R. v. Wood, 2017 ONSC 3239

CITATION : R. v. Wood, 2017 ONSC 3239 COURT FILE NO.: 7592/15 DATE: 2017-06-01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) David Kirk/Marc Huneault, Counsel for the Crown ) ) - and - ) ) ) ) ) ROBERT G.H. WOOD ) ) Robert MacRae, Counsel for the Defendant ) Defendant ) ) ) HEARD: September 6, 2016 – February 3, 2017 GAREAU J. REASONS FOR JUDGMENT [ 1 ] The accused, Robert George Wood, is charged under an indictment dated July 11, 2015 as follows: 1.

Robert George Wood stands charged that he on or between the 25 th day of September 2009 and the 23 rd day of June 2012, at the City of Elliot Lake, in the said Region, did by criminal negligence cause the death of Lucie Aylwin, contrary to

section 220 (

b) of the Criminal Code of Canada , and 2. Robert George Wood stands further charged that he on or between the 25 th day of September 2009 and the 23 rd day of June 2012, at the City of Elliot Lake, in the said Region, did by criminal negligence cause the death of Doloris Perizzolo, contrary to

section 220 (

b) of the Criminal Code of Canada , and 3. Robert George Wood stands further charged that he on or between the 25 th day of September 2009 and the 23 rd day of June 2012, at the City of Elliot Lake, in the said Region, did by criminal negligence cause bodily harm to Jean-Marie Marceau, contrary to

section 221 of the Criminal Code of Canada . [ 2 ] The accused has entered pleas of not guilty to the aforementioned charges. This matter proceeded to trial on September 6, 2016 and the trial spanned some five months with the evidence ending on January 18, 2017. Submissions from counsel were received on January 31, February 1, 2, and 3, 2017. The matter was put over to July 24, 2017 for decision but the date for a decision was advanced to June 1, 2017. FACTUAL BACKGROUND [ 3 ] This case revolves around the partial collapse of the Algo Centre Mall (“the mall”) in Elliot Lake, Ontario on June 23, 2012.

There is no dispute that the partial collapse of the Mall resulted in the deaths of Lucie Aylwin and Doloris Perizzolo and serious injuries to Jean-Marie Marceau. [ 4 ] The mall and the hotel building attached to it was constructed in 1980 by Algocen Realty Holdings Limited, later called Algoma Central Properties. The mall was designed in 1979 by architect James W. Keywan and engineer John Kadlec of Beta Engineering.

[ 5 ] The mall is approximately 140,000 square feet in size. The mall is founded on rock which slopes down from west to east. There are three storeys in the mall, with the floors of the mall (in descending order) being the upper mall level, the lower mall level and the pick-up level. The unsheltered roof on the mall is used as a roof parking level for the parking of vehicles. The hotel rises four additional storeys above the parking level and has a mechanical room on top. [ 6 ] The structure of the mall is a hybrid of steel frame and concrete panels. The steel framing is composed of steel columns and beams.

Pre-cast concrete hollow slabs are arranged side by side to make up a slab that is supported by the steel framing. [ 7 ] In 1999 Algoma Central Properties sold the mall to Elliot Lake Retirement Living and it was this entity that owned and managed the mall until 2005. In 2005, the mall was sold to Eastwood Mall Inc., which was a corporation owned solely by Bob Nazarian and operated by him.

Eastwood Mall Inc., under the control and direction of Bob Nazarian, owned and operated the mall in Elliot Lake, Ontario from the date of purchase until the partial collapse of the mall on June 23, 2012. [ 8 ] The partial collapse of the mall on June 23, 2012 was investigated by the Ontario Provincial Police. As part of the investigation, the OPP retained the services of NORR Limited, to conduct a forensic investigation into the cause of the collapse and parameters that influenced it. NORR Limited is a medium sized architect and engineering firm based in Toronto, Ontario.

The lead person from NORR Limited that conducted the forensic investigation was Dr. Hassan Saffarini who was the manager of structural engineering at NORR Limited. Dr. Saffarini assembled a team to assist him, including concrete, metallurgical and corrosion specialists from Giatec, BMT Fleet Tech and the National Research Council of Canada. [ 9 ] As a result of the forensic investigation conducted by NORR Limited, Dr. Saffarini issued a final report on March 8, 2013. The evidence is clear the mall leaked for an extensive period of time, actually from the day it was built.

The uncovered parking deck was never properly waterproofed creating what Dr. Saffarini described as a “marine like environment” in the mall. The infiltration of water into the elements, particularly the structural steel led to corrosion which in turn led to a significantly depleted weld at the connection of one of the steel beams. When this connection failed the steel beam collapsed at one end leading to the partial collapse of the mall. [ 10 ] In his report dated March 8, 2013, Dr.

Saffarini makes note of the various inspections and reports pertaining to the condition of the mall from 1979-80 to 2012 and observes in his report that “steel corrosion went unnoticed or underestimated by most consultants who inspected the mall.” [ 11 ] Two inspections referenced in the NORR Report dated March 8, 2013 were conducted by the accused Robert Wood, who was the president of MRW, M.R. Wright and Associates Co. Ltd. Consulting Engineers in Sault Ste. Marie, Ontario. On October 5, 2009, Mr. Wood inspected the mall and reported by a written report dated October 28, 2009. In that report Mr.

Wood concluded “It is our opinion that our inspection revealed no visual structural concerns both with the structural steel or prestressed slabs”. [ 12 ] Robert Wood conducted a further inspection of the mall in Elliot Lake, Ontario on April 12, 2012. That inspection generated an original written report dated May 3, 2012 from MRW and subsequent revised reports.

The conclusion expressed in all reports resulting from the April 12, 2012 inspection was that “it is our opinion that the observed rusting at this time has not detrimentally changed the load carrying capabilities of the structure, and no visual signs of structural distress was observed”. [ 13 ] At the time of the April 12, 2012 inspection conducted by Robert Wood at the mall and the May 3, 2012 report from MRW, the engineering licence of Robert Wood was suspended. Mr.

Wood’s licence as a professional engineer was suspended for the period from November 16, 2011 to November 15, 2012 and was ultimately revoked as of November 16, 2012. [ 14 ] Seventy-one days after the inspection of the mall in Elliot Lake, Ontario by Robert Wood and 51 days after the report of Mr. Wood to Eastwood Mall Inc., the uncovered roof parking deck at the mall partially collapsed resulting in the deaths of Lucie Aylwin and Doloris Perizzolo and serious injury to Jean-Marie Marceau.

THE LAW [ 15 ] Robert Wood is charged with a negligence-based offence, namely, criminal negligence causing death and criminal negligence causing bodily harm contrary to ss. 220 (

b) and 221 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “ Criminal Code ”). Section 219(1) of the Criminal Code defines criminal negligence as follows: Everyone is criminally negligent who (

a) in doing anything, or (

b) in omitting to do anything that it is his legal duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Legal duty [ 16 ] Section 219(2) of the Criminal Code indicates that the word “duty” in s. 219 means a duty imposed by law. [ 17 ] The “duty” relied on by the Crown is the duty that Robert Wood had to the public as an engineer as set out in the Ontario Professional Engineers Act , R.S.O. 2990, c. P.28.

Section 77 of the General Regulations Act , R.R.O. 1990, Reg. 941 (“Regulation”), sets out the Code of Ethics binding on an engineer, in part, as follows: 1. It is the duty of a practitioner to the public, to the practitioner’s employer, to the practitioner’s clients, to other members of the

practitioner’s profession and to the practitioner to act at all times with, ... (ii) Fidelity to public needs; ... (

v) Competence in the performance of any engineering services that are undertaken. [ 18 ]

Section 77 of the Regulation goes on to say that, 2. A practitioner shall, (

i) Regard the practitioner’s duty to public welfare as paramount. [ 19 ] The court heard viva voce evidence from several witnesses in the engineering profession who described the engineer’s duty to the safety of the public as an over-arching duty in all the work that an engineer performs. Gerard McDonald is the Registrar of the Professional Engineers of Ontario. That organization regulates and governs the over 80,000 engineers in the Province of Ontario. Mr.

McDonald testified that “the welfare of the public is paramount for a professional engineer: and that an engineer “should always keep the safeguarding of life, property and health at the top of his mind”. [ 20 ] Mr. McDonald’s evidence as to the duty to the public owed by an engineer was confirmed by the evidence of Dr. Hassan Saffarini, author of the NORR Report. Dr. Saffarini referred to it as an “over-arching responsibility to the public” that requires an engineer to report on a safety concern he or she observes even if it is outside of the scope of work they are retained to perform. As Dr.

Saffarini stated in his evidence, “I mean the responsibility by the Professional Engineers of Ontario Act is that if we walk into a building and we see something that is of concern, we have to report it – never mind the fact we are actually commissioned to comment on something that is of safety concern to the public”. [ 21 ] This fiduciary duty extends to the Corporation as well by virtue of s. 20 of the Professional Engineers Act , which reads follows: A corporation that holds a certificate of authorization has the same rights and is subject to the same obligations in respect of fiduciary, confidential and ethical relationships with each client of the corporation that exists at law between a member of the association and his client. [ 22 ] The position of the Crown is that although Robert Wood was suspended in April and May of 2012 when he inspected and produced a report with respect to the mall, Mr.

Wood was the president of MRW, the corporation that held the consulting engineer designation. Therefore, by virtue of s. 20 of the Professional Engineers Act, Mr. Wood carried the same public duty obligations as if he were a licenced engineer.

Criminal negligence – a modified objective test [ 23 ] The court must bear in mind that Robert Wood is charged with a criminal offence and that a criminal standard must be applied, which includes the presumption of innocence and proof of the essential elements of the offence of criminal negligence beyond a reasonable doubt. [ 24 ] The court must also bear in mind the distinction between civil negligence and criminal negligence. Criminal negligence applies a modified objective test that requires the Crown to establish a marked and substantial departure from the norm and the requisite mental state.

This approach can be seen in the comments of the Supreme Court of Canada in R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49, at paras. 6 , 7 and 8: [6] ...Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person, forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct.

Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crown to prove both the actus reus and the mens rea.

Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code , the distinction between civil and penal negligence acquires a constitutional dimension. [7] The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects.

First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree.

It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind. [8] Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care.

Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position

would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must bean acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This isnecessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished. [25] As is indicated in R. v.

Beatty, the Crown must prove beyond a reasonable doubt the actus reus element of the offence ofcriminal negligence and then, the mens rea element of the offence if the actus reus of the offence is proven. Where the actus reus of theoffence of criminal negligence has not been proven, the court does not have to consider the mens rea element of the offence. [26] I note that this approach reformulated the test on negligence-based offences earlier set out by that court in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867. The actus reus element as modified by Beatty is reflected in the following paragraphs.

Actus reus [27] As set out in the jurisprudence, proof of criminal negligence requires more than just carelessness. The elevated standard setout in s. 219(1) of the Criminal Code, is reflected in R. v. Tayfel, 2009 MBCA 124, 245 Man. R. (2d) 300, at para. 80: As we know from Beatty, the actus reus of negligence-based offences is defined solely by the words of the applicable

section of theCode. Section 219(1) of the Criminal Code of Canada states that: 219(1) Everyone is criminally negligent who (

a) in doing anything, or (

b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. [Emphasis added] [28] Proof of this elevated standard is the criminal standard of proof beyond a reasonable doubt: see Tayfel, at para. 81. [29] In addressing what is meant by the words “wanton” or “reckless” the Manitoba Court of Appeal in Tayfel goes on to state atparas. 83 to 85 inclusive of its reasons: 83 In R. v. L. (J.) (2006), 204 C.C.C. (3d) (Ont.

C.A.), Weiljer J.A. addressed the meaning of wanton and reckless by citing, with approval, the following comments of Hill J. in R. v. Menezes (2002), (ON SC), 50 C.R. (5th) 343 (Ont. S.C.J.) (atpara. 72): ...The term wanton means “heedlessly” or “ungoverned” and “undisciplined” or an “unrestrained disregard for the consequences”. Theword “reckless” means “heedless of consequences, headlong, irresponsible” [Citations omitted.] 84 In R. v. Waite (1986), (ON CA), 28 C.C.C. (3d) 326 (Ont.

C.A.), referred to above, the actual quote by CoryJ.A., as he then was, reads (at p. 341): ...The word “wanton” means “heedlessly.” “Wanton” coupled as it is with the word “reckless” must mean heedless of the consequences.... 85 Other cases have equated “heedless” with a “complete disregard” for the consequences of one’s actions. For example, in R. v.Melnyk (1985), (SK KB), 41 Sask. R. 10 (Sask. Q.B.), affirmed (1985), (SK CA), 45 Sask. R. 258(Sask. C.A.), Scheibel J. entered a conviction on a charge of criminal negligence in the operation of a motor vehicle.

He wrote (at para.62): “The accused’s conduct was heedless and indifferent and showed a complete disregard for the consequences of his actions.” [30] And, as is indicated by MacDonnell J. in R. v. Kazenelson, 2015 ONSC 3639, in para. 112 of his judgment: Proof of wanton or reckless disregard “requires proof that Mr. Kazenelson’s conduct was a marked and substantial departure from what areasonable person would do in the same circumstances.” [31] Thus, the jurisprudence indicates that a “marked” departure from what a reasonable person would do is not sufficient.

Theconduct must be a “marked” and “substantial” departure from what a reasonable person would do in the same circumstances to get theconduct to one of “wanton” and “reckless” disregard as set out in s. 219(1) of the Criminal Code. Mens rea [32] With respect to the mens rea element of negligence-based offences, a useful

summary is provided by the Court of Quebec inR. c. Scrocca, 2010 QCCQ 8218. At paragraph 73 of that decision, the court states: Some important rules postulated by Beatty can be summarized as follows: − The law on penal negligence, which includes criminal negligence, concerns itself both with conduct that deviates from the norm,which establishes the actus reus, and with the offender’s mental state, which concerns the mens rea. The prosecution must prove boththe actus reus and the mens rea − The modified objective test is applied to determine the requisite mens rea for negligence-based criminal offences.

First, thecircumstances of the offence must show a marked departure from the standard applicable to civil liability. When conduct amounts to thismarked departure, the court can find that a blameworthy mental state exists. Second, application of the modified objective test cannotdisregard “the actual state of mind of the accused”. On the issue of negligence, objective mens rea is determined by an analysisfollowing which the court concludes that a reasonable person, in a situation similar to that of the accused, would have been aware of the

risk created by the conduct. The fault lies in the absence in the accused of the requisite diligence having regard to the activity in question. − In any event, the analysis must be contextualized. The accused can assert defences such as incapacity or mistake of fact. [ 33 ] In dealing with the mens rea element in the offence, the court in Scrocca states at paras. 93 and 94 as follows: The mens rea This stage of the analysis has two components. We must first characterize the conduct of the defendant.

Does it constitute in the circumstances a marked and substantial departure from the norm expected of a reasonably prudent person?

If so, we must proceed to the second component, which consists in examining the defendant’s actual state of mind so as to determine whether there is any doubt that a reasonable person, placed in the same situation would have been aware of the risk created by the conduct. [ 34 ] The court goes on in Scrocca to state at para. 101 : In Beatty , on the subject of determining mens rea , Charron J. wrote that if the dangerous conduct constitutes a marked departure (in this case we must add the qualifier “substantial”) from the standard expected of a reasonable prudent person, the offence will be made out.

When the evidence is conducive to such an

interpretation, it is necessary to proceed to the second part of the analysis, which consists in assessing the actual state of mind of the accused. [ 35 ] McLachlin C.J., wrote a concurring decision (supported by Binnie and LeBell J.J.) in Beatty with a different view on the issue of momentary lapse of attention in dangerous driving cases. At para. 67, McLachlin C.J. makes the following comments: I therefore conclude that the correct statement of law is as follows: 1. The actus reus requires a marked departure from the normal manner of driving 2.

The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person. 3. While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference. [ 36 ] Mr.

Justice MacDonnell applied the modified objective test for mens rea in negligence-based offences in Kazenelson and indicated at paragraph 113 of his decision: The “marked and substantial departure” standard applies not only to the actus reus of criminal negligence but also to the mens rea . A modified objective test is to be used in this respect. I am required to consider the facts that existed at the material time in light of Mr. Kazenelson’s perception of them and to assess whether, in that context, his conduct constituted a marked and substantial departure from what would be reasonable in the circumstances.

The Crown must prove either that Mr. Kazenelson adverted to an obvious and serious risk to the lives or safety of the workers and failed to act, or that he gave no thought to an obvious and serious risk and the need to take care. [ 37 ] The court must keep these principles in mind when assessing the evidence received at this lengthy, complex and challenging trial involving the accused, Robert Wood.

THE EVIDENCE The General Condition of the Algo Centre Mall [ 38 ] As part of its case, the Crown called numerous witnesses who visited the mall or worked in the mall and who were in a position to comment on the condition and the overall state of the mall in Elliot Lake, Ontario prior to its partial collapse in June 2012. [ 39 ] The picture painted by these witnesses is bleak as to the ongoing leakage problems in the mall and the general deterioration of the mall. [ 40 ] Some individuals visiting the mall were so concerned that they took photographs of what they observed so there would be a permanent record.

Bonnie Ladell is a retired risk manager for the Hudson Bay Company and the Municipality of Toronto. She moved to Elliot Lake, Ontario in 2004 in search of affordable housing. Ms. Ladell testified that she attended at the mall on average two times per week. When she first attended in 2004, the mall appeared to her to be clean but it was not leak-free. Ms. Ladell indicated in her evidence that as time went on she became increasingly concerned about the condition of the mall that she took two sets of photographs depicting the areas of concern for her.

These photographs were entered as Exhibit 6. [ 41 ] The first set of photographs, marked as Exhibit 6-1 to 6-17 inclusive, were taken by Ms. Ladell on February 13, 2012. Several of the pictures taken by Ms. Ladell were of the upper level kiosk area of the mall, the area of ultimate collapse. In particular, Exhibit 6-7 depicts the entrance to the upper mall from the rooftop parking and the kiosk and food court area. This photograph shows stained and missing ceiling tiles in the kiosk and food court area.

Exhibit 6-12 depicts a large hole in the ceiling with shards of drywall coming out of the ceiling in the upper level of the mall facing the kiosk booth. In her evidence, Bonnie Ladell commented on a crack in the hallway between Hungry Jack’s Restaurant in the food court running toward the kiosk area. Ms. Ladell testified that to her the crack appeared to expand and seem to move. Ms. Ladell indicated in her evidence that “I was concerned that the whole ceiling was going to come down”. [ 42 ] The second set of pictures marked as Exhibit 6-18 to 6-37 inclusive were taken by Bonnie Ladell on April 13, 2012, Ms.

Ladell testified that she took these photographs of the condition of the mall because the day before she observed an individual on a large rolling stick ladder taking photographs with a digital camera. Unknown to Ms. Ladell, this individual was the accused, Robert Wood, who attended at the mall on April 12, 2012 to do his last inspection of the mall which resulted in his report dated May 3, 2012. Ms. Ladell thought it unusual for someone to be inspecting the mall so she returned with a camera to take her own pictures the next day. [ 43 ] Some of the photographs taken by Ms.

Ladell on April 13, 2012 were of the exterior of the mall building. Exhibit 6-18 depicts the steel on the base of a post in the walkway being rusted so badly it was eaten through. Photograph 6-20 depicts the level of corrosion where the steel posts met the concrete in the outer walkway area of the mall. Exhibits 6-24 and 6-25 depict similar corrosion to such an extent that the steel is eaten through. Exhibit 6-26 depicts a steel beam supporting the concrete walkway at the front of the mall on Ontario Avenue. This beam appears to be heavily rusted and in fact oxidized on the top flange.

Exhibit 6-31 is a photograph of the lower edge of the walkway. This photograph taken on April 13, 2012, clearly indicates an excessive amount of rust and corrosion visible. [ 44 ] Exhibits 6-33 and 6-34 depict a portion of the interior of the Zellers store showing ceiling tiles stained with water stains, missing ceiling tiles and yellow tarps hanging below the ceiling designed as a water catchment device. [ 45 ] Ms.

Ladell indicated in her evidence that the condition of the mall was a topic of conversation between her and her friends, and that she expressed her concerns to her friends about the general state of the mall, which she described as a “mess” in the months prior to the collapse, and about her particular concern with the kiosk area. Ms. Ladell indicated in her evidence that although she discussed her concerns to her friends she never brought her concerns or the pictures that she took to the management of the mall. Ms.

Ladell explained that she did not do this because the general state of the mall made her believe that the owners of the mall would not take any corrective measures, so she didn’t bother telling them. [ 46 ] Alla Guillmette has lived in Elliot Lake for a considerable amount of time, approximately 42 years and well before the mall was built. Ms. Guillmette remembers the opening of the mall and its first year of operation in 1981. From 1981 to 1993, Alla Guillmette managed the Peoples Jewellers store which was located in the mall. Not too long after the mall opened, Ms.

Guillmette noticed water infiltration in various locations in the ceiling tiles in the mall. This started with the spring thaw, and there were more and more ceiling tiles removed as time went on. Ms. Guillmette indicated in her evidence that initially she was not concerned with the leaking in the mall because it was a new building but that her level of concern increased as time went on and more ceiling tiles were down and there was more evidence of leaks. Eventually Ms. Guillmette developed concerns about the safety of the mall and particularly the kiosk area where leakage appeared to happen quite often. Ms.

Guillmette testified that when concerns were raised to the mall manager about the leaking problems the response was “what do you want me to do about it”. [ 47 ] Katie Myllymaki has resided in Elliot Lake, Ontario since 1980 except for the four-year period from 1997 to 2011 when she attended university. Ms. Myllymaki worked in the kiosk from 2007 until the mall collapse in June 2012. Ms. Myllymaki described leakage water infiltration and falling ceiling tiles as a normal occurrence at the mall, which she saw “since I was a toddler”.

She described the leakage being particularly bad when it rained or there was a build-up of snow, especially in the spring season. Ms. Myllymaki testified that the parking roof level was always wet with puddles. As Ms. Myllymaki observed about the parking deck, “there didn’t seem like there was anywhere for the water to go”. Ms. Myllymaki testified that there was “constant” leaks at the kiosk area in the mall and at one time there was a large hole in the ceiling in the kiosk area which was repaired before the mall collapse, although the repair job was unsatisfactory according to Ms.

Myllymaki looking more like “patchwork” and an unfinished job. [ 48 ] Sarrah Brown was brought to Elliot Lake, Ontario in November 2005 by the affordable price of real estate. Ms. Brown testified that she attended at the mall from time to time to purchase groceries and household goods. She became increasingly concerned about the condition of the mall as time went on which prompted Ms. Brown to write a letter to the Editor of the Elliot Lake Standard, the local newspaper in Elliot Lake, to express her concerns about the safety of the mall. The letter Ms.

Brown wrote was dated August 28, 2008 and published by the Elliot Lake Standard on September 3, 2008 under the caption “Mall needs to be repaired now”, (Exhibits 13A and B). In that letter to the Editor, Sarrah Brown describes the poor state of the mall and the demoralizing effect of this for storeowners and customers. Ms. Brown calls for the closure of the mall by government agencies until the problems in the mall have been rectified. It is worthwhile to read and reflect upon Ms.

Brown’s letter, which as published reads as follows: ...Who, other than the owner and its contractors, inspected this mall to ensure there is no danger to the individuals who work and shop there? Leakage of this magnitude for this period of time has to raise some concerns. The municipal and provincial governments bear responsibility for the safety and wellbeing of the public of this city and province. Perhaps it’s time for these government agencies to step in and, if necessary, force the mall’s closure until these matters have been rectified. Even the threat of such action might speed up the process considerably.

I hope we are not at some point in the future glued to our TV screens following a calamity as government officials, yet again, seek excuses and places to lay blame for their lack of action. [ 49 ] The last paragraph of Ms. Brown’s letter is prophetic and worth repeating: I hope we are not at some point in the future glued to our TV screens following a calamity as government officials, yet again, seek excuses and places to lay blame for their lack of action. [ 50 ] Judy Lafleur, who has resided in Elliot Lake, Ontario for the past 17 years, referred to the Algo Centre Mall as “the waterhole”. In her evidence, Ms.

Lafleur indicated that in the final five to six years before the collapse she held three jobs in the mall which brought her to the mall every day. Ms. Lafleur described the sorry state of the mall in terms of referring to the Zellers store as a “laugh” and the library as “horrible”. The situation with water leakage in the library got so bad that Ms. Lafleur stopped bringing her foster children into the library to get books. Ms. Lafleur testified that there was never a time that she can recall the mall not leaking.

There were worse times than others, particularly on rainy days or days when it got warmer and the snow melted, when Ms. Lafleur described the water infiltration into the mall was “really bad”. Ms. Lafleur testified that there was one time when she was sitting out in front of the kiosk area when suddenly six or eight ceiling tiles fell. The kiosk was closed that day to do repairs, which Ms. Lafleur

referred to as “half-assed” and a “bandage solution”. [ 51 ] Gilles Desaulniers has resided in Elliot Lake, Ontario long before the Algo Centre Mall was built. Mr. Desaulniers testified that he started to notice leaks in the mall six to seven years after it was built and the leaking got worse over time to the point it was “leaking all over”. He described that at the kiosk area in the mall and at Zellers “there were buckets all over the place” to catch the water that was leaking. Areas of drywall in the mall affected by the leaks would be patched up but as stated by Mr. Desaulniers, “it didn’t last long”. Mr.

Desaulniers noticed work on the upper parking deck a couple of times when he parked his truck – “I used to park my truck there and they were patching the roof”. Mr. Desaulniers described rust at the outside of the Foodland entrance to the mall and at the entrance of Zellers where he described the posts being all rusted. Near the end of March 2012, Mr. Desaulniers took pictures of what he observed at the mall. He indicated in his evidence that he took pictures because “We knew someday it was going to come down. It was leaking all over”. Exhibits 16-1 and 16-2 are pictures that Mr.

Desaulniers took of the ceiling at the lottery kiosk. The pictures depict a large hole in the ceiling. Mr. Desaulniers testified that “that place was the worst place” and described the condition at the kiosk as “bad, very bad”. Exhibit 16-6 is a picture taken of the ceiling behind the kiosk going toward the washroom in the upper level of the mall. Mr. Desaulniers indicated in his evidence that this area was “pretty bad. It was leaking.” Mr.

Desaulniers noted in his evidence that you could see the steel inside the hole above the kiosk booth as depicted in Exhibits 16-1 and 16-2 and that the steel inside appeared to be “all rusted” to him. [ 52 ] Denise Henderson has lived in Elliot Lake since 2005. Ms. Henderson testified that she saw a lot of leaks and water pails in different places throughout the mall. She described the condition of the mall as “not in the best of shape”.

She commented that she saw yellow tarps in the mall and that “she couldn’t believe that is how they dealt with it - that this was the mall’s solution for the leaking problems in the mall. Ms. Henderson took pictures of the offensive yellow tarps in March 2012, when the leaking was more prevalent due to the melting ice (Exhibit 14). [ 53 ] Denise Lehman was employed in the Northern Reflections store in the mall from October 2010 until the collapse. Ms. Lehman testified that the Northern Reflections store had a few leaks that were contained by yellow bladders with a hose that drained into a pail. Ms.

Lehman testified that she would see buckets in other areas of the mall, such as in Zellers where you would “always see Rubbermaid containers scattered along the floor” and in between the library and Service Canada and around the kiosk area you would normally see the buckets to collect water. It was the evidence of Ms. Lehman that you would see leakage if it rained or in the spring season and that the array of buckets within the mall would depend on the season. Ms.

Lehman testified that at times there would be water collection containers in the mall and sometimes there wouldn’t be, depending on the time of the year. [ 54 ] Andrena Wright also testified that at the mall “sometimes things looked worse than at other times”. Ms. Wright saw maintenance people doing work throughout the mall and on the upper parking roof where “there were guys up there all the time” doing repairs. Ms.

Wright testified that maintenance men in the mall would spray paint the ceiling tiles to improve their look, indicating that “we are expecting a visit”, necessitating the repairs to be done. [ 55 ] Rachel Rivet has lived in Elliot Lake her entire 57 years From May 2006 she worked in the lottery kiosk at the mall, in the kiosk in the upper mall and the lower mall. Ms. Rivet testified when she worked at the upper floor kiosk when it rained, leaking water was a problem and there was “buckets everywhere”. The buckets were so close to the kiosk that Ms. Rivet became concerned that customers would trip on them.

The upper floor kiosk, as described by Ms. Rivet, was certainly more susceptible to leaking than the main floor kiosk. Ms. Rivet noted in her evidence that the rain or melting snow didn’t affect the kiosk on the main floor and that “I personally did not see any leaks around my kiosk”. Ms. Rivet used the rooftop parking but in time she started to use alternate routes to enter the mall to avoid using the rooftop parking. As Ms. Rivet stated in her evidence with respect to the rooftop parking, “I did not feel comfortable being up there”. Apart from the upper floor kiosk area, Ms.

Rivet testified that the other areas where water infiltration into the mall was a problem such as Dollarama, the library, Zellers and Mum’s Place Restaurant, “where you had to walk around the bucket at the entrance of the restaurant”. Ms. Rivet described the entrance to the Creations and Things store as “a waterfall coming down the doors” when it rained outside. [ 56 ] Heather Richer was the owner and operator of Mum’s Place Restaurant which was located adjacent to the food court and in close proximity to the kiosk in the upper level of the mall. Ms.

Richer operated this restaurant for four years prior to the collapse of the mall in June 2012. Ms. Richer testified that the mall was referred to as “the bucket mall” because everywhere you went in the mall you saw buckets. Ms. Richer indicated in her evidence with respect to the Zellers store, “When I went to the men’s area you were dodging bladders and buckets”. Ms. Richer described the attempts by mall ownership and maintenance to repair the mall as “cosmetic” and “patched up” with no attempts to prevent the ongoing leakage. Ms.

Rivet testified that, “We would have to complain quite a bit to get them to do anything”, referring to mall maintenance. Ms. Richer indicated in her evidence that the problems in the mall were so widespread and ongoing that, “We all knew eventually it was going to collapse”. There were many attempts to fix the roof in the mall and at one point in time there was a mall party hosted by the mall to celebrate the repair of the upper parking deck roof. Ms. Richer testified that she didn't attend that party “because I did not believe it”. Ms. Richer did not believe that the roof was fixed.

She described the repairs as “patch jobs” and questioned, “How can you fix a roof with patch jobs?” [ 57 ] Patricia McGurk worked in the public library in the mall for 12 years and became the chief librarian in the fall of 2009. Ms. McGurk testified as to water filtration problems that existed within the library space in the mall. Ms. McGurk observed that the leaking got progressively worse in the library space and was really a problem in the years 2008 and 2009. The library space continued to leak in the years after 2009 but as Ms.

McGurk testified, “It was really bad for a while” referring to the 2008-2009 timeframe. [ 58 ] Ms. McGurk testified that whether there were water leaking problems in the library space would depend on the weather outside and the time of the year. The spring and fall periods were particularly bad for water infiltration and blue tarps would be put over the books, particularly in the children’s section, any time when there was more than a thirty percent chance of rain forecasted. Ms.

McGurk indicated in her evidence that the summer months were not a particular problem unless it rained and that there was no water infiltration into the library space in the winter months. [ 59 ] If the ceiling tiles got wet enough in the library they would fall down into the books. When the ceiling tiles fell they were wet and heavy. Ms. McGurk testified that the blue tarps would be placed on the books in an effort to prevent the books from being

damaged due to the water and the wet ceiling tiles that would drop onto the books. It was the evidence of Ms. McGurk that mall management and mall ownership were inattentive to the water problems in the library. As she put it, “There was not anything done to actually fix it, in the library anyway”. [ 60 ] Ms. McGurk testified that she travelled throughout the mall and that she noticed water leakage in areas of the mall other than the library, such as in Zellers, the Dollarama store and the Bargain Store. Ms.

McGurk also indicated that within the year prior to the collapse of the mall she noticed increased ceiling tiles missing around the kiosk area. Although the library remained in the mall until the partial collapse of the mall, Ms. McGurk testified that there were many discussions that took place about moving the library out of the mall because of the conditions within the mall. [ 61 ] Brian Cuthbertson started employment as the manager of the Zellers store in the mall on February 14, 2007.

The Zellers store was a large, anchor store within the mall, employing 60 people and occupying approximately 56,000 square feet of retail space. [ 62 ] Mr. Cuthbertson testified that from the time he started at Zellers there was a water infiltration problem in the Zellers store. This is consistent with the evidence of other witnesses who described Zellers as a particular area of concern within the mall. Mr. Cuthbertson indicated in his evidence that he noticed missing ceiling tiles and buckets in various locations in the Zellers store from the time he took over as manager. It was the evidence of Mr.

Cuthbertson that the water leakage problem became worse over time and at its worst there was close to 100 pails on the floor within the Zellers store to gather the water leaking from the roof. Mr. Cuthbertson testified that he would have to cover the counters in the store with blue tarp so merchandise would not be damaged and barricade certain areas off in the store so that customers would not slip and fall. [ 63 ] Mr. Cuthbertson took photographs of what he observed in the Zellers store and 29 photographs were entered as Exhibits 17-1 to 17-29.

These photographs graphically illustrate the water problem that was evident for all to see in the Zellers store. Missing ceiling tiles, yellow tarps hanging from the ceiling, hoses hanging from the ceiling, merchandise covered with tarps and plastic, buckets, metal water collection troughs located above the ceiling and water damaged columns are all depicted in the photographs taken by Mr. Cuthbertson. These photographs clearly indicate the extent of the water infiltration problem within the Zellers store in the mall.

It is also clear from these photographs and the description provided by Brian Cuthbertson that the water leakage problem was throughout Zellers and not in just one area or location. For example, photographs 17-22 and 17-23 were in almost opposite ends of the Zellers store. [ 64 ] It was the evidence of Brian Cuthbertson that the roof leakage problem within Zellers got particularly bad when Peak Restoration was doing the work to repair the upper parking deck in 2008. Mr. Cuthbertson indicated that Peak Restoration began work on the rooftop parking in July or August of 2008.

He heard loud hammering away at the concrete with jack hammers. Exhibits 20 to 24 are photographs that Mr. Cuthbertson took of the roof parking deck when Peak Restoration was working on the parking deck area putting the “blue skin” membrane on the roof. Mr. Cuthbertson was concerned because the “blue skin” membrane was not roofing material to his knowledge. He was also concerned because one of the drains had been raised by Peak Restoration and covered by the “blue skin” membrane. This did not make sense to Mr.

Cuthbertson who was concerned that there was going to be further water damage as a result of the way this work was done by Peak Restoration. [ 65 ] Mr. Cuthbertson indicated that he raised these concerns and his general concerns about water infiltration in the Zellers store with mall management. Requested repairs were not made in a timely manner by the mall. Mr. Cuthbertson indicated in his evidence that he had two meetings with the mall owner, Bob Nazarian, to discuss the problems within the Zellers store. Mr. Cuthbertson was not impressed with these meetings or with Mr.

Nazarian’s commitment to rectify the problems. As Mr. Cuthbertson put it in his evidence, “we were told what we wanted to hear” by Bob Nazarian. [ 66 ] The lay witnesses who testified as to the condition of the mall were consistent in their evidence and the evidence of one witness corroborated the evidence of the others. Their testimony painted a very unfavourable impression related to the condition of the mall. One witness described the mall “as a mess” and aptly so.

There were numerous problems with water infiltration within the mall, some areas such as Zellers, and the upper mall kiosk area being worse than others. The evidence of the witnesses also supports the view that the leakage problem in the mall was worse at certain times of the year than at other times. There were periods of time when the mall was not leaking, although this would not last, and leakage would start again when it rained or in the spring when the snow melted and in the fall when there were more periods of rain.

Attempts were made to repair the upper parking roof to eliminate the water infiltration into the mall but these attempts were unsuccessful. The mall started to leak shortly after it was constructed in 1981 with the water infiltration into the mall continuing for over 30 years until the mall partially collapsed in June 2012. Maintenance workers in the mall [ 67 ] The court heard evidence from several maintenance workers employed at the mall and other workers who were contracted to do specific work in the mall prior to the partial collapse. One such person was Aaron Sigurdson.

He worked in mall maintenance for close to a year, starting in the late spring or early summer of 2009. Mr. Sigurdson started his employment at the mall at approximately the same time as Peak Restoration did the work on the upper parking deck in the mall. Mr. Sigurdson testified that he was involved in the general maintenance in the mall but that he spent the majority of his time replacing wet and stained ceiling tiles throughout the mall. He described that the replacing of ceiling tiles was extensive work, “pretty much what I did all day long”. As Mr.

Sigurdson put it, “I started at one end of the mall and pretty much worked my way down to the other end”. Mr. Sigurdson described the mall as “pretty leaky” when it rained. [ 68 ] Aaron Sigurdson testified that he had occasion to go above the ceiling tiles on various jobs he did, one such job was the installation of cable for security cameras. Mr. Sigurdson told the court that at certain locations the spray foam insulation had worked its way off the beam. This gave Mr. Sigurdson the opportunity to view the steel. Although he didn't pay attention to the steel in other areas of the mall, Mr.

Sigurdson testified that “one area did not look right”. Mr. Sigurdson testified that area was by the kiosk, where the steel beam was scaled with rust and looked peeled like a book. Mr. Sigurdson testified that when he was in the bulk head by the kiosk and there was traffic overhead that it was loud and “felt like a shake almost”. [ 69 ] In his evidence, Aaron Sigurdson commented on the water damage in various areas in the mall. In the back the drain pipe

totally separated and had to be clamped and sealed. In the card shop there was bad leaking and a pipe in the ceiling had the bottom eaten away and had to be replaced by a plumber. Mr. Sigurdson testified that he saw chunks of concrete that had fallen to the floor in the mall the size of a football in one place and the size of a baseball in the bulkhead at the bottom of the escalator and stairs by the kiosk on the upper level of the mall.

He testified that he helped with the painting and replacing of drywall where there was open holes but it was frustrating because “it was like putting a bandage on it – you knew it was going to leak again”. [ 70 ] It was the evidence of Aaron Sigurdson that on one occasion he worked on the upper parking deck. His job was to take the tar out of the cracks on the parking deck. Mr. Sigurdson reported that “I thought that it was stupid but I did what I was told to do”. [ 71 ] Mr.

Sigurdson testified that he told his boss, the head of maintenance in the mall, Ray Leblanc, about the rusted beam that he saw in the kiosk area and that Mr. Leblanc looked at the rusted beam. Mr. Sigurdson assumed that Mr. Leblanc would have done something about it because “he was the head of maintenance”. [ 72 ] Kenneth Neeley was employed by Peak Restoration and was employed at the mall to do repairs to the upper roof parking deck. Mr.

Neeley testified in his search for leaks in the mall he had occasion to lift the ceiling tiles and look at the steel beam that ran parallel from the escalator to the kiosk on the upper level of the mall. Mr. Neeley testified that the steel beam in that area was “so dissolved it looked like the pages of a book”. Mr. Neeley testified that he had “never seen steel separated like that before”. Mr. Neeley testified that the bolts at the connection part of the steel beam were pitted and rusted and deformed in that the bolts were not their original shape. Mr.

Neeley testified that he could only see four bolts; the other two he testified had been dissolved through corrosion. Mr. Neeley testified that when he looked into the ceiling in the kiosk area of the mall he could see the beam and the connection when he looked up into the ceiling and that he “didn’t see any of the insulation when I looked into the ceiling”. It should be noted that the photograph entered as Exhibit 10-239, which is the connection at the failed beam which Mr. Neeley is referring to in his evidence, clearly indicates that there is insulation at the connection on the beam. [ 73 ] Mr.

Neeley testified that although he was working for Peak Restoration to do repairs to the parking deck roof he did not agree with how the repairs were being done or that a “blue skin” membrane was being used to prevent water infiltration from the roof into the mall. Mr. Neeley testified that he had never used blue skin membrane on a roof before and that he told his superiors that it was not the correct sealant to be used on the roof. Mr.

Neeley indicated in his evidence that he “raised it every day” but Peak Restoration continued on paying no attention to his opinion. [ 74 ] Terry Neave was employed at the mall from March 2012 until the partial collapse of the mall on June 23, 2012. Mr. Neave is the mall maintenance manager who took the accused, Robert Wood, through the mall on April 12, 2012 for the inspection that Mr. Wood performed. Further reference will be made to this in detail later in my judgment. [ 75 ] Mr.

Neave testified that in the last month before the partial collapse of the mall he was involved in repairs to the parking level roof which involved applying a hot rubber sealer in the cracks on the roof. Mr. Neave testified that Bob Nazarian had arranged for the purchase of the material and had it delivered to the mall. Mr. Neave indicated that Bob Nazarian took him up to the roof and showed him areas that he thought were important to repair right away.

The oldest sealant would be cut out, the cement would be cleaned and then the hot rubber would be poured into the cracks and seams on the parking deck and would cool. Mr. Neave testified that he had completed a little more than half of the parking deck roof above Zellers at the time of the collapse of the mall. [ 76 ] Mr. Neave testified that during his tenure as mall maintenance manager, ceiling tiles that were falling were not being replaced until the roof repairs had been completed. [ 77 ] Brent Willett is a licenced plumber who owns and operates PHC Plumbing. In his capacity as a plumber, Mr.

Willet did work in the mall. Mr. Willett installed drip trays or troughs underneath the beams in Northern Reflections and the Bank of Nova Scotia. This work was done in February 2008. Mr. Willett indicated that as a professional he didn't think the installation of troughs were a good idea. Mr. Willett described it as a “backyard fix” and advised the mall to put money into repairing the roof rather than putting in water troughs in the ceiling. [ 78 ] The installation of water troughs required Mr. Willett to do work above the ceiling where he got a look at the steel beams. Mr.

Willett testified that in the steel above the parking deck you could see corrosion and water marks. The sprayed-on fireproof insulation was off the beam and the beam was exposed. In the area closer to the food court there was rusting, pitting and a “buildup of flaking” on the exposed steel beam, according to evidence of Brent Willett. He indicated that where the two beams joined at gridlines FX and F and gridline 16 on Exhibit 1, there was a fair amount of corrosion. As Mr.

Willett described it, “A lot of the corrosion was all over the beam ‘cause the water had, you know, when it rained or the ice melted or snow it ran completely over the whole beam, right from the top down around and to the bottom”. [ 79 ] Mr. Willett testified that with respect to the kiosk area in the upper level of the mall, “There was quite often leaks in that area and around that area”. Mr. Willett indicated that he got called to install bladders in the ceiling at the mall, “Depending on the weather, if they had a heavy rain”. He installed these bladders above the ceiling in the Zellers store. [ 80 ] Mr.

Willett also did work at the mall to unplug drains. This included work on the upper parking level roof. Mr. Willett testified that on the roof the drains were smaller in diameter than they should have been to drain the water out properly. Mr. Willett testified that he provided a quote to the mall to increase the size of the drain along gridline 16 (Exhibit 1) but the mall management never contracted him to do this work. [ 81 ] While on the roof of the mall, Mr. Willett observed the blue skin membrane patching on the parking deck roof. Mr.

Willett indicated that he did not believe that the blue skin material was roofing material and that, “I have never seen it on a roof other than there”, referring to the mall. [ 82 ] Mr. Willett also testified that he had observed chunks of concrete that had fallen in the mall. Mr. Willett testified that in the upper mall, “There was a chunk of concrete that had come down just on the corner in – through the ceiling and went through the bulkhead and landed on the – on that floor”. Mr. Willett indicated that he could see a visible chunk of concrete missing on the slab just

above the escalator on the upper floor of the mall. Mr. Willett testified that he would see missing concrete on top of the ceiling tiles as well. [ 83 ] When Brent Willett was doing this work in the mall, which appears to be late 2007 to April 2008 from his invoices to Eastwood Mall Inc. entered as Exhibit 25, the steel beams in the ceiling were for the most part exposed and could be seen. The fireproof spray insulation on the beam had fallen away due to water infiltration. Mr. Willett described the insulation as “hanging down” and this left the steel beam exposed in areas such as the Dollarama store where Mr.

Willett observed rusting and pitting along the beam, and some white staining on the beam above the ceiling in the Dollarama store in the mall. [ 84 ] Danny Doogan is an iron worker by trade, with over 25 years of experience. He was employed by the mall in 2006 and 2007 to do general maintenance work at the mall. He left this employment in 2007 when an iron worker position opened up for him. Mr. Doogan recalled that a large part of his duties involved searching for leaks in the mall and replacing ceiling tiles in areas that were leaking.

As he put it, “Pretty much every day we’d have something to do with leaks, either fixing them if we could, if the weather permitted, or tracking them down or replacing tiles”. [ 85 ] It was the evidence of Mr. Doogan that the biggest areas of leakage within the mall was in Zellers, the library and the kiosk area. As Mr. Doogan described it these areas, “were always pretty much leaking. They might slow down, but they’d never not leak for a few weeks”. Mr. Doogan described the library as leaking “continuously”. Mr. Doogan indicated that in the library, “they had to put tarps to protect the books”.

As to the kiosk, Mr. Doogan testified that, “The kiosk pretty much leaked the whole time it was there. Sometimes it would slow down, but it would never stop for more than a week”. [ 86 ] Mr. Doogan recalled being above the ceiling to see the steel beam in the Zellers store. He could not recall doing this in the kiosk or the library areas. Mr. Doogan testified that there was rust on the steel beams in the ceiling and he could see where the water had been flowing on the steel. In particular, Mr.

Doogan recalled the rust on the bolts, describing that, “It would be a connection between a beam and a column, and that’s where I’d notice them”. As to what he saw, Mr. Doogan testified: The bolts, the bolts for most I’d almost say 90 percent of the bolts that I looked at would be very badly rusty, meaning be flaking or there’d be a slag type of rust that’s been growing or it would be – would be all rusty, it would be worn looking more than normal. [ 87 ] Although Mr. Doogan was never up in the ceiling in the kiosk area, he did do work at the kiosk area.

As he stated in his evidence, “I picked up debris, like drywall that was on the floor or swapped out the pails ‘cause there was always a pail or a bucket there”. [ 88 ] Mr. Doogan’s maintenance duties at the mall also involved work on the upper deck parking level. He testified that he was working on caulking the roof. This work involved cutting out the old caulking with a cut-off saw or a grinder, cleaning the area and applying new caulking to the area. This was done all over the roof area and, as Mr.

Doogan testified, “mainly at the spots where it would be leaking, but I think they methodically tried to do the whole roof – rooftop”. [ 89 ] It was Mr. Doogan’s view that the caulking job would not last long due to the traffic on the rooftop parking at the mall. While he worked on the roof, Mr. Doogan noticed that the drainage was a problem on the roof in that the roof would hold water and not properly drain. Mr. Doogan testified that he brought his concerns about the mall to the attention of his manager, Tim. As Mr.

Doogan stated in his evidence, “I asked him if the mall had been inspected”. 2006 Involvement by the City of Elliot Lake in the Algo Centre Mall [ 90 ] The City of Elliot Lake, through its chief building official and fire chief, was involved with Bob Nazarian and Eastwood Mall Inc. in 2006 with respect to concerns about leakage in the mall and the lack of fireproof material on the steel beams within the mall.

Regrettably, the efforts of city officials to rectify these problems in the years between 2006 and 2009 were ineffective. [ 91 ] Paul Officer began his employment with the City of Elliot Lake in 1981 as a building inspector. He was promoted to Chief of the Fire Department in Elliot Lake, Ontario in 2002, a position he held until his retirement on September 22, 2015. [ 92 ] Mr. Officer described the City of Elliot Lake as having a proactive fire inspection program which mainly concentrated on keeping commercial buildings fire safe. This required the mall to have annual fire inspections.

The annual inspection did not peak Mr. Officer’s interest in the mall in 2006. Rather, it was in response to a complaint by Syl Allard, who was the Chief Building Official for the City of Elliot Lake. [ 93 ] At Tab 1 of Exhibit 43 is a public concern form dated October 23, 2006 which details Mr. Allard’s concerns as follows: Syl called with reference to a property standards complaint at the mall. He said during his inspection at the library and Zellers he noticed the fireproofing material protecting the structural steel has fallen off leaving sections of the beam exposed.

He will be putting an order for them to review all structural steel components, and remedy the leak, he felt the fireproofing was a Fire Code issue. [ 94 ] In Mr. Officer’s view, this was in fact a Fire Code issue. As Mr. Officer indicated in his evidence, “Steel beams are subject to heat - fireproof insulation on steel beams deflect the heat and prevent the beam to get a heat rise which would weaken the beam”. Having fireproofing on the steel beams in the Algo Centre Mall was a big deal. As Mr.

Officer stated, “I wanted the fireproofing material replaced”. [ 95 ] At Tab 2 of Exhibit 43 is a copy of the letter dated November 1, 2006 from Paul Officer to Bob Nazarian, Eastwood Mall Inc., setting out the contraventions of the Ontario Fire Code and requesting that the problem be rectified. [ 96 ] Contemporaneously, Mr. Derreck, the Chief Administrative officer sent a letter to Bob Nazarian, Eastwood Mall Inc., which stated in paragraph one:

Inspections have been completed at the Algo Centre Mall by the City’s Building Property Standards, Fire and Health and Safety officials and that their findings include discovery of conditions that violate various provisions of Provincial Acts and Regulations and of City By- laws regarding the structural integrity of the mall building and the health and safety of tenants and members of the public who visit and shop at the mall. [Emphasis added] (Exhibit 43, Tab 3) [ 97 ] These communications by Mr. Officer and Mr.

Derreck to Eastwood Mall Inc. were responded to by Thomas Turner, General Manager of Eastwood Mall Inc. by letters dated November 13, 2006. The letters set out the plans of Eastwood Mall Inc. to repair the leaks in the roof at the mall. As stated in paragraph three of one of the letters (Exhibit 43, Tab 4): As you are aware, this roof has leaked for the last 25 years and during that time a multitude of methods were used to patch joints and plug holes. Contrary to previous practices, our company has decided to repair the roof completely. As much as we might wish otherwise, this is not an overnight project.

We believe that the end of August 2007 might be a reasonable time to expect completion of the work. [ 98 ] After this communication dated November 13, 2006, Mr. Officer received a letter dated February 22, 2007 from Bruce Caughill, consulting engineer and architect. Mr. Officer knew Mr. Caughill and “held him in high regard”. Mr. Officer was relieved that Mr. Caughill was involved. As Mr. Officer put it in his evidence, “I was happy to hear that name and that he was going to be involved”. [ 99 ] The letter from Mr.

Caughill dated February 22, 2007 to Fire Chief Paul Officer reads, in part: We noted some mechanical damage to fireproofing of steel beams. Further damage occurs under parking deck leaks. The Owner is in the process of a general repair/replace of joint sealants and where leaks persist, attacking them individually. Work was suspended in November by cold weather and will resume as conditions permit. We will be working with Algo Centre Mall on a program of repair of the fire proofing once the sealant process is substantially complete. An overall assessment will be conducted and a report submitted within six months.

Copies of inspection reports will be submitted as they occur. (Exhibit 43, Tab 6) [ 100 ] With this correspondence, Mr. Officer expected the problems in the mall to be rectified after August 2007. Unfortunately that did not occur. By letter dated September 28, 2008, Mr. Caughill copied a letter to Paul Officer that he wrote to Bruce Ewald, CEO of the City of Elliot Lake, indicating that although he promised a report within six months, he “did not perform any inspections and did not submit any reports on this matter”.

As Bruce Caughill stated in his letter dated September 28, 2008, “Our services on this file and other 151 Ontario Avenue improvements were terminated by Eastwood, in a disagreement over payment for services, in July 2007”. [ 101 ] From the evidence it does not appear that Eastwood Mall Inc. notified Mr. Officer or the City of Elliot Lake about the fact that Mr. Caughill was no longer assisting them. From the later events in 2009 it is clear that the owner of Eastwood Mall Inc. did little to rectify the problems in the mall and the Elliot Lake Fire Department did no follow-up between the time Mr.

Caughill was to report (August 2007) to August 2009 to ensure that its concerns about the fireproofing of the steel beams within the mall were addressed. Paul Officer could not offer any explanation about why there was no follow-up by the Elliot Lake Fire Department from 2007 to August 2009. [ 102 ] Sylvester Allard was still the Chief Building official at the time a notice of violation was issued on October 24, 2016 to Eastwood Mall Inc. from the Corporation of the City of Elliot Lake. Prior to that notice being issued, Mr. Allard prepared a report to Tom Derreck, CEO, regarding the library roof leak inspection.

In that report, Mr. Allard notes: This appears to be the first time in the past four years an ongoing leakage problem with the mall roof has been brought to the attention of building department staff for either structural concerns or property standards compliance matters. [ 103 ] In his report to Mr. Derreck, Sylvester Allard comments about the leakage at Zellers, the library and the Northern Reflections store. Mr.

Allard notes in his report: In any of the areas observed, there was nothing seen or mentioned that would lead us to believing the structure is in imminent danger of collapse or for that matter that it is anywhere close to this situation. However, the information that was given, and the fact there is substantial rust in the leak areas is testimony that this is a long-standing and ongoing leakage problem. The concern that this raises is that the continuous entry of water onto the steel structure may have had or may still have an adverse impact on the structural elements and its connection.

To dispel any of these suspicions, a structural review of the leak areas by a professional engineer will be necessary. (Exhibit 42, Tab 1) [ 104 ] As a result of the inspection and investigation completed by the building department, the City of Elliot Lake issued a notice of violation on October 24, 2006 to Eastwood Inc. setting out violations to by-laws numbered 03.29 as follows: VIOLATION :

section 5.(1)(

a) The Roof of a building shall be maintained in a watertight condition so as to prevent leakage of water into the building, and where necessary, shall be maintained by the repair of the roof and flashing or by applying waterproof coatings or coverings. The roof drainage system, where present, shall be kept in good repair, watertight, and free of health and accident hazards. Leakage was observed at various points within the Algo Centre Mall including numerous locations in Zellers, Northern Reflections, and the City of Elliot Lake Public Library.

REMEDY : Carry out repairs of the existing mall roof/parking surface to prevent leakage of water into the building including repairs to the roof drainage system. Within 14 days of receipt of this notice, provide a written description of a repair program that will be undertaken to achieve a watertight roof and include a

schedule outlining the timeframes necessary to have the work completed.

VIOLATION : Structural Capacity – Every part of a building shall be maintained in a structurally sound condition and so as to be capable of sustaining safely its own weight and any load to which it may normally be subjected. Materials that have been damaged or show evidence of dry rot or deterioration shall be repaired or replaced in a workmanlike manner. Water leakage over a long period of time at various locations in the mall has caused extensive rust on structural members and their connections in some areas.

REMEDY : A review by a Professional Engineer of building structural frame in leakage areas must be conducted forthwith and a report certifying the acceptability of the existing condition or the remediation steps necessary to be taken to ensure structural capacity must be provided to the Chief Building Official by December 15, 2006. (Exhibit 42, Tab 2) [ 105 ] It is worthwhile to repeat that the remedy

section of the notice of violation requires a review of the structure by a Professional Engineer and a report with respect to the structural capacity of the mall by December 15, 2006. [ 106 ] Mr. Allard wanted to have a structural review of the mall by a Professional Engineer due to the longstanding and ongoing leakage problem at the mall. Mr. Allard retired at the end of May 2008. He never did get the engineer report for the mall that he was looking for, nor did he get confirmation that the problems identified in the notice of violation dated October 24, 2006 were remedied. It is clear from the evidence of Mr.

Allard that the City of Elliot Lake was derelict in its efforts to monitor and remedy the problems in the mall from 2006 until the City’s next involvement in the fall of 2009. Mr. Allard could not provide any satisfactory explanation why the mall problem was not followed up on. The mall file simply fell through the cracks. 2009 Involvement by the City of Elliot Lake in the Algo Centre Mall [ 107 ] Sylvester Allard was replaced as Chief Building official for the City of Elliot Lake, Ontario in July 2008 by Mr. Ewald. Mr.

Ewald was aware of the notice of violation dated October 24, 2006 and the fact that an engineer’s review of the structural frame in leakage areas required under that notice had not been received by Eastwood Mall Inc. Mr. Ewald did not pursue compliance with the notice of violation further at that point in time. [ 108 ] In August 2009, retrofit work was being done at the mall. This prompted further involvement by both the fire department and the building department into the condition of the mall.

Fire Chief Paul Officer instructed Darren Connors to do a detailed fire inspection of the mall, and as a result a Fire Safety Inspection Report was prepared and dated September 24, 2009 (Exhibit 43, Tab 8). That report indicated that, “The inspection took place to witness damage to fireproofing material on structural steel members and rust on the steel that possibly affect the strength of the beams”. In the report there were eight deficiencies noted which required remedy by the owner of the mall, namely, Eastwood Mall Inc., Bob Nazarian.

The main area of complaint was missing fireproofing from the steel beams noted in the area between the lottery kiosk and the escalator, in the Dollarama store, in the Bargain Shop and in the service corridor behind the Dollarama store. There were other more insignificant deficiencies noted on the Fire Safety Inspection Report such as improper latching of doors and inadequate lighting in the service/exit corridor behind the library. [ 109 ] The Fire Safety Inspection Report also noted that, “The Zellers store was viewed and Mr.

Yakimov indicated they had about thirty leaks in this area and he called them mild leaks”. Under the “Re-inspection Date”

section of the report it states: The owner is requested to provide appropriate documentation satisfactory to the Chief Fire official by October 24, 2009, showing that a building permit has been applied for which will result in work being undertaken to correct the violations. Further, be advised that failure to correct these violations within 3 days of the date as determined by the Chief Building official may result in prosecution. [ 110 ] Bruce Ewald, as the Chief Building official of the City of Elliot Lake was copied with the Fire Safety Inspection Report dated September 24, 2009.

In conjunction with the inspection performed by the Fire Department, Mr. Ewald conducted his own inspection of the mall and prepared an Inspection Report dated September 24, 2009. (Exhibit 46, Tab 3) [ 111 ] Mr. Ewald’s report details evidence of water leakage in several areas of the mall. Mr. Ewald indicated in his evidence that the phrase “evidence of water leakage” in his report refers to the rust on the steel beams that he observed. Mr. Ewald assumed that the steel beam got wet which caused the fireproofing to separate away from the steel. In his inspection report, Mr.

Ewald notes, “Evidence of water leakage on upper level of mall above the lottery ticket booth adjacent to the food court. Missing fireproofing on structural steel members; rust on structural steel.” Mr. Ewald also notes similar water leakage and missing fireproofing from the structural steel above the Dollarama store, above the Bargain Shop, in the service hall behind the Dollarama store and in the service corridor behind the library.

At point number ten of the Inspection Report, it is also noted “evidence of multiple leaks (more than 20) on ceiling tiles in the Zellers store”. [ 112 ] Bruce Ewald testified that as a result of the concerns set out in his inspection report dated September 24, 2009, he felt that the structure of the building needed to be looked at. As a result of this belief, an order to remedy was issued on September 25, 2009 to Eastwood Mall Inc. That order to remedy appears at Exhibit 46, Tab 4.

Such an order is a prescribed document in Ontario’s Building Code Act, 1992 , S.O. 1992, c. 23, and it can result in enforcement if there is non-compliance. As Mr. Ewald stated, such an order has more teeth than a notice of violation, which has no force in law. [ 113 ]

Schedule “A” to the order to remedy refers to the requirements for a structurally sound building, the maintenance of the roof in a watertight condition and the requirement of integrity of all fire separations as set out in various sections of By-Law 03-29. The list of deficiencies set out in

Schedule “A” of the order to remedy are as follows: An inspection has revealed damaged fireproofing materials and/or excessive rust due to long-term water infiltration on structural steel beams in the following areas: (

a) Above the lottery booth adjacent to the food court; (

b) Above the Dollarama store;

(

c) Above the Bargain Shop; (

d) Above the service hall behind the Dollarama; (

e) Above the service corridor behind the library; (

f) Above the main corridor in front of the new mall office.

Further, it was noted that there was evidence of numerous leaks (more than 20) above the Zellers store and evidence of rusted structural components outside, in front of the Foodland and the main entrance to the mall. [ 114 ] Under the remedy section, that is, what is required to deal with the above-noted deficiencies, the document reads as follows: Remedy: The owner shall; Have the entire mall area inspected by a Structural Engineer licenced in the Province of Ontario and correct all deficiencies noted above and any further deficiencies which may be discovered by the engineer in the manner prescribed by the aforementioned engineer.

Obtain a building permit for the required work to be undertaken, pursuant to section 8(1) of the Ontario Building Code Act. [ 115 ] Initially the City of Elliot Lake considered retaining its own engineer to conduct a structural inspection of the mall. That approach was abandoned after Mr. Ewald spoke to Bruce Caughill, who is an architect and engineer. In an email dated September 24, 2009 from Bruce Caughill to Bruce Ewald, Mr. Caughill states: As discussed, the review of this building would be beyond my staff and time capabilities. I called Bob Wood of M.R. Wright Associates to see how they might respond.

I have worked with MRW and Bob Wood on many files over the past 30 years and believe they are the right fit. [ 116 ] Bob Nazarian and Eastwood Mall Inc. ultimately retained Robert Wood of MRW to do the engineering report and Bruce Ewald was satisfied with this given the above-noted comments of Bruce Caughill and the fact that Robert Wood had come “highly recommended” by other engineers that he had spoken to. [ 117 ] Fire Chief Paul Officer, indicated in his evidence that he had discussions about the concerns the fire department had with the fireproofing of the steel beam issue, and Mr.

Wood was responsive to his concerns and undertook to have the deficiencies corrected. As Mr. Officer stated, “It was music to my ears to hear that this was going to be fixed”. Ultimately, Furoy Insulation was retained by the mall to replace the fireproof insulation on the steel beams, and Mark Furoy testified that that work was performed between December 2, 2009 to December 22, 2009. Mr. Furoy was satisfied that the work his company did was up to standards with respect to the application of the fire retardant on the steel beams.

The progress of this work was monitored by the Elliot Lake Fire Department and in its inspection report dated February 1, 2010, it is noted: A re-inspection was conducted on the above-noted date, at which time all infractions from report dated September 24, 2009 were remedied.

Your cooperation has been appreciated. [ 118 ] At that point in time, Paul Officer was satisfied that the difficulty with the fireproofing within the mall previously identified in the Fire Safety Inspection Report dated September 24, 2009 had been remedied. [ 119 ] It was the evidence of Paul Officer that Robert Wood was responsive to his requests and of assistance to him relating to the fire issues at the hotel in the mall. Mr. Officer described Robert Wood as being on the same page as him with respect to safety.

Similarly, Bruce Ewald testified that Robert Wood was responsive to his request for additional fireproofing in the mall. Bruce Ewald testified that as a result of the inspection report dated December 16, 2009 (Exhibit 48, Tab 23) that he spoke to Robert Wood who took care of having the deficiencies corrected and Mr. Ewald was satisfied that the deficiencies were properly corrected. [ 120 ] Ultimately, Robert Wood of MRW produced an engineering report, which is dated October 28, 2009, and to which a detailed reference will be made later in this judgment.

Although the report is referred to as a “draft report” it is clear from the evidence of Bruce Ewald and the evidence of Robert Wood, that the report was intended to be a final report and it was treated as such by both Bruce Ewald and Paul Officer. Bruce Ewald testified that based on the report of Mr. Wood, dated October 28, 2009, he believed that the mall was structurally sound. Paul Officer had the same belief and in fact sent an email dated November 18, 2009 to Fred Bauthus, a councillor in Elliot Lake which read: They have supplied the engineering report from M.R.

Wright that does not have any concerns with the structural components of the building that have been subject to the leaks all these years (Exhibit 43, Tab 9) [ 121 ] Eventually, the City of Elliot Lake was satisfied that the deficiencies identified in the order to remedy dated September 25, 2009 had been addressed by the owner of the mall. In a letter dated February 11

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