual and normal maintenance won’t likely solve the problem.  However, if a building is not maintained, owners can bet their bottom dollar that the defendants in their cost recovery claim are going to raise a lack of maintenance as a defence (contributory negligence) to the claim.
  6. One of the most important things to do following the discovery of a problem is to consult legal counsel quickly.  Every Province has its own legislation that governs the timeframe within which a would-be Plaintiff must start its lawsuit.  In Ontario, the current legislation requires that a lawsuit be commenced within 2 years of the event giving rise to the claim.  It’s actually much more complicated than this – there is a huge body of law surrounding when that 2 year clock begins to tick – but many otherwise strong claims have been defeated because a Plaintiff failed to commence a claim in time.  This is a heartbreaking way to lose the right to pursue compensation for repairs.  Bottom line: Err on the side of caution and act quickly.
  7. Keep good records (and store them in an organized file) with respect to building envelope maintenance, reports of water ingress, any investigations undertaken, discussions (i.e. meeting minutes) and communications (i.e. emails, letters, etc.) on the subject, and financials.  If a problem arises and if litigation becomes likely, not only will the condominium corporation’s lawyer love management for having done this, the condominium corporation will likely save considerable money in legal fees if the lawyer doesn’t have to comb through dozens of files and thousands of documents looking for and sorting the relevant documents.
  8. If there is a suspected problem with the building envelope, take steps to find out the identities of all of the players involved in the construction of the building in question.  Some of this information can be obtained from the condominium’s description documents and the contracts of purchase and sale. However, often the best source is in the planning and building department file of the municipal authority having jurisdiction over building permits and approvals and such. A bit of advance notice to the good staff at the planning and building department and a half an hour at City Hall will usually net a lot of good information.  If a lawyer is retained, he or she can take care of this as well but can better “hit the ground running” if some of this information is already known.  This can also save valuable time if limitation periods are an issue.

At the end of the day, the central theme of these few suggestions is to monitor and investigate, maintain, and to seek advice promptly if problems are discovered. Another important point to take away is that, if owners fail to properly and diligently maintain their buildings over time and act quickly if problems emerge, they will, to varying degrees, risk having to absorb or share in the blame that might have otherwise been borne by the developers, designers, builders, trades, and municipalities that designed, built, and approved the construction of the building.

Leaky condos – delayed investigation, assessment, and remediation can have costly consequences

TarpsA recent article in the Ottawa Citizen, $15.3M repair estimate leaves owners of Ottawa high-rise condo in shock, written by Hugh Adami, highlights the need for condominium corporations (the boards and ownership as a whole) to take non-localized deficiencies (in this case, water ingress) seriously and to investigate and assess them early.

If the building envelope has design and/or construction defects requiring extensive repairs, early investigation, assessment, and action may or may not have a dramatic effect on the remediation costs – the defect(s) have to be corrected regardless but early intervention can greatly reduce the repairs required to remove/replace damage (rust, rot, mould, etc) caused by the water.

However, what prompt investigation, assessment, and remediation will do is:

  1. reduce the chance that the Limitations Act, 2002 will become a bar to a lawsuit to recover remediation costs from those responsible for the defective design and/or construction; and
  2. limit the applicability and effectiveness of a defence that the condo corporation failed to mitigate its losses by stopping the damage caused by the intruding water.

In coming days I will post an article I wrote on this subject a few years ago (published in the Association of Condominium Managers of Ontario’s (ACMO) CM Magazine in 2009) but every bit as important and applicable today.

Can an owner rely upon read-in evidence from transcripts of subcontractors’ Examinations for Discovery against the general contractor?

There are two ways to introduce evidence given by a witness examined for discovery at trial:

  1. The party who carried out the examination can use the prior evidence to impeach the witness’ evidence at trial where it differs from the evience given at the examination; or
  2. The party who carried out the examination can “read-in” portions of the transcript produced at the examination and those “read-ins” become part of the evidentiary record at trial.Answer

The recent case of Urbacon Building Groups Corp. v. Guelph (City), 2013 ONSC 5773 (CanLII) - which by the way is producing lots of interesting caselaw re construction liens in Ontario – addressed whether an owner rely upon read-in evidence from transcripts of subcontractors’ Examinations for Discovery against the general contractor.  The City of Guelph took the position that it could read-in portions of the transcripts of the Examinations for Discovery of Urbacon’s (the GC) subcontractors against Urbacon.

Much to my nerdy delight, Justice MacKenzie cited an earlier Ontario Decision and a B.C. Decision and ruled that (I paraphrase) discovery evidence can only be read in against the party who gave it.  One can easily imagine the mischief that could result from one party relying on the evidence given by X against Y when Y may not have had a chance to challenge or counter X’s evidence and I am glad that the door on this risk has been closed just a little further and, in particular, in the context of a multi-party construction lien action.

An imperfect pleading (apparently) still perfects a construction lien

ScalesA Decision (arising from a motion to have a construction lien discharged and security posted returned) in 984499 Ont. Inc. v. 1159337 Ont. Inc. et al. was released by the Ontario Superior Court of Justice on July 2, 2013, and we are – yet again – reminded how forgiving the Ontario courts can be when a lien claimant has arguably failed to comply with some ostensibly fundamental aspect of the Construction Lien Act.

The facts are (whittled down) as follows:

The Plaintiff (a general contractor for a hotel renovation) was unpaid and preserved its lien by registering a construction lien within the required time.  The owner posted security with the Court in order to vacate the lien from title and the lien claimant commenced an action.  However, the action commenced by the Plaintiff did not:

    • expressly seek to enforce a construction lien – against the security in Court or against the land;
    • mention the lien claim registered on title, the vacating order, the monies paid into court or perfection of the lien; and
    • mention or plead the Construction Lien Act at all other than to plead reliance on the trust provisions of the Construction Lien Act.

The Defendant (owner) brought a motion for a ruling that the construction lien had not been perfected in accordance with the Construction Lien Act because the Statement of Claim was not in the nature of an action to enforce the lien as is required by section 36(3) of the Construction Lien Act and that it could not be an action to enforce a lien because it pleaded the trust provisions of the Construction Lien Act and section 50(2) says that an action to enforce a lien and a trust claim shall not be joined together.

Mr. Justice Whalen dismissed the motion and, relying on Rules 1.04(1) and 26 of the Ontario Rules of Civil Procedure, allowed the Plaintiff to “cure” or “fix” the Statement of Claim to effectively bring it in compliance with the Construction Lien Act.

My own view is that this Decision is wrong and, like other similar Decisions, is in stark contrast to what I think is a better line of cases in B.C. (under its fundamentally very similar Builders Lien Act) which hold that lien legislation, while being remedial, creates an extraordinary remedy (it allows one party to encumber the property of another before judgment and creates priorities between creditors, etc) that is strictly a creature of statute and so the legislation must be interpreted strictly and the court has no discretion to depart from the express statutory requirements.  I have little doubt that if 984499 Ont. Inc. v. 1159337 Ont. Inc. et al. had been decided in B.C., the Defendant’s motion would have succeeded.  See, for example, Nita Lake Lodge Corp. v. Conpact Systems (2004) Ltd., a 2006 Decision of the Supreme Court of B.C. in which a $300K+ lien was extinguished solely because the lien claimant failed to properly name the company with which it had contracted and from which it claimed to be owed money.

While, the Ontario Construction Lien Act contains a curative provision at section 6, it does not apply to pleadings and is not so broad as to convert a Statement of Claim that does not seek to obtain or enforce a construction lien into one that does.  Similarly, this wasn’t a case where there was some poorly drafted paragraphs but it was still, in substance, a claim to enforce a construction lien as required by the Construction Lien Act such that a Rule 26 amendment could improve the pleading or fix some minor flaws.  Rather, it was an action that did not plead material facts to support a finding of a lien or claim a lien as a remedy and so the Plaintiff, in my view, had not perfected its lien as required by section 36 of the Construction Lien Act and the lien should have been discharged and the security returned to the owner.

Ontario Government to seek intervenor status in Waterloo Region’s appeal of OMB ruling

Kitchener-Waterloo’s main journalistic rag, The Record, reports that the Ontario Government will apply to the Court to become an intervenor (an intervenor is a party added to a court proceeding as a result of an interest in the outcome) in the Region of Waterloo’s appeal of the Ontario Municipal Board’s decision to open up more than 1,000 hectares of regional land to new greenfield development (compared to the 85 hectares set by the Region). As reported, if the Province’s motion is successful, the Region will have a powerful ally in its appeal.Suburban Sprawl

The significance of this appeal in shaping the development of the Region of Waterloo for future generations is obvious and many, myself included, will be watching with great interest as it unfolds.

Globe and Mail Interview: EllisDon CEO Geoff Smith: Building a different construction company

Today’s online Globe and Mail posted a short but interesting article summarizing an interview of EllisDon’s President, Geoff Smith by the Globe & Mail’s Gordon Pitts.  Read the article here.

The most interesting observation Smith makes, from my perspective is, “General contractors are not builders – we are leaders and managers and it is all about information. We manage the process of other people doing the building. If you control that information and make the process efficient, you are ahead of the game.”  Not an earth-shattering revelation by any stretch but, for those of us for whom “general contractor” still tends to invoke an image of a big guy smoking a cigarette out of his Ford F-350 caked in mud – Smith’s comment is enlightening.  Today’s general contractors are blurring the lines between “contractor” and “construction manager” and “project manager” and it is an industry becoming increasingly sophisticated. A good little read.

 

To arbitrate or litigate…that is the question

In the last decade or so, alternative dispute resolution (ADR) – mediation and arbitration – has come a long way.  In fact, a good argument can be made that the “A” in ADR could probably be dropped. Gavel

Briefly, mediation is the process of seeking a negotiated resolution/settlement to a dispute using a neutral third party to facilitate the negotiation.  There is no “decision maker” in a classic mediation.  Mediation is a process that can take place outside of litigation entirely, be engaged in the context of litigation in an attempt at pre-trial settlement, or can even take place in the context of an arbitration proceeding (Med-Arb or otherwise).

Arbitration, by contrast, is much closer to the adversarial and adjudicative process that we associate with the courts.  Sometimes arbitration is mandated by legislation or a non-negotiated contract between that parties (that one party didn’t really have any say in).  In those cases, a party might be stuck with arbitration whether it/he/she wants to be or not.  Other times, however, parties will jointly agree to forego the courts in favour of arbitration.  There are, as far as I’m concerned, only really four essential reasons that parties might opt for arbitration over litigation.

  1. Privacy – unlike court proceedings, which are public in nature, arbitration is a private process where no decisions are published and the parties can keep the evidence and outcome private.
  2. Process – parties to an arbitration normally have the opportunity to agree upon procedures and rules that are different from the Rules of Civil Procedure and thereby shape and tailor the process to suit the needs of the dispute.
  3. Speed/Cost – because an arbitration has an adjudicator hired by the parties and they are not caught in the public system “waiting their turn”, there is at least the theoretical possibility of getting a result faster than if the parties were simply to litigate (for example, in Toronto it is not uncommon to have to wait five or six months to get a 15 minute hearing for a simple procedural motion).
  4. Appeals – the parties to an arbitration can limit the rights to appeal the decision of the arbitrator.

Zafir Holdings Inc. v. Grassmere Construction Ltd., 2013 ONSC 1835 is a very recent case out of the Ontario Superior Court of Justice that demonstrates how the objectives of arbitration aren’t always satisfied in the manner that the parties may have hoped when they agreed – perhaps with flowers and butterflies floating about – to arbitrate.

Zafir Holdings was the owner and Grassmere Construction was its general contractor in relation to a large industrial construction project.  A dispute arose between Grassmere Construction and one of its subcontractors regarding some of the earthworks and that dispute percolated its way up to become a dispute between the Grassmere Construction and Zafir Holdings.  Grassmere Construction’s subcontractor got judgment at a trial against Grassmere Construction and Grassmere Construction and Zafir Holdings agreed to arbitrate the issues between them.  The arbitrator found that Zafir Holdings owed Grassmere Construction a large portion of the amount that Grassmere Construction had to pay its subcontractor (as well as other amounts in relation to other issues).  Zafir Holdings sought, and was granted, the Court’s permission (leave) to appeal the arbitrator’s decision.

In the context of this short article, this case is notable insofar as it demonstrates how the primary objectives of arbitration were probably almost entirely obliterated in the end result. Consider:

  1. Privacy – the appeal, and the very fact that I was able to read the Court’s Decision and write about it here, means that if the parties had privacy as one of their objectives (whether unilateral or mutual), that benefit of arbitration has been lost.
  2. Process – there’s no way to tell whether the parties achieved any benefit here but, insofar as the ability to modify process usually has cost as its objective, I generally doubt it.
  3. Speed/Cost – the dispute arose in 2004 or 2005 and Grassmere Construction’s subcontractor obtained its judgment in June 2010.  By contrast, Grassmere Construction and Zafir Holdings didn’t get their decision in the arbitration until November, 2012 – two and a half years later!  Given that both Grassmere Construction and Zafir Holdings were likely involved in the litigation with the subcontractor (at least to some extent) and then had to adjudicate their dispute before the arbitrator (and pay the arbitrator’s fee which was likely substantial), it’s hard to imagine how there might have been significant cost-savings in the way that it all unfolded.
  4. Appeals – Zafir Holdings has been granted leave to appeal so there was no benefit here (in fact, the motion to seek leave to appeal added a layer of cost that wouldn’t have existed if the underlying arbitration decision had been a judgment of the court).

I’m not anti-arbitration – it certainly has the potential to be a useful alternative to litigation in certain types of cases.  However, cases such as Zafir Holdings Inc. v. Grassmere Construction Ltd. highlight the reason that I believe most parties contemplating putting a mandatory arbitration provision into an agreement, or those facing a decision whether to arbitrate rather than litigate in the face of a dispute, should very carefully and deliberately consider the potential benefits of arbitration.  In such circumstances, the question should be asked: “Is there a really compelling reason that I/we should take on the cost of an arbitrator (in addition to the cost of my/our lawyers) rather than proceed in a public forum and let my/our tax dollars pay for the judge?” More often than not, in my view, the answer will be “No”.

Mike Holmes weighs in on Title Insurance

Construction deficiency claims and title insurance being two of my primary areas of practice and both being near and dear to my heart, I read Mike Holmes’ article “A flood of misinformation: Title insurance is not a home warranty” in the National Post with some interest.

I don’t agree with everything that Holmes says in the article but he got the title right anyway.  Title insurance is a specialized insurance product and, as a very general statement, protects purchasers of real property from a long list of “title” or “ownership” related problems or “risks”.  It is not, and doesn’t pretend to be, a warranty of good design and/or construction.  The title of the article seems to suggest that Holmes agrees with this proposition. So far, so good.

Where Holmes really loses me, though, is when, in discussing hypothetical homeowners who discover major construction deficiencies, he writes, “Who’s at fault? Is it the homeowner who got the renovation? Is it the contractor that was hired? Is it the title insurance company, the building inspector or the government? As far as I’m concerned, it’s all of the above.”  How can the title insurer be at fault?

A policy of insurance (be it title insurance or some other kind of insurance coverage) covers what it covers and doesn’t cover what it doesn’t cover.  For Holmes to suggest, as he does, that the title insurer is at fault in the scenario he outlined is a bit like saying that when your house gets broken into and your auto insurer won’t pay for your stolen sofa, your auto insurer is partly at fault for your loss.

In any case – I thought the article was worth mentioning as Homes has brought some good media exposure to title insurance and cast at least a little bit of light on a common misunderstanding that I see all too often in my practice.