File No. CI 15401-94262 THE BENCH WINNIPEG CENTRE BETWEEN: TRIPLE STADIUM INC., Plaintiff, - and - RAYMOND s.c. WAN ARCHITECT INC., and STUART OLSON CONSTRUCTION LTD., Defendants. STATEMENT OF DEFENCE AND CROSSCLAIM OF RAYMOND S. C. WAN ARCHITECT INC. 2 04 2015 FEES PMB -?7?ng PITBLADO LLP Barristers and Solicitors 2500 360 Main Street Winnipeg, Manitoba R30 4H6 Richard S. LiterovichIKaren Poetker Phone No. 956-0560 Fax No. 957-0227 (File No. 17748.42) 1728363\3\17748.42 File No. CI 15-01-94262 THE BENCH WINNIPEG CENTRE BETWEEN: TRIPLE STADIUM INC., Plaintiff, - and - RAYMOND S.C. WAN ARCHITECT INC., and STUART OLSON CONSTRUCTION LTD., Defendants. OF DEFENCE 1. The Defendant Raymond S.C. Wan Architect Inc. admits the allegations contained in paragraphs the Statement of Claim. 2. Wan has no knowledge of, and therefore denies, the allegations contained. in paragraphs the Statement of Claim. 3. Wan denies the allegations contained in paragraphs the Statement of Claim and denies that the Plaintiff is entitled to the relief sought in paragraph 1 of the Statement of Claim, or any relief. 4. In response to paragraphs 8 and 9 of the Statement of Claim, Wan states that it originally entered into an agreement with Creswin Properties Ltd. ("Creswin") to design a two/three season football stadium at the University of Manitoba, which agreement was subsequently assigned to the Plaintiff, without any revisions to the original design for a two/three season facility. 5. In response to paragraph 11 of the Statement of Claim, Wan states that on December 15, 2010, it entered into a Contract for Architectural Services (the "Architectural Contract") with Stadium 1T28363I3I17748A2 -2- Inc., now known as Triple Stadium Inc. Wan states that the terms of the agreement are as set out in the Architectural Contract and the schedules thereto. 6. In response to paragraphs 15, 16, 19 and 20 of the Statement of Claim, Wan denies that it owed the Plaintiff any duty of care as aiieged. Wan further states that if any duty of care was owed by it to the Plaintiff, that duty only included the terms as set out in the Architectural Contract, and that duty was completely and fully discharged as Wan conducted itself with due care, skill and diligence and at an acceptable professional standard. 7. In response to paragraph 22 of the Statement of Claim, Wan states that numerous changes to the selection of materials were made during the course of construction and at the Plaintiff's request. Wan further states that the Plaintiff was at all times aware of any signi?cant changes to the materials selected and approved of all such changes. Wan states that the application and installation of materials, systems and methods was solely the of the Defendant Stuart Olson - Construction Ltd. ("Stuart Olson"), and further states that the installation and application of materials was not properly done or done in accordance with the Speci?cations provided by Wan. 8. In response to the whole of paragraph 23 of the Statement of Claim, Wan states that the stadium at the University of Manitoba (?Investors Group Field?) was designed within the construction budget set by the Plaintiff, and within the approved functional program approved by Creswin and subsequently the Plaintiff, which provided for a two/three season facility to be constructed, and was so constructed in accordance with the 2005 Nationai Buiiding Code and the 2006 Manitoba Building Code which were in effect at the time. 9. In response to paragraph 23(a) of the Statement of Claim, Wan states the 2005 National Building Code does not require automatic door openers for suites having assembly occupancy of less than 500 square meters. Wan further states that the suites have elevator access and the doors from each elevator lobby have automatic door openers. -3- 10. In response to paragraph 23(b) of the Statement of Claim, Wan states that the guard rails were designed and installed in accordance with the 2006 Manitoba Building Code and were subsequently changed to enhance viewing, solely at the election of the Plaintiff. 11. In response to paragraph 23(c) of the Statement of Claim, Wan states that this issue was ?rst raised by the Department of Labour during the construction phase, at which time this was addressed with Plaintiff and Stuart Olson in the usual and ordinary course of construction. 12. in response to paragraph 23(d) of the Statement of Claim, Wan states that the ?eld level exit meets the requirement of the project design and the intent of the 2006 Manitoba Building Code as con?rmed by RJ Bartlett Engineering on September 29, 2010. Field level seating became an issue when the Plaintiff chose to explore the use of Investors Group Field for outdoor concerts, which was not contemplated in the original design. 13. In response to paragraph 23(e) of the Statement of Claim, Wan states that the issue of water in?ltration into private suites was first raised in March 2013. Further investigation has revealed improper application and installation of the flooring assembly, which was the sole responsibility of Stuart Olson. 14. In response to paragraph 23(f) of the Statement of Claim, Wan states that a Request for Information was made but only after leaking had occurred due to Stuart Olson's failure to properly seal the penetration and not on account of a design issue. 15. In response to paragraph 23(9), Wan states that multiple site reviews, de?ciency reports, reviews for completion of de?ciencies, and a de?ciency walk-through were completed with and without the Plaintiff, with the regulatory authorities, sub-trades and Stuart Olson on many occasions. Wan further states that a single de?ciency summary list was prepared and provided by Stuart Olson. Wan further states that the year-end warranty inspection was carried out and satis?ed. 1728363\3\17748.42 -4- 16. In response to paragraph 23(h) of the Statement of Claim, Wan states that Stuart Olson was to ?ll the crawlspace pursuant to Clari?cation Note No. 4 dated March 11, 2011. 17. In response to paragraph 23(i) of the Statement of Claim, Wan denies that there is any issue relating to gate canopy drainage issues and states that the as-built condition was acceptable to the Plaintiff. 18. With respect to paragraph 230) of the Statement of Claim, Wan states that this was a construction issue that was addressed by Stuart Olson and states that it is outside the scope of the Architectural Contract in any event. 19. In response to paragraph 23(k) of the Statement of Claim, Wan denies that the building envelope was compromised as alleged or at all. Wan further states that air and vapour barriers were speci?ed as part of the wall schedule shown in the drawings and that the testing and inspection of the water proo?ng application and roo?ng inspection services was provided by Stuart Olson through its third party inspector. 20. In response to paragraph 230) of the Statement of Claim, Wan states that the issue of water pending on the north and south concourse areas is a construction issue. 21. In response to paragraph 23(m) of the Statement of Claim, Wan states that concourse slab cracking is restricted to the topping or wearing slab only and not the structural supporting slab. Wan further states that the cracking is not structural but is indicative of drying, shrinkage and restrained cracking that occurred during the curing process and is largely a construction sequencing issue. 22. In response to the whole of paragraph 23(n) of the Statement of Claim, Wan states that Investors Group Field was designed and constructed within the construction budget set by the Plaintiff and within the approved functional program approved by the Plaintiff which asked for a two/three season facility, not a four-season facility, to be constructed. -5- 23. In response to paragraph 23(0) of the Statement of Claim, Wan states that the concourse level was designed in compliance with the 2005 National Building Code and with the 2006 Manitoba Building Code amendments. Wan further states that during the initial design stages, Creswin was to provide Wan with a complete list of vendors to ensure that specific requirements for Investors Group Field would accommodate their speci?c needs. Following Creswin's departure from the project, this task was undertaken by the Plaintiff. The Plaintiff identi?ed no specialty equipment requirements during the design phase of the project. Wan further states the construction of the facility was completed and it Opened on May 26, 2013. On May 29, 2013, Riverstone Projects, on behalf of the Plaintiff, ?nally submitted loading requirements for proposed hand-operated and electric-powered pallet jacks. However, the facility was already completed and Open at this point. Wan further states that the Plaintiff has ignored the load requirements and has made modi?cations not contemplated in the design and which have diverged from the original approved functional program, speci?cally with respect to the location and number of concessions, which has resulted in wear and tear on the surface level of the concrete flooring. 24. In response to paragraph 23(p) of the Statement of Claim, Wan states that the facility was originally designed to incorporate the existing two-person whirlpool unit from the previous stadium. The Plaintiff subsequently requested that this be changed to accommodate a new 14-person whirlpool unit, but this change was requested too late in the process and was not able to be accommodated as the floor drain had already been constructed with the original design in mind. 25. In response to paragraph 23(q) of the Statement of Claim, Wan states that this was a construction issue. 26. In response to paragraph 23(r) of the Statement of Claim, Wan states that there were signi?cant delays during the design process in March 2010 and again in June 2010 which were caused by the Plaintiff. Wan states that this delay caused what the Plaintiff now refers to as ?poor coordination of building services." 1 723363\3\17748.42 -3- 27. In reSponse to paragraph 23(3) of the Statement of Claim, Wan denies that this is a design issue and states that the original design was revised at the request of the Plaintiff, in order to keep costs down. 28. In response to paragraph 23(t) of the Statement of Claim, Wan denies that this is a design issue. 29. In response to paragraph 23(u) of the Statement of Claim, Wan states that the air and vapour barriers were specified as a part of the wall schedule design and additional information for belowgrade wall and grade beam water proo?ng application was speci?ed and detailed. Wan states that the testing and inspection of the water proofing application and roo?ng inepection services were to be provided by Stuart Olson through its third party inSpector 30. In response to paragraph 23(v) of the Statement of Claim, Wan states that the issue of ice accumulation on sunshades was discussed during several site visits. ltwas agreed that the sun shade was to be removed in order to alleviate this issue. 31. In response to paragraph 23(w) of the Statement of Claim, Wan states that this requirement was never mentioned in the design which was approved by the Winnipeg Football Club. Wan further states that semi-truck access to the ?eld level represents a change in the design to facilitate the added demand for concerts at the field level. Wan states that the original design and approved functional program did not call forthis requirement. 32. in rcsponse to paragraph 23(x) of the Statement of Claim, Wan denies that this is a design issue. 33. In response to paragraph 23(y) of the Statement of Claim, Wan states that this item was addressed by Stuart Olson and was not within the scope of Wan's contract. 34. In response to paragraph 23(2) of the Statement of Claim, Wan states that this item was addressed by Stuart Olson and was not within the scope of Wan's contract. -7- 35. In response to paragraph 23(aa) of the Statement of Claim, Wan states that the sprinkler system was designed as a dry system which was appropriate for the two/three season facility that was designed and approved by the Plaintiff. Wan further states that the Plaintiff has failed to-properly maintain the dry sprinkler system. 36. In response to paragraph 23(bb) of the Statement of Claim, Wan states that ?re proofing of the roof structure under the south patio area was not required as perthe report by RJ Bartlett Engineering Ltd., dated September 5, 2013. Wan further states that the design contemplated the patio being used for second floor executive use only with occupancy of up to sixty people. Wan states that the ultimate use of this area contradicts the original design and occupancy load. 37. In response to paragraph 23(cc) of the Statement of Claim, Wan states that adequate design was provided, but that Stuart Olson was not able to obtain proper pricing during the tender stage. Wan further states that this issue was ultimately resolved as between the Plaintiff and Stuart Olson. 38. In response to paragraph 23(dd) of the Statement of Claim. Wan states that hose bibs are available from the janitorial room around the seating area and that no speci?c requirement and location was ever made known to the design team. 39. In response to paragraph 23(ee) of the Statement of Claim, Wan states that the facility was designed according to the budget allocation for construction. Wan further states that hose bibs around the building perimeter were discussed with the Plaintiff and the ultimate as?built condition was chosen by the Plaintiff due to budget constraints. Wan states that an irrigation system was originally proposed as part of the original design, which was rejected by the Plaintiff for budget reasons. Wan further states that the Plaintiff also rejected a design proposal which would have utilized 20 hose bibs around the building perimeter for budget reasons. Wan states that the ultimate location of the hose bibs were chosen by the Plaintiff during a of the facility. 1 728353\3\1 7748.42 -3- 40. In reSponse to paragraph 23(ff) of the Statement of Claim, Wan states that the electricity for broadcasting trucks was provided and the design was based on a drawing obtained from the CFL which had been the design plan for the previous Grey Cup game in Edmonton, Alberta. 41. In response to paragraph 23(gg) of the Statement of Claim, Wan states that the facility was designed according to the building budget allocation for construction. The issue of hot water boilers ?rst arose during project meeting #33 and resulted in Change Order No. 26 being issued. Wa'n further states that information regarding food operators was not provided to it until halfway through the construction phase at which time the demand for hot water exceeded what had been approved in the original design. 42. In response to paragraph 23(hh) of the Statement of Claim, Wan states that this issue was resolved in the usual and ordinary course of construction. 43. In response to paragraphs 23(ii), 23(ij), 23(kk), 23(ll), 23(nn), 23(oo) and 23(pp), Wan states that the building plans were reviewed and approved by the Plaintiff and its own third party consultant under the guidance of the Winnipeg Football Club and within the confines of the construction budget set by the Plaintiff. 44. In response to paragraph 23(mm) of the Statement of Claim, Wan states the information pertaining to the proposed operational equipment was not provided during the design phase. Wan states that these items were submitted after the facility was constructed and in use. Limits of 1 ,200 lbs. for hand?operated pallet jacks were recommended. Given this load limitation, which was accepted without concern by the Plaintiff, these palletjacks could be operated anywhere on the concourse level. For the electric-powered pallet jacks, which were significantly heavier. it was recommended that they be used only in the basement area but were used on other levels resulting in damage and wear and tear to the surface layer of the concrete ?ooring. No other alternative equipment was proposed by the Plaintiff nor was it ever identified by the Plaintiff that these limitations were a concern. 1728363\3\1 7748.42 45. In response to paragraph 24 of the Statement of Claim, Wan denies the allegations contained therein and puts the Plaintiff to the strict proof thereof. 46. In response to paragraphs 26, 27, 28 and 29, Wan denies that the Plaintiff has suffered any damages as alleged or at all and puts the Plaintiff to the strict proof thereof. Wan further states that the de?ciencies were remedied and approved by the Plaintiff. 47. Wan states that if the Plaintiff suffered any loss or damage, as alleged or at all, which is not admitted but expressly denied, then such loss or damage was caused by or contributed to by the negligence of the Plaintiff. 48. Wan pleads and relies upon The Tortfeasors and Contributory Negligence Act, R.S.M. 1987, c.T90. 49. Wan therefore submits that the Plaintiff's claim against it ought to be dismissed, with costs. CROSSCLAIM 50. Wan claims from the Defendant, Stuart Olson Construction Ltd.: Contribution and indemnity for any amounts by which Wan may be found liable to pay the Plaintiff; Pre-judgment and post-judgment interest, as may be applicable; Costs; and Such further and other relief as the nature of this cause may require and this Honourable Court may permit. 51 . By way of Crossclaim, Wan adopts the statements and allegations contained in its Statement of Defence. 1 728363\3\1 7748.42 -10- 52. Wan says that if the Plaintiff suffered loss and damages as alleged in the Statement of Claim, or at all, which is not admitted but expressly denied, the Plaintiff?s loss and damage has been caused or contributed in whole or in part by the acts, omissions and breaches of Stuart Olson as set out in the Statement of Claim. 53. If Wan is found to have been found responsible, in whole or in part, for the Plaintiff's loss and damage, which is not admitted but expressly denied, Wan claims contribution and indemnity from Stuart Olson to the full extent of any liability, interest or costs which may be awarded against it 54. In advancing this Crossclaim, Wan adopts the particulars of negligence and breaches of contract set out against Stuart Olson by the Plaintiff in the Statement of Claim. PITBLADO LLP Barristers and Solicitors 2500 - 360 Main Street Winnipeg, MB R30 4H6 Telephone: 956-0560 Richard S. LiterovichIKaren Poetker Solicitors for the Defendant TO: Thompson Dorfman Sweatman LLP 2200-201 Portage Avenue Winnipeg, MB R38 3L3 Attention: Jeff Hirsch Counsel for the Plaintiff AND TO: Hill Sokalski Walsh Olson LLP 2670-350 Main Street Winnipeg, MB R3C 323 Attention: Dave J. Weinstein Counsel for the Defendant Stuart Olson Construction Ltd. 1728363\3\17748.42