IN THE SUPREME COURT OF NOVA SCOTIA
Cite as: A.J. Hustins Enterprises Ltd. v. Byrne Architects Inc., 2001 NSSC 223
Between: A.J. HUSTINS ENTERPRISES LIMITED,
a body corporate,
Plaintiff
- and -
BYRNE ARCHITECTS INCORPORATED,
a body corporate - and - H.W. CORKUM
CONSTRUCTION CO. LTD., a body corporate,
Defendants
D E C I S I O N
Heard Before: The Honourable Justice Arthur J. LeBlanc
Place Heard: Halifax, Nova Scotia
Dates Heard: November 29, 30,
December 1,2, 3,6,7,8,9,10,13,14,15,20, 1999, June 12, 2000
Oral Decision: December 12, 2000
Written Release: April 2, 2001
Counsel: Mr. John D. MacIsaac, Q.C., for the plaintiff
Mr. George W. MacDonald, Q.C.
Mr. Paul D. McLean, for the defendants
LeBlanc, J.:
[1] This is an action commenced by A.J. Hustins Enterprises Limited (Hustins) against Byrne Architects Limited (Byrne) and H. W. Corkum Construction Co. Limited (Corkum) for damages alleging breach of contract and negligence in the design, construction and inspection of Sun Tower, an office building located in Bedford, Nova Scotia.
[2] Hustins alleges and claims damages for certain deficiencies and defects in the design, inspection and construction of Sun Tower. Specifically, Hustins’ claim includes leaking at the expansion joints, insufficient insulation under the first floor offices, spalling of the lower parking slab, a failure to insulate the rain water leader leading to the Sackville River, flooding from the roof, damage to the sprinkler system in the elevator shaft caused by freezing, a failure to provide 6 inches of concrete and to install reinforcing steel in the slab in the lower parking garage.
[3] Hustins also alleges a breach of contract in that Bituthane 5000, specified in the contract as the waterproofing material for the podium deck, was substituted with another material without Hustins’ knowledge or permission. Hustins further claims that this substituted waterproofing product was not suitable for the project and resulted in leaking and damages. Hustins hired other engineers, waterproofing specialists and contractors to study Sun Tower’s problems and to correct some of the deficiencies.
[4] The defendants claim that they did not breach their contract with Hustins and that they were not negligent in their design and work. They allege that the remedial work done by Hustins or its agents were intervening acts and that Hustins was negligent in dealing with some of the problems about which complaint is made.
The Parties:
[5] A.J. Hustins, Jr. is in the commercial and service industry and operates through A.J. Hustins Enterprises Limited (Hustins). Prior to the construction of Sun Tower, Hustins had built a number of commercial facilities, including the Bedford Tower and other commercial facilities. Hustins had not previously retained Byrne to do any work for the companies which they controlled. Hustins had hired Corkum in the past on several projects. Hustins also retained Peter Evans to act as the contract coordinator and to assist him in the review of the contracts with Byrne and Corkum.
[6] Peter Corkum is the president and principal of Corkum. He has been involved in the construction industry for numerous years. Prior to Sun Tower, Corkum had built numerous schools and other commercial facilities, including the Professional Centre in Halifax. According to Peter Evans, Corkum enjoyed an excellent reputation in the construction industry. He had previously worked for Hustins on a number of smaller projects.
[7] Byrne is a successor to Dumaresq & Byrne Limited. Michael Byrne is a registered architect who graduated from McGill University in 1960 and joined Dumaresq in the same year. Since then he has designed numerous buildings, including the Charles Tupper Medical Building, the Dalhousie University Dental Building, Fenwick Towers, numerous schools and other projects. In 1984 he was approached by Hustins to design Sun Tower. After preliminary discussions, Byrne offered to prepare preliminary drawings and cost estimates, working drawings and specifications and to perform construction administration, including periodic construction inspection.
The Building:
[8] The project is located at the west side of the intersection of the Bedford Highway and the Dartmouth-Bedford Highway and is in between the Sackville River and Bedford Highway. The land has been owned by Hustins since 1946. Prior to its development, the land had been used as a parking lot for Hustins’ restaurant and a laundry.
[9] Sun Tower is an eight floor commercial office tower with the Provincial Court of Nova Scotia as a major tenant. The front of the building faces the Bedford Highway which lies approximately east. The rear of the building faces the Sackville River to the west. The building is entirely surrounded by a paved podium concrete deck used for parking and driving. Except for the doors into the building, it is surrounded on all sides by planting areas in concrete structures (planters) built on this deck. There is also a parking area below this deck. The land on which the building is located slopes towards the river so that the lower parking deck is partially open to the outside on the north and west sides. There are ramps leading from the Bedford Highway onto the northeast and southeast corners of the deck. There is also a ramp that leads to the lower parking area.
[10] The podium deck is divided by a construction joint and an expansion joint placed to allow thermal expansion of the concrete as the temperature changes. The expansion joint lies along the south edge of the building and extends to the east and west edges of the deck. The construction joint, also referred to by all parties as an expansion joint in the trial, lies along the north edge of the building to the edges of the deck.
[11] A number of the identified problems, particularly those at the expansion joints, are described by reference to lines on the plans provided by Fishburn Roofing Sciences (see Appendices 1 and 2 for these plans and a photograph of the building). Their orientation is as follows.
[12] The numbered lines lie in a west-east direction from the river side of the structure to the road edge. The line numbers increase from the south to the north edges of the deck. Line 1 follows the south edge of the podium deck from the west side facing the river to the east side facing the road. Line 2 lies approximately at the midpoint between line 1 and the south side of the building which follows line 3. It is on that line that the expansion joint lies. Lines 4, 5, and 6 lie along the one-quarter, one-half and three-quarter points of the building. Line 7 follows the other expansion (construction) joint and the north edge of the building. Line 8 lies along the edge of the sidewalk on that side. Line 9 follows the midpoint between the north side of the building and the north edge of the deck along which line 10 lies.
[13] The lettered lines lie in a south-north direction perpendicular to the numbered lines. Their alphabetic order proceeds from the west to the east. Line A follows the west (river) edge of the podium deck; B lies at the midpoint between the edge of the deck and the building; C follows the river edge of the building itself; D, E, and F lie at the one-quarter, one-half, and three-quarter points of the building, respectively; G follows the east (road) side of the building; H lies at the midpoint between the building and the road edge of the deck; J follows the east edge of the deck.
The Construction:
[14] Hustins retained Byrne as architect to plan and design Sun Tower. Phase I consisted of two levels of parking to accommodate 180 vehicles and four floors of commercial office space. Parking would be sufficient for both Phase I and Phase II. Phase II covered the remaining four floors. The total area available for rent consisted of 60,000 square feet on eight floors.
[15] Mr. Hustins specified to Byrne that he wanted a Class “A” building. It would have a glass exterior. During the various meetings which Hustins held with Byrne, the special design issues were brought to Byrne’s attention. In particular, the structure would be on land adjacent to the Sackville River which floods on a regular, seasonal basis and that the location of the complex is subject to significant northerly wind pressures.
[16] He also emphasized his concern respecting preventing leaks in the podium deck. According to Mr. Hustins, he had spoken with John Doull of Scotia Square to determine the cause of the leaks which had occurred at that location and Hustins pointed out that he wanted to avoid any leaks in the lower parking garage. Hustins also indicated that the lower parking garage or deck would be unheated and secondly, that two of the four walls would be open. Consequently, the underground parking garage would be exposed to outside temperatures and wind conditions.
[17] Hustins entered into a standard architect’s contract with Byrne. It required Byrne to prepare the necessary drawings, plans and specifications for Phase I. Some changes were made to this contract prior to its execution, including the change from full-time inspection to periodic inspection by Byrne. It specified the use of Bituthane 5000, a rubberized waterproofing membrane, for the podium deck. One of the principal or relevant articles of Byrne’s contract is Article 2.1.23 which provides that the architect is entitled, where any changes are minor, and where the contract price or completion date is not affected, that such changes can be made without the owner’s approval.
[18] A number of contractors were invited to submit tenders for Phase I construction. Corkum was awarded the contract. A specific provision in Corkum’s contract was that after the execution of the contract, any changes requiring a change in the material could only be effected if the substituted material was superior to that specified in the original contract.
[19] The contract called for the completion of Phase I on January 10, 1986, which was deferred to January 31, 1986. Work on the project started as scheduled in the contract on June 3, 1985 and it was planned that the project would be complete in 32 weeks.
[20] Construction of Phase I commenced on schedule, June 2, 1985, with the land clearing effort. However, it soon became evident that a large number of boulders were present and these had not been identified by the soils engineer. A delay of approximately seven weeks resulted while these boulders were removed. Due to this delay, the project fell behind schedule and, although some of the lost time was made up, Corkum was not successful in maintaining the original schedule. One of the key results of the delay was the substitution of Bituthane 5000, the original waterproofing membrane specified by Byrne for use on the podium deck, with 3-ply glass fab asphalt.
[21] At Corkum’s request, Byrne approved a change of the waterproofing membrane from Bituthane 5000 to 3-ply glass fab and asphalt but, initially, gave written confirmation for the placement of 3-ply felt and asphalt. Scotia Roofers, the waterproofing subcontractor, notified Corkum and Byrne that they felt it was not appropriate and intended to place 3-ply glass fab and asphalt instead. Scotia Roofers installed the 3-ply glass fab and asphalt to a substantial portion of the deck in November and December 1985, with the remaining portion being completed in 1986.
[22] The completion date of Phase I was further delayed as Corkum was awarded an extension to its contract for additional work to complete tenant’s improvements for the Courthouse facilities.
[23] Hustins undertook the construction of Phase II in 1988 and retained Corkum as project manager. This contract was signed on February 18, 1988 and this construction was substantially completed on October 12, 1988.
[24] Soon thereafter, Hustins complained to Byrne that Corkum’s subcontractor had improperly aligned the walls on the eighth floor and Corkum had failed to repair a hole on the roof of Phase II. Furthermore, Hustins noticed a number of leaks occurring in the podium deck which resulted in water leaks in the lower parking garage.
[25] Hustins said that due to the defects in the waterproofing of the podium deck it was necessary to carry out repairs in 1991, 1992, 1993 and 1999 to eliminate the leaks.
[26] Hustins hired Mason Contracting in 1991 to repair the leaks on the expansion joints on Gridlines 3 and 7. Leaks continued to occur and in 1992 Hustins hired Harvey Freeman, an architect, to prepare a plan to replace the membrane in the north planter to eliminate the leaks.
[27] In 1993, Hustins engaged Kevin Burke, a structural engineer, to investigate and report on the condition and effectiveness of the waterproofing membrane on the podium deck, other than at the planters. Burke’s report recommended the installation of a Koch joint system at the expansion joints at Gridlines 3 and 7 and between A and C and G and J.
[28] Despite the 1993 efforts to repair the expansion joints, additional leaks occurred on the podium deck from 1993 to 1996. Hustins retained the services of Douglas Fishburn to conduct a full review of the waterproofing membrane on the podium deck and to prepare a report. Following the completion of this report, Hustins decided to replace the entire waterproofing membrane which had been placed by Corkum and these repairs were completed in 1999.
Witnesses and their testimony:
[29] Peter Evans of Peter Evans Enterprises Ltd. was retained by Hustins to act as contract administrator for both Phases I and II. Evans had many years of experience working with the construction industry including contract administration as a staff member of an architectural firm. He set up his own firm, Peter Evans Enterprises Limited, to serve as a contract administrator and in 1984 offered his services to Hustins to assist him in the Sun Tower contract. He suggested changes to the architectural contract and the building contract. Included in his duties were approving progress advances and reviewing changes to the contract. He was vitally involved in various aspects of the contract, including attending job meetings. He also was instrumental in retaining Harvey Freeman, James Hartling, James Mason and Kevin Burke to assist in the repairs of the waterproofing membrane. He was not involved in the retention of Douglas Fishburn.
[30] Harvey Hustins is in charge of building maintenance and repairs for Hustins. He has been with the company for numerous years. He had no involvement in the construction of either Phase I or Phase II of Sun Tower. Shortly after Phase I was completed, Harvey Hustins assumed responsibility for preparing the site for the opening of the court facilities. Numerous complaints were made by the staff of the Courthouse that they had cold feet in the first winter of occupancy due to the level of the floor temperature in the general office. He also testified regarding the freeze-up in the sprinkler pipe in the elevator shaft and the rupture of rain water leader pipe. Harvey Hustins was also involved in effecting repairs to the interior of the premises.
[31] James Mason is the president of J. Mason Contracting Limited (Mason) which is primarily involved in concrete restoration. Mason performed repair work on two joints at Sun Tower in 1991; at the expansion joint at Gridline 7 between lines A and C and the expansion joint at Gridline 3 between G and J. Mason’s subcontractor, Road Savers, installed 346 square feet of a rubberized waterproofing membrane in December, 1991 to correct the leaks occurring along these two lines on the podium deck. The replacement membrane was bonded to the concrete deck and the existing membrane. In the process of carrying out the replacement, Mason observed that the waterproofing membrane was a type of roofing material, but without gravel. He noticed the existing membrane which was cracked at the expansion joint on Gridline 7 ran across the joint. The membrane was leaking and was not fully bonded to the deck. He said that the rubberized membrane and the existing membrane were bonded by using hydrotech, a rubberized bonding agent. He said he was uncertain if the effort was successful in view of the two different types of waterproofing membrane; rubber and a type of roofing material.
[32] Harvey Freeman has been a registered architect since 1970. His primary experience and involvement has been in building design, roof design and redesigning roof systems. Peter Evans engaged Freeman in late November 1992. He attended at the Sun Tower site and did a visual inspection along the planter at Gridline 7 between C and G. The planters at Gridline 7 were empty of any planting material. The cantstrip was exposed and rotten in certain locations. In the lower parking garage, he observed fairly continuous damage to the gyprock in the plenum located under the first floor offices. Freeman prepared a remedial plan, which was only acted upon in 1993 due to the lateness of the season, however, as an emergency measure, he directed the placement of a bead of grout underneath the curb.
[33] The remedial work included the replacement of the existing membrane at Gridline 7 between C and G with a rubberized membrane, Carlisle EPDM, which was bonded to the existing membrane and to the Koch joint system placed at Gridline 7 between lines A and C and G to J. The plan would require the removal of the existing membrane on the vertical wall and planters and extending towards Gridline 8. The Koch joint system was also installed along Gridline 3 from A to C and G to J. Freeman directed Jim Hartling to obtain written confirmation from the manufacturers of the Koch expansion joint system and the Carlisle membrane to determine the bonding features of the waterproofing agents, but only Carlisle provided this confirmation. Freeman was responsible for overseeing the installation of the Carlisle EPDM membrane and the bonding to the Koch joint system and to the existing membrane. Freeman provided a detailed description of the placement of the Carlisle EPDM membrane and the method followed to bond it to the existing membrane as well as to the Koch joint system.
[34] Freeman had observed the membrane on the vertical wall along Gridline 7 falling off the wall from C to G, except the entrance to the Courthouse. He observed water underneath the membrane in the area of the cantstrip damage and water was able to get behind the membrane and get into the lower parking level. In June 1993, he did not re-inspect the membrane in the planter, but observed the waterproofing membrane at Gridline 3C, where the planting material had been removed for approximately six feet. He observed a hole had been drilled through the waterproofing membrane and slab to remove the water from the planter. By checking from the lower parking garage, he observed leaks at Gridline 7 in both 1992 and 1993 but did not see any leaks at Gridline 3 in 1992 and 1993. Freeman could not recall if Bradshaw Woodworth had installed EPDM membrane at Gridline 3 in 1993. Freeman agreed that he knew very little about the Koch joint system but was satisfied that it would function properly. Although Freeman was concerned with the level of the drains in the planters, he did not lower them.
[35] James G. Hartling is president of Parker Brothers Contracting Ltd. (Parker Brothers). He has been involved in the construction industry for numerous years. Parker Brothers is primarily involved in concrete restoration and also bridge repairs. Peter Evans engaged Parker Brothers in November 1992 to deal with leaks on the north deck of the Sun Tower building. Following an inspection of the leak areas on Gridline 7, Parker Brothers was directed by Freeman to place grout underneath the curb at Gridlines 7 and C and G to prevent the curb from settling. Hartling returned in 1993 to perform the preparatory work for the placement of the Carlisle EPDM membrane including the removal of existing membrane and the removal and the replacement of curbs and sidewalks. He also observed leaks getting to the lower parking deck at the planters along Gridline 7. Parker Brothers also added additional drains. Parker Brothers’ subcontractor, Road Savers. was engaged to prepare the site for the Koch joint system on Gridlines 3 and 7 between A and C and G and J.
[36] Hartling observed holes drilled through the membrane and concrete. In November 1992 he had investigated the leaks on the underside of the podium deck and saw the leaks along Gridline 7 and noticed damaged gyprock in the plenum. He had no recollection of the condition of the membrane in the planters and he could not recall specifically the location of the drilled holes and if they were within the planters. The planters at Gridline 7 were empty of any planting material throughout the winter of 1992 until repairs were completed in July 1993. He observed water underneath the membrane in the planters in the process of removing it. Hartling said that Parker Brothers did some corrective work at Gridline 3 in 1993 but could not recall if they added any drains.
[37] Hartling described the membrane in the planter as bonded tightly in some locations and very loose in others. The amount of work required at Gridline 3 was not as extensive as on Gridline 7 and he could not recall if he added an additional drain at Gridline 3.
[38] Carman Bradshaw is a principal of Bradshaw Woodworth Roofing & Sheet Metal (1987) Ltd. (Bradshaw Woodworth). He has 25 years of various roofing experience, although not primarily waterproofing. His company became involved with the Sun Tower complex in November 1992. Bradshaw Woodworth placed the Carlisle EPDM membrane in 1993 which was bonded to the existing membrane and also to the Koch joint system. Bradshaw’s first involvement was at the site in June of 1993. He observed some leaking along Gridline 7 between the wall and the expansion joints. Upon checking underneath in the lower parking garage, he observed the gyprock bulkhead partly hanging out along with the fibreglass insulation, between lines C and G along Grideline 7. He observed evidence of white staining lime coming out of the concrete, but was unable to indicate how long this leaking had existed. Bradshaw Woodworth installed the Carlisle EPDM membrane along Gridline 7 from the vertical wall of Sun Tower towards Gridline 9. The existing membrane on the vertical wall had fallen off and it appeared in a bagging appearance for approximately 40%. He observed a portion of the cantstrip in a decaying condition. He also observed water but did not know if it was under the membrane in the planters. He said that the existing membrane was not totally adhered to the deck. Mr. Bradshaw indicated that the Carlisle EPDM membrane was bonded on the vertical wall and across Gridline 7 toward Gridline 9 to join the existing membrane. The Carlisle EPDM membrane was also bonded to the Koch joint system. Bradshaw said that Parker Brothers was involved in the Koch joint system and this membrane was placed over the existing Carlisle EPDM membrane for bonding. The latter was placed first and then the Koch system was installed over it.
[39] Initially, Bradshaw had not observed any holes drilled in the membrane but did observe them later and thought they were pilot holes for the additional drains. He observed them at Gridline 7C in the planter, but more towards Gridline 8 and the water was coming through the holes. He could not recall if the existing membrane was in the planter at the time. He had observed, as well, that the existing waterproofing membrane in the field was in poor condition and therefore it was necessary to extend the Carlisle EPDM membrane further in towards Gridline 8 in order to get a proper bond.
[40] Kevin Burke is a structural engineer and was qualified to give expert evidence in the field of structural engineering. His June 1994 report was entered as an expert report on consent. Burke’s background has been primarily in bridge and concrete restoration. He was retained by Evans for Hustins to investigate and provide a report respecting expansion joint leaks at Gridlines 3 and 7. On investigation, Burke observed leaking in the lower parking garage with water running down a third of the joint at Gridlines 3 and 7 with the plenum and gyprock wet and stained at Gridline 7. He recommended the replacement of the expansion joint between lines A and C and G and J on Gridlines 3 and 7. Burke caused cores of the concrete deck to be tested around Gridlines 9 and 10. Previous testing at the expansion joints of the concrete deck by Jacques Whitford for Fowler, Bald & Mitchell revealed that the threshold level chlorides of 0.025 had been exceeded.
[41] The cores removed in the “field” of the podium deck at the Gridlines 9 and 10 revealed that the chloride levels were within the acceptable range or that there were very little evidence of chlorides. In view of these findings and the report of Jacques, Whitford as to chloride levels at the expansion joints, Burke recommended a complete replacement of the expansion joints in the field with a Koch joint system, which had been in use for some time in bridge construction. Burke determined that there was no reason to replace the membrane on the podium deck as the membrane in the field posed little or no problem. In fact, at trial, Burke agreed that in a 1993 report he had concluded that the membrane on the podium deck, other than at the expansion joints, would protect the concrete deck for many years to come. He was unaware that Mason Contracting had done any work on sections of expansion joints in 1991.
[42] Burke’s opinion was that the expansion joint design at Sun Tower was not up to the standard of the day. This was based on the assumption that glass fab membrane dipped into the joint and then continuing on the opposite side of the joint in the field. I would note, for reasons following, there was no evidence that that design was actually used and that portion of his report should be given little weight.
[43] Although in his 1993 report Burke concluded that the leaking at Gridline 9 was due to a leak on the parapet wall at Gridline 10, at trial, he agreed that water could not wick along a horizontal surface for 20 feet but would only wick several inches.
[44] Burke said he had not previously recommended the Koch system for an expansion joint on a podium deck. He was not present when Road Savers installed the Koch system and could not recall whether he had spoken to Freeman regarding the method to be followed to bond the EPDM membrane to the Koch system. He was unaware that the Carlisle EPDM membrane was the type of membrane which Freeman had chosen for the planters and his only discussion with Freeman was as to the method to be followed to bond the Koch system to the existing membrane. Burke did not know if the Koch system would bond successfully to the existing membrane as he was unsure whether it would properly bond to asphalt. In the time frame Road Savers installed the Koch joint system or afterwards, Burke did not inspect the work.
[45] Douglas Fishburn is a specialist in waterproofing podium decks and parking garages. He is the principal of a number of related companies including Fishburn Roofing Sciences Group Limited and Fishburn Roofing Science Engineers Limited. He is a graduate of the University of Guelph, formerly the Ontario Agricultural College. He has spent the last 25 years in the field of waterproofing. His involvement includes lecturing engineering students. He has served on a number of National Standard committees dealing with waterproofing issues for podium decks and parking garages and the use of rubberized material in the waterproofing of podium decks and parking garages. Mr. Fishburn has been involved in a number of remedial projects, including the Hamilton Parking Garage, Hamilton, Ontario. He was qualified to testify as an expert in waterproofing, including waterproofing of podium decks.
[46] Fishburn attended the Sun Tower site in 1996. He completed an investigation and prepared a report including a leak plan. His investigation over a two day period included several cut tests and the removal of the pavement, asphalt and membrane to visually inspect the condition of the membrane and the concrete slab. Several exploratory tests were performed in the planters at Gridlines 3 and 7 and also along the western side of the building.
[47] Fishburn observed a total of fourteen leaks on the podium deck. A substantial portion of these leaks were in the planters adjacent to the Sun Tower complex or along the expansion joints in the field.
[48] Fishburn reported that the leaks in the planters were due to:
(1) the level of the drains in the planters were set higher than the planter floor;
(2) the type of drain installed, namely cast aluminum as opposed to stainless steel, contributed to the corrosion of the drain; and,
(3) the drain body was set into concrete deck above rather then below deck level with a clamping ring causing the retention of water.
The leaks at the corners of the building at Gridlines 3C and 3G and 7 C and 7G were due to the membrane expansion joint not being uniformly bonded. Old membrane did not appear to be properly bonded to the deck which was permitting water to infiltrate to the lower slab level and run underneath the membrane. The finish of the slab did not appear smooth. At another location, namely, leak location #3, at approximately Gridline 1F, Fishburn observed a ridge in the podium slab surface and a ridge in the membrane, as well as a crack in the roof membrane and a crack in the concrete slab. A water test at this location produced a leak in the lower parking deck within 15 seconds.
[49] Fishburn noted at leak location #6, Gridline 3C, that fibreglass insulation, used as a joint filler between the two sections of deck that formed the expansion joint, was saturated with water.
[50] Fishburn also noted that at leak location #13, at Gridlines 7D and E, the existing waterproofing membrane was properly bonded to the concrete deck at that location and also noted a rubberized membrane at the contact location. Despite this finding, he observed that water was still leaking through the crack in the deck. Fishburn also noticed that the drain in the field of the podium deck was improperly placed and also found the deck assembly ought to have been recessed in the concrete slab.
[51] Fishburn took samples of the membrane and caused an analysis to be conducted to determine if Corkum had placed either Type 1, 2 or 3 asphalt in the podium deck waterproofing membrane. In his report, he concluded that Type 3 asphalt was used. A third, independent test was conducted by an outside laboratory and the results established a softening point of the asphalt at 84°, one degree above the upper range of the melting point of Type 2 asphalt. Type 2 asphalt has a softening point range of 75° to 83° Celsius and Type 3 asphalt has a softening point range between 90° and 98° Celsius.
[52] Frank Giannantonio is an engineer employed with Fishburn Roofing Sciences Group Limited. He had numerous years of experience in the preparation of specifications, contracts and price estimates for repairs and replacement of podium decks and parking garages.
[53] Ginnantonio, at Fishburn’s request, prepared a budget to estimate the cost to repair the leaks determined by Fishburn or alternatively, estimates for the cost of replacing the entire waterproofing membrane on the podium deck. Once Hustins made a decision to replace the entire membrane in 1999, Ginnantonio prepared the tender documents and specifications. Once the contract was awarded to Duron Atlantic, he attended at the site during the course of the replacement of the membrane on three different occasions and observed the condition of the podium deck, including the width of the opening at the expansion joint on Gridline 7. Ginnantonio’s design provided for alternative expansion joints, but for cost reasons, a rubberized membrane was placed at the expansion joint. He was unaware of the type of expansion joint which Corkum had installed.
[54] Frank Harrington is a registered architect and is the president of Fountainhead Consulting Limited. He was a partner with Webber, Webber and Harrington until 1997. He was engaged by Hustins as a contract administrator for the remedial work carried out on the parking deck in 1999. He reviewed the Fishburn tender documents and periodically supervised the removal of the asphalt, existing waterproofing membrane, planters and the relocation of roof drains, replacing and adding roof drains and reinstalling the membrane, planters and re-asphalting the deck.
[55] The contract for the replacement of the membrane was awarded to Duron Atlantic. Harrington found the plenum underneath the first floor to be in a poor, dangerous condition with a great deal of water gathered inside the plenum. Harrington observed a number of footprints on the deck once the old membrane was removed and in another area of the deck, observed a low point where ponding of water was occurring. He also noticed tin drains and one cast iron drain on the deck. The existing membrane was removed with a backhoe and the remnants were removed with hand-held equipment. Harrington, was not aware that major changes had been made to the expansion joint after Corkum had completed its contract and only became aware of this at a pre-tender meeting. He observed a plug joint in the field at the joint. He determined that the membrane and the expansion joint adjacent to the building had also been changed at Gridline 7. He observed that the membrane in the planter between lines C and G on Gridline 7 was different than what he found in the field. Harrington described the membrane in the planter on Gridline 7 as waterproofing membrane. He observed that the entire membrane was not totally adhered to the deck however, the first layer of asphalt was adhered to the deck. Harrington said the membrane placed by Corkum would have been a membrane found where the temperature in a building was static and not subject to temperature swings or in instances where the movement in the deck was minor although he had stated at discovery that it was suitable for podium decks. In re-direct examination, he maintained that glass fab should be used in static conditions. He told Giannantonio that if they were placing a rubberized membrane at the expansion joint that they would not be able to argue that the design was poor but rather that the workmanship or the substitution of material was poor as it was his assumption or understanding that Giannantonio was installing a similar expansion joint assembly to what Corkum had placed. Additional drains were placed and the concrete floor in the planters were raised. Harrington observed 5 or 6 very fine cracks in the deck, once exposed, which would not be unusual for the size of the deck. Areas of the deck which were now observed were filled in so as to prevent any slopes so that the entire deck would drain to the drains. Harrington denied that he had previously specified 3-ply glass fab and asphalt for an outside deck. At the Forest Hill Elementary School such materials had been installed in the interior of the building. He said the drains in the field of the deck were removed and replaced and set in the concrete slab.
[56] Douglas Clarke, comptroller for Hustins, said that Sun Tower was subject to an agreement of purchase and sale and that the proposed sale of the complex did not contain any conditions which would effectively reduce the sale price should the underground parking garage repairs not be completed.
Membrane substitution and leaking of podium deck:
[57] The primary issues of this case concern the leaking of water into, and repairs to the podium deck. Specifically, there are two major areas of concern: a) the substitution of materials for the waterproofing membrane and, b) the supervision, design and construction of the membrane-expansion joint system.
[58] At trial Byrne maintained that the specified product, namely, Bituthane, was recommended to be placed only in temperatures above 4° Celsius. Consequently 3-ply glass fab was placed instead as it had been used on previous projects which had podium decks. Corkum maintains that it was authorized by Byrne to make the substitution from Bituthane 5000 to 3-ply glass fab and that the subcontractor had a great deal of experience in placing this product and he had placed it in previous contracts. Corkum supervised the placement of 3-ply glass fab and maintained that it was installed properly and that the work was done in a workmanlike manner. Thus, Corkum alleges the membrane was placed by a competent contractor with experienced workmen and properly supervised by Michael Harvey, Ernie Webber of Scotia Roofers and himself.
[59] Byrne had provided the manufacturer’s specification for the installation of Bituthane 5000 but no specifications were prepared or provided by Byrne for the glass fab. Byrne said a team was to plan, design and supervise the construction of Phase I and Phase II of Sun Tower. George Brandys was selected as a structural engineer. At Byrne’s request, Brandys attended the Sun Tower site in 1989 and examined various aspects of the project. He reported to Byrne that he had determined that there was a defect in the waterproofing at the expansion joint at Gridline 7. I find that this report was not provided to Hustins and its project advisor, Peter Evans, could not recall receiving a copy of it.
Substitution of the waterproofing membrane:
[60] Byrne relies on Article 2.1.23 of its contract with Hustins as the basis for authorizing the replacement of the waterproofing membrane. Although the letter of July 25, 1985, issued by Michael Harvey is in error, when it refers to 3-ply felt and asphalt, that is the basis which Corkum claims establishes its authority to place the substituted membrane. Corkum maintains that Harvey had communicated this authorization verbally earlier.
[61] Article 2.1.23 states:
The architect shall prepare change orders for the Client’s approval and signature in accordance with the Contract Work Documents and shall have authority to order minor changes in the Work not involving an adjustment in the contract price or an extension of the contract time which are consistent with the intent of the Contract Documents
[62] Byrne, in his evidence, maintains that Article 2.1.23 permits the architect to substitute products where only a minor change is involved, where the change does not constitute an increase in the contract price, and the placement of the substituted product does not extend the contract period. In such cases, the owner does not have to be involved in its approval.
[63] Hustins maintains that a change in the waterproofing membrane, from what was specified to what was placed, is by any definition a significant or major change and the approval of the owner is requisite and must be obtained prior to the change being effected.
[64] I agree that the change in materials did not affect either the contract price or extend the contract completion time. However, there was no change order. The question is whether such an order was actually required.
[65] Byrne and Corkum suggest that the practice of the parties eliminated the need for a change order and point to a change in the brick facing on the Sun Tower complex as having proceeded without any written approval from the owner. However, I find on the evidence before me that the architect and owner orally discussed and agreed to such a change. It is apparent that Hustins was fully aware of the change in the exterior facing for the Sun Tower complex and its approval was pivotal to such a change. In contrast the proposed change of membrane materials was not discussed between the two parties that they did not come to an agreement, oral or written, about the substitution of glass fab for Bituthane. I find that there was no consultation at all about this change. Consequently, I reject this suggestion.
[66] Byrne’s principal position with respect to the change in waterproofing membrane is that there was no other option and that it was a minor change. In order to accommodate Hustins’ desire for timely completion of Phase I, it was important to move ahead and to place the waterproofing membrane in November-December, 1985. Byrne said that such a decision was “a no-brainer”. He agreed that a waterproofing membrane is important to the extent that you must have 100% success, otherwise the waterproofing membrane will not serve its intended purpose. As previously mentioned, Hustins was extremely anxious to avoid leaks. This was communicated to Byrne on a number of occasions prior to and during the design stages. In his report, Burke, who was qualified as an expert in the field of structural engineering, concluded that providing a very stable waterproofing membrane was very important in order to protect the integrity of the concrete slab and the reinforcing steel. In fact, according to Burke, the high chloride levels, which existed at the expansion joint, triggered the recommendation to place the Koch joint system on the expansion joints.
[67] In his report of July, 1994, at page 2 he stated:
If salt laden water is allowed to pass through the wearing course to the concrete the chloride will contribute to the galvanic corrosion of the reinforcing steel which is typical of deterioration observed on bridge decks and parking garages in our region.
In addition:
Salt laden water leaking into the slab will resolve in corrosion of the reinforcing steel and resulting in expensive repair.
[68] Similarly, Fishburn determined, that in many of his previous investigations of parking garages, the failure of waterproofing membrane contributed significantly to the deteriorating conditions of the structural steel and the concrete deck. I find that the substitution of Bituthane 5000 with 3-ply glass fab and asphalt was a major change in the design and specification requiring Hustins’ approval. To agree with Byrne that a change in membrane was a minor change, it would be necessary to ignore the opinions of Burke and Fishburn that a poor choice of membrane would dramatically affect the integrity of the podium deck.
[69] Consequently, Byrne did not have the authority to make this substitution without approval.
[70] Moreover, Section 01600 of the General Conditions of the Corkum Contract limited the authority of the architect and the contractor to make substitution of materials after the contract was signed.
[71] Division 1 of the General Requirements of the Contract Documents states:
2. Substitutions before Tender Close
If a substitute is desired, or if specified as an ‘alternate’ or ‘equal’ item, apply in writing to the Architect for approval at least 10 days prior to the closing date of tenders, enclosing appropriate technical data to support the request. Use quotations for substitute materials only if approval is granted by the Architect by addendum prior to the closing of tenders. Note that the Contractor shall be fully responsible for any additional cost caused by the use of alternate materials or equipment in order to meet all conditions of the contract.
3. Substitutions after Award
After execution of the contract, substitution of materials or equipment of makes other that those specifically named in the contract documents will be approved by the Architect for the following reasons only:
.1 that the materials or equipment proposed for substitution is, in the opinion of the Architect, superior to the specified equipment in construction efficiency and utility.
.2 that the specified material or equipment cannot, in the opinion of the Architect, be delivered on schedule due to conditions beyond the control of the contractor.
.3 where prices of materials and equipment differ, the Owner shall receive all benefits of the difference. The Contract shall be altered by change order to credit the Owner with any savings.
[72] Hustins maintains that the substitution, in addition to requiring the owner’s approval, could only be made if the substitution resulted in the use of a product or material superior to that specified in the contract. If the substitution had occurred prior to the execution of the contract, the substituted material would have had to be either alternate to or equal to the specified material.
[73] Fishburn said that Bituthane 5000 was clearly superior to 3-ply glass fab and Type 3 asphalt for a podium deck given its specific characteristics. Given that a waterproofing membrane is supposed to bond to the slab, the material used must be able to accommodate the forces of expansion and contraction if it is to remain watertight and render long-term service. Bituthane 5000 had proven itself adequate for this purpose. He added that Bituthane 5000 is pliable to -25° Celsius when tested to ASTMD -146 and has good elongation and crack bridging ability. Bituthane, being formulated from rubberized asphalt, has excellent waterproofing qualities.
[74] He also added that he would not have recommended the use of glass fab on the podium deck regardless of whether Type 2 or Type 3 asphalt had been used. In comparison to Bituthane, Fishburn noted that glass mesh and asphalt offers some flexibility at room temperature, however, the glass transition temperature of Type 3 asphalt is approximately +1 to -5°Celsius.
[75] As part of his report Fishburn concluded that Type 3 asphalt was what he found in the waterproofing membrane. Mr. Corkum claims that Type 2 asphalt was used and not Type 3.
[76] Corkum testified that he had previously placed 3-ply glass fab and Type 2 asphalt on several projects and it proved to be successful going back to the late 1960's. He referred to Magazine Hill School, Halifax Professional Centre and Forest Hill Elementary School. Some of these projects had been designed by Harrington and another by Freeman.
[77] I accept Fishburn’s evidence that Bituthane 5000 is a superior product for the purpose of waterproofing a podium deck. There can be no dispute that Bituthane is pliable as it is a rubberized membrane and can repair itself. On the other hand, 3-ply glass fab and asphalt is brittle and can, under certain conditions fracture, crack or shatter and it is not possible for cracked or broken asphaltic membrane to repair itself. Therefore, once shattered or fractured, it would be of no assistance in preventing leaks and preventing salt laden water from depositing on the concrete deck or leaking to the expansion joint. It might be suitable in roofing applications but not on podium decks with expansion joints, since the asphalt on roofing applications is protected by insulation while that is not the case on podium decks. Type 2 asphalt melts at 170° and is brittle at 0° Celsius. It is more brittle as it becomes colder. Fishburn stated that the Canadian Roofing Contractors Association does not recommend the use of 3-ply glass fab and asphalt under pavement.
[78] Although Fishburn based his report on the assumption that Type 3 asphalt had been used in the 3-ply glass fab application, and although I have found that Hustins had not established that fact, I find that the Type 2 asphalt would not have been any more suitable to permit its use in this application. The fibreglass portion of the membrane does not provide any waterproofing at all.
[79] Because Bituthane is superior to 3-ply glass fab for use as a waterproofing membrane on a dynamic podium deck and because Hustins did not give its approval for the change in materials, I find that such substitution resulted in a breach of contract.
[80] I do not accept the claims of Corkum and Byrne that because Hustins wanted the project completed on schedule they were required to place 3-ply glass fab and asphalt on the deck in November-December 1985. Byrne maintains that he was simply following Hustins’ mandate to have the project completed as soon as possible because of the parking requirements for Hustins’ other business.
[81] Wilbert Langley, who was qualified as an expert, concluded that there could be parking in the lower parking garage within a period of a month of completion after a drying period. Parking would be permitted much earlier than the six month period maintained by Byrne and Corkum, in fact as early as February, 1986. This delay would have added an additional month to two months rather than the six months claimed by Byrne and Corkum. Hustins was anxious to have the project completed, including the placement of the waterproofing membrane. However, there is no evidence which satisfies me that he or Evans knew that there would be a change in waterproofing membrane. It is equally probable that, if he had been told that 3-ply glass fab was being placed at Sun Tower, then that he would have delayed the placement of the membrane until 1986 to allow for the use of Bituthane. I also find it is the responsibility of the architect to recommend material which is fit for the purpose.
[82] I find that parking in the lower parking garage was possible within the six month period. As a result, the rush to complete the podium deck to the extent it was completed was not necessary.
[83] Byrne, in my opinion, did not seriously consider an alternative to placing 3-ply glass fab. Byrne did not contact the manufacturer of Bituthane 5000 to determine whether there was a method of placing it in temperatures colder than 4°Celsius or whether there was another product available through the manufacturer which would be superior to glass fab. I do not accept Byrne’s evidence which would suggest he was an expert in the membranes available for this project.
[84] I do not accept Byrne’s claim that he finds it impossible that Hustins or Evans were not aware of the membrane substitution, or Corkum’s evidence that at least Evans knew the membrane was being installed. I do not find that Hustins or Evans knew or consented to the glass fab being installed.
[85] Though there was a breach of contract, I would also be prepared to find that there was negligence on the part of the architect in choosing to substitute glass fab for Bituthane.
[86] An architect is expected to exercise the reasonable skill, care, and diligence reasonably expected of a person of ordinary competence against the professional standards of the time. The architect need not be the most skilled or knowledgeable individual in the field but must make a decision that is reasonable based on the standards of the day. (See B. McLachlin et al., The Canadian Law of Architecture and Engineering, 2nd ed. (Toronto: Butterworths, 1994) at 101-03)
[87] I repeat that there is evidence that glass fab was used widely as a membrane sealant in Nova Scotia in 1985. Corkum said that he had used glass fab as a sealant on different projects but it had not been used as a sealant over the expansion joints. Accordingly, Byrne cannot rely on that standard to indicate that his decisions were non-negligent.
[88] The burden is not on Byrne to disprove negligence but rather on Hustins to show it. Fishburn testified that glass fab should never have been used as sealant on a parking deck at all. Harrington, who, though an architect, was not qualified as an expert, testified that glass fab should not have been used as a sealant in non-static conditions. Burke, who was qualified as an expert, testified that the expansion joint was under-designed for the materials used. Admittedly, he had not observed the construction detail of the expansion joints but Mason observed the manner in which the expansion joints had been constructed. Burke, who was qualified as an expert, testified that the expansion joint was under-designed for the materials used but in arriving at that conclusion he assumed that the glass fab dipped into the joint; however, there is no satisfactory evidence to support that assumption.
[89] Considering as a minimum Fishburn’s opinion, Byrne’s experience, the evidence on the use of glass fab in Nova Scotia in 1985 and the literature available on Bituthane 5000, I conclude Byrne’s direction to use glass fab on a dynamic surface podium deck with expansion joints was unreasonable and negligent. I find that directing the contractor to use glass fab in the field was not negligent. Apparently such a non-flexible membrane may bond properly to a static concrete slab to prevent leaks.
[90] However, the choice to apply such a membrane to the area at and around dynamic joints, as they were designed, was not made with sufficient care. Either the materials or the joint design needed to be modified to prevent leaks.
Design, supervision and construction of the joint-membrane system:
[91] One aspect of the other main issue is whether Byrne’s failure to properly supervise the placement of the waterproofing membrane was a breach of contract or negligent action.
[92] I am mindful of Mr. Byrne’s evidence that he was somewhat concerned about using Bituthane on the Sun Tower project as he had not placed it on a project before. He was confident in the ability of Corkum and Scotia Roofers to properly place 3-ply glass fab and asphalt. According to Byrne, both Corkum and Webber were very experienced contractors and had experienced workmen. Byrne did not provide any specifications for the placement of 3-ply glass fab and asphalt and relied on Corkum’s own knowledge and experience and that of their workmen. Corkum said that he, Webber and Harvey discussed the installation details on the job site. However, Byrne’s understanding of the lack of knowledge of Corkum and Webber with the placement of Bituthane 5000 was overcome by the fact Scotia Roofers’ workmen would perform adequately to compensate for any difference in the material being placed.
[93] Hustins decided to limit the supervision which Byrne would be required to do in Phase I. They had retained the services of Peter Evans as an assistant , as someone who would coordinate the project on Hustins’ behalf. In effect, Evans was Arthur Hustins’ “eyes and ears”.
[94] As a result, fees otherwise chargeable by Byrne for full inspection were reduced to account for the fact that only periodic supervision would be provided during the construction. Byrne had recommended a full-time inspector. Corkum thought that Evans was a full-time inspector and project coordinator on behalf of Hustins. Byrne, did not view Evans’ position other than as Hustins’ “eyes and ears”. He agreed that Evans owed no duty to Corkum or his firm or that Evans had a veto power over the work being done.
[95] Corkum said Michael Harvey was on the site on various occasions and was present when the 3-ply glass fab and asphalt was placed on the podium deck. Corkum maintains that he was present when the membrane was installed and particularly so when the expansion joints were completed.
[96] Harvey did not testify at the trial and therefore it is impossible to determine the extent of his inspection or the extent to which anyone on behalf of Byrne conducted these inspections.
[97] I find that Byrne’s contract required him to provide periodic inspection and administration of the project to monitor the quality and quantity of work performed. He had a duty to inspect the important aspects of the contract. I also find that the placement of the waterproofing membrane would be such a part of the contract which ought to have been carefully inspected. Byrne could not present evidence that these inspections were in fact carried out. Corkum said that Harvey did attend the construction site while the membrane was being installed in November-December, 1985.
[98] I am left without any basis to conclude that there was indeed adequate supervision of the application of the 3-ply glass fab. Periodic inspections, if properly done, would have avoided the problems which Hustins experienced after Phase I was completed. The two year warranty provided by W.R. Grace, the manufacturer of Bituthane 5000, was no longer available. By substituting glass fab for Bituthane, Byrne was taking away from Hustins a two year warranty and substituting a one year warranty available under the Corkum and Byrne contracts. I find that there was a duty on Byrne to properly inspect the installation of a substitute membrane. Certainly, there was no obligation on Scotia Roofers to provide an inspector nor do I conclude that there was an obligation on Corkum’s part to provide an inspector. As he said in his evidence, Byrne left it to the experience and knowledge of the contractor and subcontractor and their workmen.
[99] I infer that the lack of inspection contributed to the result noted in Brandy’s assessment of 1989. Caution ought to have been taken in the placement of the membrane on the podium deck, particularly the expansion joints. The installation of the membrane was left to Scotia Roofers and supervised by Corkum.
Failure to provide specifications:
[100] Scotia Roofers Limited had submitted a tender for the supply and installation of Bituthane 5000 and alternatively a quotation for the placement of 3-ply glass fab and asphalt to Corkum for the purpose of the latter submitting its bid for Phase I.
[101] George Brandys, in his letter to Byrne of March 8, 1989, stated that the water penetration through the expansion joint on Gridline 7 appears to have been caused by a defect in the waterproofing. However, in his letter to Evans on November 8, 1990, Byrne indicated that the joints in the reinforced concrete frame were properly designed and had been functioning properly for some years. I find that the failure to reveal the Brandys’ report to Hustins highly unusual.
[102] Byrne’s counsel in 1991 said that the design for the asphalt deck was made in accordance with all codes and was reviewed by Peter Evans prior to the work being carried out and in turn blamed Corkum for any problems with the expansion joints or the asphalt deck due to poor workmanship which should be taken up with the contractor, Corkum.
[103] Corkum maintained that the waterproofing under the asphalt on the podium deck and under the sidewalks and planters had been installed as per plans and specifications complete with expansion at the expansion joint and in a subsequent letter Corkum adopted the method followed by Scotia Roofing Contractors. I find that the only specifications provided to Corkum or Scotia Roofers were the Bituthane specifications and no other. As Corkum said, no plans or specifications were provided except what was prepared at the site.
[104] I find that the failure to provide specifications for the placement of the alternate 3-ply glass fab and asphalt was a breach of contract and also constituted negligence.
[105] The failure to provide specifications for the installation of glass fab leads to the inescapable conclusion that Byrne simply abandoned its responsibility when a major change was being effected. The product placed was inferior. The two year warranty was lost. The workmen did not have any special training or knowledge to place 3-ply glass fab on the podium deck or at the expansion joints. Therefore, it is difficult to rationalize how the waterproofing membrane, which was such an integral part of the project, was allowed to be placed without any specifications. Byrne’s argument that since it was the product of the day that there was no need to prepare specifications. I am not satisfied with such reasoning.
[106] Corkum also had an express obligation to meet the contractual specifications. Furthermore, a contractor has a duty to carry out the work contracted for in a good and workmanlike manner.
[107] Corkum installed the waterproofing membrane as authorized by the architect. Hustins’ argument is if Corkum is to rely on the architect’s authorization, then he must conform to the procedural requirements of the contract and furthermore any implied authority of the architect. Corkum argument is that as he was authorized by Byrne to made the change to glass fab and therefore he is absolved of any claim either in contract or in negligence. However, it must be remembered that Brandys found that the expansion joint waterproofing was defective and this was the cause of the leaks.
[108] Corkum did not have any specifications for the glass fab. He had prepared them on the site with Webber on a piece of wood sufficient large so that they would not be lost. The only specifications which had been provided to Corkum and likely Scotia Roofers were the Bituthane specifications. Because Webber had died and therefore was not available to testify at the trial, I admitted two letters authored by him for the truth of their contents. The first letter was written prior to any contemplation of any litigation and the second is substantially confirmatory of the first. In those two letters to Corkum, Webber confirmed that the glass fab had been installed in a manner similar to those specifications. It is clear from the evidence that such an installation would indeed lead to a great deal of leaking along the expansion joints as the glass fab did not have the properties to re-seal itself. It is evident that Corkum did not have any plans and specifications as suggested in his letter to Mr. MacIsaac for glass fab but plans and specifications for the original membrane. Corkum was aware of the brittleness of glass fab in cold weather when it was placed on a dynamic surface. The leaks at the expansion joints were evident in 1989 to Brandys when he was at the site.
[109] Although the doctrine of res ipsa loquitur has been laid to rest by the Supreme Court of Canada in Fontaine v. Insurance Corporation of British Columbia, [1998] 1 S.C.R. 424, in a recent article presented to the Atlantic Court seminar in November 1999, Dean Lewis Klar of the University of Alberta Faculty of Law noted the state of the law after Major J.’s decision in Fontaine:
i. circumstantial evidence can be used with or without direct evidence to discharge a plaintiff’s primary burden of proving that the defendant was negligent and that this negligence caused the plaintiff’s injury;
ii a defendant need only neutralize or negative the inference with evidence that explains the occurrence of the injury without the defendant’s negligence;
iii if a trial is before a jury, it is up to the jury to determine whether the plaintiff’s evidence gives rise to an inference of negligence and if it does whether the defendant’s evidence has negatived this inference...
The judgment in Fontaine v. Loewen reaffirmed that the maxim res ipsa loquitur allows fact finders to find for the plaintiff based on indirect or circumstantial evidence. This is not something new or revolutionary. The most important contribution of the judgment is Major J.’s call for the end to the use of the phrase res ipsa loquitur.
[110] I would infer from Corkum’s report that the manner in which the expansion joint had been constructed was not fit for the purpose. Brandys was part of the Byrne team for the Sun Tower project and he was reporting a defect in the construction. Clearly, there cannot be better evidence to allow me to conclude that Corkum breached its contract with Hustins to build a project which would be fit for the purpose. This was within four years of the installation of the expansion joints. I have also determined that Corkum was negligent in permitting Scotia Roofers to install the glass fab over the expansion joints and being satisfied that the only additional precaution which Scotia Roofers took was to add the FR-40 membrane and rope over the expansion joints.
[111] Quite apart from the Brandys letter, I would have inferred that the leaks occurring at the expansion joints to the extent they were in 1991, 1992 and 1993 could only have occurred as a result of the failure of Corkum to perform its work in accordance with the contract. On that basis alone, I am satisfied that the defendants have not displaced the burden on them to show that the leaks which occurred particularly at the expansion joints were leaks which would not have occurred but for their negligent construction. Regardless of what design was used or what competence was shown in construction, it is clearly evident that the system was not preventing leaks into the podium deck.
Drains:
[112] Corkum stated that there were no specifications provided by Byrne for the drains. In fact, Byrne had not provided for any drains at all in the design of the podium deck. Although Byrne said that he did not believe planters were included in the design, it is apparent that this is not the case upon the review of the plans and specifications. Nonetheless, Byrne did not provide the specifications or drawings for the drains. Corkum was on its own and placed a number of drains in the planters around the perimeter of the building at a level to maintain water in the planters at all times. Corkum said he made this decision without consulting either Byrne or Hustins. Hustins determined it to be necessary to drill holes into the concrete slab to drain the water from the planters. The complaint from Hustins was that there was such a collection of water in the planters from a number of sources, such as rain water and water from the deck, that it was necessary to drill these holes to remove the water. In fact, in some instances, it was necessary to use a sump pump to remove the water. This abundance of water and the level of the drains made it necessary to drill holes in the waterproofing membrane. Harvey Hustins’ decision to drill holes in the planters was also driven by the need to remove the water in order to rectify the leaks. I will deal with the consequence of Hustins’s action in drilling holes in the membrane later. However, there is no dispute from any witness that the drains in the planters were not even to the floor of the planters.
[113] Fishburn concluded that the level of the drains contributed to the presence of water in the planters at all times. He also concluded that drains, as installed, were not designed for, and has not been designed or installed at a level to provide for positive drainage. In addition, Fishburn found that the aluminum drains had corroded and it would have been preferable to install stainless steel drains.
[114] Fishburn concluded that the object of the drains in the planters was to remove water from within the planters rather than to act as means of feeding the plants as Corkum had concluded.
[115] I find that there was a duty on Byrne to provide specifications for the installation of the drains in the planters and the failure to do so a breach of contract and negligence. I do not accept Byrne’s evidence that he did not believe that the planters were included in the design. The drains were certainly included as an extra for which Corkum was paid.
[116] I also find that there was a duty to install a type of drain which would withstand corrosion and as well that they would be placed as such a level as to properly drain the water from the planters. Maintaining water in the planters was contributing to the leaks in the planters. This failure on the part of Corkum to attend to a proper installation of the drains constitutes a breach of contract and negligence.
Calculation of damages:
[117] The defendants rightly point out that a breach of a provision of a contract alone does not give a right in damages for replacement. A breach may be “technical” without any actual damage or requiring any repair. In such a case the Plaintiff should receive only nominal damages. For example, in Ruxley Electronics and Construction Ltd. v. Forsyth, [1995] 3 All E.R. 268 (H.L.), the defendant failed to construct a swimming pool to the depth specified in the contract. It was still perfectly useable as a swimming pool, the purpose for which it had been constructed. The owner did not receive damages sufficient to tear up the pool and rebuild it to the specified depth though he did receive an award for loss of amenities.
[118] I find that here, however, the substitution of membranes constituted a breach that was far more than merely technical. To illustrate I would turn to a clause in the contract between Hustins and Corkum.
14.12 As of the date of Total Performance of the Work, as set out in the certificate of Total Performance of the Work, the Owner expressly waives and releases the Contractor form all claims against the Contractor including, without limitation those that might arise from the negligence or breach of contract by the Contractor except one or more of the following:
(a) those made in writing prior to the date of Total Performance of the Work and is still unsettled;
(b) those arising from the provisions of GC 19 - INDEMNIFICATION or GC 24 - WARRANTY;
In the Common Law Provinces GC 14.12(c) shall read as follows:
(c) those made in writing within a period of six years from the date of Substantial Performance of the Work, as set out in the certificate of Substantial Performance of the Work, or within such shorter period as may be prescribed by any limitation stature of the province or territory of the Place of the Work and arising from any liability of the Contractor for damages resulting from his performance of the Contract with respect to substantial defects or deficiencies in the Work for which the Contractor is proven responsible.
As used herein “substantial defects or deficiencies” means those defects or deficiencies in the work which affect the work to such an extent or in such a manner that a significant part or the whole of the work is unfit for the purpose intended by the Contract Documents. Though it is in a contract not applicable against the architect, the final sentence in this provision is helpful in defining the effect of the breach of contract. There was a contract to provide a waterproof membrane over a cement slab and expansion joints of a parking deck. I agree that the concrete and joints provided were substantially what was specified in the contract documents. Cars could be driven and parked on the slab and the joint would allow thermal expansion of the deck. Their purpose was substantially met.
[119] I find a membrane is applied to prevent water and electrolytes from leaking into and damaging the concrete structure or vehicles below. When it fails to stop water from entering the concrete, it is not merely substantially, but completely unfit for the purpose for which it was intended.
[120] In the field, the membrane worked as it should have. It prevented leaks. Though Fishburn’s report indicated that there were some leaks in the field in 1996, I am unwilling to find that these arose only as a result of the membrane substitution. Bituthane itself has a lifespan of only 20 years and these leaks were evident only upon close inspection after 11 years. The membrane may have been affected by the wearing of the surface asphalt by traffic or the elements. Moreover, there is evidence to indicate that the glass fab was properly bonded to the concrete in the field, acted as a seal, and protected the concrete from the elements, with the exception of the areas observed by Mason in 1991 and Fishburn in 1996. In this aspect, there was no resulting harm, damage, or consequential loss for this substitution. Accordingly, I would grant only token or nominal damages for the use of glass fab in the field, apart from the need to repair the field membrane and to add to the number of drains.
[121] The same cannot be said for application of glass fab to the expansion joints. Very early in the use of building, it was evident even to non-experts that there were leaks along the expansion joints into the concrete. Even Fishburn’s preliminary examination showed major leaks along the joints or in the planters. I am prepared to find on all the evidence that, given the construction of the joint in 1985, the use of Bituthane or some other rubberized stretching material would have prevented these leaks along the expansion joint. I find that the original specifications for bituthane provided for the membrane to placed across the expansion joint, with an additional layer placed over the Bituthane at the expansion joint. Thus, the substitution of glass fab resulted in more than a mere technical breach of the contract. Webber said that in placing the glass fab in the field and expansion joints, they had added a 12 inch piece of FR-40 rubberized membrane with a piece of polyethylene rope over the expansion joints. I do not accept Harrington’s evidence as confirming Corkum’s evidence that the expansion joints were completed as Corkum testified. When the glass fab fractured over the years, I find there was direct resulting damage to the concrete and corrosion of steel that required repairs and replacement. Hustins is entitled to damages that would put him in a position in which he would have been had the contract been fulfilled.
[122] Before proceeding into a calculation of damages for this breach, I would make one further point. The use of glass fab was not strictly inappropriate for the field but was inappropriate for the expansion joint. Rather than replace only the membrane on the joint, Fishburn decided that the entire membrane had to be replaced as it was failing all over. Most of such failure must be attributable to the passage of time. I am not satisfied that the existing field membrane could not be “married” or bonded to a rubberized membrane for the joint. This would have been the appropriate method to remedy the leakage without incurring unwarranted expenses. Damages sufficient to replace the field membrane are inappropriate as such replacement is clearly betterment of the entire parking deck surface.
Award:
[123] Based on the above analysis, Hustins is entitled to recover for the cost of work for repairs carried out by J. Mason Contracting and by Parker Brothers in 1992, the amount expended in 1993 for the repairs carried out by Parker Brothers and Bradshaw Woodworth and related work, and a portion of the repairs carried out by Duron Atlantic Limited in 1999. This is subject to the following considerations.
1. Intervening Acts:
[124] The defendants submit that Hustins, by attempting several efforts of remedying the leaks at the expansion joints and in the planters intervened and thereby released the defendants from any liability or obligation for the ensuing cost of repairs. In support of this argument, the defendants refer to the Supreme Court of Canada case of Brown & Root Ltd. and Chimo Shipping Ltd., [1967] S.C.R. 642. That case, however, did not deal with an attempt to rectify a problem caused by the defendants but rather by an act taken by the plaintiff’s representative who undertook a course of action which made the situation worse and assumed a greater responsibility than what the defendants had committed themselves to. I do not find this case helpful to the defendants’ position. The acts of retaining
J. Mason Contracting, Harvey Freeman, Parker Brothers, Bradshaw Woodworth, Kevin Burke and Douglas Fishburn and others were attempts to deal with the problems of the podium deck leaks. The defendants had refused to attend at the site and carry out any inspection, let alone offer any meaningful suggestions as to the method to follow in correcting the leaks. It was reasonable for Hustins, once it became known that the defendants were, for reasons which I do not find compelling, relying on their performance of their contracts, Hustins was in a no-win situation. It had the choice either to allow the leaks to continue and possibly worsen or to attempt to correct them. Had it not taken any positive steps to correct the apparent leaks, Hustins would have been, in fact, failing to mitigate. If, by reason of leaks, the structural steel and concrete slab had deteriorated, then the entire slab possibly would required replacement. If that in fact had occurred, the defendants would have been in a strong position to argue that Hustins had not taken steps to mitigate its loss.
2. Foreseeability:
[125] In their post-trial submission, the defendants argue that, following the case of Hadley v. Baxendale (1854), [1843-60] All E.R. 461 (Ex. Ct.), the damages respecting the repairs to the membrane were too remote to be compensable. That is, at the time they entered into the contracts with Hustins, neither Byrne nor Corkum could have foreseen or reasonably contemplated that the loss for which Hustins claims compensation. In Hadley, supra, at p. 465:
Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.
[126] The question then becomes - was it in the contemplation of the parties that if, as Brandys found, that there was a defect in waterproofing in 1989, that Hustins would have to take steps to mitigate its loss?
[127] The attempts to repair the membrane either in the podium deck itself or in the planters, despite the fact that they were repeated, is not a bar to recovery. I do not agree that the only point in contemplation would be cost the repair defects in membrane such as a defect caused by a shovel piercing the planter membrane and repaired by Corkum in 1987.
[128] The defendants claimed that it was not reasonably foreseeable that defects would have been repaired over and over again. The failure to specify Bituthane or a superior product to glass fab triggered the need for repairs and, provided such attempts were reasonable, Hustins should be entitled to recover for those repairs subject to any issue of contributory negligence or mitigation.
[129] The fact that the repairs effected by Mason, Parker Brothers and others did not work, is not in and of itself a bar to recovery. The real question is whether these were reasonable efforts or not.
[130] The decision of Hallett J., as he then was, in Municipal Spraying v. National Harbour Board et al (1979), 38 N.S.R. (2d) 39 (T.D.) is not helpful either to the defendants. In that instance, the contractor contracted with the defendant to install a concrete joint sealer. The sealant used by the contractor did not meet the contract specifications, however, an engineering firm hired by the defendant initially approved the sealer. After construction began, the engineer told the contractor that the sealer was unfit for the work. The plaintiff, although undertaking to have the sealant tested, failed to do so and continued to apply it. The sealant, as used, did not perform satisfactorily and it was later necessary to replace all of the sealant. In a suit against the various parties the plaintiff was successful against the supplier for breach of contract. However, because the plaintiff continued to use the product after a warning, it could not recover the entire cost of its removal and replacement. Hallett J. stated at page 67:
In my opinion, a company in Uniroyal’s position, supplying a sealant to specification, ought to contemplate that if the product failed to meet the specification and consequently failed on installation, it would be necessary for the contractor who purchased the product to remove the defective sealant and replace it with one meeting the specification or be liable in an action for damages...
[131] The Municipal Spraying case is inapplicable because the defendants, Byrne and Corkum, did not supply what the plaintiff wanted and what had been specified in the original specifications, nor were they given any interim approval of its use.
[132] I do not share the defendants’ position that the failure of the remedial efforts carried out at the plaintiff’s direction were clearly intervening acts which relieved them from responsibility. They were reasonable efforts to deal with a worsening situation. The defendants were invited in 1991 to attend the site and inspect the problem area. They declined to do so. Hustins decision to proceed with the repair efforts were not intervening acts as repairs to the expansion joints would have been in the reasonable contemplation of the parties or reasonably foreseeable.
[133] H. Pitch and R. Snyder in Damages for Breach of Contract, 2nd. ed. looseleaf (Toronto: Carswell, 2000) describe the situation at page 7-22:
...on some occasions loss may result from the breach of contract and partly from the actions of a third party or the occurrence of a supervening event. Where that occurs, the party in breach is nevertheless liable for the loss if the parties to the contract at the time of contracting could reasonably have contemplated the likelihood of that third party’s act occurring.
3. Mitigation:
[134] Although there is a duty to mitigate, not all steps taken by the plaintiff will necessarily be subject to compensation. The question therefore is whether the steps taken by the plaintiff are reasonable. G.H.L. Fridman in The Law of Contract in Canada, 4th ed. (Scarborough, Ont.; Carswell, 1999) states at page 824:
The plaintiff is not obliged to act unreasonably, in order to reduce the damages otherwise payable by the defendant....Nor will what he does, even if it results in some mitigation of his loss, assist the defendant if it is not done as a consequence of the breach and it is to regarded as a reasonable and prudent course arising naturally out of the circumstances in which the plaintiff was placed by the breach. In other words, the reasonable conduct of the plaintiff must be attributable to the breach. It must not be something which might, or would have happened in any event, and so it is to be treated as res inter alios acta....
Mitigation principles, it has been said, are closely related to remoteness, and, it might be added, to causation. In relation to all three ideas, the essential ingredient seems to be foresight. Conduct that ought to be taken by the plaintiff must be foreseeable and therefore reasonably to be expected from the plaintiff, if it is to constituted mitigation....
[135] There was a duty on Hustins to repair damages and thereby to take steps to mitigate or minimize the extent of the loss. In H. Wise, Manual of Construction Law (Toronto: Carswell, looseleaf, 1998 - release 2) at p. 3-38:
One of the fundamental principles in relation to damages is that the plaintiff has a duty to take whatever steps to limit their damages and if they do not, they are disentitled from obtaining any damages which may have been avoided.
[136] In the text, Damages for Breach of Contract, supra, the basic principle of mitigation at page 8-1 is defined as follows:
The basic principle that a wronged party will be compensated for all pecuniary losses naturally flowing from a breach of contract is subject to the qualification that the innocent party must take all reasonable steps to prevent further losses once aware of the breach. The defendant cannot be called upon to compensate a wronged plaintiff for losses which the plaintiff’s reasonable steps might have prevented. Thus, the law imposes upon the plaintiff an obligation to ‘”mitigate”, or limit losses.
[137] The courts have been generally favourable to the plaintiff regarding steps taken to mitigate any damages. Obviously, if the plaintiff fails to take any steps to mitigate then the amount of damages awarded would be reduced by the amount of the loss which could have been avoided.
[138] Having determined that there is an obligation to mitigate, the next question to be determined is the following: What are the reasonable expenses which the plaintiff is entitled to recover from the defendants in effecting repairs?
[139] At page 8-9 of the same text:
All reasonable expenses incurred by the plaintiff in mitigating damages are recoverable from the defendant., The court has taken a wide view of what constitutes reasonable expenses. They may include, inter alia the expenses of reselling goods or repairing defective equipment, legal and accountants’ fees and other professional fees.
[140] To determine whether or not the plaintiff has taken reasonable steps to mitigate its loss, it is the plaintiff’s action, or in this case Hustins’ action on the basis of the facts which existed when, indeed, the contract was breached. Therefore, it is not at the time when the contract was entered into but rather at the time that these leaks occurred. It must be remembered that Hustins told Mason to carry out reasonable repairs but keeping in mind that cost was an important factor. In 1991, Mason carried out what they believed was reasonable repairs. In the decision Probe v. Comfort Mechanical Ltd. (1998), 40 C.L.R. (2d) 249 (Sask. Q.B.) the plaintiff had entered into a contract with the defendant to supply and install a new heating plant in its building and to reconnect the plant to an existing distribution system. The new system failed to heat the building properly. Attempts were made by the plaintiff to remedy the problem on numerous occasions and the plaintiff also had retained experts to offer corrective measures.
[141] At page 252, the Court stated:
... the plaintiffs made numerous expenditures in an attempt to rectify the heating problem in their building. Acting on advice of plumbers, electricians and Brian Hooker, an expert in the field of design, insulation and maintenance of steam heating systems, the plaintiffs replaced, modified and repaired various parts of the heating system with little or no effect on the problem. The plaintiffs claimed for the amount of these expenditures. The expenditures were wasted because they did not correct the problem; however, wasted expenditures reasonably incurred are recoverable as damages. (emphasis added)
[142] The decision of the Appellate Division of the Alberta Supreme Court in Sunnyside Greenhouses Ltd. v. Golden West Seeds Ltd. (1972), 27 D.L.R. (3d) 434 was summarized as:
Where a seller, in breach of warranty, supplies goods that are unfit for the buyer’s purpose, the buyer of goods is entitled to recover against the seller of goods. The purchase price of the goods reduced by the actual value of the goods to the buyer; the wasted cost of installing the defective goods; interest on a sum equal to the cost of removing the defective goods earlier than anticipated, and the los of profits caused by the defective goods subject to the buyer’s duty to mitigate his losses. (emphasis added)
[143] I have determined that the failure of Freeman to take the additional steps to obtain confirmation that the Koch joint system and Carlisle joint system would properly adhere to each other contributed to the inadequacy of the remedial effort. Hartling had been asked to obtain written confirmation from both manufacturers. Fishburn observed the leaks at the junction of the membranes at Gridlines 3C and 3G and 7C and 7G among other leaks. Freeman was not familiar with the Koch joint system at all, yet proceeded to marry this membrane with the other membranes. Such unfamiliarity ought to have sounded an alarm. I am mindful that Burke did not know if the Koch system would bond to the existing waterproofing membrane in the field and also took no steps to ascertain this. Fishburn observed significant leaks on the expansion joint at all of the four joints. Therefore, it is clear that the failure to properly obtain confirmation of suitability of the membranes is a factor which must be taken into account.
[144] The failure by Freeman to re-set the level of the drains in the planters on Gridline 7 also contributed to Hustins experiencing further leaks. Freeman observed the drains and they above the membrane level. He had an opportunity to lower them and yet took no steps to do so. Fishburn addressed the level of the drains in the planter at Gridline 7 as contributing to the leaks. I find as a fact that such failure by Freeman was a failure to mitigate the loss.
[145] I have also found that Hustins’s decision to undertake repairs to the plenum under the first floor while the waterproofing membrane on the vertical wall was not properly bonded is not proper mitigation. The evidence is clear and convincing that water in the planters was getting behind the cantstrip and leaking to the lower parking deck and into the plenum. Hustins ought to have taken the necessary steps to repair the source of the leaks, even on a temporary basis, before undertaking such repairs such as those it made to the plenum in 1992. In addition, Hustins undertook repairs to the plenum in January 1997. These repairs were undertaken within a few months after Fishburn’s visit to the site when he had observed leaks along Gridline 7 . Repairs to the plenum ought to have followed attempts at further repairs of the expansion joints and the waterproofing membrane in the planters.
4. Betterment:
[146] The award must also reflect the fact that, notwithstanding that the membrane-joint system failed, the plaintiff installed an entirely new system with an anticipated lifespan of 20 years. That is, his position was improved or bettered. The authors of Damages for Breach of Contract, supra describe the situation at
2-3(c)(i):
The issue of betterment arises in situations where the court adopts the “cost of performance” test and awards the cost of carrying out the repairs or, in the extreme, awards an amount sufficient to rebuild a defective structure. As a result of the repair of replacement of the damaged product or building, the plaintiff will receive a new product or building which will have a greater value than that which existed prior to the damage being sustained. The court, therefore, must decide whether to factor the “betterment” into the calculation of damages and reduce the damage award accordingly.
For example, a plaintiff employing the use of a machine in the manufacturing business may anticipate the machine’s life expectancy to be twenty-five years. If, as a result of a breach of contract (or tort), the plaintiff is required to replace that machine after twelve and one-half years, he or she will then be possessed of a new machine that has a life expectancy of twenty-five years, double the life expectancy of the machine in the plaintiff’s possession at the time of the breach. In another example, a roof on a commercial building is expected to have a lifespan of ten years. After four years, as a result of negligent construction, that roof must be replaced. The new roof, when installed, will have a new life span of ten years. As a result, the plaintiff will have received a “betterment” consisting of a new roof which will last an additional four years.
[147] They continue at 2-3(c)(ii):
In the example provided earlier, it can readily be seen that unless betterment is taken into account, the plaintiff will end up with a new roof or rotor, all at the defendants’ expense. This would conflict with he basic principle of contract and tort law that the plaintiff is entitled to the recovery only of his or her losses. The authors proceed describe the two stage method used in Ontario as introduced in North York (City) v. Kent Chemical Industries Inc. (1985) 33 C.C.L.T. 184 (Ont. H.C.) to calculate the amount of betterment by which a replacement award will be reduced. I have found no authority that suggests such a method has been adopted in Nova Scotia. The approach used in this province is well illustrated by the case of Dartmouth (City) v. Acres Consulting et al. (1995), 138 N.S.R. (2d) 81 (S.C.).
In that case, the plaintiffs contracted with the defendants in 1979 to construct a roof over a pedway to a ferry terminal for $35,000. The roof had an anticipated lifespan of 15 years. Leaks were reported in 1985 and it was discovered during repairs in 1986 that there was extensive rot throughout the entire roof system all of which had to be replaced at a cost of $ 135,000. Grant J. found the defendants had been negligent in the roof construction and ordered them to pay for the new system. He reduced the award by $17,000, approximately half the value of the original roof. This value was used because the old roof served its function for approximately half of its anticipated lifespan. The remaining award was reduced by 20% because the new roof was substantially superior to the old one.
[148] In this case, the entire waterproofing membrane was replaced in 1999. I have already indicated why I am not prepared to award damages for the membrane that was placed away from the expansion joints. Though there was some evidence of leaks through this membrane 13 years after its application, these leaks were not of a nature that indicated the membrane had substantially failed in its purpose.
[149] This leaves the matter of the membrane on and near the expansion joints. Over the years of repairs, the membrane has been removed, replaced and modified several times. Had the requested membrane and joint system been properly placed as specified, the membrane would have lasted approximately 20 years. There were no leakings into the deck for approximately 5 years and the plaintiff had the use of the membrane for that period. Following the authority of Dartmouth v. Acres Consulting, supra, I do not believe that the plaintiff should not receive the benefit of a new membrane without deduction. Accordingly, the award for the replacement membrane shall be reduced by 25% based on the 5 years of use the plaintiff had of the original system.
[150] Nonetheless, the plaintiff is still entitled to damages for the work it was required to carry out in order to correct the damage to the deck structure from the failure of the membrane and joint structure.
5. Contributory Negligence:
[151] Although I have found that Hustins is entitled to recover damages for the breach of contract and the negligent conduct of Byrne and Corkum in the substitution of the membrane and its installation, I still have to consider the issue of contributory negligence.
[152] In The Law of Contract, supra, the author states at page 799:
There is no doubt that the conduct of the plaintiff after he has suffered from breach of contract is material in assessing the ultimate damages payable to him by the defendant. The plaintiff is under a duty to mitigate his damage. However, the relevance of the plaintiff’s conduct before, or at the same time as the breach of contract is more questionable. The issue involved is the consideration of the extent to which, if at all, any negligence by the plaintiff himself, the effect of which was to contribute towards causing the damage that he incurred as a consequence of the breach, can be taken into account by “quantifying or assessing his damages”. Can there be apportionment between the parties in an action for breach of contract in the same manner as there may now be such apportionment between the plaintiff and defendant in actions in tort as a result of statutory provisions which have altered the original common law?..
[153] It is my view that Hustins is still liable to account for any negligent conduct for which they are responsible regardless if the finding is for breach of contract or in negligence. The provisions of the Contributory Negligence Act, R.S.N.S. 1989, c. 95 are applicable to this case where the finding was in negligence. I am unable to appreciate the reason why it ought not be applied in this case.
[154] In the text, Damages for Breach of Contract, supra, at para. 9-2
The basic concept of contributory negligence is that a plaintiff who has contributed to the cause of a loss must bear responsibility on the liability issue in direct proportion to the responsibility in causation, or fault. As the name implies, the concept is most often applied to tort law. However, there is no strong theoretical argument which justifies a refusal to apply the concept to contract law. The underlying principle is equally properly applicable to contract law.
[155] I also refer to the dissenting judgment of Pigeon J., in Smith et al. v. McInnis et al., [1978] 2 S.C.R. 1357 where he stated at page 1380 referring to s. 1 of the Contributory Negligence Act:
It appears to me that the use of the word “fault” in the Contributory Negligence Act is evidence of the origin of the rule and of the intention to adopt a civil law principle with respect to the division of liability in proportion to the respective degrees of fault in all cases.
[156] In Finance America Realty Ltd. v. Speed and Speed (1980), 38 N.S.R. (2d) 374 (S.C.A.D.) the principle of contributory negligence was applied in a contract action and the plaintiff’s claim was reduced by one-half.
[157] I have already found that there were leaks in the podium deck from 1990 until 1999. Although there were some leaks in the field of the podium deck, the substantial majority of the expenses, prior to the replacement of the waterproofing membrane, arose from the attempts to correct the leaks occurring at the expansion joints and in the planters. I have already determined that the drains in the planters were improperly installed by Corkum and these contributed to the continual presence of water in the planters. I find that Hustins did not act in an appropriate manner to discharge the water from the planters. Harvey Hustins’ action in drilling holes through the protection board, waterproofing membrane and the concrete slab contributed to the damage to the waterproofing membrane. He caused holes to be drilled either in the planters along the expansion joints or adjacent to the planters to remove the accumulation of water. His first holes were drilled in 1991 or 1992 at Gridline 7C and Gridline 3C. The purpose was to remove the water to get a good bottom to permit work to be carried out in the planters. The water was accumulating and the drains were too high and it was impossible to remove the water. The holes were subsequently repaired with hot asphalt and emulsion and these repairs corrected any leaks resulting from the drilled holes. Drilling was repeated from 1992 to at least 1996 on an off and on basis. He mentioned this to Evans and others and Byrne and Corkum also said that they observed holes in the waterproofing membrane at the four corners of the building.
[158] Hustins’ decision to drill holes in the planters affected the integrity of the waterproofing membrane at those locations. Freeman, Fishburn and Byrne testified to this. There is no evidence to establish that once the holes in question were drilled through the waterproofing membrane and protection board that effectiveness of the membrane had not been interfered with at those specific locations. However, there was no evidence to support the contention advanced on behalf of the defendants that drilling of the holes would be detrimental to the entire waterproofing membrane.
[159] Harvey Hustins made the decision to drill these holes on his own. He did not seek any guidance or assistance. He did not determine if other options were available to remove the water.
[160] I find that Hustins’ action contributed to the ongoing leaks in the lower parking deck. The failure of Hustins to seek alternative measures to remove the water and obtain a dry bottom contributed as well to the leaks. The drains placed by Corkum were not adequate to remove the water from the planters. However, steps taken by Hustins to deal with these inefficient drains contributed to the leaks, and does not in any way permit Hustins to deflect its share of the responsibility on Corkum and Byrne.
[161] I find Hustins 15% responsible for the cost of repairs carried on in 1993 and 1999 including the costs of repairs to the membrane in 1993 and in 1999.
6. Division of Liability between Byrne and Corkum:
[162] I find Byrne to be responsible for 70% of the resulting award for the deck matters and Corkum responsible for the remaining 30%.
Other Claims:
Insulation Underneath First Floor:
[163] Hustins claims for the costs of adding insulation underneath the first floor. As originally designed by Byrne, the insulation was a sprayed-on version.
[164] The building was exposed to the full force of the northerly winds common at that location. Furthermore, the walls on the northern and western sides of the parking garage were open and the garage itself was unheated. These factors meant that the first floor was particularly affected by low external temperatures and other environmental factors.
[165] The entire first floor of the Sun Tower building is leased to the Province of Nova Scotia for a Provincial Courthouse facility. In the winter months of 1986-1987 Hustins received numerous complaints from the staff that the office floor was cold and that there was insufficient insulation under the first floor office, particularly in the northwest corner of the building between Gridlines 6 and 7 and C and D. Harvey Hustins said that if there was a change in the outside temperature that the podium deck slab would also be affected.
[166] Attempts were made to change the thermostats to attempt to control the interior heating. Morris and Richard attended at the site to investigate the complaints and made a number of recommendations. In the letter of January 5, 1987 they recommended a number of improvements and recorded that the floor temperature in the courtroom lobby was 72° Fahrenheit while the general space temperature was 76° Fahrenheit. Byrne wrote to Evans outlining various options including adding insulation under the entire first floor. Hustins elected to add the insulation to a portion of the first floor, particularly, the area between Gridlines 6 and 7 and C and E. A second phase of additional insulation was added which covered Gridlines F and G. Hustins stated that once the insulation was added, complaints from the court staff ceased.
[167] Byrne maintains that as he was not involved in doing any spatial analysis and consequently was unaware which tenant would be occupying the first floor. Byrne also suggested that the sprayed-on insulation, underlay and carpet constituted a R14 factor and this would provide ample insulation sufficient to deal with any insulation issue. In a letter to Evans dated November 8, 1990 Byrne suggested that the reason that insulation had not been added was due to economic constraints.
[168] At a meeting held February 22, 1988, and attended by a number of key players in the project, Byrne accepted some responsibility for the inadequacy of the heat on the first floor and had agreed to assume that responsibility and further to investigate wind conditions in the parking area to see if cooling on the slab could be reduced by some sort of wind deflector thereby reducing the chill factor of the garage. At trial, Byrne said the minutes of the meeting were circulated and he had an opportunity to review them and the minutes do not reflect his understanding of what he had committed to do. Byrne believed that Hustins had a very demanding tenant and that he was prepared to assist and deal with that issue as a goodwill measure, but did he not feel it had a legal obligation to meet the cost of additional insulation.
[169] Byrne added that if he had been made aware of the use of the first floor for general office administration or courthouse facilities, the design would have provided for additional insulation, however, Hustins would have had to meet such expense.
[170] The question is whether the inclusion of such insulation was part of the original contract. In The Canadian Law of Architecture and Engineering, supra, the learned authors state at pages 65-66:
The general presumption is that the parties have expressed every material term that they intended should govern their agreement. But it is recognized that there may be cases where a term must be implied if the intention of the parties is not to be defeated.
Terms based on the intention of the intentions of the parties may be implied only if the court concludes that the parties actually intended them and would clearly have agreed to them if they had considered the matter at the time of making the contract, and that they are necessary to give the contract business efficacy. The court’s function is not to make a contract for the partied; rather it is to interpret and apply the contract which the parties have made for themselves. The implication must arise inevitably and give effect to the intention of the parties. On the other hand, provided that the real intentions of the parties can be collected from the language of the contact, the court must give effect to those intentions by supplying anything necessarily to be inferred and rejecting whatever is repugnant to those intentions....
...Extrinsic evidence may be received on the question of what would be a reasonable term to impose in place of the parties’ express agreement.
[171] Byrne was to design a building which it knew would be used for office space. It is reasonable to anticipate, and, in fact, unreasonable not to expect, that the tenants of this office space would require a certain constant temperature for a proper office environment. I would find that it was an implicit term of the contract that the design should allow for a constant adequate ambient temperature on all floors of the building. Moreover, I accept that Hustins was explicit in indicating to Byrne that the wind from the Sackville River, especially during the winter when it was frozen, was an important factor that he should consider when making his design. Hustins wanted a building that would weather the river wind. The design and construction should have reflected this.
[172] Byrne has suggested that it would have adjusted the construction contract price to accommodate the extra insulation and thus it should not be responsible for the cost of their subsequent installation. That is, Hustins would have been responsible for their cost had they been used originally; thus it should be responsible for the cost of their subsequent installation. This argument ignores the fact that Hustins contracted for an office building in a specific location at a specific price. As described above, this building should have been properly insulated. If it would have cost more to finish the building with such modifications originally, then an adjustment to the price should have been included by Byrne at the making of the contract. I would find that it was understood to be part of the contract that, for the final price, the building would have properly insulated floors. Any unanticipated costs to the architect to complete this part of the construction are his responsibility alone unless the contract otherwise provides for an adjustment to the total contract price. Accordingly, Byrne cannot claim for the cost of these subsequent corrections.
[173] Byrne suggests that no award of damages should be made for this additional insulation since Hustins would have paid for this if it had it been incorporated in the original design. There is no evidence to establish that the costs of adding insulation after completion of Phase I would be either equal to or more costly than if originally placed. Hustins had previously paid for the cost of the sprayed-on insulation. I am not aware of the cost involved in spraying insulation as against the cost of placing insulation and gyprock.
[174] Not having such evidence before me, I am not prepared to conclude that the cost of placing this insulation would have been more costly than the cost of sprayed-on insulation. It is possible that Corkum’s tender or other tenders submitted for Phase I would not have shown any appreciable increase in the tender price on account of the additional insulation.
[175] Alternatively, Hustins claims that such design was negligent and that he was entitled to be put in the position in which he would have found himself had there been no negligence.
[176] At pages 111-12 of The Canadian Law of Architecture and Engineering, supra, the authors state:
As stated earlier, the basic duty of architects or engineers in all their work is to use the reasonable care and skill of such persons of ordinary competence, measured by the professional standard of the time. If they fail to do so, they will be found negligent and liable to pay damages to the project owner. Additionally, if the error renders the design useless, the owner may not be obliged to pay their fee. The question of whether reasonable skill, care and diligence have been applied is one of fact, depending largely on prevailing professional standards. However, architects or engineers may bind themselves to a higher standard of care by their contracts, either expressly or impliedly. Thus, in certain circumstances a term may be implied that the building or work designed will be reasonably suitable for the intended purpose.
[177] I have already found that Hustins made Byrne aware of the specific conditions common at the site. Specifically, Byrne knew that cold winds would come up from the river to the building site. Thus, the question is no longer what measures the reasonably competent architect with the knowledge and standards of the day in Nova Scotia would have taken. Rather, having been made aware of the particular circumstances at that site and the conditions to which the building would be subject, Byrne should have changed its design to account for them. In this aspect, I find it was negligent. Accordingly, Byrne is responsible to put Hustins where it would have been had there been no negligent design.
[178] I assess the damages as the cost of placing the additional insulation and related work, including the cost of building a plenum and necessary painting and other costs
Thickness of Concrete in Lower Parking Deck:
[179] As previously stated, Sun Tower has two parking levels, one of which is the unheated lower parking garage that is substantially open on two sides. The floor of the parking deck is a concrete slab on grade, that is, a slab built on a bed of compacted soil and gravel. When the Sackville River floods its banks, the water floods the lower parking deck. Hustins engaged Wesley Campbell to investigate the condition of the slab in the lower parking deck between Gridlines A and B and 1 to 10. Mr. Campbell, a professional engineer, was qualified as an expert in field of structural engineering and his report was admitted as an expert report. At Campbell’s request, a series of cores of this area were taken by Jacques Whitford to determine the presence of wire mesh and structural steel and the thickness of the concrete.
[180] As originally designed by Byrne, the concrete slab was to be 4 inches in thickness. Due to changes in the outside walls along the southern and western side of Sun Tower, the thickness of the concrete slab was increased. Campbell, in his investigation, concluded that this area required 6 inches of concrete. According to Corkum and Byrne, a further change was made between Gridline A and B and 1 and 3 to reduce the thickness to its original four inches. Jacques Whitford removed 27 cores and determined that the concrete thickness in the area between lines 1 and 10 varied between 3½ inches to 6¾ inches. The average thickness was determined to be approximately less than 5 inches.
[181] In his report, Campbell noted:
Conclusions
1. Based upon our field review it is our finding that this slab was constructed with reinforcing as indicated on Structural Drawing S2.6, Section 1 and Section 2.
2. The volume of concrete and slab thickness as found are not in accordance with Structural Drawing S2.6, Section 1 and Section 2. A 6 inch slab is noted on the drawing. Slab thickness as found ranged from 3½ to 6¾ inches, with the average thickness being less than 5 inches.
3. Where the slab is 6 inches thick or greater, the slab can support passenger car loads and act as a structural deck. Where the slab thickness is less than 5¼ inches, down to 3½ inches in some cases, the slab cannot act as a structural deck in accordance with NBCC requirements.
4. It is our view that the contractor intended for this section of slab to be thicker than the remainder of the garage slab and that he did provide additional reinforcing steel. However, the work was not executed properly and was outside of normal construction tolerances.
5. The 20M bars do not have adequate concrete cover for corrosion protection. Reinforcing steel in a slab or footing cast over earth is to have 3 inches of concrete cover. In this slab the bars had at best 1½ inches cover. Thus the life of the slab to support cars and tie the top of the foundation wall into the building is limited.
6. Structural Drawing S5.2, Reinforced Concrete Notes, Note No. 9(a), indicates that reinforcing in concrete cast against fill with no formwork is to have 3 inches of cover. If the 20M bars in the 6 inch slab had 3 inches of cover then the slab could not support cars as a structural slab and meet NBCC requirements.
[182] At the trial, Campbell agreed that he had not determined whether there was any giving-way of the compacted soil underneath this section of the slab although he had noticed some giving-way of the compacted soil in another area. He said that a slab on grade depended on the stability of the compacting material for its load vehicle capacity. Corkum and Byrne maintain that the thickness of the concrete in the section involved did not diminish its effectiveness as a slab on grade. Corkum said that the sub-soil had been compacted to 95% density. Gravel had been placed over the compacted soil and the vertical wall had acted as a perimeter wall and prevented any of the compacted material from escaping from underneath even in the event of flooding. Therefore, a 4 inch thick slab was sufficient as a slab on grade. The only reason for the increase in thickness was to permit structural steel to be added to the slab and the steel would act as a load capacity to maintain the integrity of the outer wall and the live load of vehicles. The structural horizontal support thus provided against the horizontal forces of the compacted soil and this was also aided by the armor stone on the outside of the wall.
[183] I find that Corkum did not follow the plans, drawings and specifications, as amended, and place 6 inches of concrete in the area between Gridlines A and B and 3 to 10. Revision 3 of S.3.6.3 permitted the placement of only 4 inches of concrete at Gridlines A and B and 1 and 3.
[184] Despite the failure on the part of Corkum to place the requisite thickness of concrete, which is a breach of contract and negligence, I am not satisfied that this failure is more than a technical breach.
[185] Corkum has referred to the authority of Hubley v. Ruxley Electronics, supra, and I find that authority persuasive. The lower parking slab is still serviceable as a lower parking slab. It has provided parking for vehicles over a period of 14 years. It has also provided load strength to maintain the integrity of the vertical wall. Despite regular flooding from the Sackville River, there does not appear to be any appearance of any deterioration or damage to the lower parking deck floor. Campbell’s fear that the flooding would lead to a movement of the compacted soil under the floor or slab has not been established. The armor stone located on the outside of the vertical wall has not been disturbed during this period. I have also considered the fact that Hustins, despite his failure to acknowledge this event, had entered into an Agreement to sell Sun Tower without this being accounted for or affecting the sale price. Consequently, I am awarding nominal damages of $1.00.
Spalling:
[186] Within several months of the completion of the lower parking deck, it became evident that spalling was occurring in the lower parking garage between Gridlines 7 and 10 and A to C and the ramp. Spalling is the superficial flaking of the top of the concrete slab. Harvey Hustins said Corkum’s employees and its subcontractors were parking in this area. Corkum maintains that none of its employees parked in the lower parking garage as they were directed to park on the opposite side of the Sackville River. Harvey Hustins remembers that the lower parking slab was completed around Christmas 1985 and this was the time he left for his winter holidays in Florida which lasted until early February 1986.
[187] I find that no effort was made by Corkum to place a gate or permanent structure to prevent the use of the lower parking garage. I also find Corkum gave notice to Hustins and Evans that no one should park their vehicles in the lower parking garage for a period of six months after the completion of the lower parking deck. Usually, Corkum would provide this advice in writing, however, in this case, Corkum could not state whether this, in fact occurred; however, Harvey Hustins and Evans agreed that Corkum had advised them about this matter.
[188] There is no dispute that spalling occurred as a result of the salt falling from vehicles onto the lower parking garage slab before it had a chance to air dry. Mr. Langley, in his report, said that there was no indication of early frost damage as a result of his investigation and if this had occurred, it would have been evident. He added that early application of salt after curing could cause spalling and the literature and experience tended to indicate that concrete should be given a month to air dry after curing to avoid such. Salt from parked vehicles would be sufficient to cause spalling within that one month period. As well, surface spalling of the concrete due to early freezing and thawing cycles would not be expected to continue after the first winter season. He had observed the spalling in the area of the lower parking garage.
[189] In his report Mr. Langley wrote in part:
I did not witness any non-conformity in the structure, which would be apparent to me, which failed to meet the National Building Code.
Specifications Section 03300 - Itsiu concrete contained the following information regarding concrete production and curing.
1. CSA3-A23 applied to the concrete;
2. During cold weather the concrete shall be heated such that when placed the concrete is between 15°C and 32°C;
3. Concrete temperature to be maintained above 10°C for a minimum of 5 days;
4. All concrete, unless otherwise specified to have a compressive strength of 3000 psi.
There was no indication of any early frost damage to the concrete. The specified curing above 10°C for a minimum of 5 days would ensure that early frost damage did not occur.
It is known, that early applications of deicing salt to concrete surfaces will promote surface scaling during freezing and thawing cycles. It is generally considered that concrete should have a minimum 30 day air drying period, subsequent to curing, to ensure durable surfaces. Several references are appended.
It should be noted that direct applications of deicing chemicals are not required and that which drops from vehicles is sufficient to cause scaling problems.
For damage to occur due to freezing and thawing in the presence of the deicer chemicals, moisture, chemicals and freezing temperatures must be present. The spalling in the garage has occurred around the perimeter walls open to the elements, which is consistent with our findings. Early freezing and thawing, while the concrete is saturated, may cause minor spalling, but this is greatly accentuated in the presence of salts.
The surface spalling due to early freezing and thawing cycles, would not be expected to continue after the first winter season. The slab surface could be reinstated with proprietary surfacing materials such as Gemcrete. Surface preparation and material application must be in accordance with the manufacturers’ recommendations. . . .
[190] I have found that the only cause of the spalling was the parking of vehicles during that first winter period when there was parking in lower parking garage.
[191] I also find that Corkum gave adequate and ample notice to Hustins that the parking of vehicles should not occur for a period of six months after the completion of the lower parking garage.
[192] I have come to the conclusion that Corkum and its employees did not park their vehicles in the lower parking garage. I accept Corkum’s evidence and reject the evidence of Harvey Hustins on this point. I find it was Hustins’ employees and customers who parked their vehicles on the concrete during the period in question.
[193] Therefore, Hustins has not established on a balance of probabilities that Corkum is in any way responsible or liable for the spalling of the concrete in the lower parking garage.
Damage Caused by Roof Leaks:
[194] Hustins claims for damages and resulting expenses to repair the interior of the premises and to a tenant’s telephone equipment.
[195] Harvey Hustins’ evidence is that there were holes in the high point of the roof caused by Corkum during Phase II construction. This phase was completed in October 1988. The one year warranty period terminated October 1989. No mention was made of the roof leaks during the one year warranty period. The issue was first raised in August 1991 when Hustins’ counsel wrote to Byrne and Corkum stating that during a recent torrential rain storm Hustins discovered a hole in the roof at one of its high points resulting in considerable flooding and damage to the eighth floor before repairs could be effected. The defendants took issue with this letter, claiming that it was impossible for a hole in the roof to have existed without resulting in earlier leaks.
[196] Hustins provided detailed particulars of the repairs carried out. These repairs included painting, gyprock repairs and the replacement of the tenant’s telephone equipment. These repairs and replacements were effected in the early part of 1990, approximately 15 to 16 months prior to any notification. No repairs were effected after August 1991 or within a reasonable period before August 1991.
[197] Is it possible for the holes in the roof to have existed since October 1988 without any leaking in the building? The rainfall between October 1988 to August 1991 was indeed more than sufficient to produce leaks. Explanations by Harvey Hustins that it was possible that leaks during this period may indeed have occurred and that any repair expenses were paid for by Hustins and not recorded as a claim against Corkum are not satisfactory.
[198] It is evident, and I find, that these repairs for the damage was in respect of damage to the fourth and lower floors of Sun Tower. These repairs and the replacement of telephone equipment cannot be attributed to any roof leaks or holes in the roof caused by Corkum, its employees or subcontractors for which Corkum is responsible. In fact, in a summary of the repairs for the Sun Tower which was prepared by Hustins, the 1990 repairs effected by Hustins relate to a flooding occurring on the fourth floor and not from a roof leak.
[199] I have concluded that Hustins has not established this claim and it is therefore rejected.
Rain Water Leader:
[200] Harvey Hustins stated that the rain water leader pipe ruptured on account of the failure of Byrne to properly insulate the pipe located in the lower parking garage. The rain water leader pipe drains water from the roof of the building to the lower parking garage and then to the Sackville River, with the end of the pipe located in the Sackville River. Hustins claims that the water would flow down the pipe and during the cold weather freeze at the elbow of the pipe. Corkum and Byrne said that the only reason the water froze in the pipe was due to the fact that snow was piled on the end of the pipe and Byrne indicated that the reason that insulation was not added was due to the fact the project was realized under severe economic restraints. Although Hustins wanted to complete the project on budget, there is no basis to conclude that Byrne’s recommendation would have been rejected by Hustins if such a recommendation had in fact been made.
[201] There is ample evidence to establish that Hustins or its contractors piled snow on the end of the pipe Byrne requested Morris and Richard to investigate and they reported that the cause of the freeze-up in the pipe was due to the accumulation of standing water due to snow being piled on the end of the pipe.
[202] Morris and Richard recommended that if the open end of the rain water leader pipe was kept clear and if the 4 inch rain water leader piping was heat traced and insulated with 1 inch ASJ, there would be no further problems.
[203] Harvey Hustins said that since the pipe was insulated as suggested by Morris and Richard that no further difficulties have been encountered.
[204] I find that the immediate cause of the pipe collapsing was the piling of snow on the end of the pipe. However, I also find that the recommendation of Morris and Richard made it abundantly clear that the rain water leader pipe was lacking insulation and heat tracing.
[205] There was a duty on Byrne to design a rain water leader pipe that would be fit for the purpose. It would be reasonable to conclude that, given its location, the lower parking garage would be subject to very cold temperatures, it was foreseeable that the failure to add insulation would cause in the long term a rupture in the pipe and would offset any accidental piling of snow on the pipe. As I have concluded, Hustins ought to have been given an opportunity to deal with any suggestion of adding insulation at the time the project was being designed or until the project was completed to add insulation.
[206] Byrne did not act according to a standard of reasonable, competent architects and this constitutes both a breach of contract and negligence.
[207] As to the costs associated with the repairs of the rain water leader pipe, I find that Hustins contributed to the damage by permitting the piling of snow on the end of the pipe. The pipe would not have frozen and ruptured if snow had not been placed at the end of the pipe. This was not the only concern expressed by Morris and Richard as they recommended that insulation be added to the pipe to avoid the possibility of freezing in the future. I assess Hustins with 25% contributory negligence for piling snow on the end of the pipe.
Elevator Shaft Freeze-Up:
[208] Hustins claims for the cost of repairing and insulating the sprinkler pipes located in the elevator shaft of the Sun Tower complex.
[209] In the winter of 1986 and 1987, the sprinkler line in the elevator shaft froze resulting in a flood in the elevator shaft. The shaft is located in the unheated parking garage on the underside of the first floor and is approximately 4 feet in depth. Byrne said this shaft is required by the National Building Code. The shaft also has an opening which permits the discharge of water accumulating in the elevator shaft. No provision was made in the design of the shaft to prevent cold air from entering into the shaft area. The presence of cold air in the shaft is amplified as the elevators operate. They act in the same manner as a plunger and draw in a great deal of cold air, although Byrne said that this is much reduced when there are two elevators.
[210] Byrne did not design the shaft with any mechanism to prevent cold air from entering into the shaft. Byrne said that a mechanism in the roof area had been installed to allow cold air to escape. Mr. Byrne also suggested that the elevator would not draw sufficient cold air to cause the pipes to freeze as two elevators in one shaft will not work the same as one elevator in a single shaft.
[211] As I have found earlier in dealing with claims for underground insulation and the rain water leader, I dismiss the suggestion that economic constraints prevented Byrne from designing a building with sufficient insulation to permit its proper functioning. Hustins wanted a Class “A” building and had clearly communicated this fact to Byrne at the time he was retained and in fact Byrne agrees that he designed Sun Tower to be a Class A complex. Although Hustins wanted to keep the construction costs within budget, I view as unconvincing the suggestion by Byrne that Hustins would have rejected Byrne’s suggestion of adding insulation and a back flap damper. Therefore, I reject this as a basis for not including this feature in the original design.
[212] To remedy the problem, Hustins caused the elevator shaft to be insulated and added a back flap damper to restrict cold air from entering the base of the shaft. Hustins also repaired the sprinkler.
[213] It is apparent that the failure to insulate the shaft and provide for a back flap damper led to the freeze up of the sprinkler system and I so find. I am not satisfied with the explanations offered by Byrne that the cold air factor is greatly diminished on account of two rather than one elevator in the shaft.
[214] I find that the failure to take the steps which were necessary to prevent the freezing of the sprinkler system in the elevator shaft was a breach of contract and also constitutes negligence. In my dealing with the claim for the lack of adding insulation under the first floor I have provided an analysis of the law applicable to the design of a building which would meet the requirements of an office complex.
SUMMARY:
[215] The following awards for repairs and replacement are owed because of breach of contract and negligence by Byrne and Corkum.
[216] Hustins will receive the entire amount for the 1991 repairs to the membrane and expansion joints by Mason Contracting totalling $12,120.74 and $2,890.04 for the 1992 repairs by Parker Brothers to the membrane and expansion joints without deduction.
[217] The 1993 repairs to the expansion joints and planters cost $96,465.44. I am reducing this award by $38,586.18, or 40%, based on a 25% reduction for the failure to mitigate and 15% contributory negligence. This results in a final award of $57,879.26
[218] Ginanntonio provided estimates of costs of $306,000. for replacement of the entire membrane and $180,000. for repairs to the podium deck. Duron Atlantic bid $260,000. for the replacement of the entire membrane in 1999, 15% less than the original estimate. Hustins is entitled to damages only for the limited repair and the award for Duron Atlantic’s charge must be reduced to reflect this. I am assuming that Duron Atlantic’s bid to make the limited repairs would be similarly reduced below Giannantio’s estimate and I am reducing the amount charged by Duron Atlantic by the same proportion. Thus, the $180,000. award is reduced by $27,000. (15%) to $153,000.. This amount is reduced by 25% for betterment and 15% for contributory negligence to $91,800.
[219] The Fishburn and Fountainhead accounts of $33, 378.70 and $25, 415.00, respectively, are each reduced by 40% to represent a reduction based on the time spent on other areas of the podium deck. The resulting amounts of $20,027.72 and $15,429.00 are also reduced by 25% for betterment and 15% for contributory negligence to $12,016.63 and $9, 257.40, respectively.
[220] The Terra Nova account of $9,396.16 for removal of materials is reduced by 15% for contributory negligence only to $7,986.76.
[221] I am awarding the amount of $16, 000.00 for the Peter Evans account. Although Hustins claims that it paid Evans $21,430.25, there is no satisfactory evidence of such and Evans testified he was paid only $16,000.
[222] The total of the above amounts is $209,950.08. Byrne is responsible for 70% or $146, 965.06 of this amount based on division of liability. Corkum is responsible for $62, 985.02, the remaining 30%.
[223] I am awarding Hustins the cost of the repairs to the rain water leader, $215.58, less 25% based on contributory negligence, for $161.69. Hustins will recover the entire $515.26 for repairs to the sprinkler system, $15,565.70 for insulation to the first floor and $1.00 as nominal damages for the thickness of the concrete pad. Byrne alone is responsible for this $16,243.65.
[224] Hustins will have judgment in the amount of $163,208.71 against Byrne and $62,985.02 against Corkum.
[225] Although I had earlier provided for the recovery of the accounts of Kevin Burke, Jacques Whitford, Dexter, Japan Camera, Norman Wade and Road Savers, these charges are more appropriately dealt with by the assessment of costs and disbursements subject to any order.
[226] I award interest on the amounts awarded from the date of expenditure to a maximum of four years. I will fix the interest rate from the time of the taking out of the Order on Judgment if the parties are not able to come to an agreement.
[227] Hustins shall have its costs and disbursements as taxed.
J.