“Crumbling Condo Forces Mass Evacuation.”
It was exciting headline news, but it was very bad news for everyone involved - residents, developer, general contractor, engineers, specialist consultants, the municipality . . . and the architect.
The culprit, once again was water - in this case, groundwater - unnoticed and inoffensive, until it was disturbed, at which point, it began to cause incredible damage.
The disturbance could have been avoided if one small piece of information had been revealed and remedied at the very beginning of the project, instead of lurking below the surface.
This story is called “Undercurrent."
The story began at a quiet waterside cabin on a small island in Lake of the Woods, where architect Henry Weet was enjoying a well-earned vacation with his family. Weet had completed the construction documents for the Overview Estates Condominium; the construction contract had just been signed; and site excavation was about to begin. For now, the project was in the capable hands of the engineering consultants. What better time to take a few days off with nothing to contemplate but the placid waters, and children playing on the beach.
On the second day of Weet’s vacation, his reverie was interrupted by a distraught phone call from the contractor, Ned Blackpool, who was in a state of panic. He was also staring at a lake… but a different kind of lake… one that had spontaneously appeared in the building excavation. It looked as though his crew had hit an artesian well, and the pressure from the well had created a geyser. The roiling water had already half-submerged his equipment, and the level was still rising. It was an expanding catastrophe.
This was obviously not a simple engineering matter. It was an ill omen for the fate of the whole project. Weet felt he had little choice but to interrupt his holiday, and given the urgency of the situation, to hire a float-plane to fly him back home.
Arriving on site the next morning, he convened a hurried consultation with the structural engineer, the contractor, and a local soils engineer, standing in for the original soils consultant, who was vacationing somewhere in Europe. The four attending professionals decided that the best solution would be to fill the hole with crushed stone.
In file photographs submitted later to Pro-Demnity, Weet can be seen doing his part, wading through the flooded excavation and helping to direct the work, oblivious to the potential problems—structural and legal—that he was helping to create.
Over the following week, hundreds of truckloads were dumped into the unplanned lake. With the help of powerful pumps, gravel finally started to appear above the surface of the water, and terra firma was re-established at about three metres below existing grade level. At this point, a thick concrete mat was poured over the entire area, as a sort of cork to hold back any further water infiltration. There was still enough depth for one basement parking level, which would have to suffice.
With the problem now resolved, construction continued. The building was completed, slightly behind schedule, and the new unit owners moved in.
Overview Estates was planned as a luxury residential property, located beside a private golf course, north of Kenora, several miles north of the famous Minaki Lodge. Purchase price of each unit included lifetime membership in the golf club. It was an idyllic situation for the avid golfing residents—until a few days before the much-anticipated spring golf course opening. That was when the second catastrophe occurred: a wing of Overview Estates began sinking into the ground; floor slabs sagged, and walls started to crack. Part of the building was collapsing.
The municipality responded quickly by issuing an order that all occupants evacuate the building immediately, until further notice.
Experts called in to investigate concluded that the building failure was the result of undetected subsoil conditions. Clearly, the hasty remedies for the water problem had failed, and a much more reasoned approach was needed. New Engineering Consultants called in by the Condominium Corporation determined that the affected wing would have to be demolished and rebuilt.
Extensive new subterranean drainage provisions were provided beneath a new raft foundation, and the four-storey wing of the building and underground parking level were completely reconstructed. The disgruntled, displaced residents once again settled into their units, cautiously confident that they were now safe in their homes.
But millions of dollars had been spent on the repair and reconstruction. Consequently, the condominium corporation and the individual unit owners instituted proceedings against everyone involved in the design and construction of the project: the developer Caiman Developments Ltd.; the general contractor Blackpool Construction; the architect Henry Weet; the soil specialists Aard Investigations and Lande Soils Inc.; structural engineer Louis Knerf; and for good measure, The regional municipality of Minaki.
In their claim, the Condominium Corporation was seeking the full cost of the remedial work and expenses to date, which included: moving costs and temporary accommodation for the prolonged period of their evacuation, recompense for the market devaluation of their units in the now notorious project, and damages for pain and suffering. The total compensation claimed for all residents amounted to 25 million dollars.
Weet had only learned about the threatened building collapse when he saw the news headlines and the photos of his building being evacuated. He was dismayed to say the least, but was comforted by the belief that this wasn’t an “architectural problem.” Experts had concluded that the building failure was the result of subsoil conditions, and as everyone knows, architects are not expected to be soil experts. These things are best left to the Specialists.
So, when he received the 25 million-dollar claim, Weet was indignant and incensed. The action, he proclaimed, was “unjust and frivolous.”
The Claims Specialist met Henry Weet for an in-depth interview. This was a serious claim, and we needed to construct a solid defence. Weet was clearly annoyed about having been included as a defendant. He repeated his position that architects have no training or knowledge of subsoil issues, and this matter certainly didn’t involve him. He fully expected to be released from the action and spared all the bother that litigation would involve.
As he explained it, he had not been involved with subsoil technicalities at all. He had designed two floors of underground parking, to a depth of eight metres below grade. According to his soil report, subterranean water pressure was known to exist, but it was contained by a layer of clay soil that extended to a depth of 12 metres - a comfortable four metres below the lowest floor. There should have been no problem.
When a problem did appear, in the form of the mammoth geyser during the original excavation, a hastily assembled group of experts had responded by devising a suitable solution.
The Claims Specialist agreed 100% that architects don’t - and shouldn’t - offer opinions on soil matters, even though Clients often look to them for general advice on every imaginable topic. But, it’s also true that the architect’s duty to coordinate the work sometimes involves them in other disciplines - and that can, unfortunately, lead to difficulties.
In leafing through the material Weet had brought with him, we came across an invoice for $35,000 related to . . . “additional services performed due to subsoil problems.” When asked to explain, he examined the document carefully, as if he had never seen it before. He seemed troubled for the first time.
“Well, sir,” he finally said, “I guess I’m in the soup. There was extra work coordinating the job during the excavation period, and I was there, but I didn’t really get involved or do anything technical.”
We pointed out that a $35,000 invoice had to indicate some involvement—technical or not—and to claim otherwise would strain credibility. It was clear that, during this process, he had played an active and central role and had been a party to decisions made, even though he may have “relied on others” for technical advice.
Our defense counsel started work on a basic pro forma defense, in the hope that the discoveries would give us something more substantial to build on.
Our co-defendants’ positions were all over the map, but they had one thing in common that wasn’t especially helpful: They all claimed complete innocence.
However, one defence stood out from the rest. Aard Investigations, the original soils consultants, said that they were completely blameless because they had never been asked to do a soil report… at least not for that site. They had previously prepared a report for an adjacent site, and it was that report that had been submitted to the Building Department, and it was that report that had been used by the structural engineer and architect as the basis for the building design.
This startling piece of news, which we confirmed through further investigation, was something the architect had not deemed important enough to share with us, although it would certainly have explained the problems. Both the architect and the developer apparently knew that it described a different site… But being right next door, …surely the soil conditions were the same. Why spend the money for a new report?
Lande Soils Inc., the local experts who were called in when the geyser erupted, had a simple defense. They had nothing to do with any soil reports, and their advice was only to help stabilize the site after the crisis had occurred. They had no involvement with the building design.
Louis Knerf, the structural engineer, denied any liability. He had no reason to question the advice of the soils experts and had no idea that the architect’s soil report was for a different site.
The general contractor Blackpool also claimed total innocence. His defence was the tried-and-true “I-was-just-following-the-architect’s-instructions.” Besides that, he was insolvent and uninsured.
The developer Caiman Development Ltd. was a shell company with no assets. However… the Owner Alec Caiman was named personally in the suit, and stood at some risk in tort, having personal assets that he had, for some reason, failed to protect.
The Municipality that had issued the permit and conducted inspections took the view that, since the drawings were prepared by a licensed architect and engineer, and a soils report had been filed, they could not be held liable for anything more than verifying that such expertise had been engaged. The application for a permit had been “in order” and no one had informed them that the soils investigation report was for a different site.
The municipality of Minaki was nevertheless the target of enormous public pressure to help the residents they had “forced from their homes.” This too became a major news story that featured indignant residents railing about the unfairness, inconvenience and humiliation of being “thrown into the street.”
The municipality had subsequently gone out on a limb by guaranteeing a loan to the condominium corporation to cover the costs of emergency remedial work, clinging to the distant hope that they would get some or all of this money back from the co-defendants.
With this hodgepodge of defence positions to contend with, Pro-Demnity convened a meeting of all defendant professionals to see if any common ground could be found.
An unvarnished look at what we knew about the case convinced us that none of the defendants could expect to escape liability. The Plaintiffs were clearly innocent, and their loss was substantial. Any court would seek to compensate them. Our objective was to protect the architect against any claims in excess of his insurance limits, and hopefully, to avoid his personal ruin.
Each professional was insured. But the total insurance pool amounted to only 1.8 million dollars—a long way from the 25 million claimed. Our initial strategy was to offer the 1.8 million to the Municipality immediately, in the hope that they would agree to indemnify the professionals from any claims above this amount, and put the money toward a settlement—or use it to fight the plaintiffs on the claimed cost of the remedies.
As things stood, the Municipality was in a difficult position. Although Plan Examiners and Inspectors are required only to exercise reasonable diligence in their work, dependent on individual circumstances, it has been held that, where the work being inspected is integral to the structure, or could result in serious harm if it is defective, a higher standard should be observed—especially where an inspector has been put on notice of the possibility of such a defect. The foundation flooding of Overview Estates and the ad hoc solution might easily fit into this category.
Moreover, even if the Municipality were found to be only 1% at fault, thanks to joint and several liability, they may emerge as the deepest pocket defendant and be liable for any amount up to 100% of the award.
After some tiresome posturing by one defense counsel whose client’s complete innocence should have been plain to all, the group agreed to make an offer to the Municipality—to pay up and get out. Regrettably, but not surprisingly, the offer was not accepted.
To avoid the unwelcome prospect of a huge expensive trial, which now seemed unavoidable, we agreed to a mediation. Pre-discoveries were arranged and experts were called.
First to speak was the Plaintiff’s Expert Dr. Alpha. He had studied the geology of the area for decades and was thoroughly familiar with the aquifer. He could not understand why the developer, the Professionals and the Municipality had not availed themselves of the vast body of knowledge that was easily available. The artesian pressures just below the clay layer, he said, were known to all. It was just common sense that removing several metres of that impervious layer would reduce its ability to contain the aquifer, and a gusher was inevitable.
All who took part in the planning and execution of this disaster were negligent in the view of Dr. Alpha.
The Municipality’s Expert, Ms Beta, didn’t dispute Dr. Alpha’s view, but believed that the remedial work, done during the excavation period, should have succeeded. If only the builder had properly filtered the French drains, the garage sump pumps could have relieved the pressure, the crushed stone and subsoil would not have washed away, and the slab would not have subsided.
Dr. Gamma, engaged by the Condominium Corporation for remedial advice, took an opposing view, as experts often do. He dismissed the initial remedial work as ill-conceived. By filling the hole with crushed stone and capping it with concrete, the builders had only diverted - not arrested - the flow, so that it carried the crushed stone away from under the cap, gradually replacing it with water, into which the slab eventually collapsed.
Dr. Gamma’s proposal, which had been subsequently carried out, consisted of a complex system of relief wells and high-performance pumps, combined with a heavier concrete foundation mat over the sunken section. The system would need to be operated, as an annual cost to the Condominium Corporation . . . in perpetuity.
In the end, all that this self-exonerating testimony accomplished was to muddy the waters and to pile more blame on the contractor, who had no testimony and no money to contribute, anyway.
Our mediator, a distinguished retired Judge, accepted that the only way through the impasse was to assess the positions of each party, to confer with them separately, and to settle the matter before the defendants had to face the harsh realities of a trial. Those realities included the possibility of a heavy judgment against them, plus the certainty that the costs would be enormous, whatever the result.
By the following day, all the defendants had accepted the reality of their situation, and the mediator was able to extract undertakings from them that added up to something just short of the plaintiffs’ minimum demand. At a subsequent “round of mediation pressure,” the defendants raised their commitments slightly by contributing to the plaintiffs’ costs, and the plaintiffs reduced their demands. The numbers worked out… and the matter settled.
As the facts of this claim accumulated, it had become clear that the architect was not going to escape liability. His client had every right to believe that his invoice for “additional services performed due to subsoil problems,” indicated that he had in fact performed those services. What’s more, the revelation that the soils report was for the wrong site had only worsened his position.
We had struggled to devise any real defense, except to blame other consultants, but in a 25 million-dollar claim, the joint and several liability provisions of the Ontario Negligence Act made this a futile exercise. Even as a minor player, the architect was in it up to the limit of his available assets - and in cases such as this, a Court is most likely to sympathize with the victimized homeowners.
The end result was the best possible under the circumstances.
The local news media and their many followers were probably disappointed that the matter didn’t end in a riveting, full-blown TV-style courtroom finale. A mediated settlement is never dramatic. However, anyone paying close attention might at least have picked up some valuable life lessons.
Lesson No. 1: Don’t assume that subsoil conditions are consistent from one site to another - even right next door. In parts of Northern Ontario the rule-of-thumb is that below-grade conditions can vary dramatically across a single site.
Lesson No. 2: Don’t overstep the bounds of your expertise - or appear to do so. In particular, don’t bill your client for performing services that exceed these bounds.
Lesson No. 3: Get the best advice, not the quickest advice. Avoid embracing hasty solutions to complex problems, even when there is enormous pressure to solve them as quickly as possible. As we know, convenient solutions can often produce inconvenient results.
Lesson No. 4: Make sure your consultant group is adequately insured. In this action, it was the Municipality and its duty to its citizens that saved the day… and the architect’s retirement savings.
