By Pepper Parr.
BURLINGTON, ON. June 19, 2013 They did get close, well not that close, but they did talk about it. And when it was all over – two of the seven voted to let you know how much the city had spent on defending and fighting for the city’s interests related to the construction of the Brant Street Pier that most of the people seem to have fallen in love with.
After a weekend of opening events tucked inside the Sound of Music Festival the pier was opened to the public and you can now walk out to the end and enjoy the lake the way you were never able to enjoy it before.
Earlier in the week the city released a Memorandum that actually said something about the legal fight.
There are five lawsuits: the city is suing people in some and defending itself in others. The people who provided the insurance and then failed to give the city as much as a dime when the contractor walked off the job seem to be involved in all the lawsuits.
The following represents factual information respecting the litigation:
Harm Schilthuis and Sons Limited vs. the Corporation of the City of Burlington
The Corporation of the City of Burlington vs. Zurich Insurance Company Ltd.
The Corporation of the City of Burlington vs. Harm Schilthuis and Sons Ltd., Aecom Canada Ltd., Lombard General Insurance Company of Canada, P.V &V Insurance Centre Ltd. et al (Insurance Claim)
The Corporation of the City of Burlington vs. Aecom Canada Ltd.
Harm Schilthuis and Sons Ltd. vs. Lombard General Insurance Company of Canada, P.V. & V Insurance Centre Ltd., the Corporation of the City of Burlington, Craneway Equipment Ltd. (Insurance Claim).
Electronically coded documents were exchanged in the December 2012 to January 2013 time frame.
The parties are currently in the Examination for Discovery phase of the litigation. It is a lengthy process. To date there have been approximately 17days of examination. The examinations have resulted in a considerable number of undertakings being given by the parties being examined. An undertaking may contain an obligation to find an answer to a question or to produce further documents in response to a question posed. Often the people who are being examined don’t have all the information to respond fully to the questions being asked by the other parties. Some undertakings may not be agreed upon by opposing parties and could require a court attendance for a determination as to whether or not the undertaking is valid.
It is expected that the examinations for discovery will be completed in the early fall of 2013 after the undertakings have been answered.
The next court appearance is scheduled for June 21st, 2013 at the Superior Court of Justice in Milton at 10:00 am. The Milton Courthouse is located at 491 Steeles Ave. E., Milton Ontario.
It is a case management conference before Mr. Justice James Fitzpatrick the purpose of which is to address issues of scheduling and procedure. The matter is generally open to the public, subject to the presiding Judge’s direction otherwise. The city will be represented at the case management conference by external legal counsel, Mr. Andy McLauchlin of McLauchlin and Associates.
At some point in the proceedings and prior to a trial taking place, the Court will order that the parties engage in mediation to see if the issues can be resolved. The parties have to agree on a mediator. Mediation does not make a determination of the legal rights of the parties. Mediation is not binding and the mediator cannot impose a resolution on the parties. Mediation is a process conducted on “without prejudice: basis, it is private and all documents filed are matters discussed are “confidential” to the parties.
The city would like to take steps to encourage the other parties to agree to an early, voluntary mediation process rather than wait until it is ordered by the Court in order to see if an early resolution to the litigation can be found.
That’s the city’s position – it is carefully worded and is an interesting example of how one manages the news. The politicians call it “spinning” the news.
The city manager recently got approval to spend up to $10,000 on consultants who could advise on communications and legal matters. This release is the first glimpse of what the city is getting for what it is paying those “communications” consultants.
During the council committee earlier in the week the city waived its lawyer/client privilege and discussed the document. Meed Ward wanted to know when the case started – 2010 they were told.
They were told that 60,000 documents have been released and that the city is still digging out information they have been asked to provide. We have learned that Harm Schilthuis and Sons Limited (HSS) claims they have provided everything they were asked to provide and are ready to proceed to trial, which is strange given that city solicitor advised that there have been 17 full days of discovery and they expect there to be an additional four or five days.
Nancy Shea-Nicol, the city’s solicitor does not like speaking in open session. She did not want to say who was discovering whom. Ms Shea-Nicol keeps every card she has very close to her chest. Tell them as little as possible seems to be her modus operandi.
We understand that the city has yet to release all the documents it has been asked for.
During the council committee meeting members asked – when can we tell the public how much we have spent on legal fees? That was another matter and for a few minutes there was some interesting discussion but then they moved into closed session.
The city manager said he thought the number should be made public. Councillor Meed Ward said she wanted to see the numbers released to the public. “The public has a right to know” said another council member. There was quite a bit of posturing going on.
The Mayor was for releasing the numbers. Councillor Sharman wanted to know what the downside of doing that was – and was told that would be discussed in a CLOSED session. Councillors Lancaster, Craven and Dennison did not offer an opinion or make a comment on whether or not the number should be released.
Councillor Taylor was chairing the meeting and made no comment in open session.
We do know that everyone wants documents from the designers of the pier, Totten Sims Hubicki (TSH). This case appears to rest on whether or not the pier could have been built using the design given to the contractor.
The first design was released to the contractors who were interested in bidding on the tender they expected the city to issue. It didn’t take that group of contractors very long to realize then that the pier set out in the original drawings could not be built for the amount of money the city was willing to spend.
The prices that came in were way beyond what the city was prepared to spend. That meant the city had a design and no one who was prepared to build it. So they went back to the designers and said – ‘give us a design that can be built for the money we have’. And that we believe, based on the questions we have asked and the documents we have seen, is what this case will rest on.
The city revised the design to fit the budget they had and produced a design that just would not work. Harm Schilthuis and Sons Ltd., realized that and quit the job and then sued the city. The city counter-sued and dragged in all the insurance companies.
All the steel thought to be faulty is stripped away – stored in a warehouse should further testing have to be done. Now the task of ordering new steel and getting it in place begins.
Before Schilthuis arrived at the point where they knew they had to quit the project a crane that was being used toppled over. That not only stopped the project but brought to light all kinds of problems with the quality of the steel being used.
What complicates all this is that the city had a designer Totten Sims Hubicki (TSH) working for them and another company, AECOM, managing the project.
AECOM then bought Totten Sims Hubicki (TSH) and that created significant conflicts. The project manager was now administering and keeping accountable a company they now owned. Messy.
The pier design was different. No one else has a design like ours. Piers tend to go straight out into a body of water; the Brant Street Pier has a S design and was to have a wind turbine as well.
Many believe that when AECOM bought TSH the city should have gotten themselves another project manager. That may prove to have been a very expensive mistake on the part of the city.
What further complicates this mess is that most of the people who dealt with these matters are no longer in the employ of the city.
Much was made in the document the city released, of the desire on the city’s part to consider mediation; a process where everyone goes into a room and agrees to settle or not to settle. The settlement amount should be public but with this administration and the way our city solicitor thinks – one never knows.
It was a grand parade. The band played, the flags flew and there was applause as the Burlington Teen Tour Band stepped out onto the pier. It was a sight to warm the cockles of ones heart as the BTTB marched up the slope and out onto the pier.
But that is all you get to hear – the facts? They get buried – and that is the way this city would like to see this whole thing go away. The pier is open, the natives seem happy and it will be years before this goes to trial. Half of this council won’t be in place when there is a decision.
To be fair to Mayor Goldring – he wasn’t part of the decision making process when the pier became a city project. Only Councillors Craven, Taylor and Dennison were around then. And Craven was just a newbie at the time as well.
