Difficult to prove building code was to blame
Susan Lazaruk
Sun
CREDIT: Wayne Leidenfrost, The Province Across B.C., building-envelope failures left condo owners with massive repair bills.
Suing Ottawa for B.C.’s leaky- condo crisis based on a faulty
federal building code would be a tough sell, according to building- envelope engineers and construction lawyers.
John Cummins, MP for Delta-East Richmond, said a 26-year-old memo from the head of Canada Mortgage and Housing Corp. to a federal deputy minister shows that CMHC was concerned the building code’s tough energy-efficiency measures would “increase the hazard of moisture-induced structural damage.”
Mickey Cohen, an Energy Department deputy minister, wrote back to express his concern about linking energy conservation with moisture problems in homes, said Cummins.
“They knew that the building code was the cause” of what led to the leaky-condo problem, Cummins said. “The most compelling issue is if this issue became public, it would undermine the National Energy Program.”
Cummins has written to Housing Minister Joe Montana, asking if the “coverup” extended to withholding the information from a commission into the leaky-condo crisis headed by former B.C. premier Dave Barrett.
Barrett found the federal building code was not responsible for widespread building-envelope failure in Lower Mainland condos.
A CMHC spokeswoman said the agency cannot comment about the case, now before the courts.
Construction lawyers contacted yesterday weren’t aware of any current lawsuits against CMHC but said one Vancouver law firm was looking for a representative plaintiff for a class-action lawsuit.
Suing the CMHC is “a tough claim,” said Vancouver construction lawyer David Miachka, who said there are complicated legal issues to be overcome before a case could be certified.
“It’s very hard to find a building- envelope expert who’s prepared to say [leaky condos are] the building code’s fault,” he said.
Vancouver construction lawyer David Garner agreed “it’s difficult to prove whether it’s a code problem or an implementation of the code” during construction.
But with the liability of most defendants, including municipalities and architects, ruled out for various reasons, the federal government is one of the last avenues available for leaky-condo owners, he said.
David Wismer, a building envelope contractor with Wismer and Mathieson Projects, said, “Personally, I don’t think [a code lawsuit] will go anywhere. The majority of the leaky condos were created by poor workmanship.”
The code hasn’t changed since the Barrett Commission report, and the latest condo boom is being built under the same standards, although municipalities have passed bylaws to require technology better suited to a rainy climate, such as rainscreens.
© The Vancouver Province 2005
