Here is the most recent update from our City’s legal staff in relation to the motion that I put forward requesting a legal review of the potential for the City to seek compensation, in relation to the remediation works that were required to be carried out at the Goulbourn Recreation Complex, regarding the swimming pool. The remediation work commenced in fall of 2013. Based on the detailed information below Staff have recommended that no further legal action be taken on this matter.
On Tuesday February 2nd, the Finance and Economic Development Committee (FEDCO) will receive the Comprehensive Legal Services Report for the Period July 1 to December 31, 2015 which includes the GRC review starting on page 13. The agenda for the committee meeting can also be found here.
Goulbourn Recreation Complex Legal Review
On June 11th, 2014, City Council approved a recommendation by the Finance and Economic Development Committee for the allocation of $4 million from the City-Wide Reserve to fund increased remediation works for the Goulbourn Recreation Complex. The report (ACS2014-PAI-INF-0006) detailed the fact that those additional works were necessitated by deterioration of some structural elements of the building caused by water infiltration into the building envelope. Concurrent with the consideration of that Report, the City Clerk and Solicitor undertook to review whether all or a portion of the costs of the remedial works might be recovered by any of the external contractors or consultants involved in the design and/or construction of the Goulbourn Recreation Complex.
In keeping with that undertaking, the City Clerk and Solicitor retained external counsel to conduct a comprehensive review all of the background documentation and circumstances in the matter with a view to determining whether the City might effectively advance a legal claim against any party to which responsibility for the deterioration of the Goulbourn Recreation Complex might be attributed. That review was completed in the latter portion of 2015.
Based on an analysis of all of the available documentation, as well as interviews with City staff, the review determined that the City did not have a reasonable likelihood of establishing liability against any of the parties potentially responsible for the problems that prompted the recent remediation of the Goulbourn Recreation Complex structure. This view was heavily influenced by the fact that similar problems had been identified shortly after the initial construction, which had prompted the City in June 2006 to pursue a $1 million action against the parties responsible for the design and construction of the facility. The settlement of that litigation and the execution of full and final releases between the City and the respective defendants effectively prevent the City from pursuing further litigation against those same parties. As well, the fact that evidence of water infiltration and corrosion had been discovered during a building assessment in 2010 suggests that any claim advanced by the City in 2014 would face a limitations defence on the part of any defendant that the City might pursue to recover the costs of the remedial works.
In light of the conclusions reached by the external legal review, and recognizing the significant costs associated with litigating older matters involving issues of engineering, design and construction (e.g. legal fees, expert opinions, etc.), the City Clerk and Solicitor determined that there was no reasonable likelihood of recovering all or a portion of the cost of the remediation works required for the Goulbourn Recreation Complex, from any other party and that commencing litigation might serve only to increase the overall cost to the City of the matter.
Should you have any questions regarding this update don’t not hesitate to contact my office.